Opinion
Civil Action 1:22-cv-00365
01-18-2024
DONOVON LEE, Plaintiff, v. L. FISCUS, DOC HEARING EXAMINER; CAPTAIN FRANK SALVAY, CO IV; LIEUTENANT M.V. SMITH, CO III; TROOPER JOHN BOARDMAN, and COURTNEY HAIR-LARUE, CHIEF DEPUTY ASSISTANT DISTRICT ATTORNEY CUMBERLAND COUNTY, Defendants.
Susan Paradise Baxter, United States District Judge
REPORT AND RECOMMENDATION RE: MOTION TO DISMISS FILED BY DEFENDANT COURTNEY HAIR LARUE (ECF NO. 26)
Cynthia Reed Eddy, United States Magistrate Judge.
I. Recommendation
Defendant Courtney Hair LaRue has filed a Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6), or in the alternative, to transfer venue. (ECF No. 26). The motion has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), Federal Rule of Civil Procedure 72(b), and Local Rules 72.1.3 and 72.13. It is respectfully recommended that the motion to dismiss be granted and all claims against Defendant Hair LaRue be dismissed with prejudice. It is further recommended that leave to amend be denied as futile.
II. Report
A. Introduction
Plaintiff, Donovon Lee, a state prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”), initiated this pro se civil rights action on December 22, 2022, by filing a Motion for Leave to proceed in forma pauperis (“IFP motion”). Attached to the IFP motion was a Complaint for Violation of Civil Rights, which was lodged pending disposition of the IFP motion. (ECF No. 1). The IFP Motion was granted on January 3, 2023 (ECF No. 4), and the Complaint was filed that day. (ECF No. 6).
Plaintiff's claims arise out of events that began on January 18, 2018, when the Pennsylvania State Police (“PSP”), Carlisle Station, received a letter from Plaintiff allegedly containing a toxic substance. After a police investigation, Plaintiff was placed in a psychiatric observation cell for seven days, issued and found guilty of a DOC institutional misconduct, and subsequently charged with multiple criminal offenses in the Court of Common Pleas of Cumberland County at Docket No. CP-21-CR-0000338-2020. At the conclusion of a jury trial in October 2022, the jury returned a verdict of Not Guilty on all charges.
Plaintiff brings his claims under 42 U.S.C. § 1983 stating that Defendants' actions violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. Five individuals are named as defendants: Courtney Hair LaRue, a prosecutor from the Cumberland County District Attorney's office (“ADA Hair LaRue”); John Boardman, a Pennsylvania State Police Trooper; and three DOC prison officials: L. Fiscus, Frank Salvay, and L.V. Smith. All defendants are named in their individual and official capacities. Plaintiff claims he has suffered mental harm and asks the Court to grant him “Any/all relief the courts deem appropriate. Reimbursed for all the money I would have made had this not happened. The Misconduct Removed from my jail file. All Defendants held accountable for their actions. Any/all property taken and/or lost by the DOC and/or PSP to be replaced/returned.” Amended Complaint, at ¶ VI (quoted verbatim).
Defendants Boardman, Fiscus, Salvay, and Smith are collectively referred to as the “Commonwealth Defendants.”
If Plaintiff is seeking a declaratory judgment in the form of a declaration that Defendants violated his rights under the United States Constitution, such a request is inappropriate because declaratory judgment is unavailable “solely to adjudicate past conduct” or to “proclaim that one party is liable to another.” Corliss v. O'Brien, 200 Fed.Appx. 80, 84 (3d Cir. 2006); see also Andela v. Administrative Off. of the U.S. Courts, 569 Fed.Appx. 80, 83 (3d Cir. 2014) (“Declaratory judgments are meant to define the legal rights and obligations of the parties in the anticipation of some future conduct.”). As Plaintiff essentially seeks a declaration that the Defendants' past actions violated his rights in various respects, he is not entitled to declaratory relief.
Once served, ADA Hair LaRue and the Commonwealth Defendants each moved to dismiss the Complaint. (ECF Nos. 14 and 18). Plaintiff, in response to the motions, filed an Amended Complaint, which remains his operative pleading. (ECF No. 24). All Defendants then each moved to dismiss the Amended Complaint. (ECF Nos. 26 and 28). Plaintiff filed an Omnibus Response (ECF No. 31), to which ADA Hair LaRue filed a Reply. (ECF No. 32). The motion to dismiss filed by ADA Hair LaRue is ripe for resolution.
This Report and Recommendation only addresses the motion to dismiss filed by Defendant Courtney Hair LaRue. The motion to dismiss filed by the Commonwealth Defendants is addressed in a separate Report and Recommendation.
B. Jurisdiction
The Court has federal question jurisdiction over the complaint as it asserts claims under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b) as the Commonwealth Defendants Fiscus, Salvay, and Smith are residents within the territorial boundaries of the United States District Court for the Western District of Pennsylvania, 28 U.S.C. § 118(c), and all Defendants are residents of the Commonwealth of Pennsylvania.
Title 28 U.S.C. § 1391(b) provides that venue is proper “in any judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.”
The factual background is drawn from the allegations of the Amended Complaint, and publicly available documents pertaining to Plaintiff's underlying arrest, prosecution, and trial which are attached to Defendant Hair LaRue's Motion to Dismiss. Further, as Plaintiff is a prisoner appearing pro se, the Court will treat the additional factual allegations contained in his Response as though they were included in the complaint. Baker v. Younkin, 529 Fed.Appx. 114, 115 n.2 (3d Cir. 2013) (citing Lewis v. Att'y Gen. of U.S., 878 F.2d 714, 722 (3d Cir. 1989)).
On December 16, 2019, Pennsylvania State Trooper John Boardman filed a Criminal Complaint with Affidavit of Probable Cause in the Court of Common Pleas of Cumberland County, Pennsylvania, stating, among other things, that Plaintiff, while incarcerated at SCI -Fayette, sent a letter marked “Legal Mail” to Trooper Masci with the PSP Carlisle and that soon after opening the letter, Trooper Masci began to suffer a reaction in which he felt tired and dizzy, and required medical attention. Several other PSP employees also required medical attention after reporting they were experiencing symptoms either after handling Plaintiff's mail or attending to Trooper Masci. See Police Criminal Complaint, Affidavit of Probable Cause. (ECF No. 26-1). The Criminal Complaint details the steps of the police investigation, which included investigative assistance by the FBI and the United States Postal Inspection Service. Id. The investigation included statements from Plaintiff's cellmate that Plaintiff had acquired paper laced with liquid K2 and Plaintiff had stated he was sending it to Trooper Masci. The Affidavit of Probable Cause states: “LEE admitted to sending the letter to Tpr. MASCI using paper that had liquid K2 on it. He acknowledged that he wrote the letter because he was frustrated and made a bad decision.” Id. at p. 4.
Based on the events set forth within the Affidavit of Probable Cause, the following criminal charges were filed against Plaintiff: five counts each of Weapons of Mass. Dest. - causing illness or injury; Weapons of Mass. Dest. - causing evacuation; Assault by Prisoner; and Simple Assault; nine counts of Aggravated Assault; seven counts of Recklessly Endangering Another Person; and one count each of Obstructing Administration of Law, Retaliation for Past Official Action; and Disorderly Conduct. See Criminal Docket MJ-09303-CR-404-2019 (ECF No. 26-2). The Magisterial District Judge found that a prima facie case existed and held the charges for court. (ECF No. 26-3 at p. 19). The case proceeded to a jury trial in the Court of Common Pleas of Cumberland County before the Honorable Jessica E. Brewbaker. At trial, Plaintiff was represented by Attorneys Bradon Toomey and Maya Schacker from the Office of the Public Defender, Cumberland County. Defendant Hair LaRue was the lead prosecutor on Plaintiff's criminal case. On October 20, 2022, a jury returned a verdict of “Not Guilty” on all charges. (ECF No. 26-5).
Plaintiff alleges that “Courtney Hair-Larue used the authority of Cumberland County DA's office to violate Mr. Lee's constitutional rights.” Amended Complaint, at Paragraph II(D). The allegations in the Amended Complaint against ADA LaRue are sparse:
(4) Mr. Boardman along with Courtney Hair-Larue refused to return Mr. Lee's personal property after the conclusion of CP-21-CR-0000338-2020 violating Mr. Lee's 5th, 8th, and 14th amendment rights.
(5) Courtney Hair-Larue did knowingly and willingly on or about 1/29/2020 initiate the criminal proceedings of CP-21-CR-0000338-2020 against Mr. Lee even after she received the results of lab tests from both State and Federal labs showing that
there was no substance on the piece of paper that was allegedly laced violating Mr. Lee's 8th amendment right.
Although not identified in the Amended Complaint, Plaintiff has enumerated in his Response the personal property which he alleges was seized and has not been returned to him. See Response at ¶ 5. (ECF No. 31).
Amended Complaint, Paragraph IV, Statement of Claim (quoted verbatim) (ECF No. 24).
Because Plaintiff is proceeding pro se, his allegations, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). Despite 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).
Three relevant standards of review are at issue in Defendant Hair LaRue's motion to dismiss: Federal Rule of Civil Procedure Rules 12(b)(1), 12(b)(3), and 12(b)(6).
1. Federal Rule 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). Rule 12(b)(1) motions can raise either a facial or factual challenge to the Court's subject-matter jurisdiction. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack challenges the sufficiency of the pleadings, while a factual attack challenges the sufficiency of jurisdictional facts. Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). In resolving a facial attack, the Court must accept Plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences in Plaintiff's favor. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017). When resolving a factual attack, however, the Court may weigh and consider evidence outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
2. Federal Rule 12(b)(3)
In deciding a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the Court must “accept as true all of the allegations in the complaint, unless those allegations are contradicted by the defendants' affidavits.” Bockman v. First Am. Mktg. Corp., 459 Fed.Appx. 157, 158 n. 1 (3d Cir. 2012). “This Court may evaluate facts outside the complaint to determine proper venue; however, all reasonable inferences must be drawn in the plaintiff's favor.” Rabner v. Titelman, No. 15-1313, 2016 WL 1613444, at *4 (W.D. Pa. Apr. 22, 2016). The moving party bears the burden of proof. Id. If venue is improper, a district court may either dismiss the case or transfer it to a district in which it could have originally been brought. Id.; 28 U.S.C. § 1406(a).
3. Federal Rule 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1983). In order “[t]o 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.' ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “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. (quoting Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678-79). To determine whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and thus not entitled to the assumption of truth,” and determines whether the remaining factual allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all reasonable inferences in favor of the nonmoving party. Doe v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). A court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
The United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - whether or not the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011) “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
In a Section 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).
In support of the Motion to Dismiss, ADA Hair LaRue argues: (1) the Court does not have subject-matter jurisdiction based on prosecutorial and qualified immunity; (2) the Eleventh Amendment provides immunity from all claims against ADA Hair LaRue in her official capacity; and (3) the claims against her should be dismissed for failure to state a claim. In the alternative, ADA Hair LaRue requests that the case be transferred to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1406. Plaintiff asks that the Court reject these arguments. Each of ADA Hair LaRue's arguments will be addressed in turn.
1. Due Process / Deprivation of Property
Liberally construed, in Paragraph 4 of the Amended Complaint it appears Plaintiff is attempting to bring a due process / deprivation of property claim against ADA Hair-LaRue. Plaintiff states that he,
did attempt to have the Cumberland County Public Defender's Office and/or the attorney who represented Mr. Lee (Bradon Toomey and Maya Schacker both of Cumberland County Public Defendant's Office), go through the courts to get Mr. Lee's property returned . . . And Defendant Ms. Hair-LaRue can easily check into this as Ms. Hair-LaRue does work with the Public Defender's Office.
Response at p. 3 (ECF No. 31). Plaintiff's only assertion in support of his claim is that ADA Hair LaRue “does work” with the Public Defender's Office. This is not enough from which it can reasonably be inferred that ADA Hair LaRue caused a violation of Plaintiff's constitutional rights. Thus, it is recommended that the due process / deprivation of property claim against ADA Hair LaRue be dismissed for failure to state a claim.
It is further recommended that leave to amend be denied as futile. Plaintiff is foreclosed from pursuing any due process claim in this Court based on allegations of negligent or intentional deprivation of his property. The Supreme Court of the United States has held that neither negligent nor intentional deprivations of property violate the Due Process Clause if there is a meaningful post-deprivation remedy for the loss. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 530 (1981). Pennsylvania provides a meaning post-deprivation process to request the return of property seized by law enforcement through its Rules of Criminal Procedure. See Pa.R.Crim.P. 588(A). And the Court of Appeals for the Third Circuit has held that no cognizable due process claim exists because Rule 588(A) “provides a process to challenge the seizure of property and a protocol to request its return.” McKenna v. Portman, 528 Fed.Appx. 221, 224 (3d Cir. 2013).
Pa.R.Crim.P. 588(A) provides: “A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.”
2. Malicious Prosecution
The heart of Plaintiff's allegations against ADA Hair LaRue is a malicious prosecution claim. See Paragraph 5 of the Amended Complaint. Based on the allegations in the Amended Complaint, ADA Hair LaRue was acting in her prosecutorial capacity as an Assistant District Attorney for Cumberland County in bringing charges against Plaintiff.
Section 1983 “provides that every person who acts under color of state law to deprive another of a constitutional right shall be answerable to that person in a suit for damages.” Imbler v. Pachtman, 424 U.S. 409, 417 (1976). “The text of § 1983 does not provide any immunities from suit.” Fogle v. Sokol, 957 F.3d 148, 158 (3d Cir. 2020). But the Supreme Court of the United States has always applied common-law immunities to constitutional claims brought under § 1983, such as absolute immunity and qualified immunity. Yarris v. Delaware, 465 F.3d 129, 134-35 (3d Cir. 2006) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). Although most public officials are entitled to only qualified immunity, certain public officials who perform “special functions” are entitled to absolute immunity. Id. (quoting Butz v. Economou, 438 U.S. 478, 508 (1978)). “[A]bsolute immunity attaches to those who perform functions integral to the judicial process.” Williams v. Consovoy, 453 F.3d 173, 178 (3d Cir. 2006). State prosecutors are one such category of officials due to their function within the judicial process. Imbler, 424 U.S. at 430-31. Even so, “[a] prosecutor bears the ‘heavy burden' of establishing entitlement to absolute immunity.” Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (quoting Light v. Haws, 472 F.3d 74, 80-81 (3d Cir. 2007)). Generally, “[m]ost public officials[, such as prosecutors,] are entitled only to qualified immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Prosecutors may nevertheless qualify for absolute immunity when they serve as the state's advocate when performing the action in question. Yarris v. County of Delaware, 465 F.3d 129, 136 (3d Cir. 2006).
A functional approach is used to determine the immunity of a prosecutor. Kalina v. Fletcher, 522 U.S. 118, 127 (1997). The inquiry focuses on the nature of the function performed, not the identity of the actor who performed it, and “[u]nder this functional approach, a prosecutor enjoys absolute immunity for actions performed in a judicial or ‘quasi-judicial' capacity.” Odd, 538 F.3d at 208. “That functional test separates advocacy from everything else, entitling a prosecutor to absolute immunity only for work ‘intimately associated with the judicial phase of the criminal process'.” Fogle, 957 F.3d at 159-60 (quoting Burns v. Reed, 500 U.S. 478, 486 (1991)).
For example, a prosecutor enjoys absolute immunity for “all actions performed in a quasijudicial role,” such as “soliciting . . . testimony from witnesses in grand jury proceedings and probable cause hearing,” “initiating a prosecution,” “preparing for the initiation of judicial proceedings or for trial, conducting a trial, and presenting evidence to a judge.” Burns, 500 U.S. at 479, 491-92; Imbler, 424 U.S. at 431; Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992); or for the preparing and filing of charging documents and arrest warrants. See also Rose v. Bartle, 871 F.2d 331, 343 (3d Cir. 1989) (affirming dismissal of the Montgomery County DA and ADA, stating that “in initiating a prosecution and in presenting the State's case, [a] prosecutor is immune from a civil suit for damages under section 1983.”). Absolute immunity does not, however, apply “ ‘to administrative or investigatory action unrelated to initiating and conducting judicial proceedings'.” Weimer v. Cty. of Fayette, 972 F.3d 177, 187 (3d Cir. 2020) (quoting Odd, 538 F.3d at 208). The Supreme Court of the United States has explained that: “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Kalina v. Fletcher, 522 U.S. 118, 126 (1997) (internal quotation marks and citations omitted).
“Determining the precise function that a prosecutor is performing is a fact-specific analysis.” Fogle, 957 F.3d at 160. “And while ‘[i]t is tempting to derive bright-line rules' from the Supreme Court's jurisprudence, [the Court of Appeals for the Third Circuit] ‘cautioned against such categorical reasoning' to ‘preserve the fact-based nature of the inquiry'.” Id. (quoting Odd, 538 F.3d at 210). Thus, the applicability of absolute immunity turns on the specific facts in the case. Weimer, 972 F.3d at 187.
In determining whether immunity applies to a prosecutor's action, “in a motion to dismiss, it is the [prosecutor's] conduct as alleged in the complaint that is scrutinized.” Fogle, 957 F.3d at 161 (internal quotation marks omitted). “To earn the protections of absolute immunity at the motion-to-dismiss stage, a [prosecutor] must show that the conduct triggering absolute immunity clearly appears on the face of the complaint.” Weimer, 972 F.3d at 187 (quoting Fogle, 957 F.3d at 161). The court's analysis of whether a prosecutor is entitled to absolute immunity “has two basic steps, though they tend to overlap.” Fogle, 957 F.3d at 161 (quoting Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir. 2011)). First, the court must determine “what conduct forms the basis for the plaintiff's cause of action” and then the court must “determine what function (prosecutorial, administrative, investigative, or something else entire) that act served.” Id. (quoting Schneyder, 653 at 332).
Here, to the extent that Plaintiff's allegations against ADA Hair LaRue are based on her actions in bringing criminal charges against Plaintiff and prosecuting his criminal case, it is clear from the face of the Amended Complaint that ADA Hair LaRue was serving in a quasi-judicial function, one “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430. Accordingly, it is recommended that this claim be dismissed under Federal Rule of Civil Procedure 12(b)(1) because subject matter jurisdiction is lacking based on absolute prosecutorial immunity.
Further, to the extent that Plaintiff's allegations against ADA Hair LaRue are based on her actions which may have served an investigative function, ADA Hair LaRue is entitled to qualified immunity. See Carter v. City of Philadelphia, 181 F.3d 339, 355-56 (3d Cir. 1999) (“[A] prosecutor acting in an investigative or administrative capacity is protected [] by qualified immunity.”) Thus, to the extent that Plaintiff is claiming that ADA Hair LaRue violated his rights through actions which may be characterized as investigative, she is shielded by qualified immunity. It is, thus, recommended that any claim based on action taken by ADA Hair LaRue which may have served as an investigative function be dismissed under Federal Rule of Civil Procedure 12(b)(1) because subject matter jurisdiction is lacking based on qualified immunity.
For all these reasons, it is recommended that the claim for malicious prosecution against ADA Hair LaRue be dismissed under Federal Rule of Civil Procedure 12(b)(1).
Because the undersigned is recommending that Plaintiff's claims be dismissed under Rules 12(b)(1) and 12(b)(6) is it not necessary to address Defendant Hair LaRue's additional arguments related to Eleventh Amendment immunity or the request to transfer venue.
III. Conclusion
For the reasons stated above, it is recommended that the Motion to Dismiss filed by Defendant Courtney Hair LaRue be granted and all claims against her be dismissed with prejudice. It is further recommended that leave to amend be denied as futile.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file written objections, if any, to this Report and Recommendation by February 5, 2024. Defendant Hair LaRue, because she is an electronically registered party, must file objections, if any, by February 2, 2024. The parties are cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011)(quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).