Opinion
Civil Action 1:20-CV-1549
07-27-2021
LLOYD JAMES BRIGMAN, Plaintiff v. ADAM SCHAUM, et al., Defendants
CONNER, D.J.
REPORT & RECOMMENDATION DEFENDANTS KYLE THOMAS AND DAVID W. SUNDAY, JR.'S MOTION TO DISMISS (DOC. 18)
William I. Arbuckle U.S. Magistrate Judge
On August 28, 2020, Lloyd James Brigman (“Plaintiff”) initiated the above-captioned civil rights action arising out of an October 2019 arrest in York County, Pennsylvania for failing to respond to two traffic citations. In his Complaint, Plaintiff asserts claims against the following seven Defendants:
(1) Adam Schaum;
(2) Magisterial District Judge Robert A. Eckenrode;
(3) Constable Shannon;
(4) Judge Amber A. Kraft;
(5) David W. Sunday, Jr.;
(6) Kyle Thomas; and
(7) Daniel Byrnes.(Doc. 1).
On April 15, 2021, Defendants Shannon and Byrnes were terminated from the case. (Doc. 35).
Presently pending before this Court is a Motion to Dismiss filed by Defendants David W. Sunday, Jr. and Kyle Thomas under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 18). Along with their Motion, Defendants Sunday and Thomas filed a brief in support. (Doc. 19). On February 17, 2021, Plaintiff filed a brief in opposition. (Doc. 21). On February 18, 2021, Defendants Sunday and Thomas filed a reply. (Doc. 22).
This matter has been referred to me to prepare a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. After reviewing Plaintiff's Complaint (Doc. 1), and the arguments raised in the parties' briefs, I find that Plaintiff fails to state a claim upon which relief can be granted. Because I find that Plaintiff has failed to state a claim. Accordingly, IT IS RECOMMENDED that all claims against Defendants Sunday and Thomas be DISMISSED.
I. BACKGROUND & PROCEDURAL HISTORY
On October 7, 2019, Plaintiff was charged with two summary traffic offenses: failure to pass in a lane not adjacent to that of an emergency response area in violation of 75 Pa. C.S. § 3327; and driving while his license was suspended or revoked in violation of 75 Pa. C.S. § 1543. See Commonwealth v. Brigman, No. MJ-19311-TR-0002692-2019 (Magis. Ct.); Commonwealth v. Brigman, No. MJ-19311-TR-0002691-2019 (Magis. Ct.).
Plaintiff alleges that, after he was pulled over, he was transported by Defendant Schaum “and his gang” to the York County Jail. (Doc. 1, p. 4). Plaintiff was given a court date in front of Defendant Eckenrode for December 11, 2019 for both traffic offenses. (Doc. 1, p. 5). Plaintiff reports that he was released the next morning, on October 8, 2019. Id.
On October 29, 2019, Plaintiff received a letter from Constable Shannon, informing Plaintiff that a warrant for Plaintiff's arrest was issued. Id.; (Doc. 1-2, p. 8) (warrant notice). Plaintiff believed the warrant was unlawfully issued, and responded by sending a cease and desist letter to Defendant Eckenrode. Id.; (Doc. 1-2, p. 9) (Plaintiff's cease and desist letter).
On November 12, 2019, Plaintiff received summary trial notices listing Defendant Eckenrode as the Magisterial District Judge, scheduling a court dates on December 11, 2019 for both October 2019 traffic offenses. Id.; (Doc. 1-2, pp. 12, 14). On December 11, 2019, orders imposing sentence was sent to Plaintiff, informing him that his trial had been held in his absence, and that he had been found guilty of both traffic offenses. (Doc. 1-2, pp. 16-17). Pursuant to those orders, Plaintiff was fined $358.00 for driving with a suspended or revoked license, and $259.50 for passing improperly in an emergency response area. Id.
Plaintiff alleges that:
Robert A. Eckenrode conducted a criminal trial based on a traffic citation, Without [sic] a plea on file. People v. Battle states that “ traffic infractions are not a crime.” I was found guilty. (exhibit J)This is a breach of Robert A. Eckenrode's oath of office and is an act of treason. Later that same day Robert A. Eckenrode committed his 2nd act of treason by holding a second trial with out [sic] service, and made a legal judgment without my consenter [sic] or knowledge. (exhibit K)(Doc. 1, pp. 5-6).
On January 16, 2020, Plaintiff filed a summary appeal in both cases. See Commonwealth v. Brigman, No. MJ-19311-TR-0002692-2019 (Magis. Ct.); Commonwealth v. Brigman, No. MJ-19311-TR-0002691-2019 (Magis. Ct.). Defendant Kraft was assigned the role of presiding judge in the summary appeal. Commonwealth v. Brigman, No. CP-67-SA-0000020-2020 (C.C.P. York County). The docket in this case suggests that Plaintiff entered a guilty plea on July 30, 2020. Id. Plaintiff alleges:
Court was held, The United States of America, Commonwealth of Pennsylvania, County of York, City of York, at The York county courthouse, room 6003 and started at 10:17 am on July 30th in the year of our lord 2020. Judge Amber A. Kraft, under her oath office, and acting as judge at that capacity. Docket Number CP-67-SA-0000020-2020. Prior to the trial starting, I along with my wife witnessed an ex parte meeting in open court between the judge and assistant district attorney (see exhibit L) The trial was a criminal trial and for that reason Amber A. Kraft broke her oath of office. See People vs. Battle. Amber A. Kraft also entered in to [sic] record that I put in a guilty plea for both
charges, which is not true, and will not be reflected on the court transcripts. (See exhibit M). This was a trial by ambush. District Attorney David W. Sunday JR. and Kyle Thomas whom allowed this case to move forward in violation of their oath of office. No. corpus delicti and no proof of commerce. He is not a laymen.(Doc. 1, p. 6) (errors in original). The only mention of Defendants Sunday and Thomas in the Complaint appears in the above-quoted paragraph.
On August 28, 2020, Plaintiff filed this pro se civil Complaint in federal court alleging violations of his constitutional rights under 42 U.S.C. § 1983. (Doc. 1). Plaintiff paid the filing fee and served the Complaint. On January 12, 2021, Defendants Sunday and Thomas filed a Motion to Dismiss (Doc. 18) and a supporting brief (Doc. 9). On January 27, 2021, Plaintiff filed a brief in opposition. (Doc. 19). As relief, Plaintiff asks that Defendants “receive their just deserts [sic]” and for reimbursement of court costs and lost wages. (Doc. 1, p. 2). I construe this as a request for monetary damages.
II. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In reviewing a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. However, the court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Further, it is not proper to “assume that [the plaintiff] can prove facts that [he] has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following the rule announced in Ashcroft v. Iqbal, “a pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite factual allegations enough to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must ‘show' such an entitlement with its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the court of appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
In undertaking this task, the court generally relies only on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment.”) However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien &Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
III. ANALYSIS
In his Complaint, Plaintiff alleges that Defendants Sunday and Thomas (the York County District Attorney and an Assistant District Attorney) broke their oath of office by having an ex parte meeting with Defendant Kraft (the Court of Common Pleas Judge presiding over Plaintiff's summary appeal) in open court while Plaintiff was present. Plaintiff also alleges that Defendants Sunday and Thomas broke their oath of office by allowing the criminal charges to “move forward.” Plaintiff generally alleges in the Complaint that he brings the following claims:
civil rights violations under, Bill of Rights Article 4, United States Constitution Article 14 Section 1 and 18 U.S.C. § 241 and 242 and title 42 U.S.C. § 1983 et al.(Doc. 1, p. 1).
Plaintiff cites to the “Bill or Rights Article 4.” The first ten amendments to the United States Constitution make up the Bill of Rights. Thus, I construe Plaintiff's allegation as a claim that his Fourth Amendment rights were violated. Plaintiff cites to “United States Constitution Article 14 Section 1.” There are only seven articles in the United States Constitution. I construe this as a Fourteenth Amendment claim. Both the Fourth and Fourteenth Amendment claims are civil claims and may be brought pursuant to 42 U.S.C. § 1983. Plaintiff also cites to two criminal statutes-18 U.S.C. § 241 (conspiracy against rights) and 18 U.S.C. § 242 (deprivation of rights under color of law). These statutes establish criminal liability for certain deprivations of civil rights and for conspiracy to deprive civil rights. Shahin v. Darling, 606 F.Supp.2d 525, 538 (D. Del. 2009). Criminal charges cannot be brought under these statutes through a private lawsuit, and these sections do not give rise to a civil cause of action. Id. Although not discussed by any of the parties, I note that many of sources of authority Plaintiff indicated he is bringing his claims under are not appropriate bases for a civil complaint, or do not exist.
It is not clear from the face of the complaint whether these claims have been brought against Defendants Sunday and Thomas in their “official” capacity or in their “individual” or “personal” capacity.
As explained by the United States Supreme Court, lawsuits brought against state officials in their “official” capacity:
“ ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.' ” [Kentucky v. Graham, 473 U.S. 159 (1985)] (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55 (1978)). Suits against state officials in their official capacity therefore should be treated as suits against the State. 473 U.S., at 166. Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation. See Fed.R.Civ.P. 25(d)(1); Fed. R. App. P. 43(c)(1); this Court's Rule 35.3. Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, “the entity's ‘policy or custom' must have played a part in the violation of federal law.” Graham, supra, at 166 (quoting Monell, supra, 436 U.S., at 694). For the same reason, the only immunities available to the defendant in an official-capacity action are those that the governmental entity possesses. 473 U.S., at 167.Hafer v. Melo, 502 U.S. 21, 25 (1991). In contrast, “personal” or “individual” capacity lawsuits:
seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, “[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” [Graham, 473 U.S. at 166]. While the plaintiff in a personal-capacity suit need not establish a connection to governmental “policy or custom, ” officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167.Id.
Defendants Sunday and Thomas argue that Plaintiff's claims against them should be dismissed for three reasons: (1) Defendants Sunday and Thomas are entitled to prosecutorial immunity as to the claims asserted against them in their individual/personal capacity; (2) Defendants Sunday and Thomas are entitled to Eleventh Amendment Immunity as to the claims asserted against them in their official capacity; and (3) Plaintiff's claims against Defendants Sunday and Thomas are barred by the Rooker-Feldman doctrine.
A. Whether Plaintiff's Individual/Personal Capacity Claims Against Defendants Sunday and Thomas Should Be Dismissed Because Defendants Are Shielded By Absolute Immunity
Defendants Sunday and Thomas argue that the individual capacity claims for monetary damages against them should be dismissed because they are entitled to absolute immunity.
Generally, immunity takes two forms: absolute immunity and qualified immunity. Although most public officials are entitled only to qualified immunity, officials like prosecutors are entitled to absolute immunity for the performance of certain “special functions.” Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006). However, “[t]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Id. (citing Burns v. Reed, 500 U.S. 478, 486 (1991). The Third Circuit has explained, to meet this burden, a prosecutor must show:
that he or she was functioning as the state's advocate when performing the action(s) in question. Yarris, 465 F.3d at 136. This inquiry focuses on “the nature of the function performed, not the identity of the actor who performed it.” Light [v. Haws, 472 F.3d 74, 78 (3d Cir. 2007)]
(quoting Hughes v. Long, 242 F.3d 121, 125 (3d Cir. 2001)). Under this functional approach, a prosecutor enjoys absolute immunity for actions performed in a judicial or “quasi-judicial” capacity. Giuffre [v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994)] (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); Rose v. Bartle, 871 F.2d 331, 346 (3d Cir. 1989). Thus, immunity attaches to actions “intimately associated with the judicial phases of litigation, ” but not to administrative or investigatory actions unrelated to initiating and conducting judicial proceedings. Giuffre, 31 F.3d at 1251 (quoting Imbler. 424 U.S. at 430) (internal quotation omitted); see also Rose, 871 F.2d at 346 (contrasting the prosecutor's “quasi-judicial” role from his “administrative/ investigative” role).Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008).
Defendants Sunday and Thomas argue:
There is no doubt that the claims set forth in the Plaintiff's Complaint are barred by the doctrine of prosecutorial immunity. Further, in light of the averments set forth in the Complaint, the Plaintiff should not be entitled to amend the complaint; the Complaint is barren regarding the District Attorney Defendants and any amendment will, at best, elaborate on the brief time the Plaintiff spent with the District Attorney in the courtroom while the matter was being presented to the Court.(Doc. 19, pp. 3-4).
In response, Plaintiff argues:
The motion to dismiss based on Prosecutorial immunity pertains only to prosecutorial acts. The complaint against defendants, kyle Thomas and David w. Sunday, jr, are their Administrative Acts. There can be no Prosecutorial acts until after the case is opened, which is an administrative acts. The plaintiff has identified himself from the beginning of this incident as a private, or state citizen, human, a man of flesh an blood. In the form of birth certificate and Affidavit of reservation of rights UCC 1-308/1-207. Not a United States passport as stated in the court transcripts line 9 and 10, because that passport was not issued until October 21, 2019, 14 days after the incident. Before every court case plaintiff submitted the same documents, and more, to
the court record. The crime is an administrative act, intentionally and knowingly opened a criminal case against a private citizen who had reserved their rights prior to the administrative act of opening the case. No. grant jury verdict. For these reasons plaintiff requests that this motion be dismissed with prejudice.(Doc. 21, p. 2) (errors in original).
In reply, Defendants Sunday and Thomas argue:
Plaintiff Lloyd James Brigman's (“Brigman” or the “Plaintiff”) response to District Attorney's Motion to Dismiss is as perplexing as his Complaint. Brigman's suggestion that his prosecution was “administrative” rather than prosecutorial belies his own allegations and contradicts the reality of the situation. It appears that Brigman is now requesting that this Court do something to see that his “case is opened.” For the reasons previously identified in the District Attorney's opening brief, any such relief is inappropriate.(Doc. 22, p. 1).
The only allegations against Defendants Sunday and Thomas in the complaint are: (1) Plaintiff and his wife witnessed Defendant Thomas have “an ex parte meeting in open court” immediately before proceedings related to Plaintiff's summary appeal began; and (2) Defendants Sunday and Thomas “allowed [the state court criminal] case to move forward in violation of their oath of office.” (Doc. 1).
The claims alleged in the complaint relate to acts by Defendant Thomas during or immediately before a court proceeding when Plaintiff was present, and acts by Defendants Sunday and Thomas related to the initiation of a prosecution. Plaintiff argues that Defendants Thomas and Sunday are not entitled to absolute immunity because the acts alleged are merely “administrative.” As support for this legal theory, Plaintiff relies on Section 1-308 of the Uniform Commercial Code (“UCC”). UCC section 1-308, provides that:
A party that with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice, ” “under protest, ” or the like are sufficient.Performance or Acceptance Under Reservation of Rights., Unif. Commercial Code § 1-308. Plaintiff's theory, however, appears to be misguided. Plaintiff has cited no support for his position that the UCC is applicable to the prosecution of traffic offenses in Pennsylvania. Further, many Courts have rejected theories similar to the one advanced by Plaintiff here. See e.g., Brzezinski v. Smith, 2013 WL 2397522 (E.D. Mich. May 31, 2013) (“The UCC speaks only to commercial law and does not provide a proper basis for appealing a criminal conviction, writing a habeas petition, or brining a civil rights action); Hanloh v. People of the State of California, Nos. SACV 17-00113, SACV 17-00114, SACV 17-00116, 2017 WL 489407 at * (C.D. Cal. Feb. 6, 2017) (“The UCC is not a federal law and it has no application to a criminal conviction.”); Commonwealth v. McGarry, 172 A.3d 60 (Pa. Super. 2017); Commonwealth v. Lewis, No. 1857 WDA 2017, 2018 WL 2728337, at *2 (Pa. Super. June 8, 2018). I am not persuaded by Plaintiff's position that the UCC is applicable to the analysis of whether these Defendants are entitled to absolute immunity.
Turning to the issue of whether absolute immunity applies to the claims asserted here, I find that it does. First, Plaintiff alleges that Defendant Thomas had a conversation in the courtroom with the presiding judge, while Plaintiff was present, immediately before the de novo summary trial related to the traffic offenses began. Second, Plaintiff alleges that Defendants Sunday and Thomas lacked the authority to prosecute Plaintiff for the underlying traffic offenses. A prosecutor is absolutely immune for actions such as participation in court proceedings, and the decision to initiate a prosecution. Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999). Because the only claims alleged involve acts undertaken by Defendant Thomas intimately related to his participation in an in court proceeding, and the decision by Defendants Thomas and Sunday to prosecute Plaintiff, I find that they are entitled to absolute immunity on all claims brought against them in their individual capacity.
B. Whether Plaintiff's “Official” Capacity Claims Against Defendants Sunday and Thomas Should be Dismissed Because They Are Immune Under the Eleventh Amendment
The Eleventh Amendment to the United States 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 a state official acting in his or her official capacity constitutes a suit against the state itself, and therefore is also barred by the Eleventh Amendment. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.”).
“[T]he party asserting Eleventh Amendment immunity (and standing to benefit from its acceptance) bears the burden of proving its applicability.” Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 1144 (3d Cir. 1995). In order to determine whether Eleventh Amendment immunity applies, evidence on three factors, commonly referred to as the “Fitchik factors” must be considered: “(1) the source of funding-i.e., whether payment of any judgment would come from the state's treasury, (2) the status of the agency/individual under state law, and (3) the degree of autonomy from state regulation.” Carter, 181 F.3d at 347 (citing Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989).
In support of their position that they are immune under the Eleventh Amendment, Defendants Sunday and Thomas argue:
Whether the District Attorneys' Office, when performing its investigatory and prosecutorial functions, is an “arm of the state” under the Eleventh Amendment is a question of federal law. Blake v. Kline, 612 F.2d 718, 722 (3d Cir. 1979). The Court has held that county or municipal law enforcement officials may be state officials when they prosecute crimes or otherwise carry out policies established by the State, but serve as local policy makers when they manage or administer
their own offices. Carter v. City of Philadelphia, 181 F.3d 339, 352 (3d Cir. 1999). Here, the Defendant District Attorneys were acting pursuant to their duty as state officials in the prosecution of a crime. As such, Plaintiff's claims are barred by Eleventh Amendment.(Doc. 19, p. 5).
As an initial matter, I find that Defendants Sunday and Thomas have not sufficiently developed their argument that they are entitled to immunity under the Eleventh Amendment. The only case cited in support of their position is Carter, a Third Circuit case where the court held that a district attorney was not entitled to Eleventh Amendment immunity based on the Fitchik factors. 181 F.3d at 348-355; see also Wilson v. City of Philadelphia, 117 F.Supp.3d 885, 907-908 (E.D. Pa. 2016) (“Although Carter discusses the prosecutorial versus administrative distinction in dicta, it does not reach the issue, finding the application of the Fitchik factors dispositive. . . . The DAO's argument that a prosecutorial versus administrative distinction should be read into the Fitchik factors is incorrect and the DAO is not entitled to sovereign immunity.”). Defendants in this case have not attempted to analyze this case under the Fitchik factors, and therefore have not met their burden of proving they are entitled to immunity under the Eleventh Amendment.
I note for Plaintiff's benefit that, as a matter of law, there appears to be no path forward for his official capacity claims against Defendants Sunday and Thomas. Given the “hybrid” status of a district attorney under the law, the official capacity claims asserted against Defendants Sunday and Thomas are either claims against the state or claims against the County. Although the issue of whether the Eleventh Amendment is applicable has not been sufficiently developed, if it is applicable Plaintiff's official capacity claims against these Defendants would be dismissed. If the Defendants are considered county officials in this context, Plaintiff has failed to include sufficient allegations in his complaint to support a plausible Monell claim.
Nonetheless, Plaintiff does not respond to the merits of Defendants Sunday and Thomas' Eleventh Amendment argument. Instead, Plaintiff states that he “names kyle thomas and david w. sunday, jr, as individual defendants.” (Doc. 21, p. 1) (errors in original). Thus, it appears as if Plaintiff is arguing that it is not relevant whether Defendants Sunday and Thomas are immune under the Eleventh Amendment because he is not asserting any official capacity claim. If this is an incorrect interpretation of Plaintiff's complaint and brief, Plaintiff should raise the issue in objections to this report.
IV. RECOMMENDATION
IT IS RECOMMENDED THAT Defendants Thomas and Sundays' Motion to Dismiss (Doc. 18) be GRANTED as follows:
(1) All of Plaintiff's claims against Defendants Thomas and Sunday be DISMISSED.
NOTICE OF RIGHT TO OBJECT
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.