De LA Fuente v. Cortes et al

BRIEF IN OPPOSITION re Final MOTION for Extension of Time to File Brief in Opposition to Defendants' Motion to Dismiss Plaintiff's Amended Complaint

M.D. Pa.January 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ROQUE “ROCKY” DE LA FUENTE, Plaintiff v. PEDRO A. CORTÉS, in his official capacity as the Secretary of the Commonwealth of Pennsylvania; and JONATHAN MARKS, in his official capacity as Commissioner of the Bureau of Commissions, Elections and Legislation, Defendants NO. 1:16-CV-1696 (JUDGE JONES) (Complaint Filed 08/15/16) Electronically Filed DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EXTENSION OF TIME Defendants Pedro A. Cortés and Jonathan Marks ("Defendants") file this Response to Plaintiff’s Motion for Extension of Time. RESPONSE While Defendants typically are amenable to such extensions, the history of this case-and the circumstances surrounding Plaintiff’s request-requires us to not agree with Plaintiff’s motion.1 To that end, this case began when Plaintiff filed a Complaint on August 15, 2016. ECF 1. Notably, the complaint was for 1 Plaintiff’s Certificate is vague. While he did contact us, via email, we responded that we did not concur in his request for more time. See Exhibit A (email chain between Attorney Rossi and Attorney Joel). Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 1 of 7 2 Emergency Mandamus Relief and sought an immediate order compelling Defendants to accept the nomination papers submitted by Plaintiff. See ECF 1, ¶ 6. The only challenge raised in the Complaint was to a disaffiliation provision of the Pennsylvania Election Code. See, e.g., ECF 1, ¶¶ 2, 43, Count I, Count II. Along with federal claims, Plaintiff also brought a state-law claim that sought to interpret this single provision of the Election Code. ECF 1, Count III. On August 18, 2016, Plaintiff filed an Amended Complaint. ECF 4. Notably, since the reason provided for Defendants’ action was not the disaffiliation provision, but was the “sore loser” provision, Plaintiff amended his pleading to challenge that provision as well. ECF 4, ¶¶ 1-2. This Court abstained under the Pullman doctrine. ECF 15. Plaintiff then filed an emergency action in Commonwealth Court. A Status Report was filed advising this Court that Plaintiff’s Commonwealth Court matter had been rejected and that no appeal had been taken to the Pennsylvania Supreme Court and that the November election had occurred and that the next presidential election was not until 2020. ECF 16. Since the previous briefing mainly dealt with the Pullman issue this Court directed the filing of a new motion to dismiss and we complied. ECF 18, 21, 22. By a filing dated November 30, 2016, Plaintiff asked for Defendants to have more time to file a motion to dismiss and represented that- because of travel plans to Cuba-he intended to file a motion for leave to file Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 2 of 7 3 another complaint on December 2, 2016. ECF 19. No order was entered on Plaintiff’s motion-that sought more time for Defendants-and Defendants completed their materials and filed their Rule 12 motion on December 1, 2016. ECF 21, 22. Plaintiff sought more time to file an opposition brief to our Rule 12 motion and was granted until January 9, 2017 to file an Opposition Brief. ECF 23, 24. At about 10:00 pm on January 9, 2017-almost two months after the filing of the Status Report representing to this Court that a motion for leave to file yet another amended pleading would be filed, and over a month after Plaintiff filed a motion on our behalf because he represented that a motion for leave to file an amended pleading would be filed on December 2, 2016, and three weeks after the tactic of filing an amended pleading was seemingly abandoned by Plaintiff’s motion for more time to file a Brief in Opposition to our Rule 12 Motion-Plaintiff finally filed a motion seeking permission to file a Second Amended Complaint and a Brief in Support. ECF 25, 26. Based on Plaintiff’s confidence that a Second Amended Complaint will be allowed, he now asks for more time to oppose our Motion to Dismiss.2 2 Interestingly, Plaintiff asks for an extension until February 8, 2017 and on the basis that he seemingly expects to have a decision on the Second Amended Complaint by that date. ECF 27. Under our Local Rules, Plaintiff’s motion seeking leave to file the Second Amended Complaint will not be ripe until at least February 6, 2017. Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 3 of 7 4 Defendants do not share Plaintiff’s confidence that his Second Amended Complaint will be allowed as we believe that, among other reasons, it is futile. And, while we fully intend to oppose this motion, we note that Plaintiff is trying to markedly expand this litigation by proposing claims that are wholly unrelated to the reason that Plaintiffs’ nomination papers-seeking to be placed on the general election ballot as the American Delta Party candidate for President of the United States-were rejected. See ECF 25-1. Indeed, despite no mention in the Status Report of such an expansion, Plaintiff now wants to challenge the requirement of who may circulate nomination petitions for candidates seeking access to the Democratic Party’s primary ballot in 2020 as well as the requirement of who may circulate nomination papers for independent candidates seeking access to the general election ballot in 2020. See, e.g., ECF 25-1, ¶ 2. Neither was the reason that Plaintiff’s nomination papers were rejected and, indeed, Plaintiff succeeded in collecting the 2,000 signatures needed to appear as a Democratic candidate for POTUS on the April of 2016 primary ballot. See also http://www.electionreturns.pa.gov/ENR_New/Home/SummaryResults?ElectionID =54&ElectionType=P&IsActive=0 (DOS website noting the election results for the 2016 Presidential primary and showing that De La Fuente was on the Democratic Party’s primary ballot for POTUS but that he received only 0.86% of the vote in the primary) (last visited January 10, 2017). Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 4 of 7 5 Regardless, the belated filing of the Motion for Leave to File a Second Amended Complaint does not justify further extending the time to file a Brief in Opposition to our Motion to Dismiss. Put simply, our motion has been pending since December 1, 2016. We willingly, and reasonably, agreed to almost a month- long extension based on the representation in Plaintiff’s Motion that an opposition brief would be filed. This Court issued an Order that extended the time for filing an opposition brief-based on the representation that an opposition brief would be filed-and that directed that an Opposition Brief be filed by January 9, 2017. Plaintiff has failed to file any opposition brief and there is no good reason to allow him to further delay these proceedings by trying to inject what, in reality, is a new lawsuit challenging unrelated provisions of Pennsylvania’s Election Code. Consequently, Defendants submit that this Court should deny Plaintiff’s request to further extend the time and further find that our Motion to Dismiss has not been opposed. See LR 7.6. As such, we request that this Court grant, as unopposed, our motion and dismiss this case. See also Piazza v. CT Corporation, No. 3:09-cv- 1087 at 15-16 (M.D. Pa., Feb., 3, 2010) (R&R by M.J. Blewitt) (Exhibit B) (adopted Feb. 26, 2010 by J. Conner) (Exhibit C). Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 5 of 7 6 CONCLUSION WHEREFORE, the Defendants respectfully move the Court to deny Plaintiff’s Motion to Extend Time. Respectfully submitted, BRUCE R. BEEMER Attorney General By: s/ Kenneth L. Joel KENNETH L. JOEL Office of Attorney General Chief Deputy Attorney General 15th Floor, Strawberry Square Attorney ID 72370 Harrisburg, PA 17120 NICOLE J. RADZIEWICZ Phone: (717) 787-8106 Deputy Attorney General Fax: (717) 772-4526 Attorney ID 314061 kjoel@attorneygeneral.gov KENNETH L. JOEL Chief Deputy Attorney General Litigation Section, Civil Law Division DATE: January 10, 2017 Counsel for Defendants Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 6 of 7 CERTIFICATE OF SERVICE I, Kenneth L. Joel, Chief Deputy Attorney General, hereby certify that on January 10, 2017, I caused to be electronically-served a copy of the foregoing DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EXTENSION OF TIME through the ECF System, addressed to the following: Paul A. Rossi, Esquire IMPG ADVOCATES, INC. 873 East Baltimore Pike, Suite 705 Kennett Square, PA 19348 paul-rossi@comcast.net (Counsel for Plaintiff) /s/ Kenneth L. Joel KENNETH L. JOEL Chief Deputy Attorney General Case 1:16-cv-01696-JEJ Document 28 Filed 01/10/17 Page 7 of 7 1 Joel, Kenneth From: Joel, Kenneth Sent: Monday, January 09, 2017 11:24 AM To: 'Paul-Rossi' Subject: RE: Roque De La Fuente - 1:16-cv-01696 Paul: We do not concur in either motion. Kenneth L. Joel Chief Deputy Attorney General Chief, Litigation Section Pennsylvania Office of Attorney General Strawberry Square, 15th Floor Harrisburg, PA 17120 717-787-8106 (d) 717-772-4526 (f) kjoel@attorneygeneral.gov From: Paul-Rossi [mailto:paul-rossi@comcast.net] Sent: Monday, January 09, 2017 9:56 AM To: Joel, Kenneth Cc: paul-rossi Subject: Roque De La Fuente - 1:16-cv-01696 Kenneth: I will be filing a motion for leave to file a Second Amended Complaint in this case this afternoon. If the Second Amended Complaint is permitted to be filed, it will moot out the pending motion to dismiss and the need to file a brief in opposition to that motion so I will also file a motion requesting an extension in time to file my brief in opposition until after the Court rules on the motion for leave to file the Second Amended Complaint. Accordingly, I am seeking concurrence in the motion for leave to file a Second Amended Complaint and the motion for an extension of time to file my brief in opposition to your pending motion to dismiss. Let me know. Paul A. Rossi, Esq. 717.961.8978 Paul-Rossi@comcast.net Click here to report this email as spam. Case 1:16-cv-01696-JEJ Document 28-1 Filed 01/10/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RICHARD PIAZZA, : CIVIL ACTION NO. 3:CV-09-1087 : Plaintiff : (Judge Vanaskie) : v. : (Magistrate Judge Blewitt) : CT CORPORATION, t/d/b/a Mohegan : Sun at Pocono Downs and : PENNSYLVANIA STATE POLICE : DIVISION OF GAMING : ENFORCEMENT, et al., : : Defendants : REPORT AND RECOMMENDATION I. Background. Plaintiff, Richard Piazza, through counsel, filed this civil rights complaint pursuant to 42 U.S.C. § 1983, on June 8, 2009. (Doc. 1). Plaintiff also asserted state law tort claims. Plaintiff originally named as Defendants CT Corporation, t/d/b/a Mohegan Sun at Pocono Downs, and the Pennsylvania State Police, Division of Gaming Enforcement (“PSP”). Defendant PSP filed a Motion to Dismiss Plaintiff‘s original Complaint on July 30, 2009. (Doc. 5). Defendant CT Corporation filed a Motion to Dismiss Plaintiff‘s original Complaint on August 18, 2009. (Doc. 11). Plaintiff then filed an Amended Complaint on August 31, 2009. (Doc. 8). As Defendants in his amended pleading, Plaintiff names CT Corporation, t/d/b/a Mohegan Sun at Pocono Downs, PSP, Trooper Curt A. Szczecinski, and Trooper John Does, Numbers One and Two. The three individual Trooper Defendants are all alleged to have been assigned to the PSP Division of Gaming Enforcement. Plaintiff sues Defendants Szczecinski and Trooper John Does, Numbers One and Two, in both their official and individual capacities. (Id., pp. 2-3). Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 1 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 1 of 30 1. The undersigned has been assigned this case for pre-trial maters pursuant to 28 U.S.C. § 636(b)(i)(A). 2 In response to Plaintiff‘s Amended Complaint, Defendant CT Corporation filed an Answer with Affirmative Defenses on September 22, 2009. (Doc 10). Defendants PSP, Szczecinski, and Trooper John Does Numbers One and Two (“Commonwealth Defendants”), jointly filed a Motion to Dismiss Plaintiff‘s Amended Complaint on September 24, 2009, pursuant to Fed. R. Civ. P. 12(b)(1), (4), (5) and (6). (Doc. 11). A support Brief was filed by Commonwealth Defendants on the same date. (Doc. 12). Plaintiff filed his Brief in opposition to Commonwealth Defendants’ Motion to Dismiss on October 9, 2009. (Doc. 13). Commonwealth Defendants filed their Reply Brief on October 19, 2009. (Doc. 14). Commonwealth Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint is ripe for disposition. (Doc. 11).1 II. Motion to Dismiss Standards. 1. Rule 12(b)(1) Standard In James S. Ex rel. Thelma S. v. Sch. Dist. of Phila., 559 F. Supp. 2d 600, 611 (E. D. Pa. 2008), the Court stated: “A challenge to a complaint for failure to allege subject matter jurisdiction is known as a facial’ challenge, and must not be confused with a ‘factual’ challenge contending that the court in fact lacks subject matter jurisdiction, no matter what the complaint alleges....” N.E. Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 n. 7 (3d Cir.2001) (citing Mortensen, 549 F.2d at 891; 5A Wright & Miller, Federal Practice & Procedure § 350, at 212-18 (West 1990)). Defendant District's Motion to Dismiss presents a factual challenge. In assessing a Rule 12(b)(1) motion that presents a factual challenge to a court's jurisdiction, the court is “free to weigh the evidence and satisfy itself as to the existence of its power to hear the case .... [N]o presumptive truthfulness attaches to Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 2 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 2 of 30 3 plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Carpet Group Int'l, 227 F.3d at 69 (quoting Mortensen, 549 F.2d at 891). In making this assessment, “the court [is] not confined to allegations in the plaintiff's complaint, but [may] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction.” Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997). 2. Rule 12(b)(6) Standard The Court in Williams v. Hull, 2009 WL 1586832, *2-*3 (W.D. Pa. 2009), set forth the Motion to Dismiss standard of review, as annunciated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. -, 127 S. Ct. 1955 (2007), and as refined in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), as follows: The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, ----, --- L.Ed.2d ----, ----, 2009 WL 1361536 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir.2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 556, citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556. Although the United States Supreme Court does “not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face.” Id. at 570. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 3 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 3 of 30 4 In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.2008). “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 232, quoting Twombly, 550 U.S. at 556 n. 3. III. Allegations of Amended Complaint. Plaintiff avers that, while he was playing a slot machine at the Mohegan Sun Casino, he found an envelope containing gaming vouchers on the floor. Plaintiff states that he tried to locate Casino personnel in order to help him find the owner of the envelope, but to no avail. Plaintiff alleges that when he resumed playing a slot machine, he was confronted by Defendant John Doe Troopers and escorted to the Casino Security Office. Plaintiff avers that he was interrogated by Casino personnel and accused of stealing the gaming vouchers, and that the John Doe Troopers and Casino personnel held him in their custody for about one and a half hours. Plaintiff states that a PSP Gaming Officer told Plaintiff he stole the envelope and was being arrested, and that Defendant Trooper Szczecinski then fingerprinted him and took his mug shot photo. Plaintiff then alleges that Defendant Trooper Szczecinski filed criminal charges against him, and that following a hearing before a District Justice at the Luzerne County Courthouse, all of the charges were dismissed. Plaintiff asserts claims (Counts One, Two and Three) under 42 U.S.C. § 1983 against all Commonwealth Defendants. In Count One, Plaintiff alleges that his September 22, 2007 seizure and arrest by the Commonwealth Defendants at the Mohegan Sun Casino was without probable Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 4 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 4 of 30 5 cause. Plaintiff alleges that he was arrested and seized in violation of the Fourth Amendment, and that this conduct deprived him of his due process rights under the Fourteenth Amendment. (Doc. 8, pp. 8-9). In Count Two, Plaintiff raises a § 1983 claim that Commonwealth Defendants conspired with Defendant Mohegan Sun to violate his rights under the Fourth Amendment and Fourteenth Amendment. (Id., pp. 9-10). In Count Three, Plaintiff raises a § 1983 malicious prosecution claim against Commonwealth Defendants, and he alleges that they initiated criminal proceedings against him without probable cause and with malice or for a purpose other than to bring him to justice. (Id., pp. 10-11). Plaintiff states that the criminal proceedings terminated in his favor. In Count Four, Plaintiff raises a state law abuse of process claim against Commonwealth Defendants, and he alleges that these Defendants used the criminal legal process against him in a manner “to accomplish a purpose for which it was not designed.”(Id., p. 11). In Count Five, Plaintiff asserts a state law Intentional Infliction of Emotional Distress (“IIED”) claim against Commonwealth Defendants, and he alleges that these Defendants, “by their extreme and outrageous conduct, intentionally or recklessly caused [him] to suffer severe emotional distress.” (Id., p. 12). In Count Six, Plaintiff raises a municipal liability claim under § 1983 against Defendant PSP, and he alleges that “the policies and customs of Defendant Pennsylvania Gaming Enforcement ... were in violation of the Fourth Amendment and Fourteenth Amendment.” (Id., pp. 12-13). Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 5 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 5 of 30 2. Plaintiff erroneously skips Count Eight in his Amended Complaint. 6 In Count Seven, Plaintiff raises a state law false imprisonment claim against all Defendants, and he alleges that Defendants unlawfully detained and restrained him on September 22, 2007, without probable cause, in a small room at Mohegan Sun Casino for about one and a half hours. (Id., pp. 9-10). In his final count, Count Nine , Plaintiff raises a negligence claim against only Defendant2 Mohegan Sun. (Id., pp. 14-15). As relief, Plaintiff seeks compensatory and punitive damages. Plaintiff correctly recognizes (Doc. 8, pp. 3-4) that jurisdiction of this Court is pursuant to 28 U.S.C. § 1331, § 1343(a), and he seeks to invoke the Court’s supplemental jurisdiction over his state law claims under 28 U.S.C. § 1367. IV. Discussion. In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981); Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993); Stawarz v. Rojas, 2007 WL 1653742, *3. Further, § 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002). See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa. 2005); Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 6 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 6 of 30 7 Slater v. Susquehanna County, 613 F. Supp. 2d 653, 660 (M.D. Pa. 2009) (citations omitted); Stankowski v. Farley, 487 F. Supp. 2d 543, 550 (M.D. Pa. 2007). Initially, as Commonwealth Defendants recognize in their Reply Brief (Doc. 14, pp. 2-3), we find that in his opposition Brief to Defendants’ pending Motion (Doc. 13), Plaintiff does not oppose many of the Defendants’ arguments with respect to his claims (Counts One through Seven) as against them. Commonwealth Defendants correctly state (Doc. 14, p. 3) that Plaintiff has only opposed their Motion with respect to his Fourth Amendment illegal search and seizure claim, his malicious prosecution claim and his conspiracy claim which he brings against Defendant Trooper Szczecinski in his individual capacity under § 1983. (Doc. 13, pp. 5-7). Commonwealth Defendants thus state that “all remaining claims against all remaining [Commonwealth] parties must be dismissed since Plaintiff should be deemed as not opposing their Motion regarding these other claims. (Doc. 14, p. 3). As discussed below, we will recommend that Commonwealth Defendants’ Motion be granted as unopposed to the extent that it requests PSP be dismissed from all Counts of Plaintiff‘s Amended Complaint, to the extent that it seeks monetary damages from Commonwealth Defendants in their official capacities, and to the extent that it requests dismissal without prejudice of Defendant Troopers John Does Numbers One and Two. Further, we agree with Commonwealth Defendants that Plaintiff has failed to sufficiently state a § 1983 conspiracy claim against Defendant Trooper Szczecinski and a Monell claim against Defendant PSP. We also will recommend that Plaintiff only be permitted to proceed with respect to his Fourth Amendment illegal search and Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 7 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 7 of 30 8 seizure claim, and his § 1983 malicious prosecution claim, both as against Defendant Trooper Szczecinski in his individual capacity. 1. Claims against Defendants PSP and Individual Troopers in their Official Capacities As mentioned, Plaintiff sues the three individual Trooper Defendants, namely, Szczecinski and Trooper John Does Numbers One and Two for money damages in both their individual and official capacities. He also sues Defendant PSP for money damages. Commonwealth Defendants argue that Plaintiff’s Amended Complaint against Defendant PSP and the three individual Trooper Defendants, in their official capacities, must be dismissed since they are barred by the Eleventh Amendment. In his opposition Brief (Doc. 13, p. 4), Plaintiff states that he “concedes that dismissal of the Section 1983 claims (Count One and Count Six) brought against the Defendant Szczecinski in his official capacity and the [PSP] is appropriate pursuant to the principles of the Eleventh Amendment immunity.” While Plaintiff seems to try and limit his Eleventh Amendment immunity concession with respect to his official capacity claims against Commonwealth Defendants to only his Counts One and Six, we agree with Commonwealth Defendants, as they state in their Reply Brief (Doc. 14, pp. 1-2), that “all claims against the official capacity defendants - are properly dismissed pursuant to the Eleventh Amendment or the doctrine of sovereign immunity.” In their initial Brief in support of their Motion to Dismiss (Doc. 12, p. 13), Commonwealth Defendants argue that suits brought against state officials in their official capacities are in reality actions against the State, and are barred by the Eleventh Amendment to the same Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 8 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 8 of 30 3. Defendants cite to Kentucky v. Graham, 473 U.S. 159, 165 (1985). (Doc. 12, p. 13). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (emphasizing that “[s]uits against state officials in their official capacity . . . should be treated as suits against the State”). 4. “Eleventh Amendment immunity is . . . subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Larsen v. State Empls. Ret. Sys. (“SERS”), 553 F. Supp. 2d 403, 412 (M.D. Pa. 2008) (quoting Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002)). 9 extent as are actions against the State itself. (Doc. 41, p. 9). We agree with Commonwealth3 Defendants. In Walker v. Beard, 244 Fed. Appx. 439, 440-441 (3d Cir. 2007), the Third Circuit directly addressed the application of Eleventh Amendment immunity to state officials sued in their official capacities: State officials sued in their individual capacities are "persons" for purposes of § 1983. See Hafer v. Melo, 502 U.S. 21, 26, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991). Accordingly, the Eleventh Amendment does not preclude a suit against a state official in his or her individual capacity. . . . In Will v. Michigan Dept. of State Police, the Supreme Court held that "officials acting in their official capacities are [not] 'persons' under § 1983." 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 & n.10 (1989). Thus, Walker's claims brought against the Secretary in his official capacity are considered to be against the state itself and are barred by the Eleventh Amendment. In Ex Parte Young,209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), however, the Supreme Court held that suits for injunctive relief against state officials brought to end ongoing violations of federal law are not barred by the Eleventh Amendment. See MCI Telecommunication Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 506 (3d Cir. 2001). (emphasis added). Thus, the Eleventh Amendment shelters state officials from a claim brought against them in their official capacity to the same extent as if that claim were brought against the State, unless the claim seeks to “halt a present, continuing violation of federal law.” Blanciak v. Allegheny4 Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 9 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 9 of 30 10 Ludlum Corp., 77 F.3d 690, 698 (3d Cir.1996) (affirming the District Court’s dismissal of § 1983 claims seeking compensatory damages against state officials “acting within the scope their official capacities.”); Kimmett v. PA Office of Attorney General, Civil No. 08-1496, 12-1-09 Memorandum and Order, sip op. P. 6, n. 1 (M.D. Pa.). Plaintiff does not seek to halt a continuing violation of federal law in this action. We agree with Commonwealth Defendants’ argument that Eleventh Amendment protection extends to all of Plaintiff’s claims against them for money damages in their official capacities. As stated in the Third Circuit’s opinion in Atwell v. Schweiker, 274 Fed. Appx. 116, 118 (Non-Precedential) (3d Cir. 2007), “[t]he Eleventh Amendment bars a suit against state officials sued in their official capacities because the state is the real party in interest inasmuch as the plaintiff seeks recovery from the state treasury.” (citation omitted). See also Walker, supra. Thus, to the extent that Plaintiff is seeking monetary damages from all Commonwealth Defendants, he can only sue the state actor Defendants in their individual or personal capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Meekins v. Beard, 2007 WL 675358, *3 (M.D. Pa.); Atwell v. Schweiker, supra. Therefore, we will recommend that all of Plaintiff’s claims for monetary damages against Commonwealth Defendants in their official capacities be dismissed. 2. The Eleventh Amendment Bars All Claims Against PSP Plaintiff has named PSP as a Defendant, and he avers that it is a State agency. (Doc. 8, p. 2). As stated, Plaintiff asserts constitutional and state law claims against all Commonwealth Defendants, including PSP, in Counts One through Five, and in Count Six he asserts a Monell claim Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 10 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 10 of 30 5. As Commonwealth Defendants’ note (Doc. 12, p. 9, n. 3), States and its agencies, such as PSP, are not persons under § 1983 and neither can be sued in court under this statute. See Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *3-*4 (E.D. Pa.). 11 solely against Defendant PSP for violation of his constitutional rights under § 1983.5 Commonwealth Defendants argue that the Eleventh Amendment bars all of Plaintiff‘s claims against PSP. Commonwealth Defendants state that Plaintiff’s entire Amended Complaint, including both his constitutional and state law tort claims, against PSP must be dismissed since this Defendant is immune from suit under the Eleventh Amendment. (Doc. 12, p. 8). Insofar as Commonwealth Defendants’ Motion raises the stated sovereign immunity argument under the Eleventh Amendment with respect to Plaintiff‘s state law claims, their Motion, as Defendants recognize, is under Rule 12(b)(1). See Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *2. Since Commonwealth Defendants’ Motion with respect to Plaintiff‘s state law claims against PSP is brought pursuant to sovereign immunity under the Eleventh Amendment, it is a facial challenge to Plaintiff‘s Amended Complaint. Id. at *3. Thus, “the Court must accept the allegations in the [Amended Complaint] as true in ruling on the motion.” Id. (citation omitted). Based on MCI Telecom. Corp. v. Bell Atl. Pa., 271 F.3d 491, 502 (3d Cir. 2001), because Defendant PSP is an agency of the Commonwealth of Pennsylvania, this Court’s jurisdiction over PSP is barred by the Eleventh Amendment of the United States Constitution, and all claims against PSP must be dismissed. In Democracy Rising PA v. Celluci, 603 F. Supp. 2d 780, 795 (M.D. Pa. 2009), this Court held that: Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 11 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 11 of 30 12 The Eleventh Amendment precludes private federal litigation against a state and its agencies. n16 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 jurisdictional 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). 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). [**41] Furthermore, Pennsylvania has unequivocally withheld its consent to such suits. See 42 PA. CONS. STAT. § 8521(b); see also Lombardo, 540 F.3d at 196 n.3; Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). See also Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *3. Thus, we agree with Commonwealth Defendants that this Court’s jurisdiction over PSP is barred by the Eleventh Amendment. Also, Plaintiff has failed to oppose this argument of Commonwealth Defendants that his suit as against PSP is barred by the Eleventh Amendment. We also agree with Commonwealth Defendants that Plaintiff’s state law claims against all of them (Counts Four, Five and Seven) should be dismissed. In Lombardo v. Pennsylvania, Dept. of Public Welfare, 540 F.3d 190, 198 (3d Cir. 2008), the Third Circuit outlined the criteria under which a State may consent to having state law questions determined by a federal court and held: A State may waive its immunity from liability, but such a waiver must be express and unequivocal. See Coll. Sav. Bank, 527 U.S. at 680; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). The Supreme Court has noted that an effective waiver of sovereign immunity, like the waiver of other Constitutionally-protected Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 12 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 12 of 30 6. As the Lombardo Court noted, “Pennsylvania has withheld its consent to suit in federal court. 42 Pa. Cons. Stat. §8521(b).” 540 F. 3d at 196, n. 3(citation omitted). 13 rights, must involve the "'intentional relinquishment or abandonment of a known right. . . .'" Coll. Sav. Bank, 527 U.S. at 682 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). Accordingly, we must "indulge every reasonable presumption against waiver." Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 81 L. Ed. 1177 (1937). The Lombardo Court held that “[i]t is only when a State removes federal-law claims from state court to a federal forum that it ‘submits its rights for judicial determination’, ..., and unequivocally invokes the jurisdiction of the federal courts.” Id. (emphasis added) (citation omitted). Even though the Court in Lombardo found that Pennsylvania waived its Eleventh Amendment immunity, it did so because the state voluntarily removed the case to federal court, i.e. the Court based its decision on the so-called “waiver-by-removal rule,” which we find is inapplicable in the instant case. Clearly, Commonwealth Defendants were involuntarily brought into federal court, and they did not voluntarily remove the case from state court to federal court. The conduct by the Commonwealth in this case does not constitute an express and unequivocal waiver of its constitutionally-protected rights and a waiver of its express withholding of its consent to suit in federal court. 6 In Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *3, the Court stated that “[a] state’s waiver of its sovereign immunity must ‘be unequivocally expressed.’”(citation omitted). Specifically, the Urella Court stated: “It is well-established under Pennsylvania law that the Commonwealth enjoys immunity from suit except when the General Assembly has, by statute, expressly waived the immunity.” Apfelbaum v. National R.R. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 13 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 13 of 30 7. The Brief of Commonwealth Defendants (Doc. 12, p. 10) also states the nine exceptions in which Pennsylvania has waived its immunity. 14 Passenger Corp., 2002 WL 32342481, *2 (E.D.Pa. Oct.17, 2002) (citing 1 Pa.C.S. § 2310; Jones v. SEPTA, 565 Pa. 211, 772 A.2d 435, 438-39 (2001)). Under 1 Pa.C.S.A. § 2310, the Commonwealth of Pennsylvania has explicitly retained its sovereign immunity from suit. The Pennsylvania legislature has waived sovereign immunity in only nine limited circumstances: (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. See 42 Pa.C.S.A. § 8522(b). Each of these exceptions is to be strictly construed. See Mullin v. Commonwealth, Dept. of Transp., 582 Pa. 127, 870 A.2d 773, 779 (2005). (footnote omitted). Id. at *4.7 We do not find any of the nine exceptions to the Commonwealth’s retention of sovereign immunity applicable in our case. Nor does Plaintiff argue that any of the exceptions apply in his case. As discussed, Commonwealth Defendants correctly point out in their Reply Brief that their Eleventh Amendment argument with respect to both the constitutional claims under § 1983 and the state law claims against them, is only challenged by Plaintiff in his opposition Brief with regards to his Fourth Amendment illegal search and seizure claim, his § 1983 malicious prosecution claim, and his § 1983 conspiracy claim which he brings against Defendant Trooper Szczecinski in his individual capacity. (Doc. 13, pp. 5-7). Thus, Commonwealth Defendants request that their Motion to Dismiss be granted as unopposed with respect to all remaining claims against them. (Doc. 14, p. 3). Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 14 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 14 of 30 15 This Court outlined the standard for granting a motion to dismiss as unopposed in Tomasovitch v. Cinram Mfg., 2008 U.S. Dist. LEXIS 101000 (M.D. Pa. 2008): In Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991), the United States Court of Appeals for the Third Circuit held that a motion should not simply be granted because it is unopposed. Because the Local Rules of Court must be "construed and applied in a manner consistent with the Federal Rules of Civil Procedure," Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990), the disposition of an unopposed motion ordinarily requires a merits analysis. However, the Third Circuit Court of Appeals did not preclude dismissal based upon an unopposed motion after adequate warning. "We do not suggest that the district court may never rely on the local rule to treat a motion to dismiss as unopposed and subject to dismissal without a merits analysis. There may be some cases where the failure of a party to oppose a motion will indicate that the motion is in fact not opposed, particularly if the party is represented by an attorney and in that situation the rule may be appropriately invoked. Nor do we suggest that if a party fails to comply with the rule after a specific direction to comply from the court, the rule cannot be invoked." Stackhouse, 951 F.2d at 30; see also Hollister v. United States Postal Service, 142 F. App'x 576, 577 (3d Cir. 2005) v. United States Postal Service, 142 F. App'x 576, 577 (3d Cir. 2005) (affirming the district court's treatment of defendant's motion to dismiss as unopposed based on plaintiff's failure to comply with Local Rule 7.6). See also Pruden v. Norris, 2007 WL 3094239, *1 (M.D. Pa.); Perkins v. Staskiewicz, 2009 WL 693176, *2 (M.D. Pa.). In the present case, Plaintiff is represented by an experienced attorney. Moreover, Plaintiff filed his 8-page opposition Brief to the Commonwealth Defendants’ Motion to Dismiss in which he opposed the Motion in the stated respects as it applies only to his Fourth Amendment illegal search and seizure claim, his § 1983 malicious prosecution claim, and his § 1983 conspiracy claim which he brings against Defendant Trooper Szczecinski in his individual capacity. (Doc. 13, pp. 5-7). It is apparent that, based on these circumstances, Plaintiff should have been well aware Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 15 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 15 of 30 8. Local Rule 7.6 provides that documents opposing any pre-trial motion, including an opposing brief, are to be filed within fifteen (15) days after service of the movant's brief. Local Rule 7.6 warns that “[a]ny respondent who fails to comply with this Rule shall be deemed not to oppose such motion.” 16 of the requirements of Local Rule 7.6 and its implications should his opposition Brief fail to8 explicitly oppose the defenses laid out by the Commonwealth Defendants in their Motion to Dismiss and support Brief. We find that, based on Tomasovitch, Perkins, and Pruden v. Norris, 2007 WL 3094239, Local Rule 7.6 should be invoked and that the Commonwealth Defendants‘ unopposed Motion to Dismiss, as it relates to all of Plaintiff’s other claims against them, except for his Fourth Amendment illegal search and seizure claim, his § 1983 malicious prosecution claim, and his § 1983 conspiracy claim which he brings against Defendant Trooper Szczecinski in his individual capacity, should be granted without a merit analysis. We also agree with Commonwealth Defendants (Doc. 14, pp. 3-4) that Pennsylvania has not consented to federal jurisdiction over the state law intentional tort claims asserted against them in light of the above stated categories for which Pennsylvania has expressly waived immunity. See Urella v. PA State Troopers Ass’n, 2008 WL 1944069, *4. Thus, even if we performed a merit analysis with respect to Plaintiff’s state law intentional tort claims against Commonwealth Defendants (Counts Four, Five and Seven), we would agree with Commonwealth Defendants (Id.) and recommend that all of these claims be dismissed as against them. For all of the foregoing reasons, we will recommend that all of the Plaintiff's claims against Defendant PSP be dismissed, and that PSP be dismissed entirely from this action and that Plaintiff’s state law tort claims against Commonwealth Defendants (Counts Four, Five and Seven) Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 16 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 16 of 30 9. We note that we could also raise the issue regarding Plaintiff‘s failure to timely serve the Doe Defendants sua sponte since Rule 4(m) provides that this can be raised by the court on its own after notice to the Plaintiff. Commonwealth Defendants’ pending motion constituted notice to Plaintiff on this issue. 17 be dismissed. We will also recommend, as Commonwealth Defendants argue (Doc. 12, pp. 12-13), that Defendants Troopers John Does Nos. One and Two be dismissed without prejudice since Plaintiff has failed to properly serve his Amended Complaint on them within the required time period. 3. Dismissal of Claims against Defendants Troopers John Does One and Two Under Rule 4(m) To date, Plaintiff has not effectuated service on Defendants Troopers John Does Nos. One and Two who are named in Counts One through Five and Seven of Plaintiff‘s Amended Complaint. Plaintiff’s Amended Complaint was filed over four (4) months ago, i.e. on August 31, 2009. (Doc. 8). Also, as Commonwealth Defendants point out (Doc. 12, pp. 12-13), on9 September 2, 2009, this Court directed Plaintiff to served his Amended Complaint on all Defendants within 10 days, i.e. by September 17, 2009. (Doc. 9). As the Court stated in Banks v. One or More Unknown Named Confidential Informants of Federal, 2008 WL 2563355, *1, n.1 (M.D. Pa.): Federal Rule of Civil Procedure 4(m) requires that service of a summons and complaint be effectuated upon each defendant “within 120 days after the filing of the complaint.” The rule further provides that, if such service is not completed, the court must “dismiss the action without prejudice as to that defendant.” Fed. R. Civ. P. 4(m). In the instant case, Banks is not responsible to effectuate service personally because he is proceeding in forma pauperis. ( See Doc. 10); see also 28 U.S.C. § 1915(c) (stating that “the officers of the court shall issue and serve Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 17 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 17 of 30 18 all process” when the plaintiff is proceeding in forma pauperis ). Nevertheless, Banks is responsible to identify the parties named as defendants in order to permit the United States Marshal to effectuate service within the time limit proscribed by Federal Rule of Civil Procedure 4(m). See Okagbue v. Ojekwe v. Federal Bureau of Prisons, No. 03-2035, 2007 WL 4570075, at *3 (D.N.J. Dec.26, 2007) (stating that a prisoner must “furnish[ ] the Marshal with the necessary information to effect service” before asserting that service defects should be excused for “good cause”); Goodwin v. LA Weight Loss Centers, Inc., No. 99-6339, 2001 WL 34387933, at *1 (E.D.Pa.2001) ( “As long as the plaintiff provides adequate information to identify the party to be served, a complaint should not be dismissed under Rule 4(m) for the Marshals Service's failure to effectuate proper service.” (emphasis added)). As of the date of this memorandum and order, Banks has failed to provide sufficient identifying information to permit service upon the unknown named defendants ( see Doc. 48), and far greater than 120 days have passed since the court directed service of the amended complaint on September 13, 2007 ( see Doc. 46). Accordingly, the court must dismiss without prejudice all claims against the unknown named defendants. See Fed. R. Civ. P. 4(m). More than 120 days have passed since Plaintiff filed his Amended Complaint, and to date, Plaintiff has not sufficiently identified the John Does Defendants to permit service of process on them. Plaintiff simply avers that John Does 1and 2 were employed by the PSP, Gaming Enforcement Division. (Doc. 8, p. 3, ¶ 5.). Plaintiff has not provided the Court with more information as to the identities of the Doe Defendants so that service could be effectuated on them. The two Doe Defendants have not been properly identified by Plaintiff, and they have not been served in this case. Plaintiff has had more than 120 days to identify the John Doe Troopers, and he has failed to do so. Plaintiff has not shown good cause for his failure to identify these Defendants. Since Plaintiff has not provided any information necessary to effectuate service on the two Doe Defendants, and since he has not shown good cause for his failure to do so, we will recommend that the two Doe Defendants, not specifically named in Plaintiff‘s Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 18 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 18 of 30 10. As Commonwealth Defendants note (Doc. 12, p. 13, n. 5), if Plaintiff can later identify the two Doe Defendants, he can move to re-name them as parties. 19 Amended Complaint, be dismissed without prejudice under Rule 4(m). See Hankins v. Beard, 2009 WL 499484, *8 (W. D. Pa.) (“all unnamed Defendants should be dismissed from this case pursuant to Rule 4(m) ..., as they have not been served within 120 days of the date on which they were named as Defendants in this case.”); Fontroy v. Toski, 2008 WL 5572467, *7 (W.D. Pa.). 10 4. Monell Claim against Defendant PSP As stated, in Count Six, Plaintiff asserts a municipal liability claim under § 1983 against Defendant PSP. (Doc. 8, pp. 12-13). Plaintiff simply avers that the polices and customs of Defendant PSP were in violation of the Fourth Amendment and Fourteenth Amendment, and that as a result of such policies and customs he suffered injuries and damages. We agree with Commonwealth Defendants (Doc. 14, p. 2) that Plaintiff (Doc. 13) does not contest their arguments pertaining to the dismissal of his Monell claim against PSP. We also agree with the Brief of Commonwealth Defendants (Doc. 12, pp. 10-12) and find that Plaintiff has failed to state a cognizable Monell claim against PSP. In particular, we agree with Commonwealth Defendants that Plaintiff has failed to sufficiently state that any state custom or policy was the cause of the alleged constitutional violations by the individual Commonwealth Defendants. Plaintiff has named PSP as a Defendant pursuant to Monell v. New York Dept. of Social Servs., 436 U.S. 658 (1978). (Doc. 8, p. 12). Under Monell, “municipalities and other local government units are among those ‘persons’ to whom Section 1983 applies.” Meyers v. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 19 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 19 of 30 20 Schuylkill Co. Prison, 2006 WL 559467, *9 (M.D. Pa.); Kokinda v. Breiner, 557 F. Supp. 2d 581, 587 (M.D. Pa. 2008). Since Defendant PSP is alleged to be the employer of Defendants Troopers Szczecinski and the two Doe Defendants (Doc. 8, pp. 2-3), the standards annunciated in Monell apply to it. See Malles v. Lehigh County, 2009 WL 2258623, *7 (E.D. Pa.). As the Malles Court stated: According to the teaching of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Lehigh County “can be sued directly under § 1983 ... [when] the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [Lehigh County's] officers” or where the constitutional deprivations occurred pursuant to governmental custom. Monell, 436 U.S. at 690, 98 S. Ct. 2018. Id. We concur with Commonwealth Defendants and find that Plaintiff has not stated a municipal liability claim under Monell against PSP with respect to any of his constitutional claims asserted against the individual Commonwealth Defendants. Defendant PSP cannot be held liable for the conduct of persons it supervises pursuant to respondeat superior. Meyers v. Schuylkill Co. Prison, 2006 WL 559467, *9. Rather, “[PSP] subject to liability to the extent [it] maintain[s] an unconstitutional custom or policy that caused the alleged constitutional violation.” Id. (citation omitted). As Commonwealth Defendants point out (Doc. 12, pp. 10-12), no such custom or policy is alleged by Plaintiff with respect to Defendant PSP. The Kokinda Court stated: A municipality cannot be held liable for the actions of its employees under § 1983 based upon respondeat superior. Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 20 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 20 of 30 21 2018, 56 L.Ed.2d 611 (1978). However, “the government as an entity is responsible under § 1983" when it “caused” the Plaintiff’s injury; that is, “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. 2018. Where, as here, Plaintiff alleges that the flawed policy is a failure to train, the municipality can be held liable when “‘that failure amounts to “deliberate indifference . . . [to the constitutional rights of persons with whom the police come in contact.’” Woloszyn v. County of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus, in that the “‘identified deficiency in [the] training program must be closely related to the ultimate ‘constitutional’‘ injury.” Id. at 325 (citations omitted). Kokinda, 557 F. Supp. 2d at 590-91. We find that Plaintiff does not make any allegations as described above against Defendant PSP necessary to make it subject to municipality liable in this § 1983 action. We find that Plaintiff has not sufficiently stated a claim under Monell against Defendant PSP with respect to any of his constitutional claims asserted against the individual Commonwealth Defendants. Based on Kokinda, Meyers, and Malles, we find Plaintiff’s allegations do not sufficiently state that Defendant PSP caused any Defendant’s alleged conduct by having customs, policies, practices and procedures regarding the seizing and detaining of casino patrons, and that this conduct gave rise to the constitutional violations alleged in the Amended Complaint. In his opposition Brief, as stated, Plaintiff fails to addresses the Commonwealth Defendants’ argument as to why his Count Six against Defendant PSP should be dismissed and, as Commonwealth Defendants point out in their Reply Brief (Doc. 14, p. 2), he should be deemed as not opposing their argument as to his Monell claim against PSP. See Perkins v. Staskiewicz, 2009 WL 693176 (M.D. Pa.). Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 21 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 21 of 30 22 Therefore, we will recommend that Plaintiff’s Monell Claim (Count Six) against Defendant PSP be dismissed and that PSP be dismissed entirely from this action. 5. Plaintiff’s Fourteenth Amendment Section 1983 Claims As Commonwealth Defendants state (Doc. 12, pp. 11-12), Plaintiff’s Fourteenth Amendment claims brought under § 1983 which he asserts in Counts One, Two and Six, along with his Fourth Amendment claims asserted in these counts, should be dismissed since his constitutional claims in these counts are clearly covered by the Fourth Amendment. Plaintiff does not contest this argument in his opposition Brief, and thus, he is deemed as conceding it. See Perkins v. Staskiewicz, 2009 WL 693176, *2. Also, we agree with the Commonwealth Defendants regarding Plaintiff’s Fourteenth Amendment Claims. As the Court stated in Perkins v. Staskiewicz, 2009 WL 693176, *2: In Albright v. Oliver, a plurality opinion, the Supreme Court held that “it is the Fourth Amendment, and not substantive due process, under which petitioner Albright's [malicious prosecution] claim must be judged.” 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (stating a reluctance to expand the principles of substantive due process and holding that a right to be free from prosecution without probable causes exists under the Fourth Amendment, which has “relevance to the deprivations of liberty that go hand in hand with criminal prosecutions.”). While the Third Circuit has held that the Albright opinion should be read narrowly, and does not require “that a malicious prosecution claim [ ] only be based in a Fourth Amendment violation,” it does appear that malicious prosecution claims cannot be brought under the substantive due process provision of the Fourteenth Amendment. Torres v. McLaughlin, 163 F.3d 169, 173 (3d Cir.1998) (“Accordingly, a section 1983 malicious prosecution claim may also include police conduct that violates the Fourth Amendment, the procedural due process clause or other explicit text of the Constitution.”). Further, as in Perkins v. Staskiewicz, our Plaintiff “does not allege facts [in his Amended Complaint] upon which the Court could, even if not waived, find a procedural due process Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 22 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 22 of 30 11. We disagree with Commonwealth Defendants that Plaintiff is asserting a state law malicious prosecution claim against Defendant Trooper Szczecinski. (Doc. 12, p. 14, n. 6). We find that Plaintiff clearly indicates that his malicious prosecution claim against all Commonwealth Defendants (Count Three) is brought under § 1983. (Doc. 8, pp. 10-11). Thus, we analyze Plaintiff’s Count Three as a § 1983 malicious prosecution claim. 12. As we discussed above, since Plaintiff is seeking only monetary damages from all Commonwealth Defendants, he can only sue the state actor Defendants in their individual or personal capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Meekins v. Beard, 2007 WL 675358, *3 (M.D. Pa.); Walker v. Beard, 244 Fed. Appx. 439, 440-441 (3d Cir. 2007); Atwell v. Schweiker, 274 Fed. Appx. 116, 118 (Non-Precedential) (3d Cir. 2007). Therefore, as stated, we will recommend that Plaintiff’s claims for monetary damages against all Commonwealth Defendants in their official capacities be dismissed. 23 violation.” Id. Thus, we will recommend that Plaintiff’s Fourteenth Amendment claims which he asserts in Counts One, Two and Six against Commonwealth Defendants be dismissed. 6. Constitutional Claims against Defendant Trooper Szczecinski As discussed, Commonwealth Defendants correctly state (Doc. 14, p. 3) that Plaintiff has only opposed their Motion with respect to his Fourth Amendment illegal search and seizure claim, his § 1983 malicious prosecution claim , and his § 1983 conspiracy claim which he brings11 against Defendant Trooper Szczecinski in his individual capacity. (Doc. 13, pp. 5-7).12 We agree with Commonwealth Defendants (Doc. 14, p. 3) that Plaintiff has failed to properly state a § 1983 conspiracy claim against any of them in Count Two. We find that Plaintiff‘s vague § 1983 conspiracy claim should be dismissed for failure to state a claim. In his Amended Complaint, Plaintiff alleges that Commonwealth Defendants conspired to violate his constitutional rights. Specifically, Plaintiff avers that: 40. Defendant Mohegan Sun and Commonwealth of Pennsylvania Gaming Enforcement Agents and others, acting under color of state law, conspired with each other to violate Mr. Piazza’s rights under the Fourth and Fourteenth Amendments to the United States Constitution. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 23 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 23 of 30 24 41. As a result of Defendants’ conspiracy to violate Mr. Piazza’s Constitutional rights, Richard Piazza suffered substantial injuries and damages. (Doc. 8, pp. 9-10, ¶’s 40.-41.). Plaintiff, while deemed as raising a § 1983 conspiracy claim against Commonwealth Defendants, merely alleges a vague conspiracy absent any specific agreement between Defendants to violate his constitutional rights. We find that Plaintiff‘s bare conclusory allegations of a § 1983 conspiracy against Commonwealth Defendants are inadequate to state a cognizable conspiracy claim. See Flanagan v. Shively, 783 F. Supp. 922, 928-29 (M.D. Pa. 1992), aff’d. 980 F. 2d 722 (3d Cir. 1992), cert. denied 510 U.S. 829 (1993). “The Plaintiff’s allegations [of conspiracy] must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each Defendant allegedly played in carrying out those objectives. Bare conclusory allegations of ‘conspiracy’ ... will not suffice to allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.” Id. at 928. As the Court stated in Dennison v. Pa. Dept. of Corrections, 268 F. Supp. 2d 387, 401 (M.D. Pa. 2003): To sustain a conspiracy claim under section 1983, [Plaintiff] must establish that: (1) defendants deprived him of a right secured by the Constitution or laws of the United States and (2) conspired to do so while acting under color of state law. Adickes v S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Marchese v. Umstead, 110 F.Supp.2d 361, 371 (E.D. Pa. 2000). Additionally, “‘to [s]ufficiently allege a conspiracy, a plaintiff must show 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.’” Marchese, 110 F.Supp.2d at 371 (quoting Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 24 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 24 of 30 13. See Eichelman v. Lancaster County, 510 F. Supp. 2d 377, 394 (E.D. Pa. 2007) (court granted prison warden summary judgment with respect to inmate’s § 1983 conspiracy claim since there was no evidence that warden entered into any agreement with prison staff to violate inmate’s constitutional rights). 25 1999)) (other internal citations omitted). “‘A plaintiff must make specific factual allegations of combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events.’” Id. (quoting Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa. 1999)) (other internal citations omitted). Plaintiff Piazza does not specify any role or agreement of any Defendant with any of the other individual Defendants in the alleged conspiracy to illegally seize and detain him. We disagree with Plaintiff (Doc. 13, p. 6) and his contention that “the allegations in the Amended Complaint are sufficient at this stage of the litigation to support a conspiracy claim under Section 1983.” Plaintiff Piazza fails to allege what Commonwealth Defendants conspired to do, or what actions they took in furtherance of the alleged conspiracy. 13 Therefore, we will recommend that Commonwealth Defendants’ Motion to Dismiss Plaintiff‘s § 1983 conspiracy claim (Count Two) be granted. See Kokinda v. Breiner, 557 F. Supp. 2d at 588; Eichelman, supra. We agree with Plaintiff (Doc. 13, pp. 5 and 7) and find that he has sufficiently stated a Fourth Amendment illegal search and seizure claim (Count One) and a § 1983 malicious prosecution claim (Count Three) against Defendant Trooper Szczecinski in his individual capacity. We will recommend that the Commonwealth Defendants’ Motion to Dismiss these Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 25 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 25 of 30 14. As discussed above, Plaintiff concedes that his official capacity claims against Defendant Trooper Szczecinski, in which he only seeks monetary damages, must be dismissed. (Doc. 13, p. 6). Also, as mentioned, we find that all state law claims against all of the Commonwealth Defendants should be dismissed since these claims allege Defendants were acting within the scope of their employment with the PSP, and these Defendants are covered by sovereign immunity. See Perkins v. Staskiewicz, 2009 WL 693176, *3-*4. 26 two claims as against only Defendant Trooper Szczecinski in his individual capacity be denied.14 The Court stated in Perkins v. Staskiewicz, 2009 WL 693176, *3: To state a claim for Fourth Amendment malicious prosecution in a § 1983 action, a plaintiff must show that “(1) the defendant initiated a criminal proceeding; (2) the proceeding ended in the plaintiff's favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of the proceeding.” DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir.2005). Therefore, Plaintiff must do more than allege the common law tort; he must allege facts sufficient to establish a violation of the Fourth Amendment's prohibition against unreasonable seizures. Mantz v. Chain, 239 F.Supp.2d 486, 501 (D.N.J.2002). Additionally, while an arrest does constitute a seizure within the meaning of the Fourth Amendment, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889, (1968), such a seizure must be made without probable cause and pursuant to some legal process to serve as the foundation for a malicious prosecution claim. Id.; Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (stating that a malicious prosecution claim “permits damages for confinement imposed pursuant to legal process”); Nieves v. McSweeney, 241 F.3d 46, 54 (1st Cir.2001) (“The tort of malicious prosecution permits damages for a deprivation of liberty-a seizure-pursuant to legal process.”) (emphasis omitted). As Plaintiff argues, he alleges that while he was detained and in custody of the Defendant Troopers for one and a half hours, he was arrested for stealing the envelope with the vouchers without probable cause. Defendant Szczecinski fingerprinted him and took a mug shot photo of him. Plaintiff states that subsequently, Defendant Trooper Szczecinski filed criminal Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 26 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 26 of 30 27 charges against him regarding the theft of the envelope, despite the fact that he repeatedly told the Troopers he did not steal it. (Doc. 8, pp. 7-8). Plaintiff avers that at a hearing before a district justice, all criminal charges against him were dismissed. (Id., p. 8). Plaintiff further avers in his Count One that his arrest on September 22, 2007, “was without probable cause,” and he states that he was seized and detained by the Defendant Troopers for one and a half hours. (Id., pp. 8-9). In his Count Three § 1983 malicious prosecution claim, Plaintiff avers that Defendant Troopers “caused criminal proceedings to be initiated against [Plaintiff] resulting in [Plaintiff’s] arrest”, that they “initiated such criminal proceedings without probable cause”, and that they “initiated criminal proceedings with malice or for a purpose other than to bring [him] to justice.” Plaintiff also avers that the criminal proceedings terminated in his favor. (Id., pp. 10-11). In light of Plaintiff’s stated allegations, we will recommend that only Plaintiff’s Fourth Amendment illegal search and seizure claim (Count One) and § 1983 malicious prosecution claim (Count Three) against Defendant Trooper Szczecinski in his individual capacity be allowed to proceed. As discussed, we will recommend that all other claims against Commonwealth Defendants be dismissed. V. Recommendation. Based on the foregoing, we respectfully recommend that Commonwealth Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint (Doc. 11) be granted at to all claims against them except for Plaintiff’s Fourth Amendment illegal search and seizure claim (Count One) and his Section 1983 malicious prosecution claim (Count Three) against Defendant Trooper Szczecinski in his individual capacity. We also recommend that this case be remanded to the Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 27 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 27 of 30 15. Upon remand, if our Report and Recommendation is adopted by the Court, we will direct Defendant Trooper Szczecinski to file his Answer to Plaintiff’s Amended Complaint, and we will then schedule a joint case management conference with Plaintiff and the two remaining Defendants. 28 undersigned for further proceedings with respect to Defendant CT Corporation, t/d/b/a Mohegan Sun, and Defendant Trooper Szczecinski.15 s/ Thomas M. Blewitt THOMAS M. BLEWITT United States Magistrate Judge Dated: February 3, 2010 Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 28 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 28 of 30 29 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RICHARD PIAZZA, : CIVIL ACTION NO. 3:CV-09-1087 : Plaintiff : (Judge Vanaskie) : v. : (Magistrate Judge Blewitt) : CT CORPORATION, t/d/b/a Mohegan : Sun at Pocono Downs and : PENNSYLVANIA STATE POLICE : DIVISION OF GAMING ENFORCEMENT, : : Defendants : NOTICE NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 3, 2010. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides: Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 29 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 29 of 30 30 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. s/ Thomas M. Blewitt THOMAS M. BLEWITT United States Magistrate Judge Dated: February 3, 2010 Case 3:09-cv-01087-TIV Document 15 Filed 02/03/2010 Page 30 of 30Case 1:16-cv- 1696-JEJ Document 28-2 Filed 01/10/17 Page 30 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RICHARD PIAZZA, : 3:CV-09-1087 : Plaintiff : (Judge Vanaskie) : v. : : CT CORPORATION, t/d/b/a Mohegan : Sun at Pocono Downs and : PENNSYLVANIA STATE POLICE : DIVISION OF GAMING : ENFORCEMENT, et al., : : Defendants : ORDER NOW, THIS 26th DAY OF FEBRUARY, 2010, having carefully considered the February 3, 2010 Report and Recommendation of Chief Magistrate Judge Thomas M. Blewitt proposing that the Court grant, in part, the Motion to Dismiss filed on behalf of Defendants Pennsylvania State Police Division of Gaming Enforcement, Kurt A. Szczecinski, John Doe 1 and John Doe 2; and observing that no party has objected to the Report and Recommendation within the time for doing so; and finding that, under these circumstances, review may properly be limited to determining whether there is clear error in the Report and Recommendation that not only affects the decision on the motion that is the subject of the Report and Recommendation, but also adversely affects the integrity, fairness, and public reputation of judicial proceedings, see Cruz v. Chater, 990 F.Supp. 375, 377 (M.D.Pa. 1998); and discerning no such error in this matter, IT IS HEREBY ORDERED Case 3:09-cv-01087-TIV-TMB Document 16 Filed 02/26/2010 Page 1 of 2Case 1:16-cv-01696-JEJ Document 28-3 Filed 01/10/17 Page 1 of 2 2 THAT: 1. The Report and Recommendation of Chief Magistrate Judge Blewitt (Dkt. Entry 15) is ADOPTED. 2. The Motion to Dismiss the Amended Complaint (Dkt. Entry 11) is GRANTED IN PART. 3. Defendant Pennsylvania State Police Division of Gaming Enforcement is, in all respects, DISMISSED, WITH PREJUDICE. Defendants John Doe 1 and John Doe 2 are, in all respects, DISMISSED, WITHOUT PREJUDICE. The claims against Defendant Szczecinski for damages in his official capacity are DISMISSED, WITH PREJUDICE. All claims for relief against Defendant Szczecinski in his individual capacity are DISMISSED, WITH PREJUDICE, with the exception of plaintiff’s Fourth Amendment illegal search and seizure claim (Count I) and the § 1983 malicious prosecution claim (Count III). 4. The Clerk of Court is directed to refer this matter to Chief Magistrate Judge Blewitt for further pretrial management. s/ Thomas I. Vanaskie Thomas I. Vanaskie United States District Judge Case 3:09-cv-01087-TIV-TMB Document 16 Filed 02/26/2010 Page 2 of 2Case 1:16-cv-01696-JEJ Document 28-3 Filed 01/10/17 Page 2 of 2