Opinion
CIVIL ACTION NO. 1:18-cv-2122
06-24-2019
CRAIG MOSS, Plaintiff v. OFFICER ANDREW MILLER, et al. Defendants
(JONES, D.J.) ()
REPORT & RECOMMENDATION
I. INTRODUCTION
Presently before the court is an Amended Complaint filed by Plaintiff Craig Moss ("Plaintiff"). (Doc. 28). Defendants have filed three (3) Motions to Dismiss, which I will address collectively in this Report. On February 4, 2019, Defendant Officer Andrew Miller ("Officer Miller") filed his Motion to Dismiss (Doc. 34). On April 8, 2019, Defendants Tom Wolf, Josh Shapiro, John Talaber, S. Kirwin, Kioyona Duncan, Chris Bardwell, John Wetzel, Delbalso, and Riccio (collectively, "Commonwealth Defendants") filed a Motion to Dismiss. (Doc. 59). On April 15, 2019, Defendants York County District Attorney, David Sunday, District Attorney Matthew Swisher, District Attorney Kimberly Kipnis, and the County of York, Pennsylvania (collectively, "County Defendants") filed a Motion to Dismiss through counsel. (Doc. 64). Also before the Court are a Motion to Stay Proceedings (Doc. 4), a Motion for Preliminary Injunction (Doc. 21), a Motion to Stay Discovery (Doc. 37), a Motion to Stay (Doc. 69), a Motion for Temporary Restraining Order (Doc. 74), and an additional Motion to Dismiss (Doc. 79).
Defendant Talaber was misidentified as Defendant "Talabor" in the Complaint.
Defendant Delblaso was misidentified as Defendant "Deblasio" in the Complaint.
For the reasons articulated herein, I will RECOMMEND that the Motions to Dismiss (Docs. 34, 59, 64) be GRANTED, the remaining motions be DISMISSED AS MOOT, and the case be CLOSED. II. PROCEDURAL HISTORY
On September 28, 2018, Plaintiff, a prisoner in SCI-Mahanoy, filed a pro se complaint in the Court of Common Pleas for York County, Pennsylvania. On November 2, 2018, Officer Miller removed the case from York County to the United States District Court for the Middle District of Pennsylvania. On November 6, 2018, Officer Miller filed a Motion to Stay Proceedings pending the outcome of the criminal proceedings underlying this matter. (Doc. 4). On November 9, 2018, Officer Miller filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 81. (Doc. 8).
On December 17, 2018, Plaintiff filed a Motion for Preliminary Injunction. (Doc. 21-2). On December 24, 2018, Officer Miller filed his Opposition to Plaintiff's Motion. (Doc. 24).
On December 31, 2018, Plaintiff filed a Petition for Leave to File an Amended Complaint. (Doc. 25-1). On January 7, 2019, I granted Plaintiff's Motion and allowed Plaintiff twenty (20) days to file an Amended Complaint. (Doc. 27). On January 17, 2019, Plaintiff filed an Amended Complaint. (Doc. 28).
On February 14, 2019, I granted Plaintiff's Motion for leave to proceed in forma pauperis. (Doc. 42). Plaintiff asserts a variety of allegations against Defendants for various purported violations of his constitutional rights. Based on the facts presented in this case, Plaintiff was arrested, the police had probable cause to arrest him, and Plaintiff was convicted of possession of instruments of crime, simple assault, and two (2) counts of harassment. Accordingly, Plaintiff's claims must fail under Heck v. Humphrey, 512 U.S. 477 (1994). III. FACTUAL BACKGROUND
According to the Complaint in this case, on January 15, 2017, Officer Miller arrested Plaintiff for terroristic threats, possession of an instrument of crime, and simple assault. (Doc. 65, p. 3) (citing Doc. 28 ¶ 19). At approximately 2:18 a.m., Officer Miller was dispatched to the scene of a fight in progress behind Kiro's Tavern in York, PA. (Doc. 35, p. 3). Upon arrival at the scene, a witness pointed out Plaintiff approaching a house and claimed he had knives on his person. (Doc. 35, p. 4). Officer Miller confronted Plaintiff as he approached the porch of a house and directed to stop and turn around. Id. Plaintiff then threw an object on the porch. Id. Plaintiff then began to reach into his right front pocket. Officer Miller observed a black object sticking out of this pocket. Id. Officer Miller then instructed Plaintiff to remove his hands from his pockets and to lie on the ground. Id. Officer Miller then placed Plaintiff in handcuffs. Id. Officer Miller searched Plaintiff and found eleven (11) knives, including at least one (1) 12-inch butcher knife and other knives in excess of 8 inches. Id. Officer Miller observed that Plaintiff was highly intoxicated. Id. Plaintiff admitted to Officer Miller that he was involved in a physical altercation at Kiro's Tavern, that he had left the tavern to retrieve knives, and that he had returned to the tavern with several knives. Id.
Several witnesses were interviewed regarding the incident. Id. Defendants summarize the witness testimony thus:
Plaintiff held a large butcher knife over his head in a stabbing position and was threatening another patron of the tavern; Plaintiff was inappropriately touching women at the tavern; Plaintiff was highly intoxicated and grabbing womens' backsides; Plaintiff left the tavern and returned with knives; one of the female witnesses tried to restrain Plaintiff's arm while he was holding up a knife.(Doc. 35, pp. 4-5).
Plaintiff was charged with: (1) terroristic threats with intent to terrorize another (M1); (2) possession of an instrument of crime with intent to employ it criminally (M1); (3) simple assault (M2); (4) public drunkenness and similar misconduct (summary offense); (5) disorderly conduct (summary offense); and (6) three (3) counts of harassment - subject other to physical contact (summary offenses). (Doc. 35, p. 5).
On April 9, 2018, Plaintiff was convicted of: possession of instruments of crime, simple assault, and two (2) counts of harassment. (Doc. 35, p. 5). Plaintiff does not challenge his conviction. (Doc. 28, ¶¶ 77, 79). Rather, he challenges his incarceration until trial, which he claims prevented him from paying his mortgage and led to a foreclosure action against him. (Doc. 28, ¶¶ 58, 59). d
Plaintiff contends that County Defendants' "actions were willfully, knowingly and maliciously done with the sole intend [sic] wand [sic] with the constructive knowledge of each Defendant in violation of [his Constitutional Rights.]" (Doc. 65, p. 4) (citing Doc. 28, ¶ 50). IV. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the 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). Further, it is not proper to "assume that [the plaintiff] can prove facts that [he] has not alleged . . . ." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, "a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite enough factual allegations to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take 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 Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
The Supreme Court in Twombly set forth the "plausibility" standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing "more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint which pleads facts "merely consistent with" a defendant's liability, [ ] "stops short of the line between possibility and plausibility of 'entitlement of relief.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that "[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.") However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). V. DISCUSSION
A. DID PROBABLE CAUSE EXIST FOR PLAINTIFF'S ARREST?
The success or failure of Plaintiff's claims for False Imprisonment, Malicious Prosecution, and Abuse of Process rest upon the shared issue of whether probable cause existed to arrest Plaintiff. As explained below, if probable cause existed, these three claims fail.
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and now Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Const. amend IV.
Under the Fourth Amendment, an arrest without probable cause is a constitutional violation that may be redressed under 42 U.S.C. § 1983. See Walmsley v. Philadelphia, 872 F.2d 546, 551 (3d Cir. 1989) (citing Patzig v. O'Neill, 577 F.2d 841, 848 (3d Cir. 1978)). However, in order to make out a false arrest claim, a plaintiff must demonstrate that police lacked probable cause to arrest. Groman v. Twp. of Manalpan, 47 F.3d 628, 634 (3d Cir. 1995). Similarly:
To prove malicious prosecution under section 1983, a plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (emphasis added).
Thus, whether characterized as a false arrest, or couched in terms of malicious prosecution, proof that probable cause was lacking is essential to any § 1983 claim arising out of the arrest and prosecution of an individual. For purposes of the Fourth Amendment, probable cause to arrest exists "whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested." U.S. v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). An arrest by a police officer without a warrant "is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford, 543 U.S. 146, 152, (2004). In conducting an inquiry into whether probable cause to arrest existed, a court should consider the totality of the circumstances presented, and "must assess the knowledge and information which the officers possessed at the time of arrest, coupled with the factual occurrences immediately precipitating the arrest." United States v. Stubbs, 281 F.3d 109, 122 (3d Cir. 2002).
Although "[t]he probable-cause standard is incapable of precise definition or quantification," Maryland v. Pringle, 540 U.S. 366, 371, (2003), all interpretations of probable cause require "a belief of guilt that is reasonable as opposed to certain." Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citing Hill v. California, 401 U.S. 797, 804, (1971)). Probable cause "does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Wright, 409 F.3d at 602 (quoting Adams v. Williams, 407 U.S. 143, 149 (1972)). Accordingly, the evidentiary standard for probable cause is significantly lower than that required for conviction. Id. (citing Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)); see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (holding that probable cause requires only a "fair probability" that a person committed the relevant crime). Because an arrest is made with probable cause if at the moment it was made the facts and circumstances within the officer's knowledge "were sufficient to warrant a prudent man in believing that [the suspect] had committed or was committing an offense," Beck v. Ohio, 379 U.S. 89, 91, (1964), the constitutional validity of an arrest does not turn on whether the suspect actually committed any crime, Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). Thus, "[t]he determination that probable cause exists is fundamentally a factual analysis that must be performed by officers at the scene. It is the function of the court to determine whether the objective facts available to the officers at the time of arrest were sufficient to justify a reasonable belief that an offense was being committed." United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984).
For the reasons discussed individually below, probable cause existed. Therefore, the False Imprisonment, Malicious Prosecution, and Abuse of Process claims against Officer Miller should be dismissed.
1. Do the False Imprisonment and Malicious Prosecution Claims Fail Because Probable Cause Exists for Plaintiff's Arrest?
As United States Magistrate Judge Carlson succinctly puts it:
"To establish a false imprisonment or arrest claim, a detention must be unlawful, see Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994), and to establish a malicious prosecution claim, there must be an absence of probable cause to arrest, see Kelley v. Gen. Teamsters, Local Union 249, 518 Pa. 517, 544 A.2d 940, 941 (1988). Accordingly, probable cause defeats a claim for malicious prosecution and for false imprisonment or arrest. See Strickland v. Univ. of Scranton, 700 A.2d 979, 984-85 (Pa. Super. 1997)." Sheedy v. City of Philadelphia, 184 Fed.Appx. 282, 284 (3d Cir. 2006). Thus, the presence or absence of probable cause, a fact-bound issue, is integral to the resolution of this state law false imprisonment claim.Tucker v. Petruzzi, No. 3:17-CV-1848, 2018 WL 3623766 (M.D. Pa. Jun. 27, 2018) report and recommendation adopted, No. 3:17-CV-1848, 2018 WL 3622772 (M.D. Pa. Jul. 30, 2018). That is, Plaintiff's claims for false imprisonment and malicious prosecution will fail if Officer Miller had probable cause to arrest Plaintiff.
Here, Plaintiff alleges Officer Miller "knowingly brought forth 'false fabricated' charges against Plaintiff." (Doc. 28, ¶ 19). That above-referenced police incident report indicated the charges filed against Plaintiff were consistent with both Officer Miller's observations and the corroborating observations of witnesses. There is no reason to believe the witnesses' observations were unreliable. In fact, the police incident report shows that the evidence obtained by Officer Miller corroborated the statements he received.
After being dispatched to a fight at Kiro's Tavern, Officer Miller was informed of a suspect carrying at least one knife. A witness pointed out Plaintiff, who Officer Miller subsequently followed Plaintiff. Officer Miller discovered two (2) knives of Plaintiff's person and a third knife was discovered on the porch on which Plaintiff was stopped. Plaintiff subsequently admitted to bringing several knives to Kiro's Tavern after he had a physical altercation with another patron of the Tavern. A witness stated that Plaintiff had been making threatening comments to another patron while holding a butcher knife over his head. Further witnesses attested that Plaintiff had been harassing them and inappropriately touching at least three (3) women in the Tavern. In light of these facts, Officer Miller had clear probable cause to arrest Plaintiff for criminal conduct and to charge him with: simple assault, possession of an instrument of crime with intent to employ it criminally, terroristic threats, public drunkenness, and harassment. Because Officer Miller had clear probable cause to arrest and charge Plaintiff for these offenses, Plaintiff fails to establish a cause of action against Officer Miller for False Imprisonment and Malicious Prosecution. Therefore, these claims should be dismissed with prejudice.
2. Does the Abuse of Process Claim Fail Because Probable Cause Exists for Plaintiff's Arrest?
To establish an abuse of process claim, "there must be some proof of a definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of [the] process." Cash v. U.S. Dep't of Homeland Sec., No. 18-CV-2114, 2018 WL 2445678, at *6 (E.D. Pa. May 31, 2018) (citation omitted). "It is true that favorable termination of prior proceedings is not an element of [abuse of process]— but neither is an impugning of those proceedings one of its consequences." Heck v. Humphrey, 512 U.S. 477, 486 n. 5, (1994).
An abuse of process occurs when a party employs legal process against another primarily to accomplish a purpose for which it was not designed. Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 307 (3d Cir.2003). "In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where 'prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.' " Rose v. Bartle, 871 F.2d 331, 350 n. 17 (3d Cir.1989) (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977)). " '[T]here is no action for abuse of process when the process is used for the purpose for which it is intended, but there is an incidental motive of spite or an ulterior purpose of benefit to the defendant.' " Id. (quoting RESTATEMENT (SECOND) OF TORTS § 682 cmt. b (1977)).Napier v. City of New Castle, 407 F. App'x 578, 582 (3d Cir. 2010). Because the issue is the use of the process itself, and not the initiation of the process, the presence or absence of probable cause is irrelevant to an abuse of process claim. See Adams v. Officer Eric Selhorst, 449 F. App'x 198, 202 n. 2 (3d Cir. 2011) ("In contrast to a section 1983 claim for malicious prosecution, a section 1983 claim for malicious abuse of process lies where 'prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law.'" (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir.1977))); see also Occhipinti v. Bauer, No. 3:13-CV-1875, 2017 WL 3495182, at *11 (M.D. Pa. Aug. 14, 2017); also Woods v. Pettine, No. CIV.A. 12-5608, 2015 WL 1072687, at *8 (E.D. Pa. Mar. 12, 2015); also Mannery v. Miller, No. CIV.A. 07-315, 2007 WL 1395358, at *4 (W.D. Pa. May 9, 2007); see also Jackson v. Mills, No. CIV.A. 96-3751, 1997 WL 570905, at *8 (E.D. Pa. Sept. 4, 1997); also Smith v. Wambaugh, 887 F. Supp. 752, 757 (M.D. Pa. 1995), aff'd sub nom. Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996). Nor is probable cause relevant in state claims either. See E.g., Farkas v. Rich Coast Corp., No. 1:14-CV-272, 2017 WL 10299186, at *6 (M.D. Pa. May 19, 2017), report and recommendation adopted, No. 1:14-CV-272, 2017 WL 10311284 (M.D. Pa. Aug. 21, 2017).
"The Third Circuit has held that district courts must undertake a fact-intensive inquiry for each claim raised by the plaintiff and determine whether success on that claim would necessarily impugn the integrity of the plaintiff's criminal conviction." Clouser v. Johnson, 40 F. Supp. 3d 425, 433 (M.D. Pa. 2014), aff'd, 684 F. App'x 243 (3d Cir. 2017) (citing Gibson v. Superintendent, N.J. Dep't of Law & Pub. Safety, 411 F.3d 427, 450 (3d Cir.2005), overruled on other grounds by Dique v. New Jersey State Police, 603 F.3d 181, 188 (3d Cir. 2010); citing also Brown v. Chardo, No. 1:11-CV-0638, 2012 WL 983553, at *7 (M.D. Pa. Mar. 22, 2012).
To establish a common law claim for abuse of process, it "must be shown that the defendant (1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff." Langman v. Keystone Nazareth Bank & Tr. Co., 502 F. App'x 220, 224 (3d Cir. 2012) (internal citations omitted).
A criminal conviction of Plaintiff would also require the dismissal of an abuse of process claim. Like malicious prosecution and false arrest claims, a claim for abuse of process also requires a lack of probable cause. Shilling v. Brush, 2007 WL 210802, at* 9 (M.D. Pa., Jan. 22, 2007). Probable cause is a lesser burden than a criminal conviction. Therefore, the criminal conviction of Plaintiff would serve to establish that Officer Miller had probable cause in his arrest of Plaintiff. As such, Plaintiff's claim for abuse of process against Officer Miller should be dismissed with prejudice.
B. ARE THERE SUFFICIENT FACTS TO SUPPORT A SELECTIVE PROSECUTION CLAIM AGAINST OFFICER MILLER?
In his Amended Complaint, Plaintiff baldly alleges a claim for selective prosecution. However, Plaintiff sets forth no facts indicating Officer Miller engaged in activity that could be interpreted as selective prosecution.
To establish a selective prosecution claims, Plaintiff must: "provide evidence that persons similarly situated have not been prosecuted" and that "the decision to prosecute was made on the basis of an unjustifiable standard, such as race, religion, or some other arbitrary factor." United States v. Taylor, 686 F.3d 182, 197 (3d Cir. 2012) (quoting United States v. Schoolcraft, 879 F.2d 64, 67 (3d Cir. 2012). Further, Plaintiff "bears the burden of proof, id., and must establish each of these elements with "clear evidence" sufficient to overcome the presumption of regularity that attaches to decisions to prosecute, United States v. Armstrong, 517 U.S. 456, 464 (1996).
Plaintiff provides absolutely no facts that could be construed to support a selective prosecution claim. Specifically, Plaintiff makes no showing of persons similarly situated that were not prosecuted, and makes no reference to any arbitrary factor—such as race or religion—that upon which a prosecutorial decision would be based. Therefore, the claim of selective prosecution against Officer Miller should be dismissed with prejudice.
C. SHOULD THE RICO CLAIM AGAINST OFFICER MILLER BE DISMISSED?
Plaintiff claims that all Defendants, including Officer Miller, engaged in racketeering conduct in violation of 18 U.S.C. §1961-1968. For Plaintiff's claims to be successful, plaintiff must assert at least two acts of racketeering activity within ten years that "are related and that amount to or pose a threat of continued criminal activity." Bonavitacola Elec. Contractor, Inc. v. Boro Developers, Inc., 87 F. App'x 227, 231 (3d Cir. 2003) (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989)); see also 18 U.S.C. §1961(2).
In this case, none of the acts defined under Section 1961(1) are applicable. At minimum, the Plaintiff would have to assert that a violation of specific enumerated federal statutes applies. None of Officer Miller's alleged activities are specifically enumerated statutes which would be defined as racketeering activity under 18 U.S.C. § 1961.
Any person injured in his business or property by reason of a violation of 18 U.S.C. §1962, may sue in any appropriate United States District Court, 18 U.S.C. §1964(c). The Third Circuit has rejected arguments that personal injuries qualify as injuries sustained based upon racketeering. Williams v. BASF Catalysts LLC, 765 F. 3d 306, 323 (3d Cir. 2014); see also Talbert v. Commonwealth of Pennsylvania, 2016 U.S. Dist. LEXIS 35141 * 6 (E.D. Pa. 2016).
Plaintiff has failed to assert any activity or activities by Officer Miller that would fall into the category of racketeering activity. Based on the holding in Talbert, Plaintiff cannot assert a racketeering claim by virtue of Plaintiff's arrest, conviction and imprisonment. Plaintiff's mortgage foreclosure proceedings are not an "injury" for which Plaintiff can recover under RICO. The foreclosure proceedings arose from Plaintiff's failure to make mortgage payments since April 1, 2016 - nine months before Plaintiff's arrest - and therefore are connected in no way to Officer Miller. (See Doc. 23-2). Plaintiff fails to establish either the requisite activities or any recognizable injury needed to pursue a racketeering claim against Officer Miller, therefore, the RICO claim should be dismissed with prejudice.
D. IS OFFICER MILLER ENTITLED TO QUALIFIED IMMUNITY?
In addition to the reasons for dismissal provided above, Officer Miller is entitled to qualified immunity. Police Officers receive protection by qualified immunity unless "existing precedent [has] placed the statutory or constitutional question beyond debate." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (U.S. 2011) (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
If a reasonable police officer believed his conduct was lawful in light of clearly established law, the officer is entitled to qualified immunity. Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995). Qualified immunity gives police officers "ample room for mistaken judgments" and only officers that are clearly incompetent, or knowingly violate the law are unprotected. Hunter v. Bryant, 502 U.S. 224, 229 (1991).
A two-step test reiterated in al-Kidd determines whether a law enforcement officer is entitled to qualified immunity. The test requires the courts to decide: "(1) [whether] the official violated a statutory or constitutional right, and (2) [whether] the right was 'clearly established' at the time of the challenged conduct." 131 S. Ct. at 2080. A 'clearly established' right is one in which "every reasonable official would have understood that what he is doing violates that right." Id. at 2083.
The alleged actions of Officer Miller were not so egregious that "every" reasonable officer would have known it was constitutionally prohibited. Indeed, Plaintiff fails to allege that Officer Miller engaged in any constitutionally prohibited activity at all. Officer Miller observed criminal misconduct by Plaintiff consistent with multiple statements made by witnesses. All information received by Officer Miller establishes a basis for the arrest and charges filed against Plaintiff. Therefore, qualified immunity should be afforded to Officer Miller, and Plaintiff's claims against him should be dismissed with prejudice.
E. DO PLAINTIFF'S CLAIMS AGAINST COMMONWEALTH DEFENDANTS FAIL DUE TO LACK OF PERSONAL INVOLVEMENT?
Plaintiff alleges a series of § 1983 claims against Commonwealth Defendants Talaber, Bardwell, Duncan, Riccio, Shapiro, Wolf, and Kerwin.
Plaintiff alleges no facts against Commonwealth Defendants Wetzel and Delbalso. --------
"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 establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Halsey v. Pfeiffer, 750 F.3d 273, 290 (3d Cir. 2014); Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Under §1983, a plaintiff must show that each and every defendant was personally involved in the alleged wrongdoing. See Evancho v. Fisher, 423 F.3d 347 at 353 (3d Cir. 2005); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). "[A]lleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient." Kirk v. Roan, No. 1:04-cv-1990, 2006 WL 2645154, at *3 (M.D.Pa. Sept. 14, 2006). Allegations of personal involvement must be made with particularity. Rode, 845 F.2d at 1207. Personal involvement cannot be imposed upon a state official based solely on a theory of respondeat superior. See Rizzo v. Goode, 423 U. S. 362 (1976); Rode, 845 F.2d at 1207; Knight v. Lowry, No. 3:cv-10-2168, 2012 WL 750910, *6 (M.D.Pa. March 8, 2012). "It is well settled that a state and its agencies are not 'persons' under Section 1983." Quern v. Jordan, 440 U.S. 332 (1979).
The only facts alleged against the individual Commonwealth Defendants are as follows. Plaintiff alleges Defendants Talaber, Bardwell, Duncan, and Riccio incarcerated him. (Doc. 28, ¶¶ 20, 22, 27). He alleges that Defendant Talaber specifically provided notice of the decision to the Board of Probation and Parole. (Doc. 28, ¶ 80). He alleges he wrote to Defendants Shapiro and Wolf. (Doc. 28, ¶¶ 48, 60, 83). He alleges that Defendant Kerwin responded to a request from Plaintiff, notifying him that the board's decision was not subject to review. (Doc. 28, ¶ 62).
The facts averred in Plaintiff's Amended Complaint do not demonstrate that any of the individual Commonwealth Defendants were personally involved in the deprivation of any of Plaintiff's rights. Therefore, Plaintiff has failed to demonstrate their involvement and the claims against the Commonwealth Defendants should be dismissed.
F. ARE PLAINTIFF'S CLAIMS AGAINST COMMONWEALTH DEFENDANTS IN THEIR OFFICIAL CAPACITIES BARRED BY THE ELEVENTH AMENDMENT?
Plaintiff seeks compensatory and punitive damages for his §1983 claims. (Doc. 28, ¶¶117-125). Any claims seeking monetary damages against Defendants in their official capacity are barred by the Eleventh Amendment to the Constitution of the United States. To the extent that Plaintiff's claims for compensatory and punitive damages are brought against the Individual Commonwealth Defendants in their official capacity, they should be dismissed with prejudice.
"Our federalist system of government accords respect for the sovereignty of the States in a variety of ways, including the Eleventh Amendment to the United States Constitution, which immunizes States from suits brought in federal court by both their own citizens and citizens of other States." Maliandi v. Montclair State Univ., 845 F.3d 77, 81 (3d Cir. 2016). It has been observed that "the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693, n.2 (3d Cir. 1996); see also Christ the King Manor, Inc. v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013) ("Therefore, unless Congress has 'specifically abrogated' the states' sovereign immunity or a state has unequivocally consented to suit in federal court, we lack jurisdiction to grant relief in such cases."); but see Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 197 (3d Cir. 2008) (noting that "the Supreme Court's jurisprudence has not been entirely consistent in the view that the Eleventh Amendment restricts subject matter jurisdiction").
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.
Although its text appears to restrict only the Article III diversity jurisdiction of the federal courts, the Eleventh Amendment has been interpreted '"to stand not so much for what it says, but for the presupposition . . . which it confirms.'" Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). That presupposition is that each state is a sovereign entity in our federal system and it is inherent in the nature of sovereignty that a sovereign is not amenable to suit unless it consents. Id. Thus, "the Constitution does not provide for federal jurisdiction over suits against nonconsenting States." Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000). "The Eleventh Amendment's protection . . . is not limited to the States alone, but rather extends to entities that function as 'arms of the State.'" Maliandi, 845 F.3d at 81.
The United States Supreme Court has held "States are not 'persons' within the meaning of §1983 and, therefore, cannot be among those held liable for violations of the civil rights statute." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 697 (3d Cir. 1995) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989)). Also, in Will, the Supreme Court specifically held that state agencies and officials acting in their official capacity are not "persons" under §1983. 491 U.S. at 70-71. A plaintiff seeking monetary damages can only pursue such damages against state officials in their individual or personal capacity. Brown v. Culp, 2011 WL 6003900, *5 (M.D. Pa. Oct. 27, 2011) (citing Will, 491 U.S. at 71); Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 681 (M.D. Pa. 2010)).
As such, to the extent that Plaintiff's claims for compensatory and punitive damages are brought against the individual Commonwealth Defendants in their official capacities, the claims should be dismissed.
G. HAS PLAINTIFF FAILED TO STATE A CLAIM AGAINST COMMONWEALTH AND COUNTY DEFENDANTS FOR RELIEF UNDER THE PENNSYLVANIA CONSTITUTION?
Plaintiff alleges that defendants "knowingly violated [and/or] conspired to violate" his rights under various clauses of the Pennsylvania Constitution as well as Plaintiff's rights under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of the United States Constitution. (Doc. 28 ¶ 18).
Plaintiff alleges violations of the Pennsylvania Constitution, Article I, §§1, 8, 9, 10, 12, 13, 14, 15, 17, 20, 21, 25, and 26. Id. "[N]o Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution." Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 F. App'x 681, 687 (3d Cir. 2011) (citing Jones v. City of Phila., 890 A.2d 1188. 1208 (Pa. Commw. Ct. 2006)). Plaintiff's claims under the Pennsylvania Constitution should be dismissed.
H. ARE PLAINTIFF'S CLAIMS AGAINST ALL DEFENDANTS BARRED UNDER HECK V. HUMPHREY?
Plaintiff directly challenges the decision of the Board of Probation and Parole to revoke his parole and incarcerate him pending trial. Such claims are barred by the favorable termination rule of in Heck v. Humphrey, 512 U.S. 477 (1994) and, therefore, must be dismissed.
The plaintiff in Heck filed a 42 U.S.C. § 1983 action against two county prosecutors and an Indiana State Police investigator challenging his manslaughter conviction. 512 U.S. at 478-79. He alleged that the defendants engaged in an unlawful, unreasonable, and arbitrary investigation which led to his arrest; that the defendants knowingly destroyed exculpatory evidence; and that the defendants caused an illegal voice identification procedure to be used at trial. Id. at 479. In affirming the lower court's dismissal of the action, the United States Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such [a] determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Id. at 486-87, 490 (footnote omitted). "Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id.
The rationale of the Court in Heck was based, in part, on a desire to avoid parallel litigation over the issues of probable cause and guilt, to prevent the creation of two conflicting resolutions arising out of the same transaction, and to preclude a convicted criminal defendant from collaterally attacking a conviction through a civil suit. Royal v. Durison, 254 F. App'x 163, 165 (3d Cir. 2007). Even if the plaintiff has exhausted available state remedies, he has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. Heck, supra, 512 U.S. at 489. "[A] state prisoner's § 1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of the confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). The Courts of this Circuit also extended Heck to apply to civil rights cases challenging detention in other contexts, including actions challenging parole revocation decisions. See Williams v. Consovoy, 453 F.3d 173 (3d Cir. 2006).
In this case, Plaintiff is challenging the decision of The Board of Probation and Parole to revoke his parole and incarcerate him pending trial. Plaintiff failed to allege or demonstrate that he received a "favorable termination" of the Board's decision prior to filing suit. Accordingly, Plaintiff's claim must be dismissed under Heck.
I. ARE THE COUNTY DEFENDANTS IMMUNE PURSUANT TO THE POLITICAL SUBDIVISION TORT CLAIMS ACT?
The claim that the County Defendants are responsible for any injuries suffered by Plaintiff directly under the theory of respondeat superior is barred by the Pennsylvania Political Subdivision Tort Claims Act. The defense of governmental immunity is an absolute, unwaivable defense, not subject to any procedural device that could render the governmental agency liable beyond the exceptions granted by the legislature. Lyons v. City of Phila., 159 Pa. Commw. 107, 632 A.2d 1006 (1993).
In Pennsylvania, local agencies are generally immune from liability unless specifically defined statutory exceptions are satisfied. 42 Pa. C.S.A. §8542. "An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter." 42 Pa. C.S.A. §8545.
The Pennsylvania Political Subdivision Tort Claims Act 42 Pa. C.S.A. §8541 provides the following: "Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any person." There are two requirements that must be met in order to successfully maintain an action against a political subdivision. "First, as precondition, there must be a cause of action, which would allow recovery of damages at common law against the local agency which is not otherwise shielded by governmental immunity, and secondly, the cause of action must fit into one of the eight enumerated exceptions in the Tort Claims Act." Mitchell v. City of Phila., 141 Pa. Commw. 695, 699, 596 A.2d 1205 (1991). 42 Pa. C.S.A. §8542(b) provides the exceptions to governmental immunity and includes: (1) Vehicle liability; (2) Care custody or control of personal property; (3) Real property; (4) Trees, traffic controls and street lighting; (5) Utility services facilities; (6) Streets; (7) Sidewalks; (8) Care, custody or control of animals.
One of these eight exceptions must be designated in order to permit recovery of damages which Plaintiff claims. Plaintiff has made no such allegation. Further, there are no allegations of actual malice or willful misconduct required for such finding to be exempt from the exceptions. 42 Pa.C.S.A. §8550. See Herring v. Delaware County, 07-4395, 2007 WL 4441205. Plaintiff fails to designate any one of the eight exceptions in his Amended Complaint. Therefore, the County Defendants are entitled to qualified immunity under the Pennsylvania Political Subdivision Tort Claims Act both in their professional capacities and their individual capacities.
J. HAS PLAINTIFF FAILED TO STATE ANY CLAIMS AGAINST INDIVIDUAL COUNTY DEFENDANTS?
Plaintiff next attempts to allege individual liability against the County of York and the remaining County Defendants, particularly District Attorney of York County David Sunday. Specifically, Plaintiff alleges that County Defendants maliciously prosecuted, engaged in abuse of process, selective prosecution, retaliation, placed him in a foreclosure action, and conspired to violate his constitutional rights. (Doc. 28, ¶¶ 7, 8, 18, 68, 89). However, Plaintiff fails to allege any facts to demonstrate the personal involvement of any County Defendant in violating his Constitutional Rights.
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, defendants are "liable only for their own unconstitutional conduct." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015). And so respondeat superior cannot form the basis of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Thus, a constitutional deprivation cannot be premised merely on the fact that the defendant was a prison supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 F. App'x 102, 104-05 (3d Cir. 2008). "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The Third Circuit has "recognized that 'there are two theories of supervisory liability, one under which supervisors can be liable if they established and maintained a policy, practice or custom which directly caused the constitutional harm, and another under which they can be liable if they participated in violating plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations.'" Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)).
"Where a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor 'acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) (footnote omitted), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). "A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct." Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
To set forth a claim for supervisory liability under the policy-and-practice strand of supervisory liability, a plaintiff must:
(1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure.Id. at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).
Further, the law is clear that a municipality cannot be held liable for the unconstitutional acts of its employees based on a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, "under § 1983, local governments are responsible only for 'their own illegal acts.'" Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original)).
Plaintiff has failed to produce any facts that indicate that David Sunday, or any other County Defendant, was in any manner involved in the prosecution of Plaintiff's criminal matter, which is the basis for the allegations of constitutional harm to Plaintiff. Therefore, Plaintiff has failed to appropriately allege any valid claims against the County Defendants and all claims against County Defendants should be dismissed.
K. HAS PLAINTIFF FAILED TO ALLEGE A CONSPIRACY CLAIM AGAINST COUNTY DEFENDANTS?
Plaintiff next asserts a conspiracy claim against County Defendants. However, Plaintiff fails to provide the specific factual details necessary for stating such a claim.
"[C]onspiracy under § 1983 is not an independent cause of action, but a means to impute liability on third persons." Ober v. Miller, No. CIV.A. 1:04-CV-1669, 2007 WL 4443256, at *18 (M.D. Pa. Dec. 18, 2007), aff'd, 395 F. App'x 849 (3d Cir. 2010); see also Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980) (stating that a § 1983 "[c]onspiracy is merely a mechanism by which to obtain the necessary state action, or to impose liability on one defendant for the acts of the others performed in pursuance of the conspiracy"(citations omitted)). "[A] §1983 conspiracy claim only arises when there has been an actual deprivation of a right." Perano v. Twp. of Tilden, 423 F. App'x 234, 239 (3d Cir. 2011).
"The essence of a conspiracy is an agreement." United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). "To demonstrate the existence of a conspiracy under § 1983 [or Bivens], 'a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of law.'" LeBlanc v. Stedman, 483 F. App'x 666, 670 (3d Cir. 2012) (quoting Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir.1993), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)). "It is not enough that the end result of the parties' independent conduct caused the plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism." Perez v. Gamez, 1:13-CV-1552, 2013 WL 6073877, at *9 (M.D. Pa. Nov. 18, 2013). Rather, the plaintiff must show that the defendants acted in concert with the specific intent to violate the plaintiff's rights. Davis v. Fox, 3:12-CV-1660, 2013 WL 5656125, at * 5 (M.D. Pa. Oct. 15, 2013).
Because direct evidence of a conspiracy is rarely available, the existence of a conspiracy may be inferred from the circumstances. Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009). Still, 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Vague and conclusory allegations in a civil rights complaint will not survive a motion to dismiss. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989). To establish a §1983 conspiracy claim, a plaintiff "must allege facts that plausibly show: (1) the existence of a conspiracy and (2) deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Jackson-Gilmore v. Dixon, No. 04-03759, 2005 WL 3110991 (E.D. Pa. Nov. 17, 2005). "To support this showing, the plaintiff must allege plausible facts and not conclusory assertions. This should include (1) the period of the conspiracy; (2) the object of the conspiracy; and (3) certain actions of the alleged conspirators taken to achieve that purpose." Hankin Family P'ship v. Upper Merion Twp., No. 01-1622, 2012 WL 43599 at *17 (E.D. Pa. Jan. 6, 2012).
Plaintiff fails to allege sufficient facts to support a conspiracy claim. Indeed, the vague and conclusory allegations provided by Plaintiff do not afford the County Defendants an opportunity to adequately respond to the allegations. Due to the failure to state a proper claim of conspiracy, the claims should be dismissed. VI. RECOMMENDATION
For the reasons discussed herein, I RECOMMEND:
(1)Officer Miller's Motion to Dismiss (Doc. 34) be GRANTED IN FULL and all claims against him be DISMISSED;Date: June 24, 2019
(2)Commonwealth Defendants' Motion to Dismiss (Doc. 59) be GRANTED IN FULL and all claims against them be DISMISSED;
(3)County Defendants' Motion to Dismiss (Doc. 64) be GRANTED IN FULL and all claims against them be DISMISSED;
(4)The Motion to Stay Proceedings (Doc. 4), the Motion for Preliminary Injunction (Doc. 21), the Motion to Stay Discovery (Doc. 37), the Motion to Stay (Doc. 69), the Motion for Temporary Restraining Order (Doc. 74), and the additional Motion to Dismiss (Doc. 79) be DISMISSED AS MOOT; and
(5)The Clerk of Court CLOSE this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.Date: June 24, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge