Opinion
CIVIL ACTION NO. 3:18-cv-1246
01-23-2019
CODY SUMMERS, Plaintiff v. BLAKELY BOROUGH, et al., Defendants
(MANNION, D.J.) ()
REPORT & RECOMMENDATION
Motion to Dismiss Amended Complaint by MDJ Turlip (Doc. 26)
I. INTRODUCTION AND BACKGROUND
On June 20, 2018, Plaintiff Cody Summers ("Plaintiff") initiated this pro se action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against Blakely Borough, Lackawanna County, two (2) police officers, unknown Sheriff's Deputies, and Lackawanna County Magisterial District Judge Laura Turlip ("Judge Turlip") (collectively, "Defendants"). (Doc. 1). On November 28, 2018, I issued a Report & Recommendation concerning Judge Turlip, finding that she was entitled to judicial immunity. On January 15, 2019 Judge Manion issued an Order (Doc. 33) adopting that Report & Recommendation and dismissing MDJ Turlip from this case.
However, on December 10, 2018, Summers filed an Amended Complaint with a Motion to Allow Amended Complaint with Exhibits (Doc. 25). One week later MDJ Turlip filed a Motion to Dismiss the Amended Complaint (Doc. 26) as to her, with a Brief in Support (Doc. 27). On December 26, 2018, I issued an Order (Doc. 30) instructing Summers to file a Brief in Opposition to Turlip's Motion to Dismiss not later than January 16, 2019. No responsive brief has been filed and the matter is ripe for disposition.
For the reason articulated below, I RECOMMEND Judge Turlip's Motion (Doc. 13) be GRANTED and she be DISMISSED AGAIN as a defendant. 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) (quoting In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (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.'" 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Ashcroft, 556 U.S. at 678. 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 "tak[e] note of the elements a plaintiff must plead to state a claim." Iqbal, . Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at [679]. 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." Id.Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). "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 Third Circuit 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] document[s]." 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) (internal quotation omitted); 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, 20 F.3d at 1261. III. DISCUSSION
A. JUDGE TURLIP IS ENTITLED TO JUDICIAL IMMUNITY
Plaintiff's Amended Complaint (Doc. 25) alleges only one count against MDJ Turlip. In Count 6 plaintiff states:
SIXTH CAUSE OF ACTION
CONSPIRACY TO COMMIT MALICIOUS PROSECUTION
(All Defendants)
Officer Chorba intentionally pursued criminal proceedings against Mr. Summers for violation of 18 PA. C.S. 4914 without having probable cause. J. Todd never attempted to intervene. Blakely Borough refiled false charges against Mr. Summers in retaliation for filing a notice of claim. The charges against Mr. Summers were dismissed twice in his favor. Laura Turlip continued the initial case with an improper purpose, to give Mr. Summers an excessive bail to generate revenue. (emphasis added)
This allegation is insufficient to defeat judicial immunity. A judicial officer in the performance of her duties has absolute immunity from suit. Mireles v. Waco, 502 U.S. 9, 12, 112 S.Ct. 286, 116 L.Ed.2d 9 (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.' " Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (citation omitted). Corliss v. O'Brien, 200 F. App'x 80, 83 (3d Cir. 2006).
Judge Turlip is a Magisterial District Judge in Lackawanna County, PA. A Magisterial District Judge is entitled to judicial immunity. With respect to judicial immunity, there is no distinction between courts of limited jurisdiction and courts of general jurisdiction, Figueroa v. Blackburn, 208 F.3d 435, 441 (3d Cir. 2000), and the doctrine of judicial immunity applies equally judges of courts of limited jurisdiction, such as magisterial district judges, as to judges of courts of general jurisdiction, Martin v. Bicking, 30 F.Supp.2d 511, 512 (E.D. Pa. 1998). Moreover, judicial immunity specifically applies to judicial actions like ruling on bail requests, making probable cause determinations, and presiding over preliminary hearings in state criminal cases. See Pokrandt v. Shields, 773 F.Supp. 758, 764-65 (E.D. Pa. 1991); Fox v. Castle, 441 F.Supp. 411, 413 (M.D. Pa. 1977).
The doctrine of judicial immunity applies to Section 1983 civil rights claims. Id.: Corliss v. O'Brien, 2005 U.S. Dist. LEXIS 42333 (M.D. Pa. 2005), aff'd 200 Fed. Appx. 80 (3rd Cir. 2006). Judges are immune from liability when the judge has jurisdiction over the subject matter; ands/he is performing a judicial act. Stump, 435 U.S. at 356. Absolute judicial immunity extends to magisterial district judges such as Judge Turlip. Blackwell v. Middletown Borough Police Department, 2012 U.S. D.st. LEXIS 129838 (M.D. Pa. 2012).
B. DISMISSAL IS ALSO WARRANTED UNDER RULE 41 OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR FAILURE TO PROSECUTE
Rule 41(b) of the Federal Rules of Civil Procedure compels us to recommend dismissal in this case. Rule 41(b) provides, in relevant part, that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed. R. Civ. P. 41(b). In addition to permitting dismissal on motion of a defendant, "[u]nder Rule 41(b), a district court has authority to dismiss an action sua sponte if a litigant fails to prosecute or to comply with a court order." Qadr v. Overmyner, 642 F. App'x 100, 102 (3d Cir. 2016) (per curium) (citing Fed. R. Civ. P. 41(b)); see also Adams v. Trustees of New Jersey Brewery Employees' Pension Trust Fund, 29 F.3d 863, 871 (3d Cir. 1994) (recognizing that a court can dismiss a case sua sponte under Rule 41(b)).
Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002) (citations omitted). That discretion, however, is governed by certain factors, commonly known as the Poulis factors. As the United States Court of Appeals for the Third Circuit has explained:
To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).Emerson, 296 F.3d at 190.
In exercising this discretion, "there is no 'magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins, 435 F. App'x 113, 116 (3d Cir. 2011) (quoting Briscoe v. Klaus, 538 F.3d 252 (3d Cir. 2008)). Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a . . . 'mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case." Briscoe, 538 F.3d at 263 (quoting Mindek v. Rigatti, 964 F.2d 1369, 1373 (3d Cir.1992)). Consistent with this view, it is well-settled that "no single Poulis factor is dispositive, [and it is] clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint." Briscoe, 538 F.3d at 263 (internal quotation marks and citations omitted). Moreover, recognizing the broad discretion conferred upon the District Court in making judgments weighing these six factors, the Court of Appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson, 296 F.3d at 191; Tillio v. Mendelsohn, 256 F. App'x 509 (3d Cir. 2007); Reshard v. Lankenau Hospital, 256 F. App'x 506 (3d Cir. 2007); Azubuko v. Bell National Organization, 243 F. App'x 728 (3d Cir. 2007).
In the present case, a dispassionate assessment of the Poulis factors weighs in favor of the sanction of dismissal. The first Poulis factor—the extent of the party's personal responsibility—shows that the delays in this case are attributable to Plaintiff, who has failed to abide by the Court Order to file a brief in opposition to Judge Turlip's Motion to Dismiss. (Docs. 15, 30). Therefore, this factor weighs in favor of dismissal.
The second Poulis factor—the prejudice to the adversaries caused by the failure to abide by court orders—is neutral. As the United States Court of Appeals for the Third Circuit has observed:
"Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment." Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 873-74 (3d Cir.1994) (internal quotation marks and citation omitted). Generally, prejudice includes "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Id. at 874 (internal quotation marks and citations omitted). . . . However, prejudice is not limited to "irremediable" or "irreparable" harm. Id.; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir.1988). It also includes "the burden imposed by
impeding a party's ability to prepare effectively a full and complete trial strategy." Ware, 322 F.3d at 222.Briscoe, 538 F.3d at 259-60.
In this instance, it cannot be said that Plaintiff's failure to comply with the Court's Order to submit a brief in opposition caused Judge Turlip prejudice as contemplated by the Third Circuit. See id. That is, there was no "irremediable" or "irreparable" harm suffered by Judge Turlip as a result of Plaintiff's failure to comply with the Court's Order. At worst, this failure to file a brief constituted a minor inconvenience. Therefore, this factor does not influence my decision.
Similarly, the third Poulis factor—the history of dilatoriness on Plaintiff's part—is neutral. In this regard, it is clear that "[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response . . . , or consistent tardiness in complying with court orders." Briscoe, 538 F.3d at 260-61 (quoting Adams, 29 F.3d at 874). Plaintiff's failure to comply with the court orders, in failing to file his Brief in Opposition on two separate occasions does constitute an "extensive of repeated delay." Therefore, this factor does prove helpful in making my recommendation.
The fourth Poulis factor—whether the conduct of the party or the attorney was willful or in bad faith—does weigh in favor of dismissal. In evaluating this factor, we must assess whether Plaintiff's conduct reflects mere inadvertence or willful conduct, in that it involved "strategic," "intentional or self-serving behavior," and not mere negligence. Adams, 29 F.3d at 875. In this case, Plaintiff has failed to file his Brief in Opposition twice. I find that this failure is willful rather than inadvertent.
The fifth Poulis factor—the effectiveness of lesser sanctions—weighs in favor of dismissal. Cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe, 538 F.3d at 262-63; Emerson, 296 F.3d at 191. Here, Plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. I have endeavored to use lesser sanctions by entering the prior order and counseling Plaintiff on his obligations in this case to no avail. Despite this Court's guidance, Plaintiff has ignored his responsibilities as a litigant. As such, I find that a lessor sanction would be ineffective.
The final Poulis factor—the meritoriousness of Plaintiff's claims or defenses—weighs heavily in favor of dismissal. Generally, in determining whether a plaintiff's claims are meritorious, we use the standard for a Rule 12(b)(6) motion to dismiss. Poulis, 747 F.2d at 869-70. "A claim, or defense, will be deemed meritorious when the allegations of the pleadings, if established at trial, would support recovery by plaintiff or would constitute a complete defense." Id.
For all these reasons I will recommend that the court grant the motion to dismiss (Doc. 13) filed by Judge Turlip in her official capacity. IV. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that:
(1) Judge Turlip's Motion to Dismiss (Doc. 13) be GRANTED;
(2) That Leave to Amend as to MDJ Turlip not be given; and,
(3) Judge Turlip be DISMISSED AGAIN as a party in this case. Date: January 23, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF RIGHT TO OBJECT
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 recommit the matter to the magistrate judge with instructions.Date: January 23, 2019
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge