Opinion
CIVIL NO: 3:18-CV-00697
04-04-2019
EDWARD THOMAS KENNEDY, Plaintiff, v. PHILIP CARL PETRUS, et al., Defendants.
(Judge Mariani) () REPORT AND RECOMMENDATION
I. Introduction.
The plaintiff Edward Thomas Kennedy ("Kennedy") filed a third amended complaint claiming that, inter alia, his constitutional rights were violated by the negligent acts of employees from multiple government entities. In accordance with 28 U.S.C. § 1915(e)(2), we review the third amended complaint, and we conclude that it fails to state a claim upon which relief can be granted. Thus, we recommend that this case be dismissed.
II. Background and Procedural History.
This is the second case currently before this court that Kennedy has filed against a group of defendants connected to Schuylkill County, Pennsylvania. In Kennedy's other case, he argued that the defendants were negligent, trespassed, trespassed on the case, failed to provide a republican form of government, intentionally inflicted emotional distress, and are vicariously liable to Kennedy. See Kennedy v. Dutcavage, No. 3:18-CV-00767 (M.D. Pa. Apr. 9, 2018). We recently issued a report and recommendation to dismiss Kennedy's second amended complaint and close the case. Id. doc. 27. The present case largely rehashes Kennedy's allegations from that case, the primary difference being the identity of the named defendants and his RICO claim.
Kennedy initiated this action on March 30, 2018, by filing a complaint against Philip Carl Petrus ("Petrus"); George Francis Halcovage ("Halcovage"); the borough of Frackville, Pennsylvania ("Frackville"); Schuylkill County, Pennsylvania ("Schuylkill"); and two John Doe police officers. Doc. 1 at 1. Kennedy alleged that Petrus, a Frackville police officer, along with the two John Doe defendants, committed a number of constitutional violations when they searched, seized, and arrested him. Id. ¶ 2. Kennedy further alleged that Frackville, Schuylkill, and Halcovage, who allegedly is the Chairman of the Schuylkill County prison board, violated his rights through governmental policies and customs. Id. ¶ 3. On the same day that Kennedy filed his complaint, he also filed an application for leave to proceed in forma pauperis. Doc. 2. Shortly after he initiated this action, Kennedy filed three documents with the court: two nearly identical notices of constitutional questions, in which he challenged the constitutionality of Pennsylvania's harassment statute, 18 Pa. Cons. Stat. § 2709 (see docs. 6-7), and a "Notice to the Court," in which he stated that he "did not and does not consent to a Magistrate Judge" and demanded a trial by jury. See doc. 8.
On June 17, 2018, Kennedy amended his complaint. See doc. 9. Kennedy's amended complaint named Petrus, Halcovage, Frackville, and Schuylkill as defendants, and added the Commonwealth of Pennsylvania as a defendant. Doc. 9 at 1. The two John Does were no longer listed as defendants. Id. Kennedy's amended complaint made a number of conclusory statements about constitutional violations but ultimately raised four causes of action against the defendants: trespass; "trespass on the case"; "trespass on the case - vicarious liability"; and "failure to provide a republican form of government." See id. ¶¶ 2, 15, 20, 24. Shortly after filing his amended complaint, Kennedy filed a document titled "Take Judicial Cognizance," in which he again objected to the judge assigned to his case and sought a judge who "knows how to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises." See doc. 10.
Kennedy then filed three documents requesting service on the named defendants. Docs. 11, 12, 13. We dismissed Kennedy's amended complaint and ordered him to file a second amended complaint by December 26, 2018. Doc. 14.
Kennedy failed to file a second amended complaint by the appropriate date and we ordered him to show cause as to why his case should not be dismissed for failure to file a second amended complaint. Doc. 16 at 2. In response to our order, Kennedy filed his second amended complaint the following day. Doc. 17. In response, we withdrew our previous order for Kennedy to show cause. Doc. 23. Kennedy then filed two motions to compel service on the named defendants (docs. 18, 19), and also filed a new amended complaint which he appropriately denoted as the third amended complaint. Doc. 20.
Kennedy's third amended complaint names the Borough of Frackville, Pennsylvania, Petrus, Geralyn Griffin ("Griffin") (Kennedy's sister), and the Supreme Court of Pennsylvania as defendants. Id. at 1. Kennedy raises six causes of action against the defendants: trespass on the case, a Racketeer Influenced and Corrupt Organization Act ("RICO") violation, failure to provide a republican form of government, intentional infliction of emotional distress, vicarious liability, and negligence. Doc. 20 at ¶¶ 13, 16, 21, 22, 26, 39. Kennedy alleges that "[the] Supreme Court of Pennsylvania and County of Schuylkill and Defendant Borough of Frackville use alternative metrics to avoid generally accepted accounting principles (GAAP), with intentions to commit financial fraud . . . [including] personal economic and personal gain." Id. at 6. Kennedy further asserts that the defendants committed "[h]uman [r]ights [a]buses and [c]orruption . . . against Plaintiff Kennedy." Id. at 7. He alleges that the "[d]efendants have breached [a] duty [owed], [including] their fiduciary duty to one of the people, Kennedy." Id. Kennedy asserts that the defendants violated RICO, because they "misstated, misinformed and filed fake financial records on government websites, supported by self-authenticating digital evidence." Id. at 8. He also alleges that "[e]ach defendant is vicariously liable for each instance of injury to the plaintiff." Id. at 9. Kennedy further contends that he has been deprived of a republican form of government because the defendants "lie, mislead, misconstrue, misrepresent and/or put false information into either this court of record or the official public record. Id. at 10. Lastly, Kennedy claims that he suffers from intentional infliction of emotional distress because "Petrus . . . charge[d] [him] with [h]arrasment" and because his sister is requiring their mother to stay with her in Frackville, Pennsylvania. Id. at 11-12.
In addition to his third amended complaint, Kennedy also filed a document titled "Exhibit 1 LAW OF THE CASE," in which he outlines "the law" in a manner that can only be described as a personal thesis on how this court and any federal court should apply the law. Doc. 20-1. Kennedy's analysis, although historically inclined, discusses a personal interpretation of where the federal court system receives its power. See generally id. He notes that he is entitled to decisions based "in common law" which he argues comes from the original power of the Magna Carta. Id. at 6. Kennedy justifies this statement by way of citation to a document dating back to 1297, explaining how the Magna Carta may be invoked under the Constitution. Id. He furthers that claim by arguing that his rights are secure through the sovereignty of its people. Id. He states that because he is a citizen of America, that he is a "joint tenant[] in the sovereignty." Id. at 10. Accordingly, that sovereignty directly vested in him as a citizen is a "supreme power." Id. at 12. Such power is held by "free people" who are the "ultimate judge." Id. at 6. As such, the rights are secure under the Constitution, and "no sanction or penalty [can] be imposed upon [a citizen] because of [the] exercise of constitutional rights." Id. Kennedy calls this alleged oppression and imposition a "[c]onspiracy against rights" and a "[s]editious conspiracy." Id. at 7, 12. Kennedy emphasizes that we should use this document as the law for the matter at hand. Doc. 20 at 1-2.
After Kennedy filed his third amended complaint, he filed one motion to compel service (doc. 24), two notices (docs. 21, 25), and one document related to service (docs. 22). All of Kennedy's filings after his third amended complaint urge this court to serve the named defendants. Doc. 21 at 1; Doc. 22; Doc. 24 at 1; Doc. 25 at 1. III. Screening of In Forma Pauperis Complaints—Standard of Review.
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases that seek redress against government officials. Specifically, the court must review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that-
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious
(ii) fails to state a claim upon which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
Under § 1915(e)(2)(B)(ii), the court must assess whether an in forma pauperis complaint "fails to state a claim upon which relief may be granted." This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which 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).
"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the plaintiff's claim is and of the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to 'show' such an entitlement with its facts." Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court must accept as true all well-pleaded factual allegations in the complaint, and all reasonable inferences that can be drawn from the complaint must 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). But 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). A court also 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 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify
allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and "'however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
IV. Discussion.
A. § 1983 Claim.
Although Kennedy's complaint explicitly raises claims only under various tort causes of action, we liberally construe his complaint as stating a claim for the violation of his civil rights. See doc. 20 at 1 ("[T]he government and its employees exceeded its jurisdiction, and damaged Kennedy, and injured Kennedy in loss of rights . . . .").
Kennedy's constitutional claim arises under 42 U.S.C. § 1983. "Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 "does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right." Id. To establish a claim under § 1983, the plaintiff must display a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
B. Kennedy Fails to State a § 1983 Claim Upon Which Relief Can Be Granted.
We construe Kennedy's third amended complaint to allege that the defendants conspired to violate his civil rights. Kennedy, however, fails to state a conspiracy claim upon which relief can be granted. Kennedy alleges that "[e]ach defendant acted to deprive Kennedy of his liberty . . . [and] each defendant is a willing participant in concert with each of the remaining defendants." Doc. 20 at 7. To state a conspiracy claim upon which relief can be granted, a plaintiff must allege "facts from which a conspiratorial agreement can be inferred." Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). "To properly plead such an agreement, 'a bare assertion of conspiracy will not suffice.'" Id. (quoting Twombly, 550 U.S. at 556). Further, in order to plead a civil conspiracy a plaintiff must allege an underlying tort. Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 405 (3d Cir. 2000) ("The rule that civil conspiracy may not exist without an underlying tort is a common one."). Since Kennedy has not alleged any agreement and has failed to establish an underlying tort claim, he fails to state a conspiracy claim upon which relief can be granted.
C. Kennedy's RICO Claim.
Kennedy alleges that "[t]he Defendants have systematically and continuously, over the last ten (10) years and more, conducted a corrupt enterprise in violation of [RICO]." Doc. 20 at ¶ 17. 18 U.S.C. § 1962 lays out the elements necessary to establish a RICO claim, requiring "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985) (footnote omitted).
Establishing these elements requires "'continuity plus relationship' among the predicate acts," of which there must be at least two in order to satisfy the 18 U.S.C. § 1961(5) definition of "a pattern of racketeering activity." Liberty Bell Bank v. Rogers, 726 F. App'x 147, 151 (3d Cir. 2018) (citing Sedima, 473 U.S. at 496 n.14). 18 U.S.C. § 1961(1) defines racketeering activity as any predicate act from a long list of state or federal offenses. Predicate acts "are related when they have 'the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics.'" Liberty Bell Bank, 726 F. App'x at 153 (citing Sedima, 473 U.S. at 496 n.14). "Continuity is a temporal concept . . . 'both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition.'" Hughes v. Consol-Pa Coal Co., 945 F.2d 594, 609 (3d Cir. 1991) (citing H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 241 (1989)).
18 U.S.C. § 1964(c) provides for civil monetary remedies for "[a]ny person injured in his business or property by reason of a violation of § 1962 of this chapter." But Kennedy fails to allege any operative facts to establish any of the four elements of § 1962, instead offering merely accusations and conclusions. Kennedy's bare allegations that "[d]efendants misstated, misinformed and filed fake financial records on government websites, supported by self-authenticating digital evidence" does not suffice. Doc. 20 at 8. Accordingly, because Kennedy fails to plead facts related to a viable RICO claim or his specific injury that resulted from such acts, he fails to state a claim upon which relief can be granted.
D. Kennedy's Tort Claims.
1. Kennedy's Negligence Claim.
Kennedy claims that he has lost his "liberty . . . good reputation, and . . . ability to earn a living," because the "Defendants have breached [their] duty, and their fiduciary duty to one of the people, Kennedy." Doc. 20 at 7-8. In order to plead a negligence claim upon which relief can be granted, Kennedy must allege "(1) the defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Page v. City of Philadelphia, 25 A.3d 471, 475 (Pa. Commw. Ct. 2011).
Kennedy has failed to allege facts showing how the defendants were involved in the events of which he complains or what specific duty they owed him. Further, he has not provided facts from which we could reasonably infer that the defendants breached a duty that they allegedly owed him. Moreover, Kennedy has not alleged any specific conduct by the defendants or that he suffered an identifiable injury. By not providing facts, Kennedy fails to plead a duty owed by the defendants, a breach of that duty, the causal link between the defendants' conduct and his alleged injury, or that he suffered an identifiable injury. Thus, the third amended complaint fails to state a negligence claim upon which relief can be granted.
2. Kennedy's Intentional Infliction of Emotional Distress Claim.
Kennedy's claim of intentional infliction of emotional distress ("IIED") fails to meet the prevailing standard. "While the Pennsylvania Supreme Court has yet to formally recognize a cause of action for [IIED], see Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000), the Pennsylvania Superior Court has recognized the cause of action and has held that, 'in order for a plaintiff to prevail on such a claim, he or she must, at the least, demonstrate intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff.'" Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). Here, Kennedy has not alleged any facts as to how the defendants' conduct was extreme or outrageous or what conduct by the defendants caused emotional distress in Kennedy. Moreover, Kennedy has not alleged any facts suggesting that he suffered severe emotional distress. Accordingly, he fails to state an IIED claim upon which relief can be granted.
3. Kennedy's Trespass on the Case Claim.
Kennedy asserts that the defendants "trespass[ed] on the case." Doc. 20 at 3, 9. At common law the term "trespass on the case" has transformed into what is considered today as negligence or a tort resulting in an indirect result or proximate cause that indirectly brought harm. See Balshy v. Rank, 490 A.2d 415, 420 (1985) (noting that trespass on the case became a generic action of trespass which was designed as "a remedy for wrongful conduct resulting in injuries which were not forcible or direct," but that "this practice has long since been abandoned"). As concluded above, Kennedy has failed to provide facts demonstrating negligence by the defendants. Thus, his trespass on the case claim fails to state a claim upon which relief can be granted.
4. Kennedy's Claim for Failure to Provide a Republican Form of Government.
Kennedy asserts that the defendants failed to provide a republican form of government. His claim, however, seems to be on behalf of the citizenry at large. See Doc. 20 at ¶ 26 ("Our Republic is one dedicated to 'liberty and justice for all.'"). Kennedy has addressed this same issue multiple times in different federal courts. See Kennedy v. United States, 748 F. App'x 335, 335-36 (Fed. Cir. 2019); Kennedy v. AT&T, Inc., No. 2018 WL 6188786, at *1 (D. Del. Nov. 27, 2018); Kennedy v. Pennsylvania, 2018 WL 5977968, at *7-8 (E.D. Pa. Nov. 14, 2018). In Kennedy v. Pennsylvania, the Eastern District of Pennsylvania concluded that Kennedy did not have standing to bring the claim because
[A] plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.Kennedy, 2018 WL 5977968, at *8 (internal citations and quotations omitted).
As we noted before in our November 30, 2018 order (doc. 14 at 9), "'[t]he irreducible constitutional minimum' of standing consists of three elements." Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. (citing Lujan, 504 U.S. at 560-61). "The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements." Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). Since the elements of standing are "an indispensable part of the plaintiff's case," each element must be supported "with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. "[A]t the pleading stage, the plaintiff must 'clearly allege facts demonstrating' each element." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (alterations omitted) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Here, like the Eastern District and consistent with our previous order (doc. 14 at 9), we conclude that Kennedy has not alleged facts showing that he has standing. Kennedy fails to allege an injury, he fails to allege that his injury relates to the defendants, and he fails to allege that there is a remedy that this court could grant by a favorable decision. Furthermore, even if he had standing, we conclude that the claim is frivolous since Kennedy has pleaded no facts to support it. Accordingly, because Kennedy lacks standing and because his claim is frivolous, we recommend that the court dismiss his "failure to provide a republican form of government" claim.
V. Recommendation.
Based on the foregoing, we recommend that the court dismiss Kennedy's third amended complaint and close this case.
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 fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record
developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 4th day of April, 2019.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge