Opinion
Civil Action 22-935
08-08-2022
DOUGLAS B. LEUSCHEN, Plaintiff, v. WALLACE LAVERNE TERWILLIGER; ELSIE GULNAC TERWILLIGER; and JUDGE JAMES G. ARNER, Clarion County Court, Defendants.
W. Scott Hardy District Judge
REPORT AND RECOMMENDATION RE: ECF NOS. 4 AND 6
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons stated herein, it is respectfully recommended that this case be dismissed pre-service, sua sponte, pursuant to 28 U.S.C. § 1915A(b) as frivolous, malicious, failing to state a claim upon which relief may be granted, or for seeking monetary relief from a defendant who is immune from such relief.
II. REPORT
A. Factual and Procedural Background
Plaintiff Douglas B. Leuschen (“Plaintiff”) is a state prisoner currently incarcerated at the State Correctional Institution at Mercer (“SCI-Mercer”), located in Mercer, Pennsylvania. This Court received Plaintiff's Complaint on June 24, 2022. ECF No. 1. Plaintiff paid the full filing fee on July 12, 2022. ECF No. 3. The Complaint was formally filed on July 14, 2022. ECF No. 4.
The Complaint is difficult to follow. As best as this Court can discern, Plaintiff complains of the decision of a municipality within Clarion County, Pennsylvania to close all or a portion of a public road sometime in 2001. ECF No. 4 at 4. The closure of the road allegedly impeded Plaintiff's ingress to public lands upon which he relied for “access to natural resources of food, water, firewood, building materials, [and] edible and medicinal plants[.]” Id. Plaintiff petitioned the state courts of Pennsylvania to stop the closure of the road, but was unsuccessful. Id. See also Leuschen v. Millcreek Twp. Supervisors, Clarion County No. 797 C.D. 2001, 2003 WL 25335249, at *1 (Pa. Com. Pl. Dec. 8, 2003) (trial court order denying Plaintiff's petition), ail'd 862 A.2d 758 (Pa Commw. Ct. 2004) (table), allocatur denied, 897 A.2d 461 (Pa. 2006).
This Court takes judicial notice of the public record of all of Plaintiff's state court proceedings that are referenced in the Complaint.
Defendants Wallace and Elsie Terwilliger (collectively, the “Terwilligers”) appear to have been neighbors of Plaintiff. See ECF No. 4-1 at 1 (apparently depicting a map of the Plaintiff's property and the Terwilligers' property in relation to the closed road). According to the Complaint, the Terwilligers owned property abutting the road, and had entered into a settlement agreement with the municipality allowing the closure to commence. ECF No. 4 at 4.
Undaunted by his failure to stop the road's closure in the courts of Pennsylvania, Plaintiff set his sights on the Terwilligers. He sent a “Contract Counter Offer” to “Kingpin” Defendant Wallace Terwilliger on or about June 26, 2008, demanding a settlement payment of $75,000,000 - presumably to recompense Plaintiff for the closure of the road by the municipality. Id. at 5. It appears that the Terwilligers never responded to Plaintiff's demand. Plaintiff followed up with self-described notices of default in October and December of 2008. Id. See also, generally, ECF No. 4-1. It seems that the Terwilligers did not respond to those attempts at correspondence, either. Thus, in or around late December of 2008, Plaintiff filed a lien against the Terwilligers' property. ECF No. 4 at 5.
While the dates alleged in the Complaint are inconsistent, it appears that at some point Plaintiff filed his “Contract Counter Offer” with the Clarion County Recorder of Deeds. Id. at 6. On an unspecified date thereafter, Defendant Judge James G. Arner of the Court of Common Pleas of Clarion County (“Judge Arner”) issued an order removing it from the public record, and enjoining Plaintiff from refiling it. Id. at 5-6. Plaintiff also attempted to interrupt the sale of the property by the Terwilligers by filing a copy of the lien with the Court of Common Pleas in November of 2016. Id. at 6. Judge Arner ordered the lien removed from the public record on November 9, 2016. Id. Thereafter, the Terwilliger property was purchased by Shawn Smeltzer, a non-party to this lawsuit. Id. at 6-7.
On March 27, 2017 - sometime after the sale - Plaintiff confronted some workers while they presumably were on the former Terwilliger property Id. at 7. While the Complaint lacks detail as what occurred, Plaintiff alleges that he was “arrested, charged and convicted” of at least some charges relating to that confrontation. Id. A search of Pennsylvania public records indicates that, on February 14, 2018, Plaintiff was convicted making terroristic threats, in violation of 18 Pa. C.S.A. § 2706(a)(1), and barred from the properties of various individuals, including that of Mr. Smeltzer. See Com. v. Leuschen, Docket No. CP-16-CR-314-2017 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-16-CR-0000314-2017&dnh=9UOXSkYt3IKqKmFQkO6Xwg%3D%3D (last visited Aug. 8, 2022)). Plaintiff additionally was found guilty of harassment, in violation of 18 Pa. C.S.A. § 2709(a)(4), and defiant trespass, in violation of 18 Pa. C.S.A. § 3503(b)(1)(i). Id.
Plaintiff references “Case # 314-2017 COMM V DOUGLAS B. LEUSCHEN” in his “Petition for Court Order,” which was filed on July 29, 2022. ECF No. 6 at 3.
In the instant matter, Plaintiff seeks declaratory judgement and “further relief' -presumably in the form of damages. ECF No. 4 at 3, 8. Plaintiff submits several “questions presented' in the Complaint which attack the state court's dissolution of the lien or the sale of the former Terwilliger property. Id. at 8. Plaintiff explicitly cites to 42 U.S.C. §§ 1981, 1983, and 1985 bases for relief. Id.
It is noteworthy that at no point in the Complaint or other filings in this case does Plaintiff allege facts that, if true, would indicate that he had a valid interest in the former Terwilliger property, or that the Terwilligers ever accepted the terms of Plaintiff's “Contract Counter Offer.'
On July 29, 2022, Plaintiff submitted the self-styled “Petition for Court Order.' ECF No. 6. Like the Complaint, it is difficult to follow. A fair reading indicates that Plaintiff intended to use this filing to raise additional arguments in support of the Complaint, and thus appears to have been intended to supplement that pleading. It also appears that this so-called “Petition for Court Order' might be an attempt to raise additional claims against Judge Arner and/or the Court of Common Pleas of Clarion County and/or the Commonwealth of Pennsylvania. Id. at 2. In the Petition, Plaintiff alleges the following.
• On September 18, 2018, his inmate mail was opened without his permission, and based on the contents thereof he was issued six frivolous prison misconducts and his security level was raised. Id. at 2-3.
• His conviction in Com. v. Leuschen, Docket No. CP-16-CR-314-2017, violated his rights to due process. Id. at 3.
• Non-party and former Secretary of Homeland Security Tom Ridge was influenced by the Crown of England and the Vatican to obstruct justice in ways that are not entirely clear. Id. at 4-5.
• Plaintiff was subjected to various assaults, as well as “theft” of his copyright, between 1987 and 2002. Id. at 6.
• Non-party United States Supreme Court has abandoned its duty to hear various petitions that Plaintiff has filed before that Court. Id. at 8-9.
• The state court's failure to enforce Plaintiff's “International Maritime Contract Counteroffer” which he sent to the Terwilligers has violated his rights, and resulted in an unauthorized taking by the Commonwealth. Id. at 10-11.
By way of an exhibit to the “Petition for Court Order,” Plaintiff alleges that he has inadequate access to his prison's law library. ECF No. 6-1 at 1-3. He also complains of being required to take part in a drug treatment program in prison. Id. at 4. Plaintiff submits a grievance regarding an order from this Court being designated “privileged mail that has incorrect coding.” ECF No. 6-2 at 3. He submits a copy of this Court's Deficiency Order, ECF No. 2, as another exhibit. ECF No. 6-2 at 4-6. As of the date of this writing, Plaintiff is current as to all deadlines in this case.
B. Applicable Legal Standard
28 U.S.C. § 1915A requires a court to review to “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and to dismiss that complaint, or any portion of the complaint, if it is “is frivolous, malicious, or fails to state a claim upon which relief may be granted” or “seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a) and (b). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law.
As with the more commonly-utilized screening provisions in 28 U.S.C. § 1915(e)(2)(B), the standard for dismissal under Section 1915A mirrors the standard for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Carter v. James T. Vaughn Corr. Ctr., 134 F.Supp.3d 794, 798-99 (D. Del. 2015) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying the Rule 12(b)(6) standard to dismissal pursuant to Section 1915(e)(2)(B)); see also Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 (3d Cir. 2002).
Under Rule 12(b)(6), dismissal is appropriate if, accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable,” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a 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)). “‘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.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
That said, when reviewing the complaint, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc'd Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
C. Legal Analysis
Plaintiff's claims fail for a variety of reasons.
1. Plaintiff's federal claims are time-barred.
Plaintiff explicitly bases his federal claims related to his dispute with the Terwilligers on 42 U.S.C. §§ 1981, 1983, and 1985. ECF No. 4 at 8. He might be attempting to raise a claim for copyright infringement related to his attempt to force a right to a portion of the Terwilligers' former property, see ECF No. 6 at 6, but he has not provided allegations of fact in order to support such a claim. The so-called “Third Circuit Rule” allows for dismissal of claims that, based on the face of the complaint, are barred by the statute of limitations. See Mumma v. High Spec, Inc., 400 Fed.Appx. 629, 631 (3d Cir. 2010).
The statute of limitations for claims under Section 1981 is four years. McGovern v. City of Phila., 554 F.3d 114, 115-16 (3d Cir. 2009) (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); 28 U.S.C. § 1658(a)).
Claims for violations of Section 1983 in Pennsylvania have a two year statute of limitations. Mumma, 400 Fed.Appx. at 631 (citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985), overruled on other grounds); 42 Pa C.S.A. § 5524. Similarly, claims asserted under 42 U.S.C. § 1985 also are subject to a two year statute of limitations in Pennsylvania. Bougher v. University of Pittsburgh, 882 F.2d 74, 79 (3rd Cir. 1989).
Claims of copyright infringement have a statute of limitations of three years. 17 U.S.C. § 507(b).
According to the Complaint, Plaintiff's lien on the Terwilliger's former property was dissolved by the Court of Common Pleas on November 9, 2016. ECF No. 4 at 6. The property was sold to Shawn Smeltzer sometime on or before March 27, 2017. Id. at 7. Plaintiff's federal claims would have accrued no later than that date. With the benefit of the prisoner mailbox rule, the Complaint was deemed filed on the date that it was placed in the prison mailing system -presumably not before June 15, 2022, the date on which it was signed. Id. at 9.
Based on the factual allegations in the Complaint and providing Plaintiff the benefit of every possible doubt, Plaintiff's claims related to any right that he might possess related to the Terwilliger property accrued five years, two months, and 19 days before the Complaint was filed - well beyond the statutes of limitations recited above. Accordingly, Plaintiff's federal claims related to that property clearly are time-barred. Similarly, to the extent that he attempts to raise a claim related to the opening of his mail and subsequent misconducts on September 18, 2018, ECF No. 6 at 2-3, those claims accrued three years, eight months, and 28 days prior to the filing of the Complaint. Thus any potential claim based on that alleged occurrence is barred by the statute of limitations for Section 1983 as well. These claims should be dismissed with prejudice. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (dismissal should be without prejudice unless inequitable or futile to amend).
2. The Commonwealth of Pennsylvania is immune from suit for Plaintiff's Constitutional Claims.
As stated in Part II.A, supra, this Court construes Plaintiff's “Petition for Court Order,” ECF No. 6, as a supplement to the Complaint. While the filing lacks clarity, it appears that Plaintiff might be attempting to raise a claim against the Commonwealth of Pennsylvania. Id. at 1-2. Out of an abundance of caution and in the interest of completeness, this Court will address this potential claim below.
42 U.S.C. § 1983 provides in relevant part that:
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 or 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.Therefore, to state a claim under Section 1983, a plaintiff must allege: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed or caused by a person amenable to suit under Section 1983 and acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255 56 (3d Cir. 1994).
To the extent that Plaintiff attempts to raise a constitutional claim against the Commonwealth of Pennsylvania, it - and any agencies thereof - are not “persons” within the meaning of Section 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (state not person under Section 1983).
The Commonwealth of Pennsylvania further enjoys immunity from Plaintiff's 1983 claims under the Eleventh Amendment to the United States Constitution. Quern v. Jordan, 440 U.S. 332, 340-341 (1979). This reasoning includes any constitutional claims raised against the Court of Common Pleas of Clarion County, as it is well-established that the same is part of the Commonwealth. Culkin v. Kuhn, No. 13-431, 2014 WL 1414804, at *3 (W.D. Pa. Apr. 11, 2014); see also Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 197 (3d Cir. 2008) (citing Benn v. First Judicial Dist. of Pa., 426 F.3d 233, 241 (3d Cir. 2005)) (“Pennsylvania's judicial districts, including their probation and parole departments, are entitled to Eleventh Amendment immunity.”) Any federal constitutional claims against Defendant Commonwealth of Pennsylvania should be dismissed. As amendment would be futile, dismissal should be with prejudice. Fletcher-Harlee Corp., 482 F.3d at 251.
To the extent that Plaintiff attempts to raise an access to the Courts claim against the Commonwealth of Pennsylvania due to his alleged lack of access to a law library, see ECF No. 6-1 at 1-4, this disposes of the same. In any event, to the extent that he is trying to do so, Plaintiff has filed to plead the denial of such a right. Christopher v. Harbury, 536 U.S. 403, 415 (2002) (requiring, inter alia, the identification of a non-frivolous, underlying claim in order to support a claim of denial of access to the courts).
3. Absolute Judicial Immunity
The doctrine of judicial immunity applies to judicial officers in the performance of their official duties and relieves them from liability for judicial acts. Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (citing Mireles v. Waco, 502 U.S. 9, 12 (1991)). “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the “clear absence of all jurisdiction.'” Azubuko, 443 F.3d at 303 (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)) (internal quotations omitted). Similarly, allegations of conspiracy will not defeat immunity for judicial acts if “the very acts animating the conspiracy are normally performed by a judge”). Johnson v. Allegheny Cnty., No. 14-cv-857, 2014 WL 5513769, at *4 (W.D. Pa. Oct. 31, 2014).
Plaintiff's allegations with respect to Judge Arner relate to actions taken by a judge pursuant to his judicial authority. ECF No. 4 at 6-7. Plaintiff fails to allege any facts that would lead to the conclusion that Judge Arner acted in a manner that was clearly outside of his jurisdiction. Pa. Const. art. V, § 5 (courts of common pleas have “unlimited original jurisdiction in all cases except as may otherwise be provided by law.”) As such, Plaintiff's constitutional claims for damages against Judge Arner should be dismissed for this additional reason. As amendment would be futile, dismissal should be with prejudice. Fletcher-Harlee Corp., 482 F.3d at 251.
Further, to the extent that Plaintiff attempts to raise any request for injunctive relief against Judge Arner under Section 1983, the same also is barred. In pertinent part, Section 1983 states that “in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” Azubuko, 443 F.3d at 303-04. See also Bukovinsky v. Pennsylvania, 455 Fed.Appx. 163, 166 (3d Cir. 2011). Plaintiff has failed to allege that a declaratory decree was violated or that declaratory relief was unavailable. Accordingly, an injunction against Judge Arner based on Plaintiff's Section 1983 claims also should be dismissed with prejudice.
4. Rooker-Feldman
To the extent that any claims remain regarding the validity of Plaintiff's lien against the former Terwilliger property, they are barred by the Rooker-Feldman doctrine.
Under Rooker-Feldman, “federal courts lack jurisdiction over suits that are essentially appeals from state-court judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3rd Cir. 2010). Application of the doctrine is narrowly restricted to “cases brought by state-court losers complaining of injuries caused by state-court judgments .... and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005).
In determining whether Rooker-Feldman applies to a particular claim or claims, the United States Court of Appeals for the Third Circuit has established the following test:
[T]here are four requirements that must be met for the Rooker-Feldman doctrine to apply: (1) the federal plaintiff lost in state court; (2) the plaintiff “complain[s] of injuries caused by [the] state-court judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.Great W., 615 F.3d at 166 (quoting Exxon Mobil, 544 U.S. at 284). The Third Circuit has been clear that “all four requirements” must be met in order for Rooker-Feldman to apply. Vuyanich v. Smithton Borough, 5 F.4th 379, 385 (3d Cir. 2021)
Plaintiff's Complaint falls squarely within the scope of the Rooker-Feldman doctrine. His sparce factual allegations are that he was injured by the Pennsylvania Court's decision to allow a municipality to close a public road over Plaintiff's objections, as well as Judge Arner's decision to undo what Plaintiff believes to have been a lawful lien encumbering the Terwilliger property. ECF No. 4 at 5-6. The injury alleged by Plaintiff - the “deprivation of fundamental rights of access to natural resources of food, water, firewood, building materials, edible and medicinal plants on State Game Lands” - is nearly identical to the claim referenced in Judge Arner's decision denying Plaintiff's suit against the municipality in 2003. Leuschen, 2003 WL 25335249, at *1. Similarly, any injury suffered by Plaintiff due to the removal of his lien from the public record flows directly from the order of Judge Arner in 2016. ECF No. 4 at 6.
“Plaintiff states in paragraph 32 of his Petition that the action of the Township in passing the Ordinance deprives him of a “liberty” interest of accessibility to the land based on his needs to use the lands for firewood and food among other things. Throughout the Petition, he claims he is being deprived of the ability to hunt on other people's property. Under the law, the inability to gain access to gather firewood and food and to hunt are not within the ambit of injury legally cognizable or compensable by damages. Therefore, the Plaintiff's Petition is denied.” Leuschen, 2003 WL 25335249, at *1.
Plaintiff's unsubtle attempt to induce this Court to reverse those orders is a clear invitation to “review and reject the state judgments.” Great W., 615 F.3d at 166. Such an invitation must be declined. See Middlebrook at Monmouth v. Liban, 419 Fed.Appx. 284, 285-86 (3rd Cir. 2011) (observing that federal courts “cannot review proceedings conducted by a state tribunal to determine whether it reached its result in accordance with law”). As such, any remaining claims should be dismissed. As amendment would be futile, dismissal should be with prejudice. Fletcher-Harlee Corp., 482 F.3d at 251.
III. CONCLUSION
Plaintiff has not stated a valid claim against any Defendant. Instead, he has submitted rambling, incoherent filings that largely rely on sovereign-citizen rhetoric, and appear to be designed more to vex his former neighbors rather than protect any legitimate legal interests. Thus, and for the reasons stated herein, it is respectfully recommended that all of Plaintiff's claims be dismissed pre-service, sua sponte, pursuant to 28 U.S.C. § 1915A(b) as frivolous, malicious, failing to state a claim upon which relief may be granted, or for seeking monetary relief from a defendant who is immune from such relief.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.