Humphrey v. Doe

Full title: WALTER HUMPHREY, Plaintiff, v. "JOHN DOE OFFICER ONE," "JOHN DOE OFFICER…

Court: United States District Court, M.D. Pennsylvania

Date published: Apr 20, 2010

1:09-cv-1689 (M.D. Pa. Apr. 20, 2010)

Opinion

1:09-cv-1689.

April 20, 2010

MEMORANDUM

YVETTE KANE, District Judge

Pending before the Court is Defendant Dauphin County's motion to dismiss (Doc. No. 17) and three different motions by Plaintiff Walter Humphrey for leave to file amended complaints (see Doc. Nos. 22, 24, 30). The Court will grant Dauphin County's motion to dismiss and will also allow Plaintiff leave to file his fourth amended complaint.

I. Background

Plaintiff Walter Humphrey, now a prisoner at the Federal Correctional Institution in Tucson, Arizona, filed a civil rights complaint in this Court on August 31, 2009. (Doc. No. 1.) On September 22, 2009, Plaintiff filed his first amended complaint. (Doc. No. 9.) On October 8, 2009, the Court granted Plaintiff's motion to proceed in forma pauperis and directed that Defendants be served with a copy of the complaint. (Doc. No. 14.)

On October 28, 2009, Dauphin County filed its motion to dismiss and brief in support. (Doc. Nos. 17, 18.) On November 23, 2009, Plaintiff filed a motion for extension of time to file a brief in opposition to the motion to dismiss. (Doc. No. 20.) That same day, the Court granted the extension in time to file an opposition brief, and ordered that Plaintiff should have until December 18, 2009, to answer the motion to dismiss. (Doc. No. 21.)

On December 28, 2009, ¹ Plaintiff filed a motion for leave to file a second amended complaint. (Doc. No. 22.) In it, Plaintiff averred that "the proposed Second Amended Complaint sets forth additional facts that adequately respond to the concers [sic] raised in the motion and more accurately present [sic] to the court the controversy between the parties." (Id. at 2.) On December 28, 2009, Plaintiff filed a motion for leave to file a third amended complaint. (Doc. No. 24.) In that amendment, Plaintiff sought to change the identification of Defendant "John Doe Prisoner Transport Company" to TransCor America, LLC, of Nashville, Tennessee. (Id. at 1.) On December 28, 2009, Dauphin County filed responses opposing Plaintiff's motions for leave to amend. (Doc. Nos. 26, 27.) On January 26, 2010, Plaintiff filed a motion for leave to file his fourth amended complaint. (Doc. No. 30.) In it, Plaintiff seeks to replace TransCor America, LLC, with U.S. Prisoner Transport, and to replace the unnamed officers with Officer Carlos Hilerio and Officer R. Serrano. (Id. at 1.) Plaintiff avers that this motion is made on the grounds that he was unaware of these facts until they were disclosed to him during discovery. (Id.) On January 27, 2010, Dauphin County filed a response opposing the motion for leave to amend. (Doc. No. 33.)

1 Plaintiff's second and third amendment complaint are dated December 16, 2009, and December 17, 2009, respectively. Because the Court recognizes there can be a delay with prison mail, the Court will excuse the late filings and deem them timely.

II. Standard of Review

In analyzing a complaint under Rule 12(b)(6), "courts 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quotingPinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). The plaintiff still must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Additionally, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (citation omitted). "This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element."Phillips, 515 F.3d at 234 (internal quotations and citations omitted).

Additionally, pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Pro se litigants are to be granted leave to amend, unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). Such leave is properly declined where the complaint sets forth facts which affirmatively demonstrate that the plaintiff has no right of recovery. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

The Third Circuit has outlined the analysis a district court should undergo in determining whether the pleading standard has been met:

[W]hen presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).

III. Discussion

The Third Circuit Court of Appeals requires that district courts allow plaintiffs in civil rights cases leave to amend their complaints prior to dismissal, unless doing so would be inequitable or futile. Fletcher-Harlee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 252-53 (3d Cir. 2007); Alston, 363 F.3d at 235. Therefore, the Court will examine Dauphin County's motion to dismiss in the context of Plaintiff's most recently proposed amended complaint which, in this case, is his fourth amended complaint. (See Doc. No. 32.)

A. Counts I-IV

In its brief accompanying its motion to dismiss, Dauphin County argues that it cannot be held vicariously liable for Counts I through V of Plaintiff's complaint, because Plaintiff asserts claims "only against the Defendant Officers." (Doc. No. 18 at 1, 4-6.) Specifically, Dauphin County argues that Plaintiff's complaint fails to allege that "any policies, procedures or customs were in place which caused a violation of his rights. . . ." (Id. at 6.)

In examining Plaintiff's fourth amended complaint, Plaintiff avers in Count I that "[o]n or about September 20, 2007, Defendant Dauphin County or Defendant U.S. Transport or Defendant Officers or all Defendants . . . did assume physical custody of Plaintiff from Spartanburg County Sheriff's Department in Spartanburg, South Carolina[,] for extradition to Dauphin County[,] Pennsylvania." (Doc. No. 32 ¶ 7.) Plaintiff further avers that the Defendants "willfully or recklessly or negligently restrained Plaintiff prior to departure from Spartanburg County Jail. . . ." (Id. ¶ 8.) In the remaining paragraphs in Count I, however, Plaintiff asserts that it was the Defendant Officers who heard and ignored his pleas that his restraints were too tight and causing pain. (Id. ¶¶ 9-12.)

Title 42 U.S.C. § 1983 provides a cause of action against persons who, acting under color of state law, deprive a citizen or citizens of the rights, privileges and immunities secured by the Constitution and federal law. 42 U.S.C. § 1983; see also Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). Generally, section 1983 liability cannot be predicated solely on respondeat superior. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978). In a civil rights complaint, a plaintiff must establish an individual claim for relief as to each named defendant. See Thomas v. Independence Twp., 463 F.3d 285, 298 (3d Cir. 2006) (dismissing claims where no allegations were made that defendants were personally involved in the wrongs alleged); see also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs. . . . Allegations of participation or actual knowledge and acquiescence . . . must be made with appropriate particularity.") (citations omitted). In the instant case, Plaintiff names Dauphin County in Count I, but fails to aver specific facts that implicate Dauphin County. Furthermore, to the extent that Plaintiff has asserted that Defendant Officers used excessive force in restraining him and ignoring his pleas for help, those are not claims against Dauphin County. Therefore, the Court will grant Dauphin County's motion to dismiss as to Count I.

Likewise, Counts II through IV incorporate the averments from Count I, and demand judgment against Defendant Officers. Because these counts fail to state a claim against Dauphin County, they will also be dismissed as against Dauphin County.

B. Count V

In Count V, Plaintiff avers that Dauphin County and U.S. Prisoner Transport "failed to adequately train the Defendant Officers" regarding the appropriate amount of force, and that as a result of this failure to train, Plaintiff was injured. (Doc. No. 32 ¶¶ 22-23.) For a municipality or other government entity to be liable under 42 U.S.C. § 1983, a plaintiff must establish: (1) a deprivation of a constitutionally protected right; (2) resulting from a policy, practice, or custom. Monell, 436 U.S. at 691-94. "[T]o establish liability on a failure to train claim under § 1983, plaintiffs 'must identify a failure to provide specific training that has a causal nexus with their injuries and must demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.'"Gilles v. Davis, 427 F.3d 197, 207 n. 7 (3d Cir. 2005) (quotingReitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997)).

Plaintiff has alleged the legal elements of a failure to train claim. However, a plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Twombly, 550 U.S. at 555. Simply put, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Even construing Plaintiff's complaint liberally, the Court is unable to find any factual allegations that "do [any] more than allege the plaintiff's entitlement to relief." See Fowler, 578 F.3d at 210-11; see, e.g., Jones v. Hashagen, No. 4:09-cv-887, 2010 WL 128316, at *4 (M.D. Pa. Jan. 12, 2010) (finding that Plaintiff's conclusion that prison superintendent's "failure to take action to curb [an inmate's] pattern of assaults . . . constituted deliberate indifference" was a conclusory statement and was insufficient for the purposes of defeating a motion to dismiss). As a result, the Court finds that Plaintiff's claim under Count V for failure to train against Dauphin County fails and must be dismissed.

C. Count VI

In Count VI of his fourth amended complaint, Plaintiff claims that Dauphin County "recklessly and with deliberate indifference for the rights of individuals such as Plaintiff set forth and implemented a policy that outsources the transportation of accused individuals to private extradition companies. . . ." (Doc. No. 32 ¶ 26.) Plaintiff avers that "[a]s a direct result of . . . Dauphin County's deliberate indifference for the rights of individuals including Plaintiff, with respect to the municipality's choice to use untrained and unsupervised contract employees to enforce it's [sic] laws, the Plaintiff" was denied his constitutional rights. (Id. ¶ 27.)

As stated earlier, a government entity's § 1983 liability cannot be predicated solely on respondeat superior; instead, a plaintiff "'must identify a policy or custom of the entity that caused the constitutional violation.'" Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 193 (3d Cir. 2009) (quotingA.M. v. Luzerne County Juvenile Det. Ctr., 372 F.3d 572, 580 (3d Cir. 2004). Such a policy or custom is not present where a plaintiff merely alleges that a governmental entity dispatched officers and fails to allege knowledge of any unconstitutional directives by municipal decisionmakers. See McTernan v. City of York, 564 F.3d 636, 658-59 (3d Cir. 2009) ("Because [plaintiff] does not adequately plead a custom or policy, or a link between the challenged restriction and a municipal decisionmaker, the restriction cannot 'fairly be said to represent official policy,' warranting the imposition of municipal liability.") (citations omitted).

The Court finds that Plaintiff has failed to adequately allege a policy or custom as to Count VI. Therefore, Dauphin County's motion to dismiss Count VI will be granted.

D. Count VII

In Count VII of his fourth amended complaint, Plaintiff avers that Dauphin County and U.S. Prisoner Transport conspired to deny Plaintiff of his constitutional rights and that as a result of the conspiracy, Plaintiff was injured. (Doc. No. 32 ¶¶ 30-31.)

In order to maintain an action for civil conspiracy for purposes of § 1983, the Plaintiff must aver "[a] combination of two or more persons to do a . . . criminal act or to do a lawful act by unlawful means or for an unlawful purpose." Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974) (citation omitted); see also Adams v. Teamsters Local 115, 214 Fed. Appx. 167, 172 (3d Cir. 2007).² In order to survive a 12(b)(6) motion to dismiss, Plaintiff is not required to set forth "'detailed factual allegations.'" Phillips, 515 F.3d at 231 (quotingTwombly, 550 U.S. at 555). However, there must be a "'showing,' rather than a blanket assertion of entitlement to relief . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level.'" Id. at 231-32 (quoting Twombly, 550 U.S. at 555, 556 n. 3) (further citations omitted). Therefore, where the existence of a conspiracy is based only on legal conclusions, rather than factual allegations, a plaintiff's complaint fails to meet the pleading standard announced inTwombly and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009).

2 It appears that although Plaintiff cites 42 U.S.C. § 1983(5), (see Doc. No. 32 ¶ 30), Plaintiff may also be raising a conspiracy claim under 42 U.S.C. § 1985(3). However, like a § 1983 claim, a § 1985(3) claim requires a plaintiff to prove that "(1) defendants engaged in a conspiracy, (2) the conspiracy's purpose was to deprive, either directly or indirectly, any person or class of persons of equal protection of the laws or equal privileges and immunities under the laws, (3) defendants committed an act in furtherance of the conspiracy, and (4) defendants' actions resulted in injury to the plaintiff's person or property or a deprivation of the plaintiff's rights or privileges as a United States citizen." See Galvani v. Pennsylvania, No. 1:08-CV-0393, 2008 WL 4821748, at *4 (M.D. Pa. Nov. 4, 2008) (citing Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006)). Much like his § 1983 conspiracy claim, to the extent Plaintiff raises a § 1985(3) claim, he fails to "'raise a right to relief above the speculative level.'"Phillips, 515 F.3d at 232 (quoting Twombly, 550 U.S. at 555).

Here, Plaintiff has done nothing more than allege the legal elements of a conspiracy. Plaintiff does not allege the period, object, or acts taken in furtherance of the conspiracy. Therefore, the claim will be dismissed against Dauphin County.³ See Grigsby v. Kane, 250 F. Supp. 2d 453, 458 (M.D. Pa. 2003) (holding that plaintiff must allege the period, object, and acts taken in furtherance of a conspiracy to defeat a motion to dismiss); Loftus v. Se. Pa. Transp. Auth., 843 F. Supp. 981, 986 n. 8 (E.D. Pa. 1994) (citingBlack Yates, Inc. v. Mahogany Ass'n, Inc., 129 F.2d 227, 231 (3d Cir. 1941) ("A general allegation of conspiracy without a statement of the facts is an allegation of a legal conclusion and insufficient of itself to constitute a cause of action.")).

3 Because the Court finds that Plaintiff fails to state a civil conspiracy claim against Dauphin County in his fourth amended complaint, the Court need not address Defendant's claim that it is immune from liability pursuant to the Pennsylvania Political Subdivision Tort Claims Act. (Doc. No. 18 at 2.)

IV. Conclusion

For the foregoing reasons, Dauphin County's motion to dismiss will be granted. Plaintiff's motion for leave to file his fourth amendment complaint will be granted in part to allow him to add Officer Carlos Hilerio and Officer R. Serrano, who he alleges were responsible for excessive force in the use of restraints, as defendants. Fletcher-Harlee Corp., 482 F.3d at 251 (noting that "in civil rights cases district courts must offer amendment-irrespective of whether it is requested-when dismissing a case for failure to state a claim unless doing so would be inequitable or futile"). However, given this Court's analysis of Plaintiff's proposed fourth amended complaint, the claims against Dauphin County are futile and will be dismissed with prejudice. Additionally, Plaintiff's motion for leave to add U.S. Prisoner Transport as a defendant will be denied based on this Court's analysis regarding the liability of Dauphin County and its finding that such amendment would be futile. An order consistent with this memorandum follows.

ORDER

AND NOW, on this 20th day of April 2010, upon consideration of Defendant Dauphin County's motion to dismiss (Doc. No. 17), IT IS HEREBY ORDERED THAT:

1. Defendant Dauphin County's motion to dismiss (Doc. No. 17) is GRANTED. The claims against Dauphin County are DISMISSED WITH PREJUDICE.

2. Plaintiff's motion for leave to file his fourth amended complaint (Doc. No. 30) is GRANTED IN PART. Plaintiff will be allowed to add Officers Carlos Hilerio and R. Serrano as defendants. Accordingly, the Clerk of Court is directed to serve Officers Carlos Hilerio and R. Serrano with a copy of the complaint.

3. Plaintiff's motions for leave to file his second and third amended complaints (Doc. Nos. 22, 24) are DENIED AS MOOT.

4. Plaintiff's motion to shorten time to answer interrogatories propounded on Dauphin County (Doc. No. 29) is DENIED AS MOOT.

Not Reported in F.Supp.2d, 2008 WL 4821748 (M.D.Pa.)

(Cite as: 2008 WL 4821748 (M.D.Pa.))

H

Only the Westlaw citation is currently available.

United States District Court, M.D. Pennsylvania. Michelle GALVANI, Plaintiff v. Commonwealth of PENNSYLVANIA, District Court Administration for York County, Steven M. Carr, George Swartz, Charles Williams, and Nancy Williams, Defendants. Civil Action No. 1:08-CV-0393.

Nov. 4, 2008.

Michelle Galvani, Hanover, PA, pro se.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

*1 Pro se plaintiff Michelle Galvani ("Galvani") brings this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against the following defendants: (1) the Commonwealth of Pennsylvania, (2) the District Court Administration for York County, (3) Steven M. Carr, Esquire, both in his individual and official capacity, (4) George Swartz, Esquire, both in his individual and official capacity, and (5) Charles and Nancy Williams, plaintiff's parents. With the exception of Charles and Nancy Williams, Galvani seeks to hold each of the defendants liable for violating her Fourteenth Amendment rights to substantive and procedural due process and equal protection, for engaging in behavior that constituted a violation of her Fourth Amendment rights to be free from unreasonable searches and seizures, and for violations of her rights under the Pennsylvania Constitution to due process, equal protection, and the right to be free from unreasonable searches and seizures. Additionally, Galvani alleges that each of the defendants committed the state law torts of false imprisonment, intentional infliction of emotional distress, and invasion of privacy. Presently before the court are four motions to dismiss (Docs.7, 9, 13, 21), each filed on behalf of a separate defendant. For the reasons that follow, all four motions to dismiss will be granted and Gal-vani's claims will be dismissed.

I. Statement of Facts ^FN1

FN1. In accordance with the standard of review for a motion to dismiss, the court will present the facts as alleged in the complaint and in the public records provided by defendants. See infra Part II. The statements contained herein reflect neither the findings of the trier of fact nor the opinion of the court as to the reasonableness of the parties' allegations.

Michelle Galvani is the natural mother of two minor children, identified as A.W. and E.J. The dispute in this case centers around a determination granting partial custody of these children to Galvani's parents, defendants Charles and Nancy Williams ("the Williamses"). In October 2007, the Williamses initiated a custody hearing in the York County Court of Common Pleas, the purpose of which was to seek modification of a child custody order issued January 22, 1999.^FN2 ( See Doc. 9, Exs. 1, 2.) Before the custody hearing, and pursuant to a court directive, defendant Steven M. Carr ("Carr") was appointed conciliator for a pretrial child custody conciliation conference,^FN3 which took place on January 8, 2008. ( Id.) Defendant George Swartz ("Swartz") acted as Galvani's counsel during this conciliation conference. (Doc. 6 ¶ 5; Doc. 9, Ex. 1; Doc. 13.)

FN2. The January 22, 1999 custody order stated that A.W. and E.J.'s "parents would share legal custody, that Mother [Galvani] would have primary physical custody, that Fathers would have rights of partial custody and Grandparents [the Williamses] would have rights of partial custody as set forth therein." (Doc. 9, Ex. 2.)

FN3. The conciliation conference is a pretrial attempt to mediate custody disputes. ( See Doc. 9, Ex. 2.)

When Galvani and the Williamses were unable to resolve their differences at the conciliation conference, an interim custody order was entered pending the outcome of trial.^FN4 (See Doc. 9, Ex. 2.) The order granted temporary joint legal custody to all parties, allowing both Galvani and the Williamses to "share in making decisions of importance" for the children. (Id. at 5.) Physical custody was determined "on a week on/week off basis," meaning that the children alternated week-long stays between Galvani and the Williamses. (Id.) Pursuant to the order, a custody trial was scheduled for March 24, 2008, but the parties were directed to begin immediate mediation with a court-designated mediator. (Id. at 2.) Galvani claims that after this conciliation conference, her children were "seized" from her.^FN5 (See Doc. 6 ¶ 31.)

FN4. The interim custody order was signed by the Honorable Maria Musti Cook, a judge in the Family Division of the York County Court of Common Pleas. (Doc. 9, Ex. 2.) However, the order was "entered as a result of a pre-trial conciliation conference held on January 8, 2008, before Steven M. Carr, Conciliator." (Id.) Thus, it appears from the public record that Judge Cook issued the interim order based upon Carr's recommendation.

FN5. Galvani alleges very few facts in her complaint, making it difficult for the court to reconstruct a timeline of the key events underlying her claims. For example, Galvani's complete description of the January 8, 2008 conciliation hearing is as follows: "Defendant Steven M. Carr acted under color of state law when he seized the minor plaintiffs on January 8, 2008." (Doc. 6 ¶ 31.) This "seizure" comprises the entire basis of plaintiff's Fourth Amendment claim. Viewed in its most favorable light, Galvani's description is woefully incomplete. As a result, the court has supplemented Galvani's recitation of the facts with information contained in the pertinent public records describing the court proceedings at issue in this case. Such records are well within the breadth of information upon which a court may rely in its consideration of a motion to dismiss. See infra Part II.

*2 Although the record is unclear, it appears that Galvani and the Williamses attended a pretrial conference on March 6, 2008 before the Honorable Maria Musti Cook in the Family Division of the York County Court of Common Pleas. (See Doc. 6 ¶ 10; Doc. 9, Ex. 2.) According to Galvani, this hearing resulted in the grant of "an 'Order of Detention' authorizing a third party to care for the minor" children.^FN6 (Doc. 6 ¶ 17.) The custody dispute was then scheduled for trial in May 2008. ( See Doc. 9, Ex. 1.)

FN6. Galvani never explains the precise nature of the alleged "Order of Detention," or against whom it was issued. Additionally, the court has examined the records of the court proceedings submitted by the parties and is unable to discern any additional information regarding this order. However, the docket in the case suggests that the pretrial conference did not alter the interim custody order of January 8, 2008, and merely continued the case for trial. ( See Doc. 9, Ex. 1.)

Galvani filed the instant action on April 2, 2008. ( See Doc. 6.) She alleges that defendants the Commonwealth of Pennsylvania ("the Commonwealth"), the District Court Administration for York County ("York DCA"), Carr, and Swartz infringed her rights by: (1) violating her Fourteenth Amendment rights to substantive and procedural due process, and equal protection; (2) violating her Fourth Amendment right to be free from unreasonable searches and seizures; (3) and violating her state constitutional rights to due process, equal protection, and the right to be free from unreasonable searches and seizures. (Id.) Additionally, Galvani asserts the state law tort claims of false imprisonment, intentional infliction of emotional distress, and invasion of privacy against each of the named defendants. (Id. at 7.) To rectify her alleged injuries, Galvani requests injunctive relief from the January 8, 2008 custody order, the invalidation of certain Commonwealth statutes, which authorized the interim custody order to be issued, and $3,000,000 in damages.

On April 3, 2008, the Commonwealth moved to dismiss the complaint on Eleventh Amendment sovereign immunity grounds. (Doc. 7.) York DCA filed a motion to dismiss on April 15, 2008, also asserting Eleventh Amendment immunity. (Doc. 9.) In the same motion, Carr claimed protection from suit under principles of absolute judicial immunity. (Id.) On April 29, 2008, Swartz filed a motion to dismiss for failure to state a claim under Rule 12(b)(6), and urged the court to abstain from entertaining the matter, or to dismiss it on Rooker-Feldman grounds. (Doc. 13.) Finally, the Williamses filed a motion to dismiss on May 1, 2008, arguing that this court lacked jurisdiction to adjudicate the state law tort claims Galvani asserted against them. (Doc. 21.) Each of these motions to dismiss has been briefed and is ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

*3 Federal notice and pleading rules require the complaint to "give the defendant notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D.Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, ___ U.S. at ___, 127 S.Ct. at 1965). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

Plaintiff brings her constitutional claims pursuant to §§ 1983, 1985(3),^FN7 and 1986 of Title 42 of the United States Code. These sections create no substantive rights, but instead provide a remedy for in fringement of rights created by other federal laws. See Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (discussing § 1983); Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (discussing § 1985); Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (discussing § 1986); see also Adickes v. S.H. Kress Co., 398 U.S. 144, 222 n. 28, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring in part and dissenting in part) (discussing derivative nature of § 1986); Robison v. Canterbury Vill, Inc., 848 F.2d 424, 431 n. 10 (3d Cir. 1988) (same).

FN7. Galvani's complaint does not specify which subsection of 42 U.S.C. § 1985 defendants allegedly violated, but the court assumes she brings her claims under § 1985(3). Subsection 1985(1) applies to conspiracies that interfere with the duties of an officer of the United States, while § 1985(2) prohibits conspiracies intending to obstruct justice and intimidate litigants or witnesses. None of the parties in this matter are federal officers and plaintiff does not allege that defendants obstructed justice or intimidated her or anyone else in their capacity as witness or litigant. Therefore, the court will treat the complaint as asserting a claim under § 1985(3), which provides a remedy for conspiracies to violate civil rights.

Section 1983 offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, or dinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

*4 Id. To establish a claim under this section, the plaintiff must show a deprivation of a "right secured by the Constitution and the laws of the United States . . . by a person acting under color of state law." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatbow, 51 F.3d 1137, 1141 (3d Cir. 1995)).

Section 1985(3) and § 1986 are closely related. Section 1985(3) prohibits conspiracies to deprive "any person or class of persons of the equal protection of the laws, or equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). To establish a prima facie case under § 1985(3), a plaintiff must prove that: (1) defendants engaged in a conspiracy, (2) the conspiracy's purpose was to deprive, either directly or indirectly, any person or class of persons of equal protection of the laws or equal privileges and immunities under the laws, (3) defendants committed an act in furtherance of the conspiracy, and (4) defendants' actions resulted in injury to the plaintiff's person or property or a deprivation of the plaintiff's rights or privileges as a United States citizen. Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006); see also Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Brown v. Philip Morris, Inc., 250 F.3d 789, 805 (3d Cir. 2001).

"Mere conclusory allegations of deprivations of constitutional rights are insufficient to state a § 1985(3) claim." D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1377 (3d Cir. 1992) (quoting Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972)). Rather, the plaintiff must allege the existence of an agreement among defendants, as well as the duration of the conspiracy, its object, and the actions taken in furtherance of it. See Ramsey v. Dintino, Civ. A. No. 05-5492, 2007 WL 979845, at *9 (D.N.J. Mar. 30, 2007) (dismissing § 1985(3) claim for failure to allege existence of an agreement among defendants); Grisby v. Kane, 250 F.Supp.2d 453, 458 (M.D.Pa. 2003) (holding that plaintiff must allege the period, object, and acts taken in furtherance of a conspiracy to prevail on a motion to dismiss); Loftus v. Se. Pa. Transp. Auth., 843 F.Supp. 981, 986 n. 8 (E.D.Pa. 1994) (citing Black Yates, Inc. v. Mahogany Ass'n, Inc., 129 F.2d 227, 231 (3d Cir. 1941) ("A general allegation of conspiracy without a statement of the facts is an allegation of legal conclusion and insufficient of itself to constitute a cause of action.")); Kalmanovitz v. G. Heileman Brewing Co., 595 F.Supp. 1385, 1401 (D.Del. 1984) (requiring particularized allegations of conspiracy), aff'd, 769 F.2d 152 (3d Cir. 1985).

Lastly, § 1986 provides that:

Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in [§ 1985] of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented. . . .

*5 42 U.S.C. § 1986. Thus, a prerequisite to a cognizable § 1986 claim is the existence of a conspiracy prohibited by § 1985. See Robison, 848 F.2d at 431 n. 10; Pearson v. Miller, 988 F.Supp. 848, 859 (M.D.Pa. 1997) ("No claim can be maintained under section 1986 unless a cause of action has been established under section 1985."). Once a § 1985(3) conspiracy is established, § 1986 liability will attach only if a plaintiff demonstrates that the defendant knew about the conspiracy and had the power to prevent it. See Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994); Conroy v. City of Phila., 421 F.Supp.2d 879, 888 (E.D.Pa. 2006).

In the action sub judice, Galvani alleges that each of the named defendants, with the exception of the Williamses, violated her Fourteenth Amendment rights to due process and equal protection, her Fourth Amendment right to be free from unreasonable searches and seizures, and her state constitutional rights to due process, equal protection, and her right to be free from unreasonable searches and seizures. Additionally, Galvani claims that each of the defendants, including the Williamses, committed the state law torts of false imprisonment, intentional infliction of emotional distress, and invasion of privacy. For clarity of discussion, the court will address the claims against each of the defendants separately.

A. The Commonwealth York DCA Defendants

The Eleventh Amendment precludes private federal litigation against a state and its agencies.^FN8 Hans v. Louisiana, 134 U.S. 1, 15-16, 10 S.Ct. 504, 33 L.Ed. 842 (1890); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); Lombardo v. Pennsylvania, 540 F.3d 190, 194-95 (3d Cir. 2008). This is a juris-dictional bar subject to only two exceptions: (1) Congress may specifically abrogate a state's sovereign immunity by exercising its enforcement power under the Fourteenth Amendment, or (2) a state may waive its sovereign immunity by consenting to suit. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). With respect to the first exception, it is well settled that Congress had no intention to abrogate the states' sovereign immunity by enacting § 1983, Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), nor has Congress expressly abrogated Pennsylvania's immunity from suit under § 1985(3), see, e.g., Zelinski v. Pa. State Police, 282 F.Supp.2d 251, 264 (M.D.Pa. 2003), rev'd in part on other grounds, 108 F. App'x 700 (3d Cir. 2004); Breslin v. Brainard, No. 01-CA-7269, 2002 WL 31520480, at *3 (E.D.Pa. Oct. 30, 2002); Seeney v. Kavitski, 866 F.Supp. 206, 209 (E.D.Pa. 1994), aff'd sub nom. Seeney v. Cmty. Action Agency of Del. County, Inc., 107 F.3d 8 (3d Cir. 1997).

FN8. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. CONST. amend. XI.

Furthermore, Pennsylvania has unequivocally withheld its consent to such suits. Section 8521 of Title 42 of the Pennsylvania Code clearly states, "Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States." 42 PA. CONS. STAT. § 8521(b). This statutory language is unambiguous; Pennsylvania elected to retain its sovereign immunity. See Lombardo, 540 F.3d at 196 n. 3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Consequently, Galvani's claims against the Commonwealth are jurisdictionally barred and must be dismissed. Leave to amend this claim will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

*6 Galvani also asserts civil rights violations against the York DCA, which is an office within the York County Court of Common Pleas. (See Doc. 9 ¶ 9; Doc. 10 at 1). More specifically, Galvani seeks to hold the York DCA liable for what she considers the adverse interim custody order that resulted from the conciliation on January 8, 2008. She argues that "the court proceedings [were] motivated by bad faith, and deliberate and selective application and/or omission of State law." (Doc. 6 ¶ 3.)

Under the Pennsylvania Constitution, all Pennsylvania courts are part of a unified judicial system governed pursuant to the general supervisory and administrative authority vested in the Pennsylvania Supreme Court. See PA. CONST. art. V, §§ 1, 2, 10; see also Callahan v. City of Phila., 207 F.3d 668, 672 (3d Cir. 2000); Ludwig v. Berks County, Civ. A. No. 07-2127, 2007 WL 2463306, at *2 (E.D.Pa. Aug. 28, 2007). As part of the unified judicial system, each of the Pennsylvania lower courts and its agencies are arms of the "'Commonwealth government' and thus are state rather than local agencies." Callahan, 207 F.3d at 672. Because it is an integral administrative office within the York County Court of Common Pleas, the York DCA is a state agency within the unified judicial system. Hence, it is immune from suit under the Eleventh Amendment principles described above. See Benn v. First Judicial Dist., 426 F.3d 233, 240-41 (3d Cir. 2005) (holding that when an arm of the unified judicial system is sued, the Commonwealth is the real party in interest). Galvani's claims against the York DCA will be dismissed and leave to amend will be denied. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

B. Steven M. Carr

Certain individuals fulfilling well-established roles within the judicial process are entitled to absolute immunity from § 1983 civil suits. See Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) ("A judicial officer in the performance of his duties has absolute immunity from suit. . . ."); Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001). Judges, testifying witnesses, and prosecutors all enjoy absolute judicial immunity.^FN9 See Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (discussing judges); Briscoe v. LaHue, 460 U.S. 325, 339-41, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) (discussing testifying witnesses); Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (discussing prosecutor's immunity for activities "intimately associated with the judicial process"). In the instant matter, Galvani alleges that Carr, who is a court-appointed conciliator in child custody disputes, violated her rights when he authorized the interim custody order granting partial custody to the Williamses.^FN10 (See Doc. 6.) Galvani's suit charges violations by Carr in both his individual and official capacity. (See id. ¶ 2.)

FN9. The precise scope of immunity for judges, testifying witnesses, and prosecutors is subject to role-specific exceptions that are not important here.

FN10. In addition to her ambiguous claim that Carr "seized" her children, Galvani complains that, after the January 8, 2008 conciliation, Carr made no recommendations for investigation or evaluation, and did not recommend an expedited custody hearing. (See Doc. 12 ¶¶ 82-83.)

*7 The Third Circuit has recognized the inherent sensitivity of child custody proceedings and, relatedly, the special need to protect judicial officers attempting to facilitate these proceedings. See Ernst v. Child Youth Servs. of Chester County, 108 F.3d 486, 496-97 (3d Cir. 1997) (recognizing the heightened need for absolute immunity for official responsibilities in child custody proceedings, where aggrieved parents are "likely to be even more resentful of state interference"). Accordingly, judicial immunity has been extended to cover individuals acting as guardian ad litem, social workers involved in the initiation and prosecution of child custody proceedings, and court-appointed doctors and psychiatrists. See Hughes, 242 F.3d at 127-28 (discussing guardian ad litem and court-appointed doctor and psychiatrist immunity); Ernst, 108 F.3d at 495-97 (discussing social worker immunity). In the context of child custody proceedings, each of these judicial actors is court-appointed, bearing the responsibility of gathering information from the parties involved and reporting that information to the court via professional recommendations. See Hughes, 242 F.3d at 126-28; Ernst, 108 F.3d at 496-97; see also McArdle v. Tronetti, 961 F.2d 1083, 1085 (3d Cir. 1992) (discussing immunity for court-appointed psychiatrists when producing a diagnosis at the court's request); Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (explaining the rationale for guardian ad litem immunity). Absolute immunity for these individuals is necessary so that they can properly perform their responsibilities without fear of litigious reprisal.

The court finds that Carr is entitled to absolute immunity with respect to his court-appointed duties. A conciliator is a court-appointed mediator, attempting to fashion a custody order amenable to all parties prior to a full custody hearing. In this fashion, the conciliator serves as an "arm of the court," akin to the guardian ad litem or court-appointed social workers.^FN11 The conciliator is an integral part of the judicial system, see McArdle, 961 F.2d at 1085 (noting that the determinative question is whether the officers were "functioning as integral parts of the judicial system"), and is tasked with gathering information from the parties in order to exercise an independent judgment, to fairly mediate the parties' claims, and to make recommendations to the presiding judge. Exposing the conciliator to liability would greatly hinder the appropriate exercise of the conciliator's duties and, in all likelihood, render the court-appointed mediation toothless.^FN12 Accordingly, the court finds Carr immune from Galvani's individual capacity claims.

FN11. The conciliator's role is especially similar to the role of court-appointed child psychologists, granted absolute immunity in Hughes v. Long, 242 F.3d 121, 126-28 (3d Cir. 2001). Like the psychologist, the conciliator does not initiate the custody proceedings, and his or her role is limited to making recommendations to the court. In the instant matter, although Carr mediated the conciliation, it was York County Court of Common Pleas judge Maria Musti Cook who issued the interim custody order pursuant to his recommendations.

FN12. Although the Third Circuit has not directly opined on the issue of absolute immunity for child custody conciliators, the Ninth Circuit has recognized such immunity for family court counselors employed by the court. See Meyers v. Contra Costa County Dep't of Soc. Servs., 812 F.2d 1154, 1159 (9th Cir. 1987). Of course, Meyers is not binding upon this court, but its logic is persuasive.

With respect to Galvani's official capacity claims against Carr, those allegations are barred by the Eleventh Amendment. As the Supreme Court has held, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will, 491 U.S. at 71 (internal citations omitted). For the reasons described above, civil suits against the Commonwealth are barred by principles of sovereign immunity. The court finds that Galvani's claims against Carr both in his official and individual capacity must be dismissed. Leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

C. George Swartz

*8 Galvani claims that Swartz, in both his official and individual capacity, participated in the alleged federal and state constitutional violations by failing to cite relevant constitutional law, by failing to follow state regulations for child abuse and neglect, and by failing to protect Galvani's minor children. ( See Doc. 24 ¶¶ 9-13.) At all times relevant to this cause of action, Swartz served as Galvani's personal attorney. It is undisputed that Swartz is privately employed and was privately retained by Galvani to represent her in the child custody dispute. (See Doc. 6 ¶ 5; Doc. 14 at 1.)

The threshold inquiry in a § 1983 cause of action is whether the individual in question acted under "color of state law." See § 1983. This "state action" requirement restricts liability to those instances in which the defendant may fairly be characterized as a state actor. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 928, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see also Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). Although Galvani cursorily alleges that Swartz acted under color of state law, (see Doc. 6 ¶ 5), this allegation misapplies the correct meaning of that phrase. As her privately retained attorney, Swartz was clearly not acting on behalf of the state. Rather, his role in this case was that of an advocate for Galvani's position. Whether Swartz's representation met Gavlani's expectations is simply not a question that the federal courts are entitled to decide under § 1983. Given this fact, Galvani's § 1983 must be dismissed.

Allegations under § 1985(3) need not necessarily arise from state action. See United Bhd. of Carpenters Joiners, Local 610 v. Scott, 463 U.S. 825, 832-34, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983); Griffin, 403 U.S. at 97-102. Purely private conspiracies to deprive an individual of the equal protection of the laws are cognizable in federal court so long as a plaintiff pleads the elements necessary to establish unlawful conspiratorial conduct. See Farber, 440 F.3d at 134 (describing the four necessary elements). In the instant matter, Galvani fails to satisfy this pleading requirement. Instead, her allegations catalogue Swartz's individual failings: failure to cite proper case law, failure to protect her minor children from "seizure," failure to follow state custody regulations, and failure to protect Galvani's personal liberties.^FN13 (See Doc. 24 ¶¶ 9-13.) To the extent Galvani complains about Swartz's individual actions, her claims are not cognizable under § 1985(3) and must be dismissed.^FN14

FN13. Galvani does assert that "Swartz, in concert with other defendants [sic] denied Plaintiff's due process of the LAW." (Doc. 24 ¶ 11.) This blanket statement hardly provides the specificity required by the pleading standard set forth in Twombly, see Twombly, ___ U.S. ___, 127 S.Ct. at 1964-65, 167 L.Ed.2d 929 (requiring that a complaint contain enough factual matter to place the defendant on notice of the claim asserted), and in Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (requiring that a complaint contain enough factual detail to provide adequate notice of the underlying claim).

FN14. By virtue of her failure to state a cognizable § 1985(3) claim, Galvani's claims arising under § 1986 must also fail. See Robison, 848 F.2d at 431 n. 10.

In addition to her federal claims, Galvani asks the court to assume supplemental jurisdiction with respect to those allegations arising from alleged violations of state constitutional law and state tort law. The supplemental jurisdiction statute provides that

in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.

*9 28 U.S.C. § 1367(a). Given that the court has dismissed Galvani's federal constitutional claims, the federal character of her case against Swartz is nonexistent. Although the district court retains the discretion to resolve disputes when only state law claims remain, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Annulli v. Panikkar, 200 F.3d 189, 202 (3d Cir. 1999), the court finds that Swartz's alleged violations of state law are more properly determined in a state tribunal.^FN15 Thus, Galvani's state law claims will be dismissed without prejudice.

FN15. Specifically, given that Galvani's remaining state law claims will require the interpretation of the Pennsylvania Constitution, as well as the application of state tort law, principles of judicial economy weigh heavily in favor of litigating the matter in state court. Additionally, because this matter is in the early pleading stages and discovery has not yet progressed, it will not inconvenience the parties to pursue the state law claims in state court. See Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881, 896, 166 L.Ed.2d 819 (2007) (holding that a district court should weigh considerations of judicial economy, convenience, and fairness to the litigants when all federal claims are dismissed and only state law claims remain).

In sum, the court finds that Galvani has failed to state a claim for relief against Swartz. Therefore, Galvani's claim will be dismissed and leave to amend will be denied as futile. See Grayson, 293 F.3d at 108 (observing that the district court may exercise its discretion to dismiss a claim with prejudice when leave to amend would be futile).

D. The Williamses

Galvani claims that the Williamses "falsely abus[ed] the Family Court process," thereby causing Galvani "emotional injury" and "willfully interfering with the care of [A.W. and E.J.] without just cause." (Doc. 6 ¶ 4.) Although the precise contours of these claims are left unclear by Galvani's complaint, it appears that the intended allegations are in the nature of state law torts, including invasion of privacy, false imprisonment, and intentional infliction of emotional distress. (See id. ¶¶ 59-66, 75-79.) Galvani requests that the court assume supplemental jurisdiction over these state law claims, asserting that her alleged injuries are closely linked to the January 8, 2008 custody hearing at the center of this case.

As stated above, the exercise of supplemental jurisdiction is discretionary. See Carnegie-Mellon Univ., 484 U.S. at 350. With respect to the Williamses, only state law claims are raised and, by virtue of the court's reasoning with respect to each of the other named defendants, all of Galvani's federal claims have been dismissed. Of course, a district court may retain jurisdiction over a cause of action when only state law claims remain. See id.; Annulli, 200 F.3d at 202. However, "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ., 484 U.S. at 350 n. 7. The court finds that given the dismissal of each of Galvani's federal claims, the balance of factors weighs in favor of dismissing the state law claims against the Williamses.^FN16 To the extent that Galvani wishes to pursue her cause of action against the Williamses, a state forum is much more appropriate.^FN17 As a result, the court will dismiss without prejudice Galvani's claims with respect to the Williamses.

FN16. The court's reasoning on this point is in accord with that stated above. See supra note 15 and accompanying text.

FN17. Although the dismissal of Galvani's state law tort claims derives from the court's refusal to exercise supplemental jurisdiction, Younger abstention principles also favor disposition of this matter in state court. See Younger v. Harris, 401 U.S. 37 (1971). Younger abstention is appropriate when "(1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claim." Matusow v. Trans-County Title Agency, LLC, ___ F.3d ___, 2008 WL 4590683, at *6 (3d Cir. Oct. 16, 2008) (quoting Marran v. Marran, 376 F.3d 143, 154 (3d Cir. 2004)). The allegations Galvani lodges against the Williamses ostensibly sound in tort. However, her claims, which allege "injuries" arising from the interim custody order of January 8, 2008, are nothing more than a transparent attempt to circumvent the proceedings of the York County Court of Common Pleas Family Division. According to her allegations in the record, the "injuries" Galvani claims to have suffered are no different than the "injuries" any parent would suffer by virtue of an adverse custody decision. There are sound reasons guiding Pennsylvania's policy allowing interested parties to challenge parental custody and it is up to the Family Division to apply these policies in individual circumstances. Displeasure with the Family Division, without more, simply does not supply the aggrieved with a oneway ticket to federal court. To the extent that Galvani objects to the conclusions of the Family Division, the state appellate courts are capable of adjudicating those objections.

IV. Conclusion

*10 For the foregoing reasons, the court will grant defendants' motions to dismiss (Docs.7, 9, 13, 21).

An appropriate order will issue.

ORDER

AND NOW, this 4th day of November, 2008, upon consideration of the defendants' motions to dismiss (Docs.7, 9, 13, 21) plaintiff's complaint (Doc. 6), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. The motion to dismiss (Doc. 7) is GRANTED. All claims against the Commonwealth of Pennsylvania are DISMISSED.

2. The motion to dismiss (Doc. 9) is GRANTED. All claims against the District Court Administration for York County and Steven M. Carr, Esquire, are DISMISSED.

3. The motion to dismiss (Doc. 13) is GRANTED. All claims against George Swartz, Esquire, are DISMISSED.

4. The motion to dismiss (Doc. 21) is GRANTED. All claims against Charles and Nancy Williams are DISMISSED.

5. The Clerk of the Court is directed to CLOSE this case.

M.D.Pa., 2008.

Galvani v. Pennsylvania

Not Reported in F.Supp.2d, 2008 WL 4821748 (M.D.Pa.)

Slip Copy, 2010 WL 128316 (M.D.Pa.)

(Cite as: 2010 WL 128316 (M.D.Pa.))

Only the Westlaw citation is currently available.

United States District Court, M.D. Pennsylvania. Christopher JONES, Plaintiff, v. C.O. HASHAGEN, et al., et. al., Defendants. No. 4:09-CV-887. Jan. 12, 2010.

Christopher Jones, Frackville, PA, pro se.

Laura J. Neal, Office of Chief Counsel, Camp Hill, PA, for Defendants.

MEMORANDUM

JAMES McCLURE JR., District Judge

INTRODUCTION:

*1 On May 11, 2009, plaintiff Christopher Jones, a state inmate now residing at the State Correctional Institution at Mahanoy ("SCI-Mahanoy"), proceeding pro se, commenced this action by filing a complaint under 42 U.S.C. § 1983. (Rec.Doc. No. 1). At the time during which the events relevant to the instant action occurred, the plaintiff was a state inmate incarcerated at the State Correctional Institution at Dallas ("SCI-Dallas"). In his complaint, plaintiff named as defendants SCI-Dallas Corrections Officers Hashagen and Linhart,^FN1 Unit Manager Joseph Semon, Superintendent Michael D. Klopotoski, and a Dr. Dempsey.

FN1. Defendants Hashagen, Semon, and Klopotoski claim that Corrections Officer Linhart, who apparently has been neither identified nor served, was improperly named as a defendant in this matter. Magistrate Judge Carlson did not address this issue in his Report and Recommendation, and the plaintiff has not objected to this contention by the defendants.

BACKGROUND:

Plaintiff asserts that his federally-protected rights were violated by the above defendants when he was assaulted by another inmate at SCI-Dallas on February 5, 2008. Plaintiff alleges that, as he was leaving his cell, fellow inmate Woodrow Mitchell, from the cell block's top tier, threw a television at the plaintiff that struck him on the head. Plaintiff claims that Mitchell returned to his cell to retrieve hot water, which he subsequently threw onto the plaintiff, who was now lying on the floor. Plaintiff also alleges that Mitchell returned to his cell for a second time, only to return with another object that he threw at plaintiff, which struck the plaintiff on his elbow and shoulder. Plaintiff eventually received treatment at both an outside hospital and the prison's infirmary.

On February 12, 2008, pursuant to Department of Corrections Administrative Directive 804 ("DOC-ADMIN 804"), the plaintiff filed a grievance with the prison's unit manager, Joseph Semon. This grievance was denied. Next, plaintiff filed an appeal with Superintendent Klopotoski, who denied the plaintiff's appeal on March 28, 2008. Finally, prison officials dismissed the plaintiff's final appeal on May 12, 2008, because of its being filed in an untimely manner. Plaintiff claims that this final appeal was in fact timely, as he alleges that he was not provided with the Superintendent's denial of his appeal until April 17, 2008.

On May 11, 2009, plaintiff filed his pro se complaint against defendants Hashagen, Linhart, Semon, Klopotoski, and Dempsey. (Rec.Doc. No. 1). The matter initially was assigned to Magistrate Judge Mannion, though it eventually was reassigned to Magistrate Judge Carlson. (Rec.Doc. No. 14). On August 24, 2009, defendants Hashagen, Semon, and Klopotoski ("Corrections Defendants") filed a motion to dismiss. (Rec.Doc. No. 13). On September 8, 2009, the Corrections Defendants filed a brief in support of their motion to dismiss. (Rec.Doc. No. 16). Plaintiff Jones filed a brief in opposition to the Corrections Defendants' motion to dismiss on September 29, 2009. (Rec.Doc. No. 17).

Magistrate Judge Carlson filed a twenty-one page Report and Recommendation on September 30, 2009. (Rec.Doc. No. 18). First, in his Report and Recommendation, Magistrate Judge Carlson recommended dismissal of the plaintiff's claims against the Corrections Defendants to the extent that those claims seek damages from the defendants for acting in their official capacities. Id. at 19. Second, the magistrate judge recommended that the claim against Superintendent Klopotoski be dismissed for failure to state a claim upon which relief can be granted.^FN2 Third, the magistrate judge recommended denial without prejudice of that portion of the Corrections Defendants' motion which sought dismissal of the plaintiff's complaint based upon the failure to exhaust administrative remedies. Id. at 20.

FN2. The magistrate judge recommended that this dismissal be without prejudice to the plaintiff, in order for the plaintiff to be provided leave to amend his complaint within thirty (30) days of our entry of an order adopting the magistrate judge's Report and Recommendation. Id. at 19-20.

*2 On November 11, 2009, the plaintiff filed a document in which he objected to the magistrate judge's Report and Recommendation on two grounds. (Rec.Doc. No. 23). First, the plaintiff disputes the magistrate judge's conclusion that the plaintiff failed to state a claim as to Superintendent Klopotoski upon which relief can be granted. Id. at 2. The plaintiff claims that he properly alleged, in his brief opposing the Corrections Defendants' motion to dismiss, that the inmate who injured him "had a pattern of assaults which . . . Superintendent's [sic] in which he is housed would be aware of," and that, as such, "the risk was known or should have been known to the defendants including Klopotoski." Id. at 2. Second, the plaintiff claims that the magistrate's decision not to consider evidence presented by the plaintiff regarding the exhaustion of remedies was improper; instead, the plaintiff argues that "[t]he matters presented . . . merely clarifies [sic] the facts presented in the pro se complaint." Id. at 3.

Upon our review of the complaint and documents in the case, which include the Report and Recommendation and the plaintiff's objections to this Report and Recommendation, as well as applicable law, we agree with the magistrate judge's thorough analysis and recommendations. As such, we will adopt the magistrate judge's Report and Recommendation in full. (Rec.Doc. No. 18). Therefore, we will dismiss plaintiff's claims against the Corrections Defendants that seek damages based upon those defendants' actions undertaken in their official capacity and dismiss without prejudice plaintiff's complaint against Superintendent Klopotoski for failure to state a claim upon which relief can be granted. In addition, we will deny without prejudice the Corrections Defendants' motion to the extent that it seeks dismissal of plaintiff's claims for failure to exhaust administrative remedies.

For the purposes of judicial economy, we will not rehash the sound reasoning employed by the magistrate judge. Instead, we will respond to only those objections to the magistrate judge's Report and Recommendation properly raised by the plaintiff.

DISCUSSION:

A district court reviews de novo those portions of a magistrate judge's Report and Recommendation to which a party objects. See Middle District Local Rule 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

1. The Magistrate Judge's Conclusion That Plaintiff's Claim Against Superintendent Klopotoski Fails To State A Claim Upon Which Relief Can Be Granted Plaintiff's first objection to the magistrate judge's Report and Recommendation pertains to the recommendation that plaintiff's claim against Superintendent Klopotoski be dismissed. More specifically, the magistrate judge dismissed this claim without prejudice, recommending that the plaintiff be "granted leave to amend his complaint to address the deficiencies identified in this report and recommendation . . . by amending the complaint within 30 days of the entry of an order adopting this report and recommendation." (Rec. Doc. No. 18 at 19-20). In his objections, plaintiff contends that dismissal would be inappropriate, as facts he alleges in his brief opposing the Corrections Defendants' motion to dismiss show that a risk of assault on the part of inmate Mitchell "was known or should have been known to these defendants including Klopotoski." (Rec. Doc. No. 23 at 2).

*3 When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D.Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "shown" — "that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950, citing Fed.R.Civ.P. 8(a).

The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.

*4 We agree with the magistrate judge that the plaintiff's complaint fails to make out a claim against Superintendent Klopotoski. As the magistrate judge rightly points out, the complaint is nearly devoid of factual averments pertaining to Superintendent Klopotoski, with the few factual references by plaintiff to the superintendent being the claim that "[o]n 3/28/08 Defendant Klopotoski rendered a decision on Plaintiff's appeal upholding Defendant Semon's undated response" and plaintiff's reference to "Defendant Klopotoski's 4/17/08 response to Plaintiff's request concerning the status of his grievance appeal. . . ." (Rec. Doc. No. 1 at 7). As the Court of Appeals for the Third Circuit has made clear, "'[d]eliberate indifference is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety." Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.Pa. 2001). The allegations in the plaintiff's complaint simply cannot support his Eighth Amendment claim that Superintendent Klopotoski acted with deliberate indifference to the plaintiff's health or safety.

Plaintiff's conclusion that the superintendent's "failure to take action to curb Inmate Mitchell's pattern of assaults, known or should have been known to [him], [and] constituted deliberate indifference" is similarly unavailing. Id. at 8. Such a statement is the type of conclusory statement and threadbare recital of an element of a claim that the United States Supreme Court in Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) found to be insufficient for the purposes of defeating a motion to dismiss.

For the above reasons, we agree with the magistrate judge that, based upon the plaintiff's complaint in its present form, the plaintiff has failed to state a claim upon which relief can be granted as to defendant Superintendent Klopotoski. We similarly will adopt the magistrate judge's recommendation that the complaint as to Superintendent Klopotoski be dismissed without prejudice, in order that the plaintiff be allowed the opportunity to amend his pleadings to comply with the dictates of Rule 12(b)(6).

2. The Magistrate Judge's Failure To Consider Matters Beyond the Plaintiff's Pleading On A Motion To Dismiss For Failure to Exhaust Administrative Remedies

The plaintiff's second objection to the magistrate judge's Report and Recommendation stems from the Corrections Defendants' contention that the plaintiff has failed to exhaust administrative remedies and, therefore, dismissal of the complaint is warranted. Plaintiff claims that "the matters the Magisatrate [sic] considers outside the complaint are, in fact, merely clarifications of information provided in the complaint regarding the exhaustion of administrative remedies." (Rec. Doc. No. 23 at 2-3). In addition, plaintiff notes that the allegations in his complaint pertaining to exhaustion of remedies intimate "that those responsible for timely delivery of decisions during the exhaustion of remedies process, did not, rendering the remedy unavailable, however, Plaintiff promptly proceeded and was subsequently rejected on timeliness on his final appeal." Id. at 3.

*5 With this objection, the plaintiff appears to disagree with the magistrate judge's denial of the Corrections Defendant's motion to dismiss for failure to exhaust administrative remedies. In his denial of the motion to dismiss for failure to exhaust administrative remedies, the magistrate judge noted that this aspect of the motion, as well as plaintiff's brief, "invite the Court to consider matters outside the pleadings, a task which falls beyond the reach of a Rule 12 motion to dismiss." (Rec. Doc. No. 18 at 20). Namely, there remains a factual dispute as to when the plaintiff received Superintendent Klopotoski's denial of the plaintiff's appeal; while the Corrections Defendants point to the fact that the plaintiff's appeal to the Secretary's Office of Inmate Grievances and Appeals was denied as untimely (Rec. Doc. No. 16 at 4), the plaintiff claims that he only received the denial of appeal from Superintendent Klopotoski on April 17, 2008 (Rec. Doc. No. 17 at 4). A determination of such a factual dispute is improper at the motion to dismiss stage. See Hishon, 467 U.S. at 73 (noting that, for the purposes of ruling on a motion to dismiss, the Court "must accept petitioner's allegations as true").

In light of the above, we conclude that the magistrate judge was correct in recommending the denial without prejudice of the Corrections Defendants' motion to dismiss for failure to exhaust administrative remedies.

ONCLUSION:

Pursuant to our reasoning above, we will adopt the magistrate judge's Report and Recommendation. (Rec.Doc. No. 18). First, we will adopt the magistrate judge's recommendation that dismissal of the plaintiff's claims against the Corrections Defendants is warranted to the extent that those claims seek damages from the defendants acting in their official capacities; we agree with the sound reasoning of the magistrate judge, and the plaintiff has not objected to that aspect of the magistrate judge's Report and Recommendation. Second, the plaintiff's claims against Superintendent Klopotoski will be dismissed without prejudice. As such, the plaintiff is free to amend his complaint within 30 days of the entry of the Order accompanying this Memorandum so that he may address those deficiencies in his complaint as noted in the magistrate judge's Report and Recommendation. Third, the Corrections Defendants' motion to dismiss for failure to exhaust administrative remedies is denied without prejudice.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, United States Magistrate Judge.

I. Statement of Facts and of the Case.

This is a civil rights action brought by Christopher Jones, a state inmate, seeking damages and other relief as a result of an alleged Eighth Amendment violation relating to the failure of prison staff to protect Jones from assault by a fellow inmate. With respect to this complaint, the well-pleaded facts are as follows:

On February 5, 2008, the plaintiff, Christopher Jones, was a state inmate housed at the State Correctional Institution (SCI) Dallas. (Complaint ¶ 13.) On February 5, as Jones was leaving his cell and proceeding to the guards' desk, another inmate, Woodrow Mitchell, threw a television set from the top tier of the cell block, striking Jones on the head and rendering him unconscious. (Complaint ¶ 15.)

*6 Inmate Mitchell then re-entered his cell and emerged with hot water which he also threw on Jones as he lay prone on the cell block floor. (Complaint ¶ 16.) Following this second assault, Mitchell retreated to his cell, and recovered another object which he threw at Jones, striking him on the shoulder and elbow. (Complaint ¶ 17.) Correctional Officers Hashagen and Linhart were on duty in the cell block when this incident occurred, and witnessed the assault. (Complaint ¶¶ 18 and 19.) While the correctional officers did not attempt to physically subdue inmate Mitchell during this assault, they ordered Mitchell into his cell and locked him in the cell. (Complaint ¶¶ 18 and 19.)

Prison officials then responded to the scene, transported Jones to the infirmary and treated his injuries. (Complaint ¶¶ 20, 21.) Jones was later taken to a local hospital where he received additional medical treatment before he was returned to the prison infirmary. (Complaint ¶¶ 21-23). After being treated at the infirmary Jones was released back into general population but was medically confined to his cell until February 12, 2008. (Complaint ¶ 24.). Jones continued to receive treatment for his injuries, in the form of prescription pain relievers, until February 18, 2008. (Complaint ¶ 25.)

Dissatisfied with the prison's response to this incident, Jones submitted a grievance to the prison unit manager, Joseph Semon, on February 12, 2008. (Complaint ¶ 27.) At the time of this incident the administrative remedies for inmate grievances were provided for in Department of Corrections Administrative Directive 804 ("DC-ADM 804").

The Department of Corrections' grievance system was a three-tiered system. Pursuant to DC-ADM 804, the first step in the inmate grievance process is an initial review. An inmate must submit a grievance within 15 working days of the event on which the grievance is based. (DC-ADM 804(VI)(A)(8).) An inmate who was dissatisfied with the initial review decision is permitted to appeal to the Facility Manager within 10 working days of the date of the initial review decision. (DC-ADM 804(VI)(C)(1)(b).) At a state correctional institution, the Facility Manager was the institution's Superintendent. (DC-ADM 804(IV)(G).) An appeal to final review could be sought through the Secretary's Office of Inmate Grievances and Appeals ("SOIGA") by filing an appeal to that office within 15 working days of the date of the Facility Manager's decision. (DC-ADM 804(VI)(D)(1)(b).) Extensions to these deadlines could be granted at the discretion of the agency if the inmate submitted a written explanation for a failure to timely file the grievance or an appeal. (DC-ADM 804(VI)(B)(3), (VI)(C)(2)(a), (VI)(D)(1)(c).) (Defendant's Motion to Dismiss, brief at 9.)

Jones' February 12, 2008 grievance to unit manager Semon constituted the first step in this three-step grievance process. Shortly after Jones submitted this grievance, Unit Manager Semon responded to Jones' complaint in an undated communication. In this response Semon advised Jones that he concluded that correctional staff came to Jones' aid as quickly as they reasonably could, and denied Jones' grievance claims. (Complaint ¶ 27). Jones then took the second step in the grievance process by appealing this decision to Warden Klopotoski, who also denied his grievance on March 28, 2008. (Complaint ¶ 28.) Jones' complaint then recites that his final appeal to the Office of Inmate Grievances was dismissed by prison officials on May 12, 2008 as untimely. (Complaint ¶ 29.) While acknowledging this fact in his complaint Jones appears to dispute this Department of Corrections finding that his final appeal was untimely, alleging that he did not receive the warden's denial of his grievance until April 17, 2008. (Complaint ¶ 30.)

*7 One year later, on May 11, 2009, Jones filed a pro se complaint against five defendants: Correctional Officers Hashagen and Linhart, Unit Manager Semon, Warden Klopotoski, and the prison treating physician, Doctor Dempsey. (Doc. 1) Jones' complaint sought damages and other relief from the defendants in their individual and official capacities, alleging that the prison response to this inmate assault upon him rose to the level of deliberate indifference to the plaintiff's safety in violation of the Eighth Amendment to the United States Constitution. (Doc. 1.)

On August 24, 2009, defendants Hashagen, Semon and Klopotoski filed a motion to dismiss in this case. (Doc. 13.) That motion was briefed by the defendants on September 8, 2009. (Doc. 16.) In this motion, the defendants present three arguments. First, the defendants contend that Jones failed to exhaust administrative remedies, and therefore is barred from pursuing this case in federal court by 42 U.S.C. § 1997e. Second, the defendants contend that Jones' complaint should be dismissed to the extent that it seeks damages from state officials in their official capacity. Finally, the defendants assert that Jones' complaint fails to state a valid Eighth Amendment cause of action against Warden Klopotoski.

On September 29, 2009, Jones filed a response to this motion. (Doc. 17). Therefore, the motion is now ripe for resolution by the Court.

Accordingly, upon consideration of this motion, it is recommended as follows:

First, to the extent that Jones seeks damages from state officials acting in their official capacity, the complaint should be DISMISSED since the plaintiff is barred from obtaining such relief by constitutional and statutory constraints.

Second, in its current form, the Plaintiff's complaint against Warden Klopotoski fails to state a valid cause of action under the Eighth Amendment and should be DISMISSED for failure to state a claim upon which relief can be granted without prejudice to the plaintiff being granted leave to amend his complaint to address the deficiencies identified in this report and recommendation, provided that he does so without undue delay, by amending the complaint within 30 days of the entry of an order adopting this report and recommendation.

Third, with respect to the defendants' motion to dismiss for failure to exhaust administrative remedies, that motion and Jones' response, invite the Court to consider matters outside the pleadings, a task which falls beyond the reach of a Rule 12 motion to dismiss. Therefore, this aspect of the defendants' motion should be DENIED without prejudice to the filing of any appropriate motions for summary judgment on this issue pursuant to Rule 56 of the Federal Rules of Civil Procedure.

II. Discussion A. Rule 12(b)(6)-The Legal Standard.

Defendants Hashagen, Semon and Klopotoski have filed a motion to dismiss this complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6), which governs motions to dismiss like the motion lodged in this case, provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for assessing the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has recently described the evolving standards governing pleading practice in federal court, stating that:

*8 Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (12007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 2009 WL 2501662, at 7 (3d Cir. August 18, 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, Inc., 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." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), in order to state a valid cause of action 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 actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id. In keeping with the principles of Twombly, the Supreme Court recently underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. at 1937, 173 L.Ed.2d 868 (2009), the Supreme Court 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." Id. at 1950. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

*9 Id. at 1950.

Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 2009 WL 2501662, at 8 (3d Cir. August 18, 2009).

In our view, these heightened pleading standards apply to all aspects of the Court's threshold analysis of a complaint's legal sufficiency. Thus, we will apply this analysis both when assessing the adequacy of the factual assertions set forth in the complaint, in deciding whether exhaustion requirements are met and when examining whether the complaint states a valid cause of action against the various named defendants in their individual and official capacities. Conducting this threshold legal analysis we find that Jones' complaint deficient on a number of grounds and recommend that Jones' claims be dismissed without prejudice to allowing Jones to attempt to timely amend and correct his pleadings.

B. The Defendants' Motion to Dismiss for Failure to Exhaust Administrative Remedies, and Jones' Response to that Motion, Raise Issues Outside the Pleadings Which May Not be Resolved on the Pleadings Through a Rule 12 Motion to Dismiss

At the outset, in their motion the defendants allege that Jones defaulted on procedural deadlines in the course of his prior prison grievance proceedings. According to the defendants, Jones did not timely pursue the inmate grievance process provided for by the Department of Corrections, as required by state prison policies. This procedural default may have substantive significance for Jones since the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) now provides that "[n]o action shall be brought with respect to prison conditions under . . . [ 42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."

Section 1997e's exhaustion requirement applies to a wide-range of inmate complaints, including damages complaints like those made by Jones grounded in alleged violations of the Eighth Amendment. See Spruill v. Gillis, 372 F.3d 218 (3d. Cir. 2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). While this exhaustion requirement is not a jurisdictional bar to litigation, this requirement is strictly enforced by the courts. This rigorous enforcement is mandated by a fundamental recognition that § 1997e's exhaustion requirement promotes important public policies. As the United States Court of Appeals for the Third Circuit has noted:

*10 Courts have recognized myriad policy considerations in favor of exhaustion requirements. They include (1) avoiding premature interruption of the administrative process and giving the agency a chance to discover and correct its own errors; (2) conserving scarce judicial resources, since the complaining party may be successful in vindicating his rights in the administrative process and the courts may never have to intervene; and (3) improving the efficacy of the administrative process. Each of these policies, which Congress seems to have had in mind in enacting the PLRA, is advanced by the across-the-board, mandatory exhaustion requirement in § 1997e(a). . . . [A] a comprehensive exhaustion requirement better serves the policy of granting an agency the "opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court." Moreover, "even if the complaining prisoner seeks only money damages, the prisoner may be successful in having the [prison] halt the infringing practice" or fashion some other remedy, such as returning personal property, reforming personal property policies, firing an abusive prison guard, or creating a better screening process for hiring such guards. And when a prisoner obtains some measure of affirmative relief, he may elect not to pursue his claim for damages. In either case, local actors are given the chance to address local problems, and at the very least, the time frame for the prisoner's damages is frozen or the isolated acts of abuse are prevented from recurring. An across-the-board exhaustion requirement also promotes judicial efficiency. . . . Moreover, even if only a small percentage of cases settle, the federal courts are saved the time normally spent hearing such actions and multiple appeals thereto. . . . In cases in which inmate-plaintiffs exhaust their remedies in the administrative process and continue to pursue their claims in federal court, there is still much to be gained. The administrative process can serve to create a record for subsequent proceedings, it can be used to help focus and clarify poorly pled or confusing claims, and it forces the prison to justify or explain its internal procedures. All of these functions help courts navigate the sea of prisoner litigation in a manner that affords a fair hearing to all claims.

Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000) (citations omitted)

Because of the important policies fostered by this exhaustion requirement, it has been held that there is no futility exception to § 1997e's exhaustion requirement. Id. Instead, courts have typically required across-the-board administrative exhaustion by inmate plaintiffs who seek to pursue claims in federal court.

Moreover, courts have also imposed a procedural default component on this exhaustion requirement, holding that inmates must fully satisfy the administrative requirements of the inmate grievance process before proceeding into federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Applying this procedural default standard to § 1997e's exhaustion requirement, courts have concluded that inmates who fail to fully complete the prison grievance process are barred from subsequently litigating claims in federal court. See, e.g., Bolla v. Strickland, 304 F. App'x. 22 (3d Cir. 2008); Jetter v. Beard, 183 F. App'x. 178 (3d Cir. 2006); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). This broad rule, however, admits of at least one recognized exception. If the actions of prison officials in some fashion caused the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d. Cir. 2000)

*11 Defendant's contend that, on its face, Jones' complaint runs afoul of this exhaustion requirement. Citing a passage in Jones' complaint, which states that his final grievance appeal to the Office of Inmate Grievances was dismissed by prison officials on May 12, 2008 as untimely, (Complaint ¶ 29.), the defendants now argue that Jones' procedural default compels dismissal of the complaint for failure to exhaust administrative remedies.

Jones has responded to this exhaustion claim by referring to a cryptic assertion in his complaint which disputed the Department of Corrections finding regarding the untimeliness of his administrative appeal. (Complaint ¶ 30.) In his response to this motion to dismiss Jones further explains that he can show that his final administrative appeal was, in fact, timely, and that prison officials caused his delay in grieving this matter by failing to promptly deliver the warden's response to Jones in March and April of 2008.

In its present posture, the defendants' motion and Jones' response take this Court beyond the pleadings in this case and refer to other factual matters. These facts may be undisputed but they are not before the Court at present, and a Rule 12 motion limits our consideration of the merits of a claim to the pleadings. Since the defendants' motion to dismiss for failure to exhaust administrative remedies, and Jones' response, invite the Court to consider matters outside the pleadings, a task which falls beyond the reach of a Rule 12 motion to dismiss, this aspect of the defendants' motion should be denied at this time without prejudice to the filing of any appropriate motions for summary judgment on this issue pursuant to Rule 56 of the Federal Rules of Civil Procedure.

C. Jones May Not Maintain An Action For Damages Against the Commonwealth of Pennsylvania, its Agencies or State Officials in Their Official Capacity Under 42 U.S.C. § 1983.

In addition to these procedural defaults, Jones' complaint also suffers from substantive flaws. For example, in his complaint Jones names prison officials as defendants in both their individual and official capacities, and seeks damages from these officials. (Complaint ¶¶ 8-12 and 31-33.) To the extent that Jones seeks damages from state officials acting in their official capacity, he is barred from obtaining such relief by constitutional and statutory constraints. First, as a matter of constitutional law, the Eleventh Amendment to the Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the . . . States. . . . ", U.S. Const. Amend XI. By its terms, the Eleventh Amendment strictly limits the power of federal courts to entertain cases brought by citizens against the state and state agencies. Moreover, a § 1983 suit brought against an individual acting in his or her official capacity has been deemed to be a suit against the state and therefore also is barred by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Pursuant to the Eleventh Amendment, states, state agencies and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). This broad grant of immunity from damages claims in federal court admits of only two exceptions: First, a state can waive its immunity, See Alden v. Maine, 527 U.S. 706, 755, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), or, second, Congress can expressly abrogate that state immunity, provided that Congress "both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority." Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001).

*12 With respect to Jones' § 1983 damages claims, it is apparent that Congress has not expressly abrogated this constitutional immunity with respect to federal lawsuits, and the Commonwealth clearly has not waived its immunity. Quite the contrary, the Commonwealth has specifically by statute invoked its Eleventh Amendment immunity in 42 Pa.C.S.A. § 8521(b). While Pennsylvania has, by law, waived sovereign immunity in limited categories of cases brought against the Commonwealth in state court, See 42 Pa.C.S.A. § 8522, Section 8521(b) flatly states that: "Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States." 42 Pa.C.S.A. § 8521(b).

Moreover as a matter of statutory interpretation, Jones cannot rely upon § 1983 to bring a damages action against the state officials in their official capacity since it is well-settled that a state, a state agency, or a state official acting in an official capacity is not a "person" within the meaning of 42 U.S.C. § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Therefore both as a matter of statutory interpretation, and by virtue of the immunity conferred upon the states by the Eleventh Amendment, Jones is forbidden from maintaining this damages action against state officials acting in their official capacity under § 1983. See e.g., Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Of course Jones remains free to pursue damages claims against these defendants in their individual, personal capacities, a fact which Jones acknowledges in his response to this motion.

D. Jones Has Not Stated a Legally Sufficient Cause of Action Against Defendant Klopotoski

Finally, our review of this complaint leads us to conclude that, in its current form, the complaint fails to state a valid cause of action against Warden Klopotoski. Liberally construed, the complaint names Klopotoski, the Warden at SCI Dallas, as a defendant. (Complaint ¶ 11.) The complaint then contains a series of factual recitals regarding an incident in which Jones was injured by a fellow prisoner. (Complaint ¶¶ 13-25.) This assault forms the basis for Jones' Eighth Amendment claim, yet there is no reference to Warden Klopotoski in any of these factual averments. Indeed, the only factual allegation made against the Warden in the entire complaint is that he denied Jones' administrative grievance some seven weeks after the events which give rise to this complaint. (Complaint ¶ 28.) Despite the paucity of factual allegations made against the Warden, Jones asserts, in a conclusory fashion, that "Klopotoski's failure to take action to curb Inmate Mitchell's pattern of assaults, known or should have been known to them, [and] constituted deliberate indifference. . . ." (Complaint ¶ 32.)

Jones facing an exacting burden advancing an Eighth Amendment claim against Warden Klopotoski, a prison official who is alleged to have violated the constitution by failing to protect Jones from some risk of injury at the hands of others in the prison. To sustain such a claim, Jones must plead facts which:

*13 [M] eet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, "that state of mind is one of 'deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer-the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.

Beers-Capitol v. Whetzel 256 F.3d 120, 125 (3d Cir. 2001).

By including a subjective intent component in this Eighth Amendment benchmark, the courts have held that a mere generalized knowledge that prisons are dangerous places does not give rise to an Eighth Amendment claim. See Jones v. Beard, 145 Fed. Appx. 743 (3d Cir. 2005) (finding no Eighth Amendment violation where inmate-plaintiff complained about cellmate who had a history of psychological problems, but where plaintiff failed to articulate a specific threat of harm during the weeks prior to an attack.). Nor can such an Eighth Amendment claim be premised merely on the fact that Klopotoski was serving as warden when this incident occurred. Quite the contrary, it is well-established that:

"A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Del-larciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005), See Jetter v. Beard, 183 F. App'x. 178 (3d Cir. 2008).

Judged against these standards, Jones' complaint fails to state a valid cause of action against Warden Klopotoski in its current form. The complaint contains no factual allegations that would permit a finding that the warden's conduct met the subjective standard for Eighth Amendment claims, deliberate indifference, which requires that the prison official-defendant must actually have known or been aware of an excessive risk to inmate safety. Furthermore, there are no factual recitals relating to the warden which would permit a finding of personal involvement in the alleged wrongdoing. The failure to plead facts relating to the warden's involvement in this conduct is fatal here since individual liability under § 1983 cannot be predicated solely on the principle of respondeat superior.

In an effort to save this claim, in his brief Jones argues facts not set forth in his complaint, suggesting that Inmate Mitchell's institutional history placed the warden personally and subjectively on notice of the dangers that Mitchell presented to fellow prisoners like Jones. The difficulty with this argument is that it is just that: an argument which goes far beyond the well pleaded allegations in the complaint.

*14 In short, without the inclusion of some further well-pleaded factual allegations in the complaint, Jones' claim against Warden Klopotoski appear to be little more than "[t]hreadbare recitals of the elements of a course of action, supported by mere con-clusory statements, [which as a legal matter] do not suffice." Ashcroft v. Iqbal, supra 127 S.Ct. at 1979. Therefore the warden is entitled to be dismissed from this action. However, out of an abundance of caution, and in order to allow Jones another opportunity to address these defects, it is recommended that the plaintiff's complaint as to this defendant be dismissed without prejudice at this time and that Jones be afforded leave to amend his pleadings, provided that he acts without undue delay

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED as follows:

1. To the extent that Jones seeks damages from state officials acting in their official capacity, the complaint should be DISMISSED since the plaintiff is barred from obtaining such relief by constitutional and statutory constraints. Jones may maintain damages actions against these officials in their individual, personal capacities.

2. In its current form, the Plaintiff's complaint against Warden Klopotoski fails to state a valid cause of action under the Eighth Amendment and should be DISMISSED for failure to state a claim upon which relief can be granted without prejudice to the plaintiff being granted leave to amend his complaint to address the deficiencies identified in this report and recommendation, provided that he does so without undue delay, by amending the complaint within 30 days of the entry of an order adopting this report and recommendation.

3. With respect to the defendants' motion to dismiss for failure to exhaust administrative remedies, that motion and Jones' response, invite the Court to consider matters outside the pleadings, a task which falls beyond the reach of a Rule 12 motion to dismiss. Therefore, this aspect of the defendants' motion should be DENIED without prejudice to the filing of any appropriate motions for summary judgment on this issue pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

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 ten (10) 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.

*15 Submitted this 30th day of September 2009.

M.D.Pa., 2010.

Jones v. Hashagen

Slip Copy, 2010 WL 128316 (M.D.Pa.)