Opinion
CIVIL ACTION NO. 3:17-CV-1588
08-08-2018
ROBERT JOHN ALTAVILLA, Plaintiff v. LARKSVILLE BOROUGH POLICE, OFFICER SHAWN REILLY, OFFICER NICHOLAS RIEBEL and MATT EVANS Defendants
(CAPUTO, J.)
() REPORT AND RECOMMENDATION
This is a pro se civil rights action, initiated upon the filing of the original fee-paid complaint in this matter by Plaintiff Robert John Altavilla (hereinafter referred to as "Altavilla") on September 7, 2017, asserting claims against Defendants Larksville Borough Police, Officer Shawn Reilly, Officer Nicholas Riebel (collectively referred to as the "Police Defendants") and Matt Evans. Presently before the Court are two separate motions filed by the Police Defendants: a motion to dismiss the complaint pursuant to Rule 12 of the FEDERAL RULES OF CIVIL PROCEDURE (Doc. 8), as well as a motion to strike a "Criminal Complaint" filed by Altavilla on the docket on November 6, 2017 (Doc. 20). For the reasons contained in this Report and Recommendation, the Court recommends that the Defendants' motion to dismiss be DENIED as MOOT and that the motion to strike be GRANTED. I. BACKGROUND AND PROCEDURAL HISTORY
The events giving rise to the complaint stem from Altavilla's March 9, 2017 involuntary commitment ("302"), pursuant to section 7302 of the Pennsylvania Mental Health Procedures Act ("MHPA"). (Doc. 1, at 6, 10). Leading up to his 302 commitment, Altavilla contacted the United States Department of Defense ("DoD") on December 18, 2016 and claimed that government lasers were burning him from a satellite. (Doc. 1, at 9-10). Altavilla then provided the DoD with a photograph of his head to demonstrate where the lasers had purportedly burned him. (Doc. 1, at 9). The DoD subsequently contacted the Larksville Police Station on March 9, 2017, and informed Officer Andrew LaBar ("Officer LaBar") of the exchange with Altavilla. (Doc. 1, at 9). After obtaining a copy of the telephone conversation and photograph, Officer LaBar issued a 302 mental health warrant for Altavilla in accordance with the MHPA. (Doc. 1, at 9). Officers LaBar, Riebel, and Reilly then took Altavilla into custody for an emergency mental health evaluation, and transported Altavilla from his home to Wilkes-Barre General Hospital. (Doc. 1, at 9).
To date, Officer LaBar has not been named or properly substituted as a defendant in the instant civil action.
In the complaint, Altavilla alleges that the Police Defendants violated his civil rights when they came to his home and executed the 302 order. (Doc. 1, at 6). When liberally construed, it appears Altavilla claims that the grounds to initiate 302 proceedings were baseless, as he posed no safety threat when the Police Defendants took him into custody. (Doc. 1, at 6). Altavilla thus contends that the Police Defendants unlawfully arrested him without a warrant in violation of the Fourth Amendment to the Constitution. (Doc. 1, at 6-7; Doc. 14). As for relief, Altavilla seeks money damages in the amount of $20,000 from Larksville Borough and the indefinite suspension of the Officers involved in implementing the 302 order. (Doc. 1, at 7, 11).
The Court notes that Altavilla neglected to check the box for either "Diversity of citizenship" or "Federal question" under the "Basis for Jurisdiction" section of the complaint, and thereby failed to assert the Court's jurisdiction on this matter. (Doc. 1, at 3). Upon review of the complaint, it is clear that no diversity of citizenship exists, as Altavilla has not established that the Parties of are diverse citizenship or that the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States."). However, when liberally construed, Altavilla appears to have brought a cause of action pursuant to 42 U.S.C. § 1983 for a violation of his Fourth Amendment rights. (Doc. 49-2, at 13-20; Doc. 49-3, at 1-2). Accordingly, in deference to Altavilla's pro se status, the Court will construe the complaint as having asserted a valid basis for the Court's federal question jurisdiction under 28 U.S.C. § 1331.
The Police Defendants filed the instant motion to dismiss, along with a brief in support, on November 27, 2017. (Doc. 8; Doc. 9). Therein, the Police Defendants contend that Altavilla's complaint should be dismissed for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5) and failure to state a claim pursuant to Rule 12(b)(6). Altavilla filed a brief in opposition on October 18, 2017 (Doc. 14) and the Police Defendants filed a reply brief on October 30, 2017. (Doc. 16). After Altavilla filed a sur-reply brief to the motion to dismiss on November 3, 2017 (Doc. 17), he subsequently filed a "Criminal Complaint" against the Defendants on November 6, 2017. (Doc. 19). On November 14, 2017, the Police Defendants filed a motion to strike the Criminal Complaint under Federal Rule of Civil Procedure 12(f) (Doc. 20; Doc. 21), to which Altavilla filed a brief in opposition on November 30, 2017. (Doc. 22).
Having been fully briefed, these two motions (Doc. 8; Doc. 20) are now ripe for disposition. II. DISCUSSION
A. STANDARD OF REVIEW
"Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Rule 4 of the FEDERAL RULES OF CIVIL PROCEDURE provides the requisite framework for properly serving a summons and complaint. Fed. R. Civ. P. 4. When a plaintiff fails to comply with the procedural requirements of Rule 4, a party may move to dismiss a complaint for "insufficient service of process" under Rule 12(b)(5)of the FEDERAL RULES OF CIVIL PROCEDURE. Fed. R. Civ. P. 12(b)(5); see also McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014 WL 4672493, at *3 (M.D. Pa. Sept. 18, 2014) ("[A] Rule 12(b)(5) motion may be used to challenge the method of service or the lack of service."). Upon asserting a Rule 12(b)(5) challenge, "the party asserting the validity of service bears the burden of proof on that issue." Mitchell v. Theriault, 516 F. Supp. 2d 450, 452 (M.D. Pa. 2007) (quoting Grand Entm't Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir.1993)).
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcrof v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of
pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). A plaintiff must provide some factual grounds for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court of the United States held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
B. MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(5)
The Police Defendants assert that Altavilla's complaint is subject to dismissal for insufficient service of process under rule 12(b)(5) of the Federal Rules of Civil Procedure. (Doc. 9, at 3). Specifically, the Police Defendants contend that service was improper under Fed. R. Civ. P. 4(c)(2), as Altavilla effected service on the Police Defendants himself. (Doc. 9, at 4-5). Federal Rule of Civil Procedure 4(c)(2) provides that "any person who is at least eighteen years old and not a party may serve a summons and complaint." Fed. R. Civ. P. 4(c)(2). Upon review of the record, Altavilla evidently executed the proof of service that was filed with the Court, and indicated therein that he personally served the summons and complaint on the Chief of the Larksville Police. (Doc. 5; Doc. 17, at 2). In addition, Altavilla does not deny that he personally served the complaint on the Police Defendants; rather, he insists that service was sufficient, as he is an "able body adult" and was informed by the United States Marshals Service that he must serve the complaint himself. (Doc. 15, at 3; Doc. 17, at 1-2). Altavilla's contention, however, appears to be based upon a mistaken understanding of the requirements for service under Federal Rule of Civil Procedure 4(c).
Under the Federal Rules of Civil Procedure, service of process must be accomplished by an adult who is not a party to the action. See Fed. R. Civ. P. 4(c)(2). Given that Altavilla initiated the instant civil proceeding against the Police Defendants, he is clearly a party as contemplated under Rule 4(c)(2). Simply stated, "[p]ursuant to Rule 4(c)(2), [Altavilla] cannot be the one personally delivering or personally sending the summons and complaint to effect proper service of process under Rule 4(i), and he cannot be the one executing the Rule 4(l) affidavit of service that will be submitted to the court to prove service—both of these functions must be performed by a non-party who is at least 18 years old." See Dougherty v. Dupes, No. 1:17-CV-01541-JFC, 2018 WL 1696651, at *9 (M.D. Pa. Apr. 6, 2018); see also Avdeef v. Royal Bank of Scotland, P.L.C., 616 F. App'x 665, 672 (5th Cir. 2015) ("[A] party is not permitted to serve process...There is no exception for pro se litigants.") (citations omitted). Based on these facts, Altavilla has failed to meet his burden of demonstrating that the Police Defendants were properly served with the complaint and summons, which warrants dismissal under Fed. R. Civ. P. 12(b)(5) without prejudice.
The state court equivalent under the Pennsylvania Rules of Civil Procedure is substantially similar. See Pa. R. Civ. P. 400(b) (authorizing service of original process by a "competent adult"); Pa. R. Civ. P. 76 (defining "competent adult" as "an individual eighteen years of age or older who is neither a party to the action nor an employee or a relative of a party") (emphasis added).
It is well established that "dismissals under Fed. R. Civ. P ... 12(b)(5) must be entered without prejudice." Umbenhauer v. Woog, 969 F.2d 25, 30 n.6 (3d Cir. 1992); see also Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488-489 (3d Cir.1993) (same); In re S. African Apartheid Litig., 643 F. Supp. 2d 423, 431-32 (S.D.N.Y. 2009) ("Absent perfected service, a court lacks jurisdiction to dismiss an action with prejudice; therefore dismissal pursuant to Rule 12(b)(5) must be without prejudice.").
Nonetheless, the Court recognizes that "district courts possess broad discretion to either dismiss the plaintiff's complaint for failure to effect service or to simply quash service of process." Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). In exercising its discretion, a Court should consider whether "there exists a reasonable prospect that service may yet be obtained." Mitchell v. Theriault, 516 F. Supp. 2d 450, 457 (M.D. Pa. 2007); Umbenhauer, 969 F.2d at 30. Here, Altavilla's failure to properly serve the Defendants appears to have stemmed from his mistaken interpretation of Rule 4(c)(2) of the FEDERAL RULES OF CIVIL PROCEDURE, which has now been outlined with specificity in the instant Report and Recommendation. (Doc. 14; Doc. 15; Doc. 17). While a pro se litigant's "apparent failure to read or understand Rule 4 does not provide good cause for [] lack of [proper] service," Felicetty-Stamm v. Sec'y Dep't of Homeland Sec., 558 F. App'x 189, 191 (3d Cir. 2014), courts are generally "reluctant to dismiss an action where there is a possibility of proper service because dismissal 'needlessly burdens the parties with additional expense and delay and postpones the adjudication of the controversy on its merits.'" Copia Commc'ns, LLC, v. AM Resorts, L.P., No. CV 16-5575, 2017 WL 2656184, at *6 (E.D. Pa. June 20, 2017) (citing Fed. Prac. & Proc. Civ. § 1354).
Accordingly, it is respectfully recommended that service of process be deemed QUASHED, and that Altavilla be granted thirty (30) days to properly effectuate service on the Police Defendants in accordance with Rule 4 of the FEDERAL RULES OF CIVIL PROCEDURE. It is further recommended that the Police Defendants' motion to dismiss pursuant to Rule 12(b)(5) be DENIED as MOOT, without prejudice to the Police Defendants renewing the motion in the event that service continues to be defective.
In their motion, the Police Defendants assert additional grounds for dismissal of the complaint under Fed. R. Civ. P. 12(b)(6). (Doc. 8; Doc. 9). However, as it is evident that Altavilla failed to effectuate proper service on the Police Defendants, the Court lacks personal jurisdiction over the Defendants. See Grand Entm't Grp., 988 F.2d at 492 ("A district court's power to assert in personam authority over parties defendant [sic] is dependent ... on compliance with the technicalities of Rule 4."); see also McCray v. Unite Here, No. CIV. 13-6540 RBK/JS, 2015 WL 1279694, at *3 (D.N.J. Mar. 20, 2015) ("Plaintiff's failure to effect proper service of process means that this Court lacks jurisdiction over these Defendants."); Ritter v. Virtue, No. CIV1:CV-09-1250, 2010 WL 1433130, at *2 (M.D. Pa. Apr. 7, 2010) (granting motion to dismiss under Fed. R. Civ. P. 12(b)(5) for insufficient service of process, and declining to address the Defendant's remaining grounds for dismissal for lack of jurisdiction). As such, the Court declines to address the Police Defendants remaining grounds for dismissal, to the extent that they are not rendered moot.
C. MOTION TO STRIKE PURSUANT TO FED. R. CIV. P. 12(F)
Although the Court recommends that dismissal of the original complaint be denied as moot, since the filing of the Police Defendants' Motion to Dismiss Altavilla has filed a "Criminal Complaint" on the docket (Doc. 19). In this one page pleading, Altavilla seemingly attempts to criminally charge the Police Defendants with alleged violations of his Fourth Amendment civil rights. (Doc. 19; Doc. 22). The Police Defendants now move to strike this pleading from the record pursuant to Federal Rule of Civil Procedure 12(f). (Doc. 20). Specifically, the Police Defendants argue that Altavilla's "Criminal Complaint" is immaterial and impertinent to the instant civil controversy, may cause prejudice or confuse the issues in the case, and is an improper pleading in the context of civil litigation. (Doc. 21, at 2).
Rule 7(a) of the FEDERAL RULES OF CIVIL PROCEDURE narrowly defines "pleadings" as: "(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer." Fed. R. Civ. P. 7(a).
As a preliminary matter, in deference to Altavilla's pro se status, the Court recognizes that the Criminal Complaint names Officer LaBar as a defendant, instead of Matt Evans. (Doc. 19). On October 12, 2017, Altavilla filed a motion to correct the name of Defendant Evans to Officer LaBar (Doc. 10), which the Court denied without prejudice on October 17, 2017. (Doc. 13). Specifically, the Court found that Altavilla had failed to amend the pleading to add a new party in accordance with the procedural requirements under Rule 15 of the FEDERAL RULES OF CIVIL PROCEDURE and Local Rule 15.1. (Doc. 13, at 2). To date, Altavilla has not filed an amended complaint in accordance with the requisite procedures outlined in the Federal and Local Rules of this Court. Thus, even if the Court broadly construed Altavilla's filing of the "Criminal Complaint" as an effort to amend the civil complaint, and thereby substitute Defendant Evans with Officer LaBar, he has failed to comply with the proper procedural rules.
Notwithstanding the aforementioned, Rule 12(f) permits the Court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "The purpose of a motion to strike is to clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters." Natale v. Winthrop Res. Corp., 2008 WL 2758238, at *14 (E.D. Pa. 2008) (internal quotation marks omitted). Immateriality is generally defined as "any matter having no value in developing the issues of a case," In re Catanella & E.F. Hutton & Co., Inc. Sec. Litig., 583 F. Supp. 1388, 1400 (E.D. Pa. 1984), whereas "[i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question." Donnelly v. Commonwealth Fin. Sys., Inc., No. 3:07-CV-1881, 2008 WL 762085, at *4 (M.D. Pa. Mar. 20, 2008) (internal citations omitted). Motions to strike pursuant to Rule 12(f) are generally disfavored "unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case." Natale, 2008 WL 2758238, at *14 (quoting River Road Devel. Corp. v. Carlson Corp., Civ. A. No. 89-7037,1990 WL 69085, at *2 (E.D.Pa. May 23, 1990)).
Here, it appears that Altavilla filed the "Criminal Complaint" in an effort to assert criminal allegations against the Police Defendants, which does not relate, or give rise, to any civil cause of action in the instant case. (Doc. 19). Further, to the extent Altavilla seeks to initiate the criminal prosecution of the Police Defendants in federal court, there is no legal basis for him to do so. Indeed, "'[t]he prosecution of violations of federal criminal law in federal court is a function of the federal government, not private parties...'" Mikhail v. Kahn, 991 F. Supp. 2d 596, 636 (E.D. Pa.), aff'd, 572 F. App'x 68 (3d Cir. 2014) (quoting U.S. ex rel. Nagy v. Patton, No. MISC.A. 11-267, 2012 WL 1858983, at *2 (E.D. Pa. May 22, 2012); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (noting that a "private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). Moreover, " [c]riminal statutes do not provide a basis for civil liability and the Court cannot direct the filing of criminal charges." Fake v. Philadelphia Court of Common Pleas, No. CV 16-3893, 2016 WL 4039654, at *3 (E.D. Pa. July 27, 2016), aff'd sub nom. Fake v. City of Philadelphia, 704 F. App'x 214 (3d Cir. 2017), cert. denied sub nom. Fake v. City of Philadelphia, Pa., 138 S. Ct. 754 (2018) (citations omitted). Accordingly, the Court finds that the "Criminal Complaint" contains immaterial and impertinent matter that may cause prejudice or confusion in the instant civil suit. See DiPietro v. Landis Title Co., No. CIV.A. 11-5110 NLH, 2012 WL 2116404, at *1 n. 2 (D.N.J. June 11, 2012) (granting motion to strike a "verified criminal complaint" as it contained immaterial, impertinent, and scandalous matter, and the pro se plaintiff had no ability to implement criminal charges in a civil cause of action); see also McNeil v. Post, No. 15-CV-478-JHP-PJC, 2016 WL 3033745, at *2 (N.D. Okla. May 26, 2016) (granting motion to strike a "criminal complaint" filed by a pro se litigant, and noting that there was "no legal basis for Plaintiff's criminal allegations to remain on the record" in the civil action); Andrew v. Cty. of Gilpin, No. 10-CV-01456-PAB-KMT, 2010 WL 3341208, at *2 (D. Colo. Aug. 23, 2010) (same).
For the aforementioned reasons, it is respectfully recommended that the Police Defendants' Motion to Strike (Doc. 20) be GRANTED, and that the "Criminal Complaint" filed by Altavilla (Doc. 19) be STRICKEN from the record. III. RECOMMENDATION
Based on the foregoing, it is respectfully recommended:
1. That service of process by Altavilla on the Police Defendants be deemed QUASHED;
2. That the Police Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) and Fed. R. Civ. P. 12(b)(6) (Doc. 8) be DENIED as MOOT, without prejudice to the Police Defendants renewing the motion after Plaintiff is afforded the opportunity to effect service;
3. That Plaintiff Robert John Altavilla be afforded thirty (30) days, following the date of the adoption of this Report and Recommendation, in which to properly effect service of process on the Police Defendants, in accordance with the Rule 4 of the FEDERAL RULES OF CIVIL PROCEDURE. Plaintiff is advised that his failure to do so within the prescribed time limit may result in the dismissal of this action;
4. That the Police Defendants Motion to Strike (Doc. 20) be GRANTED pursuant to Fed. R. Civ. P. 12(f);
5. That the Clerk of Court be directed to STRIKE Plaintiff's "Criminal Complaint" (Doc. 19) in its entirety from the record; and
6. The matter be remanded to the undersigned for further proceedings.
Dated: August 8, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 8, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: August 8, 2018
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge