Opinion
CIVIL 4:22-CV-1860
10-24-2023
GLENNY G. HERNANDEZ, Plaintiff, v. WAGONSHED, Defendant.
Mannion Judge
REPORT AND RECOMMENDATION
DARYL F. BLOOM, UNITED STATES MAGISTRATE JUDGE
I. Factual Background
The pro se plaintiff, Glenny Hernandez, filed a complaint on November 22, 2022, asserting a claim purportedly under the Fair Labor Standards Act (“FLSA”), as well as claims of alleged “entrapment,” false arrest, and wrongful conviction. (Doc. 1). This court granted Hernandez's motion to proceed in forma pauperis (Doc. 5), but ultimately dismissed the complaint. (Docs. 6, 7). The court gave Hernandez an opportunity to file an amended complaint by June 8, 2023. (Id.). Hernandez belatedly filed a document entitled “Response,” and a month later filed a “Supplement.” (Docs. 8, 9). The case was then reassigned to the undersigned.
In these responsive filings, Hernandez continues to assert the same vague factual underpinnings as his initial complaint, albeit with a few more allegations that shed some light on the underlying events. It appears that Hernandez was a patron of two bars in Columbia County, Pennsylvania-The Paddock and The Wagonshed. (Doc. 9 at 1). He claims that he did not fully satisfy his bill at The Paddock one night, and because of that, the bartender at The Wagonshed refused to serve him. (Id.). This resulted in a verbal altercation that ended with his arrest by local police. (Id.). Although it is unclear from the pleadings when these events occurred, a search of the public docket reveals that Hernandez received a non-traffic citation on April 13, 2021, for Disorderly Conduct (Engaging in Fighting), to which he pleaded guilty on May 27, 2021. See Commonwealth v. Glenny G. Hernandez, MJ-26201-NT-0000131-2021.
It is this incident that forms the gravamen of Hernandez's alleged claims. He asserts that the conduct of the bartender at The Wagonshed, refusing him service and calling the police, violated the FLSA and constituted entrapment. (Doc. 9 at 1). Regarding his false arrest and wrongful conviction claims, he appears to assert that he was pulled over by an unnamed officer, not listed as a defendant, and given a blood test that resulted in his arrest and a violation of his Fourth Amendment rights. (Doc. 8 at 3).
While Hernandez's pleadings are unclear as to when these events occurred, a search of the public docket indicates that Hernandez is currently awaiting trial on a misdemeanor charge of driving under the influence in Luzerne County. See Commonwealth v. Glenny Hernandez, CP-40-CR-0001756-2021. However, if this is the incident to which Hernandez is referring in his pleadings, it is equally unclear as to how this incident, which appears to have occurred in a different county and on a different date, is in any way related to his arrest at The Wagonshed.
In our view, even liberally construing Hernandez's belated filings as an amended complaint, Hernandez's pleadings continue to suffer from the same fatal flaws as his initial complaint; namely, Hernandez's pleadings fail to state a claim under the FLSA and fail to plead factual averments to support a claim for false arrest or malicious prosecution. Accordingly, we will recommend that this action be dismissed with prejudice.
II. Discussion
A. Screening of Pro Se Complaints - Standard of Review
We have a statutory obligation to preliminarily review pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). We review such complaints to determine whether there are frivolous or malicious claims, or if the complaint fails to state a claim upon which relief may be granted. Id. This statutory preliminary screening mirrors review under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
With respect to this legal benchmark, under federal pleading standards a plaintiff is required to set forth a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In determining whether a complaint states a claim for relief under this pleading standard, a court must accept the factual allegations in the complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and accept “all reasonable inferences that can be drawn from them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court is not required to accept legal conclusions or “a formulaic recitation of the elements of a cause of action.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice”).
As the Third Circuit Court of Appeals has aptly summarized:
[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. Id. 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.” Id. at 1950. 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. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.' ” Iqbal, 129 S.Ct. at 1949. This “plausibility” determination will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Generally, when considering a motion to dismiss, a court relies on the complaint and its attached exhibits, as well as matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court can 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). Additionally, if the complaint relies on the contents of a document not physically attached to the complaint but whose authenticity is not in dispute, the court may consider such document in its determination. See Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on any other part of the record when deciding a motion to dismiss. Jordan, 20 F.3d at 1261.
Finally, when reviewing a pro se complaint, we are reminded that such complaints are to be construed liberally, “so ‘as to do substantial justice.'” Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (quoting Fed.R.Civ.P. 8(f)). We must apply the relevant law even if the pro se plaintiff does not mention it by name. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)).
B. This Complaint Fails to State a Claim Upon Which Relief May Be Granted.
As we have noted, Hernandez's pleadings, which we are liberally construing as his amended complaint, fall far short of what is needed to state a claim for relief. At the outset, to the extent Hernandez wishes to bring an FLSA claim against Wagonshed, his amended pleadings make clear that he was not an employee of The Wagonshed. Additionally, as the court found when it dismissed Hernandez's initial complaint, Hernandez cannot bring a civil claim for entrapment. Further, to the extent Hernandez seeks to bring claims of wrongful arrest and malicious prosecution under the Fourth Amendment, he has not sued the appropriate parties, and moreover, has not alleged facts to support these claims. Accordingly, we recommend that this complaint be dismissed with prejudice.
1. Hernandez was not an “Employee” under the FLSA.
It is well settled that in order to bring a claim under the FLSA, a plaintiff must allege that he is an “employee” of the entity he is bringing the FLSA action against. See Razak v. Uber Techs. Inc., 951 F.3d 137, 143 (3d Cir. 2020); Johnson v. Nat'l Collegiate Athletic Ass'n, 556 F.Supp.3d 491, 500 (E.D. Pa. 2021). “The FLSA defines ‘employee' as ‘any individual employed by an employer.'” Yue Yu v. McGrath, 597 Fed.Appx. 62, 65-66 (3d Cir. 2014) (quoting 29 U.S.C. § 203(e)(1)). Here, Hernandez does not claim to have been employed by The Wagonshed at any time. Rather, he clearly alleges that he was a patron of this establishment, and that an employee of The Wagonshed called the police on him after he got involved in a verbal altercation with that employee. Accordingly, because Hernandez does not qualify as an “employee” under the FLSA, he cannot bring a claim under the FLSA against Wagonshed. This claim should be dismissed with prejudice.
2. “ Entrapment” is not a Civil Claim.
Hernandez's filings continue to assert that the employee of The Wagonshed “entrapped” him by calling the police on him and having him arrested. However, as Chief Judge Mehalchick aptly noted in her Memorandum Opinion dismissing this claim with prejudice, “[e]ntrapment is a criminal defense defined by statute and cannot form the basis of a civil proceeding.” (Doc. 6 at 7-8). Thus, not only has Hernandez attempted to reassert a claim that has been dismissed with prejudice, but this claim still fails as a matter of law. Accordingly, this claim should be dismissed.
3. Hernandez fails to State a Claim for Fourth Amendment Violations.
Finally, to the extent we can construe Hernandez's filings as asserting a Fourth Amendment violation pursuant to 42 U.S.C. § 1983 for false arrest and malicious prosecution, these claims suffer from several fatal flaws. At the outset, a plaintiff bringing a claim under § 1983 must allege as a threshold matter that the alleged constitutional violation he suffered “was committed by a person acting under the color of state law.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Here, Hernandez has sued The Wagonshed, a private establishment. Hernandez has not alleged any facts from which we could infer that The Wagonshed was a state actor for purposes of § 1983. Additionally, to the extent he bases these claims on his allegations that he was falsely arrested by a local officer, Hernandez has not sued that officer in this action.
More significantly, Hernandez has not sufficiently pleaded facts that would establish claims for either false arrest or malicious prosecution. Construing Hernandez's allegations as stemming from his arrest for the verbal altercation at The Wagonshed in 2021, he has not alleged that he was arrested without probable cause. See Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000); Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). In fact, it is undisputed that Hernandez pleaded guilty to the disorderly conduct charge in May of 2021. See Rosembert v. Borough of East Lansdowne, 14 F.Supp.3d 631, 641 (E.D. Pa. 2014) (finding that probable cause was established by the plaintiff's guilty plea); Kokinda v. Breiner, 557 F.Supp.2d 581, 593 (M.D. Pa. 2008) (same).
See Commonwealth v. Glenny G. Hernandez, MJ-26201-NT-0000131-2021. We note that we are permitted to consider matters of public record when we review a complaint through the lens of a motion to dismiss. Pension Benefit Guaranty Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Similarly, to the extent Hernandez is pursuing a malicious prosecution claim under § 1983, Hernandez must show, inter alia, that the underlying criminal case terminated in his favor. See Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (discussing the elements of a § 1983 malicious prosecution claim). However, Hernandez's guilty plea to this offense establishes just the opposite. Accordingly, Hernandez cannot bring a claim for malicious prosecution on these facts and this claim should be dismissed with prejudice.
While we recognize that Hernandez is a pro se litigant and generally would be entitled to an opportunity to amend his complaint, see Fletcher-Hardee Corp. v Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007); Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), in our view this complaint is fundamentally flawed in several ways that cannot be cured by amendment. Accordingly, we recommend that this complaint be dismissed with prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the complaint be dismissed with prejudice.
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 12 recommit the matter to the magistrate judge with instructions.