Opinion
Civil Action 3:22-CV-0932
02-06-2023
SULAIMAN ISMAIL, Plaintiff v. COMMONWEALTH OF PENNSYLVANIA et al., Defendants
(ARBUCKLE, M.J.)
REPORT AND RECOMMENDATION
(MANNION, D.J.)
I. INTRODUCTION
Sulaiman Ismail (“Plaintiff”) alleges in his Amended Complaint that on February 18, 2021, officers of the Kingston and Wilkes-Barre Police Departments and Detective R. Miller conducted a warrantless search of his home and warrantless seizure of his property. (Doc. 7). Because of these alleged events, Plaintiff believes he has claims under 18 U.S.C. § 242, 42 Pa. C.S. § 5803, and 42 U.S.C. § 1983 against the Kingston Police Department, the Wilkes-Barre Police Department, and Detective R. Miller of the Kingston Police Department.
On September 22, 2022, the Court screened Plaintiff's pro se, in forma pauperis Complaint, (Doc. 1), pursuant to 28 U.S.C. § 1915(e). (Doc. 6). The Court found Plaintiff's Complaint failed to state a claim upon which relief could be granted and gave Plaintiff leave to amend his Complaint on or before October 24, 2022. (Doc. 6). On October 21, 2022, Plaintiff filed an Amended Complaint. (Doc. 7).
For the reasons explained herein, it will be RECOMMENDED that Plaintiff's amended complaint be DISMISSED IN PART pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as follows:
(1) Plaintiff's claim under 18 U.S.C. § 242 should be DISMISSED;
(2) Plaintiff's claim under 42 Pa. C.S. § 5803 should be DISMISSED;
(3) Plaintiff's Fourth Amendment 42 U.S.C. § 1983 claim against the Kingston Police Department, the Wilkes-Barre Police Department and Defendant Miller in his official capacity should be DISMISSED;
(4) Plaintiff's 42 U.S.C. § 1983 conspiracy claim should be DISMISSED;
(5) Plaintiff's Fourth Amendment 42 U.S.C. § 1983 claim against Defendant Miller in his individual capacity only should be permitted to proceed; and
(6) The Clerk of Court should be DIRECTED to terminate the Kingston Police Department and the Wilkes-Barre Police Department as Defendants in this action.
(7) The Clerk of Court should be DIRECTED to send the waiver packet (AO 398 and 399) and a copy of the Amended Complaint (Doc. 7) and the Order on this Report and Recommendation to Defendant Miller.
II. LEGAL STANDARDS
A. Screening Complaint Filed IN FORMA PAUPERIS
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal-
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under 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.” The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “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.” “[A] complaint must do more than allege the plaintiff's entitlement to relief.” It also “has to ‘show' such an entitlement with its facts.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
Id. at 211.
Id.
To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
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 Twp., 629 F.3d 121, 130 (3d Cir. 2010).
A complaint filed by a pro se litigant is to be liberally construed and ‘“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se complaint must recite factual allegations that are enough 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.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
B. Federal Rule of Civil Procedure 8 Pleading Requirements
While a pro se plaintiff is entitled to a liberal construction of his pleading, they are not “excused from complying with the rules of procedural and substantive law.” Federal Rule of Civil Procedure 8(a) and (a)(2) states “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.” Federal Rule of Civil Procedure 8(d)(1) further requires “each allegation must be simple, concise, and direct.” Under this rule, a well-pleaded 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. To state a claim, a plaintiff must plead “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].” The idea behind Rule 8 is to require a complaint “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” The complaint should allow a defendant to “meaningfully answer or plead to it ”
Hayden v. Allegheny Health Network, No. 2:21-CV-525, 2022 WL 783430, at *5 (W.D. Pa. Mar. 15, 2022); see McNeil v. U.S., 508 U.S. 106, 113 (1980).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (internal quotation marks omitted)).
Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (internal quotation marks omitted)).
Binsack v. Lackawanna Cnty. Prison, 438 Fed.Appx. 158, 160 (3d Cir. 2011).
With these legal standards in mind we now turn to the background of this case.
III. BACKGROUND AND PROCEDURAL HISTORY
This case began when Plaintiff lodged a Complaint on June 13, 2022. (Doc. 1). Plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 2) was granted. In keeping with 28 U.S.C. § 1915(e)(2), the Court reviewed Plaintiff's Complaint, (Doc. 1), and found Plaintiff's Complaint to be deficient in that it failed to state a claim. Plaintiff was granted leave to amend his Complaint. (Doc. 6). Plaintiff timely filed an Amended Complaint on October 21, 2022. (Doc. 7).
Plaintiff's Amended Complaint added three new claims and named none of the original Defendants, instead naming the following three new Defendants: the Kingston Police Department, the Wilkes-Barre Police Department and Detective R. Miller of the Kingston Police Department (“Defendant Miller”). (Doc. 7).
Plaintiff begins his Amended Complaint writing that he is “stating a claim that under the Fourth Amendment of the United States Bill of Rights, that my rights were violated by Detective R. Miller of the Kingston Police Department along with other members of the Kingston and Wilkes-Barre Police Departments.” (Doc. 7, p. 2). Plaintiff alleges “$11,000.00 of my U.S. currency and home surveillance system was confiscated.” Id. Plaintiff then lists the laws he believes were violated by Defendants, beginning with the violation of his rights under the Fourth Amendment. Id. After quoting the Fourth Amendment Plaintiff appears to try and provide facts that support his assertion that his Fourth Amendment rights were violated. Id.
Plaintiff alleges that on February 18, 2021, Defendant Miller along with other officers of the Kingston and Wilkes-Barre Police Departments entered his home under the pretense of looking for another individual. (Doc. 7, p. 2). Plaintiff asked for a search warrant but one was never provided and Plaintiff never provided consent for the search. Id. As of October 21, 2022, when Plaintiff filed his Amended Complaint, no warrant has been provided to him, nor has any “discovery” been provided despite his numerous requests. Id.
Plaintiff then appears to list as a violated law 18 U.S.C. § 242 - Deprivation of Rights Under Color of Law. Id. Plaintiff recites a summary of the statute and an explanation of some of the terms within the statute before detailing what he believes are the “rights violations under color of law.” (Doc. 7, p. 3) (emphasis omitted). Plaintiff alleges that Defendant Miller did not carry out his duty to uphold the law because he searched Plaintiff's home and seized Plaintiff's property without a warrant. Id. Plaintiff states that when he asked Defendant Miller why his money was being seized Defendant Miller replied, “because I can.” Id. Plaintiff alleges that Defendant Miller “went beyond the bonds [sic] of his lawful authority” in searching Plaintiff's house and seizing his property without a warrant, including his home surveillance system which could identify all the officers involved. Id.
Plaintiff then seems to attempt to bring a 42 U.S.C. § 1983 claim, stating “Under 42 U.S. Code § 1983 - Civil action for deprivation of rights,” followed by a holding from an unnamed case. (Doc. 7, p. 4). The holding states that a plaintiff in a § 1983 case does not need to allege the defendant acted in bad faith, and that a plaintiff is only required to allege two things to state a § 1983 claim: 1) deprivation of a federal right and 2) by someone acting under the color of state law. Id. Given that Plaintiff laid out how he believes his Fourth Amendment rights were violated by an allegedly warrantless search and seizure in an earlier section of his Amended Complaint, (Doc. 7, p. 2-4), the Court construes Plaintiff as bringing a Fourth Amendment 42 U.S.C. § 1983 unreasonable search and seizure claim.
Plaintiff next states “Claim of rights Violation: Under Title 42 Chapter 58 § 5803 Asset Forfeiture (e),” which appears to be a Pennsylvania statute. Id. Plaintiff then states no receipt of what was seized was left with him and appears to then quote language from the statute. Id. Plaintiff states that “the Commonwealth said their claim of Forfeiture condemnation under Title 42 chapter 58, controlled Substance Forfeiture 5802,” but Plaintiff believes there were no grounds for seizing his property under 42 Pa. C.S. § 5803. (Doc. 7, p. 5). Plaintiff alleges the Luzerne County District Attorney and Luzerne County Drug and Task Force Coordinator “swore to the account” that a large amount of illegal narcotics and $7,270.00 were seized from Plaintiff's home, which Plaintiff states is false. Id. According to Plaintiff, Chief Joseph Coffay of the Wilkes-Barre Police Department told Plaintiff “nothing was found” as he left Plaintiff's house apparently on the day of the search. Id. Plaintiff believes the claims by the District Attorney came from Defendant Miller. Id. Plaintiff alleges that Defendant Miller concluded Plaintiff had gotten his money through illegal means thus “depriving me of my right to my own property and money through hearsay and drawing his own conclusion where no investigation was conducted.” Id. Plaintiff states he was not arrested or charged with any crime. (Doc. 7, p. 5-6).
Plaintiff then apparently summarizes his claims, saying, “I am stating a claim that Detective Miller along with the Kingston and Wilkes-Barre Police Departments have conspired against me and deprived me of my federal rights under the IV [sic] Amendment ....” (Doc. 7, p. 6). The Court interprets this as Plaintiff attempting to bring a 42 U.S.C. § 1983 conspiracy claim against Defendants. Plaintiff appears to try and assert a claim under 18 U.S.C. § 242 “Deprivation of Rights and property under Color of Law; and Under [sic] 42 U.S. Code § 1983 - civil deprivation of rights: these officers have deprived me of my federal rights and . . . acted under color of state or territorial law.” Id. The Court construes Plaintiff bringing all of his § 1983 claims against Defendant Miller in both his individual and official capacities.
Although Plaintiff's Original Complaint has been supplanted by his Amended Complaint, in his Original Complaint (Doc. 1), Plaintiff stated that he received a notice from the Commonwealth approximately one year after the search and seizure informing him he must file an answer to a Petition for Forfeiture and Condemnation of $7,270.00 seized on February 18, 2021. (Doc. 1, p. 4). In his Amended Complaint Plaintiff does not directly reference this proceeding aside from stating “the Commonwealth said their claim of Forfeiture condemnation under Title 42 chapter 58, controlled Substance Forfeiture 5802” and “after this raid I did not hear from the Commonwealth for one year concerning this situation and still no Judge has been assigned to this case.” (Doc. 7, p. 5-6).
Plaintiff states he has suffered “extreme stress and anxiety” (Doc. 7, p. 6), and “mental anguish, depression, anxiety, PTSD, and financial hardship,” (Doc. 7, p. 7) because of Defendants' actions. Plaintiff seeks as relief the return of the “$11,000.00+” and home surveillance system seized from his home, (Doc. 7, p. 6), as well as “15,000,000.00 [sic]” for the mental anguish and financial hardships he has faced as a result of this allegedly warrantless search and seizure (Doc. 7, p. 7).
With those legal standards and that background in mind we turn to the merits of Plaintiff's Complaint.
IV. ANALYSIS
We begin by analyzing Plaintiff's claims in outline form:
a. Plaintiff does not state a claim under 18 U.S.C. § 242.
b. Plaintiff does not state a claim under 42 Pa. C.S. § 5803.
c. Plaintiff does not state a Fourth Amendment 42 U.S.C. § 1983 unreasonable search and seizure claim against Defendants Kingston Police Department and Wilkes-Barre Police Department or Defendant Miller in his official capacity.
d. Plaintiff does not state a 42 U.S.C. § 1983 conspiracy claim.
e. Plaintiff does state a Fourth Amendment 42 U.S.C. § 1983 unreasonable search and seizure claim against Defendant Miller in his individual capacity only.
The Court will explain each of these conclusions in turn.
A. Plaintiff Does Not State a Claim Under 18 U.S.C. § 242
In his Amended Complaint, Plaintiff alleges that Defendants violated 18 U.S.C. § 242 and appears to bring a claim for this violation. (Doc. 7, p. 2). Title 18 is the Criminal Code of the United States. While it is unclear whether Plaintiff is seeking criminal prosecution of Defendants or is trying to use criminal law to bring a civil suit, it does not matter as both will fail. To the extent Plaintiff is seeking prosecution of the Defendants for violating 18 U.S.C. § 242, Plaintiff cannot bring federal criminal charges. Nor can Plaintiff seek relief ordering the criminal prosecution of Defendants. The non-prosecution of individuals who could potentially be prosecuted for federal crimes, even crimes committed against Plaintiff, does not violate Plaintiff's rights. “Therefore, to the extent that [Plaintiff] premises civil claims on criminal statutes, these claims [ ] fail as a matter of law and should be dismissed.”
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.” 18 U.S.C. § 242.
Dicent v. Sears Holdings, No. 3:17-CV-332, 2017 WL 1045066, at *5 (M.D. Pa. Feb. 27, 2017), report and recommendation adopted, No. 3:17-CV-00332, 2017 WL 1042470 (M.D. Pa. Mar. 17, 2017), appeal dismissed, No. 171679, 2017 WL 4417851 (3d Cir. June 20, 2017).
Mikhail v. Kahn, 991 F.Supp.2d 596, 636-39 (E.D. Pa. 2014), aff'd, 572 Fed.Appx. 68 (3d Cir. 2014).
Dicent, 2017 WL 1045066, at *5.
See Dundore v. O'Donnell, No. 85-2907, 1985 WL 2681 at *2 (E.D. Pa. Sept. 17, 1985).
Dicent, 2017 WL 1045066, at *5.
B. Plaintiff Does Not State a Claim Under 42 Pa. C. S. § 5803
In his Amended Complaint, Plaintiff appears to allege Defendants violated 42 Pa. C.S. § 5803 and seemingly attempts to bring a claim for this violation. (Doc. 7, p. 4). It is not clear exactly what claim Plaintiff is attempting to bring.
42 Pa. C.S. § 5803 governs asset forfeiture in Pennsylvania. The statute lists the kinds of forfeitures the statute applies to, the process and seizure of money and personal property, the process and seizure of real property, the issuance of process, the custody of property, the receipt requirements, the use of property held in custody, prohibited sales, the use of cash or proceeds of property, the distribution of property among law enforcement authorities, the authorization to utilize property, the annual audit of forfeited property, the annual report and confidential information, and proceeds and appropriations. Plaintiff cites to 42 Pa. C.S. § 5803(b), “Process and Seizure of Money and Personal Property,” and (e) “Receipt.”
In his Complaint, (Doc. 1), Plaintiff alleged that a little less than a year after the search and seizure, the Commonwealth of Pennsylvania filed a Petition for Forfeiture and Condemnation for $7,270.00 seized from Plaintiff's house. To that Complaint Plaintiff filed two Exhibits. (Docs. 1-1, 1-2). Exhibit A included what appeared to be an incomplete copy of the Commonwealth's Petition for Forfeiture and Condemnation, a Verification by Detective Daniel Mimnaugh, a Rule to Show Cause issued by the Court of Common Pleas of Luzerne County and a Notice by the Commonwealth to file an Answer to Petition for Forfeiture and Condemnation. (Doc. 1-1, p. 2-5). Exhibit B appeared to include Plaintiff's answer to the Petition and included a Rule to Show Cause signed by Plaintiff, a Verification signed by Plaintiff, and a document titled “Petition for Forfeiture and Condemnation” that appears to be Plaintiff's Answer arguing against the Petition. (Doc. 1-2, p. 2-5).
As Plaintiff filed an Amended Complaint (Doc. 7), the Court does not rely on anything in Plaintiff's Original Complaint or any Exhibits attached to it in making its recommendations.
In his Amended Complaint, Plaintiff talks around the Petition without ever providing sufficient information about it, crippling the Court's ability to understand what Plaintiff seeks. (Doc. 7). Plaintiff states, “the Commonwealth said their claim of Forfeiture condemnation under Title 42 chapter 58, controlled Substance Forfeiture 5802,” and “after this raid I did not hear from the Commonwealth for one year concerning this situation and still no Judge has been assigned to this case.” (Doc. 7, p. 5-6). As Plaintiff's Original Complaint no longer has any bearing on this case, and the Court cannot use any information or documents provided in Plaintiff's Original Complaint, the Court is left with those two statements to try and interpret what claim Plaintiff is trying to bring or what he is seeking.
In the Order granting Plaintiff leave to amend his Complaint, (Doc. 6), Plaintiff was put on notice that: “any amended complaint must be complete in all respects; it must be a new pleading that complies with the requirements of the Federal Rules of Civil Procedure which stands by itself without reference to the complaint already filed. The amended complaint will completely replace the original complaint, therefore if Plaintiff chooses to file an amended complaint, the original complaint will have no role in the future of this case.” (Doc. 8, p. 26).
It appears that the forfeiture action is still pending in state court, and that the section of Plaintiff's Amended Complaint “Claim of Rights Violation: Under Title 42 Chapter 58 §5803 Asset forfeiture (e)” may be an argument for why the Commonwealth's “claim of Forfeiture condemnation” should not be granted. (Doc. 7, p. 4-5). However, Plaintiff provides so little information about the Petition in his Amended Complaint that we cannot tell what claim Plaintiff is trying to bring or what his purpose is in making this argument.
If Plaintiff is asking this Court to intervene in that action he does not clearly state that claim, failing to comply with Federal Rule of Civil Procedure 8(a)(2) and provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” To the extent Plaintiff is attempting to bring any other state law claim under 42 Pa. C.S. § 5803, he also does not identify a cause of action that is conferred upon him by 42 Pa. C.S. § 5803, failing to show how he “is entitled to relief.”Plaintiff thus fails to state a state law claim under 42 Pa. C. S. § 5803.
If Plaintiff is attempting to bring a 42 U.S.C. § 1983 claim for the violation of any rights he alleges are conferred upon him by 42 Pa. C.S. § 5803, Plaintiff likewise fails to state a claim. A § 1983 claim requires the deprivation of a federally protected right by a personally involved individual acting under color of state law. Assuming arguendo 42 Pa. C.S. § 5803 does confer rights upon Plaintiff, he still cannot state a § 1983 claim as these rights would be state rights, not federal rights, leaving Plaintiff unable to plead an essential element of a § 1983 claim. Therefore, Plaintiff fails to state a claim under 42 Pa. C.S. § 5803 and it will be recommended this claim be dismissed.
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005); Gannaway v. Prime Care Medical, Inc., 150 F.Supp.3d 511, 527 (E.D. Pa. 2015), aff'd sub nom, Gannaway v. PrimeCare Med., Inc, 652 Fed.Appx. 91 (3d Cir. 2016) (citing Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986)).
Woloszyn, 396 F.3d at 319.
C. Plaintiff Does Not State a Fourth Amendment 42 U.S.C. § 1983 Unreasonable Search and Seizure Claim Against Defendants Kingston Police Department and Wilkes-Barre Police Department or Defendant Miller in His Official Capacity
Plaintiff asserts a Fourth Amendment 42 U.S.C. § 1983 unreasonable search and seizure claim against Defendants Kingston Police Department, Wilkes-Barre Police Department and Defendant Miller in his official capacity. (Doc. 7).
The Court notes that it appears that Plaintiff is, in part, seeking to sue individual unnamed members of these Police Departments. Plaintiff states he is bringing a claim under the Fourth Amendment as his rights were violated “by Detective R. Miller of the Kingston Police Department along with other members of the Kingston and Wilkes-Barre Police Departments.” (Doc. 7, p. 2) (emphasis added). Plaintiff alleges that the illegal search of his home was led by Defendant Miller “of the Kingston Police” and included “members of the Wilkes-Barre Police Department.” Id. Plaintiff seeks “recompense . . . [for] the unlawful operations of these law enforcement officers ” Id. at p. 6. However, Plaintiff only names one individual in his Amended Complaint, Defendant Miller. (Doc. 7). Plaintiff cannot sue these unidentified individual ‘members' for their violation(s) of his constitutional rights by broadly suing their Police Department employer as Plaintiff cannot hold their employer liable for their individual actions. Bd. Of the Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997). A respondeat superior theory does not apply under § 1983. Monell v. Dept. of Soc. Servs. Of City of New York, 436 U.S. 658, 691 (1978).
“Although local governmental units may constitute ‘persons' against whom suit may be lodged under § 1983, a city police department is a governmental sub- unit that is not distinct from the municipality of which it is a part.” “[A] municipality and its police department [are] [] a single entity for purposes of section 1983 liability.” Thus, a suit against the Kingston or Wilkes-Barre Police Department is a suit against the Municipality of Kingston or the City of Wilkes-Barre. As pro se plaintiffs are entitled to a liberal construction of their complaint,the Court will construe Plaintiff's Fourth Amendment § 1983 unreasonable search and seizure claim against the Kingston Police Department and Wilkes-Barre Police Department as a claim against the Municipality of Kingston and the City of Wilkes-Barre.
Mikhaeil v. Santos, 646 Fed.Appx. 158, 163 (3d Cir. 2016).
Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997).
Erickson, 551 U.S. at 94.
“Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Defendant Miller is a Detective for the Kingston Police Department, meaning he is an agent of the
Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 U.S. at 690 n.55 (internal quotation marks omitted))).
Kingston Police Department. (Doc. 7). As explained above, suing the Kingston Police Department is a suit against the Municipality. Suing Defendant Miller in his official capacity is therefore also treated as a suit against the Municipality.
Mikhaeil, 646 Fed.Appx. at 163.
Municipalities cannot be “held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort.” If a plaintiff wishes to recover under § 1983 from a municipality they must make out a Monell claim by:
Id.
(1) Identify[ing] a policy or custom that deprived [them] of a federally protected right;
(2) Demonstrat[ing] that the municipality, by its deliberate conduct, acted as the “moving force” behind the alleged deprivation; and
(3) Establish[ing] a direct causal link between the policy or custom and the plaintiff's injury.
Blasi v. Borough of Pen Argyl, No. 14-1354, 2015 WL 4486717, at *5 (E.D. Pa. July 23, 2015) (citing Bd. Of the Cnty. Comm'rs of Bryan Cnty., Okla., 520 U.S. at 404).
A policy or custom can be shown in any of four ways:
(1) the existence of a formal policy, officially promulgated or adopted by a municipality; Monell, 436 U.S. at 690; or
(2) that an official or officials responsible for establishing final policy with respect to the subject matter in question took action or made a deliberate, specific decision that caused the alleged violation of plaintiff's constitutional rights, Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986)(citation omitted); or
(3) the existence of an unlawful practice by subordinate officials so permanent and well settled as to constitute “custom or usage” and proof that this practice was so manifest or widespread as to
imply the constructive acquiescence of policymaking officials, City of St. Louis v. Praprotnik, 485 U.S. 112, 127-30 (1989); or
(4) if liability is based on a claim of failure to train or supervise, that “the failure to train amounts to deliberate indifference to the rights of persons with whom...[municipal employees] came into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989).
Nye v. Cumberland Cnty., No. 1:14-CV-713, 2016 WL 695109, at *4 (M.D. Pa. Feb. 19, 2016).
Plaintiff does not allege facts in his Amended Complaint that suggest there was a policy or custom that worked to deprive him of his Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiff alleges in his Amended Complaint that members of each Police Department took part in the allegedly illegal search of his home, that Chief Coffay of the Wilkes-Barre Police Department can attest that nothing was found at Plaintiff's home, that the Kingston and Wilkes-Barre Police Departments conspired against Plaintiff to deprive him of his Fourth Amendment right, and that he wishes to be “recompense[d]” for the “unlawful operations of these law enforcement officers and the agencies they work for.” (Doc. 7, p. 2-6).
In these statements Plaintiff does not identify or hint at a policy or custom that deprived him of his Fourth Amendment rights. As such, Plaintiff does not allege a causal link between any policy or custom and his alleged injury, nor does he allege either municipality was the “moving force” of the alleged deprivation. Without any such factual allegations, Plaintiff's Amended Complaint does not give the Court “a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of his Monell claim. Therefore, Plaintiff does not state a Fourth Amendment § 1983 unreasonable search and seizure claim against Defendant Miller in his official capacity, the Kingston Police Department or the Wilkes-Barre Police Department (i.e., the Municipality of Kingston or the City of Wilkes-Barre) and it will be recommended this claim be dismissed.
Blasi, 2015 WL 4486717, at *5 (citing Bd. Of the Cnty. Comm'rs of Bryan Cnty., Okla., 520 U.S. at 404).
Id.
Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556 (internal quotations omitted)).
D. Plaintiff Does Not State a 42 U.S.C. § 1983 Conspiracy Claim
Plaintiff attempts to “stat[e] a claim that Detective Miller along with the Kingston and Wilkes-Barre Police Departments have conspired against me and deprived me of my federal rights under the [Fourth] Amendment ....” (Doc. 7, p. 6). The Court liberally construes this as Plaintiff asserting a § 1983 conspiracy claim against Defendants.
Erickson, 551 U.S. at 94.
Again, “a municipality and its police department [are] [] a single entity for purposes of section 1983 liability.” The Court again construes Plaintiff's § 1983 conspiracy claims against the Kingston and Wilkes-Barre Police Departments as bringing claims against the Municipality of Kingston and the City of Wilkes-Barre. As for Plaintiff's § 1983 conspiracy claim against Defendant Miller in his official capacity, as explained above in Section IV(C), it is also treated as a suit against the Municipality.
Bonenberger, 132 F.3d at 25 n.4.
To prevail on a conspiracy claim under § 1983, a plaintiff must prove: (1) two or more persons conspired to deprive plaintiff of his constitutional rights; (2) one or more of the conspirators performed an act in furtherance of that conspiracy; (3) the overt act caused an injury to plaintiff; and (4) the conspirators acted under the color of state law. The central element of a conspiracy claim under § 1983 is the existence of a “conspiracy.” To plausibly allege the existence of a conspiracy:
Wright v. Whitehall Twp., No. 5:20-CV-2664, 2021 WL 100091 at *11 (E.D. Pa. Jan 12, 2021) (citing Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293 (3d Cir. 2019)).
a plaintiff “must provide some factual basis to support the existence of the elements of the conspiracy: agreement and concerted action.” Jutrowski, 904 F.3d at 295 (quoting Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009)). To adequately plead an agreement, a plaintiff must allege “the state actors named as defendants in the [ ] complaint somehow reached an understanding to deny [the plaintiff] his rights.” Id. (quoting Kost v. Kozakiewicz, 1 F.3d 176, 185 (3d Cir. 1993)); Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997) (“[T]o state a claim for conspiracy under § 1983, plaintiff must make ‘factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.'” (quoting Hammond v. Creative Financial Planning Organization, 800 F.Supp. 1244, 1249 (E.D. Pa. 1992)). In the absence of direct evidence, allegations of circumstantial evidence in support of an agreement may suffice. See Jutrowski, 904 F.3d at 295.
Wright, 2021 WL 100091, at *12.
“Specific allegations of an agreement to carry out the alleged chain of events is essential in stating a claim for conspiracy.”
Rosembert v. Borough of E. Lansdowne, 14 F.Supp.3d 631, 648 (E.D. Pa. 2014) (citing 1 Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D.Pa.1997)).
Plaintiff does not state a § 1983 conspiracy claim as he fails to make any such “specific allegations of an agreement to carry out the alleged chain of events” that deprived him of his Fourth Amendment rights.
Rosembert, 14 F.Supp.3d at 648 (citing Spencer, 968 F.Supp. at 1020). Plaintiff mentions other ‘members' of the Police Departments being present but, even if he did allege facts suggesting an agreement between those ‘members' and Defendant Miller (which he does not), he cannot hold a municipality liable for the actions of its employees under a respondeat superior theory. Monell, 436 U.S. at 691.
Plaintiff alleges that Defendant Miller illegally seized his property without a warrant, but he does not tie this to anything that indicates any sort of agreement to violate his Fourth Amendment rights. (Doc. 7, p. 3). Plaintiff's statement that “Detective Miller along with the Kingston and Wilkes-Barre police Departments have conspired against me and deprived me of my federal rights under the [Fourth] Amendment” is the only time Plaintiff mentions a conspiracy between Defendants in his Amended Complaint. (Doc. 7, p. 6). This statement is a conclusion and is not sufficient to state a claim. Plaintiff does not allege any facts suggesting a conspiracy to deprive him of his Fourth Amendment rights. Plaintiff does not state a § 1983 conspiracy claim. It will be recommended this claim be dismissed.
E. Plaintiff Does State a Fourth Amendment 42 U.S.C. § 1983 Unreasonable Search and Seizure Claim Against Defendant Miller in His Individual Capacity
Plaintiff does plead a Fourth Amendment § 1983 unreasonable search and seizure claim against Defendant Miller in his individual capacity. In addition to requiring the deprivation of a federally protected right by a state actor, a Fourth Amendment § 1983 unreasonable search and seizure claim requires a plaintiff to allege facts that show the “defendants' actions (1) constituted a “search” or “seizure” within the meaning of the Fourth Amendment, and (2) were “unreasonable” considering the surrounding circumstances.” Against Defendant Miller Plaintiff has done so.
Woloszyn, 396 F.3d at 319.
Open Inns. Ltd. v. Chester Cnty. Sheriff's Dep't., 24 F.Supp.2d 410, 424 (E.D. Pa. 1998).
Plaintiff alleges that on February 18, 2021, Defendant Miller entered his home “under the guise of looking for someone else” (Doc. 7, p. 2) and “took it upon himself” to lead “an illegal search” of the house (Doc. 7, p. 3). Plaintiff asked to see a warrant and never received one. (Doc. 7, p. 2). Plaintiff never gave his consent to having his home searched, but the search continued. Id.
According to Plaintiff, the warrantless search resulted in the warrantless seizure of “$11,000+” and his home surveillance equipment. (Doc. 7, p. 2-3). Plaintiff alleges that when he asked Defendant Miller why his money was being taken Defendant Miller responded, “because I can ....” (Doc. 7, p. 3). Plaintiff alleges that Defendant Miller stole “[his] money without proper protocol and authority from a judge describing the things to be seized ” Id. As of October 21, 2022, when Plaintiff filed his Amended Complaint, no warrant had been provided to him. (Doc. 7, p. 2). At this stage, these are sufficient facts to state a Fourth Amendment § 1983 unreasonable search and seizure claim against Defendant Miller. Plaintiff thus adequately pleads a Fourth Amendment § 1983 unreasonable search and seizure claim against Defendant Miller and it will be recommended this claim be permitted to proceed against Defendant Miller in his individual capacity only.
V. FUTILITY OF AMENDMENT
“Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given, in the absence of circumstances such as undue delay, bad faith or dilatory motive, undue prejudice to the opposing party or futility of amendment.” This Court screened Plaintiff's Original Complaint on September 22, 2022, explaining its deficiencies and giving Plaintiff leave to amend to cure those deficiencies on or before October 10, 2024. (Doc. 6). Plaintiff then timely filed an Amended Complaint on October 21, 2022. (Doc. 7). Plaintiff's Amended Complaint listed all new Defendants and included new claims. Id. On December 27, 2022, the Court screened Plaintiff's Amended Complaint again explaining its deficiencies and giving Plaintiff another opportunity to amend on or before January 17, 2023. (Doc. 8). Plaintiff has failed to file another amended complaint or a motion for extension of time. Granting Plaintiff further leave to amend would thus be futile.
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
VI. RECOMMENDATION
Accordingly, it is RECOMMENDED that Plaintiff's amended complaint be DISMISSED IN PART pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as follows:
(1) Plaintiff's claim under 18 U.S.C. § 242 should be DISMISSED;
(2) Plaintiff's claim under 42 Pa. C.S. § 5803 should be DISMISSED;
(3) Plaintiff's Fourth Amendment 42 U.S.C. § 1983 claim against the Kingston Police Department, the Wilkes-Barre Police Department and Defendant Miller in his official capacity should be DISMISSED;
(4) Plaintiff's 42 U.S.C. § 1983 conspiracy claim should be DISMISSED;
(5) Plaintiff's Fourth Amendment 42 U.S.C. § 1983 claim against Defendant Miller in his individual capacity only should be permitted to proceed; and
(6) The Clerk of Court should be DIRECTED to terminate the Kingston Police Department and the Wilkes-Barre Police Department as Defendants in this action.
(7) The Clerk of Court should be DIRECTED to send the waiver packet (AO 398 and 399) and a copy of the Amended Complaint (Doc. 7) and the Order on this Report and Recommendation to Defendant Miller.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.