Opinion
Civil Action 21-1067 ECF 47
08-25-2022
WOODROW J. HICKS, Pro Se, Plaintiff, v. STACY GARRITY, Pennsylvania State Treasurer; and JOHN DOE, President, First Commonwealth Bank, Defendants.
David S. Cercone, Judge.
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN, United States Magistrate Judge.
I. RECOMMENDATION
For the reasons set forth below, it is respectfully recommended that the Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Stacy Garrity (ECF No. 47) be granted.
II. REPORT
A. Factual Allegations and Procedural History
Plaintiff Woodrow J. Hicks is currently incarcerated in SCI-Houtzdale. From November 3, 2013 until June 11, 2019, Plaintiff was also incarcerated in a facility within the Pennsylvania Department of Corrections. Compl. ¶ 1, ECF No. 8. Prior to Plaintiff's confinement, he maintained a personal checking account at First Commonwealth Bank (the “Bank”) located in Indiana, Pennsylvania. Id. at ¶ 2. Plaintiff alleges that the Bank is a FDIC insured financial institution. Id.
Plaintiff's last transaction at the Bank occurred on March 16, 2015. Id. at ¶4. Sometime thereafter, Plaintiff alleges that the entire balance of funds in his checking account, $14,913.49, was either transferred by the Bank to the possession of the Pennsylvania State Treasurer, Defendant Stacy Garrity, or seized from the Bank by Defendant Garrity. Id. Plaintiff further alleges that said transfer or seizure was done without his knowledge or consent, or official notice and an opportunity to claim or contest the seizure of his personal property. Id.
Since March 30, 2020, Plaintiff has been confined in a facility within the Pennsylvania Department of Corrections due to the revocation of his special probation/parole. Id. at ¶ 3. On or about February 20, 2021 and March 17, 2021, Plaintiff alleges that he received notices from Defendant Garrity via First Class mail, advising him that the Pennsylvania Treasury Department possessed his monetary property and that he could claim such property by completing and submitting to the Pennsylvania Treasury Department claim forms included with the notices received by Plaintiff. Id. at ¶ 5; Ex. 1 attached to Compl., ECF No. 8-1.
Plaintiff claims that on February 25, 2021 and March 25, 2021, he submitted completed claim forms, had them notarized, and attached a photocopy of his state-issued DOC ID card to the Pennsylvania Treasury Department. ECF No. 8 at ¶ 6. However, as of the filing of this lawsuit, Plaintiff contends that he has not received either his monetary property or a response from Defendant Garrity. Id. In addition, Plaintiff alleges that he followed up on the submission of his claim forms with three typewritten inquiries dated 5/1/2021, 7/1/2021, and 8/1/2021, but received no response as of the date this action was commenced. Id.
Consequently, Plaintiff commenced this civil action on August 12, 2021, against John Doe, President of First Commonwealth Bank and Pennsylvania State Treasurer Stacy Garrity for alleged violations of his rights under the Fourth and Fourteenth Amendments for unreasonably intruding upon his privacy and unlawfully seizing his monetary property without according him due process of law. Id. at pp. 7-8. Plaintiff also claims that Defendant Garrity violated his rights under the First and Fourteenth Amendments for refusing to process his claim forms or respond to his inquiries based on his status as a confined person, in violation of his right to seek redress from the government and to due process and equal protection of the law. Id. at p. 8.
On August 11, 2022, the Court filed a Report and Recommendation (ECF No. 59) recommending that the Motion to Dismiss filed by Defendant John Doe (ECF No. 18) be granted and the claims against him be dismissed with prejudice.
Plaintiff claims that his injuries include the loss of his personal monetary property in the amount of $14,913.49, and the inability to use those funds for necessities such as personal care needs, food, clothing or entertainment and leisure. Id.
For relief, Plaintiff seeks:
1. A declaratory judgment against both Defendants declaring that they violated his rights guaranteed under the Fourth and Fourteenth Amendments for unreasonably intruding upon his privacy and unlawfully seizing his monetary property without due process of law;
2. A declaratory judgment against Defendant Garrity declaring that she
discriminated against him as a member of a particularly vulnerable and suspect class of persons, i.e., state prisoners, by failing to respond to his requests for the return of his monetary property with the same measure of diligence as unconfined citizens of this Commonwealth, thereby violating his right to seek redress and to due process and equal protection of the law under the First and Fourteenth Amendments;
3. Injunctive relief against the Defendants ordering them to immediately return his monetary property in the amount of $14,913.49;
4. Compensatory damages to reimburse him for the costs of filing and prosecuting this civil action; and
5. Punitive damages for their unlawful discrimination against him as a member of a particularly vulnerable and suspect class of persons. Id. at pp. 8-9.
Thereafter, on March 21, 2022, Defendant Garrity filed a Motion to Dismiss the Complaint pursuant to Rule 12(b)(6). ECF No. 47. Plaintiff filed a response and brief in opposition to the Motion to Dismiss on May 24, 2022. ECF Nos. 53 & 54. As such, the motion to dismiss is fully briefed and ripe for review.
B. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the courts apply the following standard, as recently reiterated by the court of appeals:
A complaint may be dismissed under Rule 12(b)(6) for “failure to state a claim upon which relief can be granted.” But detailed pleading is not generally required. The Rules demand “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citation and internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n. 27 (3d Cir.2010). Although the plausibility standard “does not impose a probability requirement,” Twombly, 550 U.S. at 556, 127 S.Ct. 1955, it does require a pleading to show “more than a sheer possibility that a defendant has acted unlawfully,” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.Connelly v. Lane Constr. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016).
Building upon the landmark Supreme Court decisions in Twombly and Iqbal, the court of appeals in Connelly reiterated the three-step process district courts must undertake to determine the sufficiency of a complaint:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 . Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937 . See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 .Id. at 787.
At the motion to dismiss stage, “for purposes of pleading sufficiency, a complaint need not establish a prima facie case in order to survive a motion to dismiss[,]” but need only allege “'enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].'” Connelly, 809 F.3d at 78889 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556)) (footnote omitted).
Also, when considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”) (quoting Higgins, 293 F.3d at 688). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 2102 (10th Cir. 1996).
C. Discussion
In order to “state a claim of liability under §1983, [a plaintiff] must allege that [he] was deprived of a federal constitutional or statutory right by a state actor.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (citation omitted). Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . ., subjects, or causes to be subjected, any citizen of the United States of any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. Therefore, to state a claim for relief under §1983, a plaintiff must demonstrate both that the defendants were acting under color of state law and that a constitutional violation was directly caused by their conduct. Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
It is well established that a “defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) (other citation omitted)); see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir.2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir.2000) (en banc)). A plaintiff must aver this personal involvement through allegations of participation, personal direction, or actual knowledge and acquiescence. Rode, 845 F.2d at 1207. These allegations “must be made with appropriate particularity.” Id. See also Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”); Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (“Particularly after Iqbal, the connection between the supervisor's directions and the constitutional deprivation must be sufficient to ‘demonstrate a ‘plausible nexus' or ‘affirmative link' between the [directions] and the specific deprivation of constitutional rights at issue.'”) (quoting Hedges v. Musco, 204 F.3d 109, 121 (3d Cir. 2000)).
With these legal precepts in mind, the Court turns to Defendant Garrity's Motion to Dismiss.
Defendant Garrity advances several arguments in support of her Motion to Dismiss. First, Defendant Garrity argues that the Complaint should be dismissed because it fails to plead any facts setting forth any actions or personal involvement by her with regard to Plaintiff's claims. Notwithstanding the lack of personal involvement, Defendant Garrity argues that Plaintiff has failed to allege plausible claims under the Fourteenth Amendment under either the Equal Protection Clause or Due Process Clause. Next, Defendant Garrity argues that she is entitled to immunity under the Eleventh Amendment to the extent she is being sued in her official capacity. Finally, Defendant Garrity submits that to the extent she is being sued in her individual capacity, she is entitled to qualified immunity. Because the Court finds that Defendant Garrity's first argument is dispositive of her motion to dismiss, it need not reach her other arguments.
Personal Involvement
Defendant Garrity asks the Court to dismiss the Complaint because it fails to allege any personal involvement by her in the alleged wrongdoings. In support, Defendant Garrity submits that Plaintiff's last activity on his bank account was March 16, 2015 (ECF No. 8 at ¶ 4). Pursuant to the Pennsylvania Disposition of Unclaimed and Abandoned Property Act (“DAUPA”), 72 P.S. §§ 1301.1 et seq., Defendant Garrity submits that the Bank turned over Plaintiff's bank account to Treasury on March 22, 2019 due to inactivity for three years. Under 72 P.S. § 1301.3, property in a bank account that has been dormant for three years is presumed to be abandoned and is reportable by the holder as unclaimed property. Defendant Garrity maintains that DAUPA does not authorize the Treasurer to “seize” unclaimed property, but rather, provides that the holder report unclaimed property to Treasury, who receives the abandoned property and holds it in custodial care until the rightful owner comes forward with a claim. 72 P.S. § 1301.2. Because she was not sworn into office until January 19, 2021, Defendant Garrity submits that she clearly could not have had personal involvement in Plaintiff's bank account being reported to Treasury because she was not in office when the property was transferred to Treasury.
Defendant Garrity pulls this date from Defendant John Doe's Concise Statement of Material Facts, ECF No. 20. However, the Court entered a text order on December 20, 2021 stating that it would not consider that document or Defendant Doe's motion for summary judgment in the alternative. See ECF No. 24. Therefore, as this statement is not set forth in the Complaint, it cannot not be considered in deciding Defendant Garrity's motion to dismiss.
In response, Plaintiff argues that Defendant Garrity's personal involvement is evidenced by the exhibit attached to his Complaint and her acknowledgement in paragraph 4 of her Motion to Dismiss (ECF No. 47) that she was fulfilling the State Treasurer's duties according to statutory law by accepting property deemed abandoned by the Bank. Plaintiff further contends that while Defendant Garrity may not have been sworn into office until January 19, 2021, her failure to return his monetary property to him after being personally contacted by Plaintiff on multiple occasions demonstrates the personal involvement, acquiescence, and deliberate indifference necessary to state a claim against Defendant Garrity.
To the extent Plaintiff relies on Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978) in support of his argument, said reliance is misplaced as Monell applies to municipal liability claims, not claims against state actors under Section 1983.
Initially, the Court rejects Defendant Garrity's argument that because she was sworn in after Plaintiff's monetary property was transferred to Treasury, she could not have been personally involved in any claimed wrongdoing. Plaintiff's claims against Defendant Garrity arise primarily from the actions or inaction that allegedly occurred after his bank account was transferred to Treasury. Therefore, an examination of the allegations of what occurred after Defendant Garrity was sworn in is required.
According to the Complaint and attached exhibit, Plaintiff claims he received notices from Defendant Garrity in the mail in February and March 2021 advising him that the Pennsylvania Treasury Department's Bureau of Unclaimed Property possessed his monetary property and that he could claim such property by completing and submitting to the Pennsylvania Treasury Department, Bureau of Unclaimed Property, claim forms included with the notices sent to Plaintiff. ECF No. 8 at ¶ 5; Ex. 1 attached to Compl., ECF No. 8-1. Plaintiff further alleges that he submitted completed claim forms with the required documentation on February 25, 2021 and March 25, 2021. ECF No. 8 at ¶ 6. Plaintiff alleges that as of the filing of this lawsuit on August 12, 2021, he has not received either his monetary property or a response from Defendant Garrity. Id. In addition, Plaintiff contends that he followed up the submission of his claim forms with three typewritten inquiries dated 5/1/2021, 7/1/2021, and 8/1/2021, but has not received any response as of the date he filed this lawsuit, August 12, 2021. Id. Plaintiff submits that Defendant Garrity's failure to return his property to him after being personally contacted by him on multiple occasions demonstrates personal involvement.
The Court finds that these allegations do not show or suggest any personal involvement by Defendant Garrity. A close review of the notices sent by the Pennsylvania Treasury Department in February and March of 2021 does not reveal that they were personally sent by Defendant Garrity. The mere fact that the notices Plaintiff received were sent on official Treasury Department stationary, with Defendant Garrity's name affixed under the seal does not, without more, show that the notices were personally sent by Defendant Garrity. Neither her name nor signature appears at the bottom of the notice. Rather the notice clearly indicates that it was sent by the Pennsylvania Treasury Department's Bureau of Unclaimed Property and directs all claims and inquires be sent to the Bureau of Unclaimed Property. Plaintiff claims in his brief in opposition to have personally contacted Defendant Garrity on several occasions (ECF No. 54 at 3), but he appears to be referring to the claims he submitted and his subsequent inquiries as to the status of his claim. There is no indication in the Complaint or attached exhibit, however, that Defendant Garrity personally received either the claims submitted or Plaintiff's subsequent inquiries. Moreover, the Court notes that the address provided to Plaintiff for submitting claims is for the Bureau of Unclaimed Property. Ex. 1 attached to Compl., ECF No. 8-1 at 3. At most, the allegations in the Complaint show one-way communication by Plaintiff, which is not sufficient to show personal involvement, let alone a plausible nexus between Defendant Garrity and the Bureau of Unclaimed Property's handling of Plaintiff's claims to his abandoned property. Santiago, 629 F.3d at 130.
Thus, the Court finds that the Complaint and attached exhibit do not contain any allegations from which it can reasonably be inferred that Defendant Garrity personally participated in or directed subordinates to violate Plaintiff's constitutional rights, or had knowledge of a violation of his constitutional rights and acquiesced to such conduct.
Although not pled in his Complaint, Plaintiff sets forth in his brief in opposition additional facts regarding his attempt to retrieve the funds in his bank account. Even if the Court could take these allegations into consideration, they are not sufficient to plausibly show that Defendant Garrity was personally involved in the alleged wrongdoings. For example, in his opposition brief Plaintiff contends that approximately six weeks after his release from confinement on June 11, 2019, he contacted the Blairsville branch of the Bank and spoke to the branch manager who informed him that his property had been turned over to the Pennsylvania State Treasury pursuant to state law, and provided Plaintiff with a phone number to contact the Treasury office. Pl.'s Br. In Opp'n at 2, ECF No. 54. Plaintiff claims he contacted Treasury and spoke with a Treasury representative, who took his mailing address and informed him that he should receive a check in the mail within six to eight weeks. Id. at 3. Assuming these allegations are true for the limited purpose of this discussion, they do not suggest or infer in any way that Defendant Garrity had any knowledge of or personal involvement in the handling of his claims for his abandoned bank account funds.
In light of the above, the Court cannot conceive of any facts which could be pled to show that Defendant Garrity was personally involved in the handling of Plaintiff's claims for his abandoned bank account funds. Thus, the Court finds it would be futile to allow Plaintiff to amend his Complaint as to the claims against Defendant Garrity.
In civil rights cases brought under § 1983, the Court must allow amendment by the plaintiff before dismissing pursuant to Rule 12(b)(6), irrespective of whether it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (asserting that where a complaint is vulnerable to dismissal pursuant to 12(b)(6), the district court must offer the opportunity to amend unless it would be inequitable or futile).
The Court is sympathetic to Plaintiff's situation, however, Plaintiff was provided with an adequate remedy to recover his abandoned property and indeed filed claims to recover it. Moreover, it appears that Plaintiff received a check in the amount of $14,913.49 from the Bureau of Unclaimed Property on March 14, 2022. See ECF No. 60-1 at 19.
Accordingly, the Court recommends that the Motion to Dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) filed by Defendant Stacy Garrity (ECF No. 47) be granted with prejudice.
Recently on August 12, 2022, Plaintiff filed a Cross-Motion for Summary Judgment (ECF No. 60). However, in light of the Court's recommendation in this Report and Recommendation and in the previous Report and Recommendation filed on August 11, 2022 (ECF No. 59) that the Complaint be dismissed with prejudice as to both Defendants, the Court recommends that if the District Judge adopts both Reports and Recommendations that the District Judge also enter an order denying Plaintiff's Cross Motion for Summary Judgment as moot.
III. CONCLUSION
For the reasons stated above, it is respectfully recommended that the Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) filed by Defendant Stacy Garrity (ECF No. 47) be granted and the Complaint be dismissed with prejudice as to Defendant Garrity.