Opinion
Civil No. 3:19-CV-1859
10-29-2019
SEAN DONAHUE, Plaintiff v. UNITED STATES DEPT. OF LABOR, et al., Defendants
(Judge Caputo)
( ) REPORT AND RECOMMENDATION
I. Factual Background
This case comes before us for a legally-mandated screening review of the plaintiff's latest civil complaint. This latest complaint arises out of longstanding grievances and grudges voiced by Sean Donahue in the past. The plaintiff, Sean Donahue, is a prodigious, albeit prodigiously unsuccessful, pro se litigant who has filed more than two dozen lawsuits in federal court since 2013. Many of these lawsuits arise out of arrests and convictions of Donahue in state court for allegedly disruptive conduct at various local unemployment and employment services offices.
A summary listing of these prior cases is attached as Appendix A to the Report and Recommendation.
Donahue's latest federal lawsuit follows this familiar pattern. In his latest pro se complaint, Donahue names the United States Department of Labor, the Commonwealth of Pennsylvania Department of Labor and Industry, the Pennsylvania Human Relations Commission, the Pennsylvania CareerLink Site Administrator, and the Luzerne/Schuylkill Counties Workforce Investment Boards as defendants. (Doc. 1.) Donahue's complaint then reprises in a cryptic fashion his familiar themes that he was entitled to certain preferential job placement services as a veteran, and protests a criminal sentence imposed against him in state court—directing that he refrain from entering specific local CareerLink offices—alleging that these state convictions interfered with his ability to obtain this preferential hiring status as a veteran. (Id.) Donahue also alleges that the U.S. Department of Labor recently conducted some form of investigation into these longstanding grievances, which resulted in unfavorable findings for the plaintiff. Donahue then seeks to appeal these adverse agency findings, and also attempts to bring civil rights actions against the defendants under 42 U.S.C. § 1983, seeking $250,000 in damages from each of these federal and state agencies.
Along with this complaint, Donahue filed a motion for leave to proceed in forma pauperis. (Doc. 2). We will provisionally grant Donahue leave to proceed in forma pauperis, but for the reasons set forth below, we will recommend that this complaint be dismissed.
II. Discussion
A. Screening of Pro Se Complaints-Standard of Review
This Court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials. See 28 U.S.C. § 1915(e)(2)(B)(ii). Thus, in this case we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.-, 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
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." ' " Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 129 S.Ct. at 1947 . Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. 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.' Id." Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
Judged against these legal guideposts, for the reasons set forth below it is recommended that this amended complaint now be dismissed.
B. Donahue's Latest Complaint Fails to State a Claim Upon Which Relief May Be Granted
In this case, Donahue's complaint run afoul of a series of insurmountable legal obstacles. Indeed, as set forth below, the complaint is fatally flawed in at least four different ways.
1. This Complaint Violates Rule 8 of the Federal Rules of Civil Procedure.
At the outset, dismissal of this complaint is warranted because Donahue's current, cryptic complaint fails to recite factual matters and apparently assumes a detailed factual knowledge of his past disputes. Accordingly, the complaint fails to comply with Rule 8's basic injunction that: "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Dismissal of this complaint is appropriate since it is well-settled that: "[t]he Federal Rules of Civil Procedure require that a complaint contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and that each averment be 'concise, and direct.'" Scibelli v. Lebanon County, 219 F. App'x 221, 222 (3d Cir. 2007) (quoting Fed. R. Civ. P. 8(a)(2), (e)(1)). Thus, when a complaint is "illegible or incomprehensible," id., or when a complaint "is also largely unintelligible," Stephanatos v. Cohen, 236 F. App'x 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 F. App'x 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 F. App'x 513 (3d Cir. 2008); Stephanatos v. Cohen. supra; Scibelli v. Lebanon County, supra; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005). Furthermore, dismissal under Rule 8 is proper when a complaint "left the defendants having to guess what of the many things discussed constituted [a cause of action];" Binsack v. Lackawanna County Prison, 438 F. App'x 158 (3d Cir. 2011), or when the complaint is so "rambling and unclear" as to defy response. Tillio v. Spiess, No. 11-1276, 2011 WL 3346787 (Aug. 4, 2011). Finally, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 F. App'x 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 F. App'x 205 (3d Cir. 2010); Earnest v. Ling, 140 F. App'x 431 (3d Cir. 2005) (dismissing complaint where "complaint fails to clearly identify which parties [the plaintiff] seeks to sue"); Oneal v. U.S. Fed. Prob., CIV.A. 05-5509 (MLC), 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, CIV.A.06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
Here, Donahue's complaint can only be understood by reference to his past litigation history, since he fails to recite well-pleaded facts explaining what the gist of his claims might be. Therefore, the complaint simply does not "contain 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and [fails to meet Rule 8's requirement] that each averment be 'concise, and direct.'" Scibelli v. Lebanon County, 219 F. App'x 221, 222 (3d Cir. 2007) (citations omitted). Further, the absence of well-pleaded facts makes it virtually impossible to ascertain the legal and actual significance of Donahue's allegations. Thus, we are "left . . . having to guess what of the many things discussed constituted [a cause of action]." Binsack v. Lackawanna County Prison, 438 F. App'x 158 (3d Cir. 2011). In such instances, Rule 8 calls for the dismissal of the complaint with instructions that the plaintiff prepare a more coherent document that complies with the structure of the Federal Rules of Civil Procedure.
2. To the Extent That Donahue Seeks to Re-litigate Claims That Were Previously Dismissed , the Doctrine of Collateral Estoppel Applies and Bars Re-litigation of These Matters.
In addition, Donahue's latest complaint appears to attempt to re-litigate matters involving his on-going disputes with the Department of Labor and various state agencies, which have previously been conclusively resolved by the federal courts. See e.g., Donahue v. Acosta, No. 17-3841, 2019 WL 5260724, at *1 (3d Cir. Oct. 17, 2019); Donahue v. Superior Court of Pennsylvania, No. 19-1625, 2019 WL 4665756, at *1 (3d Cir. Sept. 5, 2019); Donahue v. Dauphin Cty. Solicitors Office, Harrisburg, PA, No. 17-2801, 2019 WL 5078635, at *1 (3d Cir. Oct. 10, 2019); Donahue v. Cty. of Dauphin, 747 F. App'x 42, 43 (3d Cir. 2019).
In conducting an initial screening assessment of this aspect of Donahue's latest complaint:
We have the authority to apply the doctrine of claim preclusion or res judicata sua sponte. Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002); Ezekoye v. Ocwen Federal Bank FSB, 179 F. App'x 111, 114 (3d Cir. 2006) (non precedential). [and] can . . . invoke res judicata 'if it is so plain from the language of the complaint and other documents in the district court's files that it renders the suit frivolous.' Gleash, 308 F.3d at 760.Guider v. Mauer, CIVIL 1:CV-09-1915, 2009 WL 4015568 (M.D. Pa. Nov. 19, 2009). In our view, upon a preliminary screening review of Donahue's instant lawsuit, the res judicata, collateral estoppel, and issue preclusion doctrines apply and compel dismissal of any of the previously litigated claims that are made by the plaintiff in this complaint relating to the past administrative processing of his state prosecutor misconduct claim by the state courts.
Collateral estoppel, res judicata, and issue preclusion are doctrines which play a vital role in litigation. It has long been recognized that "[t]he doctrine[] of . . . collateral estoppel, now . . termed . . . issue preclusion, 'shar[es] the common goals of judicial economy, predictability, and freedom from harassment....' Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988). Generally speaking, the . . . doctrine of issue preclusion, 'precludes the relitigation of an issue that has been put in issue and directly determined adversely to the party against whom the estoppel is asserted.' Melikian v. Corradetti, 791 F.2d 274, 277 (3d Cir. 1986)." Electro-Miniatures Corp. v. Wendon Co., Inc. 889 F.2d 41, 44 (3d. Cir. 1989) (citations omitted). The parameters of this doctrine, which precludes relitigation of certain issues, have been defined by the United States Court of Appeals for the Third Circuit in the following terms:
Issue preclusion, or collateral estoppel, prevents parties from relitigating an issue that has already been actually litigated. "The
prerequisites for the application of issue preclusion are satisfied when: '(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.' " Burlington Northern Railroad Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227, 1231-32 (3d Cir.1995) (quoting In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5(1979). In its classic form, collateral estoppel also required "mutuality"-i.e., that the parties on both sides of the current proceeding be bound by the judgment in the prior proceeding. Parklane Hosiery, 439 U.S. at 326-27. Under the modern doctrine of non-mutual issue preclusion, however, a litigant may also be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary. See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 324 (1971); Parklane Hosiery, 439 U.S. at 329. For . . . non-mutual issue preclusion [] to apply, the party to be precluded must have had a "full and fair" opportunity to litigate the issue in the first action. See Parklane Hosiery, 439 U.S. at 328; Blonder-Tongue Labs., 402 U.S. at 331.Peloro v. United States, 488 F.3d 163, 174-5 (3d Cir. 2007).
Stated succinctly, principles of collateral estoppel compel a later court to honor an earlier decision of a matter that was actually litigated. Dici v. Commonwealth of Pa., 91 F.3d 542 (3d Cir. 1997). This doctrine, which involves an assessment of the overlap between issues presented in separate lawsuits, raises essentially legal questions which are often amenable to resolution by courts as a matter of law. See, e.g., Peloro v. United States, supra; Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc, supra; Witkowski v. Welch, 173 F.3d 192, 198-205 (3d Cir. 1999); Burlington Northern Railroad Co. v. Hyundai Merchant Marine Co., Ltd., 63 F.3d 1227, 1231-9 (3d Cir. 11995) (summary judgment, offensive issue preclusion).
Here, we find that, to the extent that Donahue's latest claims can be understood, many of his complaints relate to the subject matter of his prior lawsuits. As to these claims, the legal requisites for issue preclusion are fully satisfied, since: " '(1) the issue sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid judgment; and (4) the determination [was] essential to the prior judgment.' " Burlington Northern Railroad Co., 63 F.3d at 1231-32 (quoting In re Graham, 973 F.2d 1089, 1097 (3d Cir.1992)); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, n. 5(1979). Therefore, these claims should be dismissed.
3. Donahue May Not Bring a Civil Action Based Upon a Criminal Case Which Resulted in a Conviction.
In addition, Donahue's complaint fails because it continues to rest, in part, on a fatally flawed legal premise. At bottom, Donahue seeks to bring a civil rights action premised, in part, on claims arising out of a state criminal case, a case that he concedes resulted in a state conviction which has not otherwise been set aside or overturned. This he cannot do. Quite the contrary, it is well-settled that an essential element of a civil rights action in this particular setting is that the underlying criminal case must have been terminated in favor of the civil rights claimant. Therefore, where, as here, the civil rights plaintiff brings a claim based upon a state case that resulted in a conviction, the plaintiff's claim fails as a matter of law. The United States Court of Appeals for the Third Circuit has aptly observed in this regard:
The Supreme Court has "repeatedly noted that 42 U.S.C. § 1983 creates a species of tort liability." Heck v. Humphrey, 512 U.S. 477, 483(1994) (quoting Memphis Community School Dist. v. Stachura, 477 U.S. 299, 305(1986) (internal quotation marks omitted)). Given this close relation between § 1983 and tort liability, the Supreme Court has said that the common law of torts, "defining the elements of damages and the prerequisites for their recovery, provide[s] the appropriate starting point for inquiry under § 1983 as well." Heck, 512 U.S. at 483( quoting Carey v. Piphus, 435 U.S. 247, 257-58,(1978)). The Supreme Court applied this rule in Heck to an inmate's § 1983 suit, which alleged that county prosecutors and a state police officer destroyed evidence, used an unlawful voice identification procedure, and engaged in other misconduct. In deciding whether the inmate could state a claim for those alleged violations, the Supreme Court asked what common-law cause of action was the closest to the inmate's claim and concluded that "malicious prosecution provides the closest analogy ... because unlike the related cause of action for false arrest or imprisonment, it permits damages for confinement imposed pursuant to legal process." Heck, 512 U.S. at 484. Looking to the elements of malicious prosecution, the Court held that the inmate's claim could not proceed because one requirement of malicious prosecution is that the prior criminal proceedings must have terminated in the plaintiff's favor, and the inmate in Heck had not successfully challenged his criminal conviction. Id.Hector v. Watt, 235 F.3d 154, 155-156 (3d Cir. 2000).
In this case, it is evident that Donahue's state criminal prosecution did not conclude favorably since Donahue complains of the on-going effect of the sentence imposed upon him, which forbade him for entering specific unemployment service offices. Under the Supreme Court's favorable termination rule, the fact of this conviction would checkmate any civil lawsuit arising out of this criminal prosecution. In short, this complaint is based upon the fundamentally flawed legal premise that Donahue can sue these officials for civil rights violations arising out of his state prosecution even though he stands convicted in this state case. Since this premise is simply incorrect, Donahue's complaint fails as a matter of law.
4. Many of the Institutional Liability Claims Alleged By Donahue Fail as a Matter of Law.
Further, in its current form, Donahue's complaint fails to state damages claims upon which relief may be granted against many of the institutional defendants named by the plaintiff. For example, in this case, dismissal of Donahue's damages claims against the Pennsylvania Human Relations Commission and the Pennsylvania Department of Labor and Industry is warranted because this pro se complaint runs afoul of basic constitutional and statutory rules limiting lawsuits against state agencies and officials. First, as a matter of constitutional law, the Eleventh Amendment to the Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the . . . States . . . ." U.S. Const. Amend XI. By its terms, the Eleventh Amendment strictly limits the power of federal courts to entertain cases brought by citizens against the state and state agencies. Moreover, a suit brought against an individual acting in his or her official capacity constitutes a suit against the state and therefore also is barred by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).
Pursuant to the Eleventh Amendment, states, state agencies, and state officials who are sued in their official capacity are generally immune from lawsuits in federal courts brought against them by citizens. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). Under the Eleventh Amendment, the Commonwealth's immunity exists as a matter of law unless waived by the state, or expressly and unequivocally abrogated by Congress. In this case, it is apparent that Congress has not expressly abrogated this constitutional immunity with respect to federal civil rights lawsuits against these state agencies and the Commonwealth clearly has not waived its immunity. See Lavia v. Pennsylvania, Dept. of Corr., 224 F.3d 190, 195 (3d Cir. 2000); Foster v. Pennsylvania Human Relations Comm'n., 157 F. App'x 488, 490 (3d Cir. 2005) (Held, the District Court's finding of immunity for the PHRC and the PDLI was proper, as they were all clearly state agencies). Quite the contrary, the Commonwealth has specifically invoked its Eleventh Amendment immunity under 42 Pa. Cons. Stat. § 8521(b). Thus, while Pennsylvania has, by law, waived sovereign immunity in limited categories of cases brought against the Commonwealth in state court, see 42 Pa. Cons. Stat. § 8522, section 8521(b) flatly states that: "Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States." 42 Pa. Cons. Stat. § 8521(b). Moreover, beyond these constitutional considerations, as a matter of statutory interpretation, the plaintiff cannot bring a damages action against the Commonwealth since it is also well-settled that a state, a state agency, or a state official acting in an official capacity is not a "person" within the meaning of 42 U.S.C. § 1983, the principal federal civil rights statute. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).
These basic legal tenets apply here and are fatal to the plaintiff's damages claims against these state agency defendants. In sum, as to these state agencies, these federal civil rights claims for damages are barred both by the Eleventh Amendment to the United States Constitution and by cases construing the federal civil rights statute, 42 U.S.C. § 1983. Therefore, since these state agencies cannot be sued in this fashion in federal court, these claims should be dismissed. Parks v. SCI Camp Hill, No. 1:19-CV-109, 2019 WL 1303203, at *3-4 (M.D. Pa. Feb. 11, 2019), report and recommendation adopted, No. 1:19-CV-0109, 2019 WL 1298996 (M.D. Pa. Mar. 21, 2019).
Likewise, Donahue may not bring damages claims under § 1983 against a federal agency since:
It is also well-settled that § 1983's state action requirement does not extend the ambit of this statute to the actions of federal officers or agencies. Quite the contrary, it is generally recognized that "the phrase 'under of color of state law' as used in civil rights statutes, notably 42 U.S.C. § 1983, to apply only to state actors not federal officials." Gomez v. Feissner, No. 08-619, 2010 WL 5463245, at *6 (M.D.Pa. Dec. 29, 2010) (citing Quiles v. United States Dep't of Def., No. 1:09-580, 2009 WL 4810188, at *5 (M.D.Pa. Dec.10, 2009) Thus, the United States Court of Appeals for the Third Circuit has repeatedly held that § 1983 provides no remedy with respect to actions by federal actors. "Because § 1983 provides a remedy for violations of federal law by persons acting pursuant to state law, federal agencies and officers are facially exempt from § 1983 liability inasmuch as in the normal course of events they act pursuant to federal law." Hindes v. FDIC, 137 F.3d 148, 158 (3d Cir.1998). "It is well established that liability under § 1983 will not attach for actions taken under color of federal law." Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir.2001).Evans v. Potter, No. 1:10-CV-2557, 2011 WL 3320819, at *4 (M.D. Pa. July 15, 2011), report and recommendation adopted, No. 1:10-CV-2557, 2011 WL 3299806 (M.D. Pa. Aug. 2, 2011). Therefore, Donahue's § 1983 claim against the U.S. Department of Labor also fails as a matter of law and should be dismissed. C. The Complaint Should Be Dismissed Without Prejudice
While this screening merits analysis calls for dismissal of this action in its current form, we recommend that the plaintiff be given another, final opportunity to further litigate this matter by endeavoring to promptly file an amended complaint setting forth well-pleaded claims within the period of the statute of limitations. We recommend this course mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case Donahue's complaint also appears to attempt to appeal an agency determination rejecting an administrative complaint lodged by the plaintiff with the U.S. Department of Labor. While Donahue's right to pursue such an appeal is unclear, acting out of an abundance of caution, we believe that he should be afforded an opportunity to pursue such an appeal if the law allows. Accordingly, it is recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se complaint by dismissing this deficient complaint at this time without prejudice to one final effort by the plaintiff to comply with the rules governing civil actions in federal court, by filing an amended complaint containing any timely and proper claims which he may have.
III. Recommendation
Accordingly, for the foregoing reasons, the plaintiff's request to proceed in forma pauperis is provisionally GRANTED, (Doc 2.), but IT IS FURTHER RECOMMENDED that the plaintiff's complaint be dismissed without prejudice to the plaintiff endeavoring to correct the defects cited in this report, provided that the plaintiff acts within 20 days of any dismissal order.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 29th day of October, 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge
APPENDIX A
| 3:13-cv-01043-WJN-TMB | Donahue v. Kachmarski et al | filed 04/22/13 closed 05/31/13 |
| 3:13-cv-01071-WJN | Donahue v. Olexa | filed 04/24/13 closed 06/24/13 |
| 3:13-cv-01109-RDM | Donahue v. Pierantoni et al | filed 04/26/13 closed 01/09/15 |
| 3:13-cv-01271-WJN-TMB | Donahue v. Luzerne County Correctional Facility et al | filed 05/09/13 closed 08/27/13 |
| 3:13-cv-01272-WJN-TMB | Donahue v. Luzerne County Correctional Facility et al | filed 05/09/13 closed 08/27/13 |
| 3:13-cv-01273-WJN | Donahue v. Hazleton Police Department et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01274-WJN | Donahue v. Commonwealth Of Pennsylvania et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01275-WJN | Donahue v. Luzerne County Prison et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01276-WJN | Donahue v. Stolfa et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01277-WJN | Donahue v. Luzerne County Correctional Facility et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01278-WJN | Donahue v. Pugh et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01279-WJN | Donahue v. Luzerne County Correctional FacilityKitchen Supervisor | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01280-WJN | Donahue v. Hearthway et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01281-WJN | Donahue v. Luzerne County Correctional Facility | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01282-WJN | Donahue v. Commonwealth Of Pennsylvania et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01283-WJN | Donahue v. Zola et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01284-WJN | Donahue v. Hazleton City Police Department et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01285-WJN | Donahue v. Hazleton Career Link et al | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01286-WJN | Donahue v. FBI Scranton Office | filed 05/09/13 closed 07/30/13 |
| 3:13-cv-01326-WJN-TMB | Donahue v. Luzerne County Correctional Facility et al | filed 05/15/13 closed 08/27/13 |
| 3:13-cv-01327-WJN | Donahue v. Ristowski et al | filed 05/15/13 closed 07/30/13 |
| 3:13-cv-01328-WJN | Donahue v. Commonwealth of PA et al | filed 05/15/13 closed 07/30/13 |
| 3:13-cv-01414-WJN-TMB | Donahue v. Luzerne County Public Defender's Officeet al | filed 05/24/13 closed 07/31/13 |
| 3:13-cv-01567-WJN-TMB | Donahue v. Luzerne County Correctional Facility et al | filed 06/11/13 closed 07/24/13 |
| 3:14-cv-01351-MEM | Donahue v. City of Hazleton, PA et al | filed 07/15/14 |