Opinion
CIVIL 4:22-CV-00987
12-27-2022
GEORGE HENRY WHALEY, JR, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, UNITED STATES MAGISTRATE JUDGE
I. Introduction.
Plaintiff George Henry Whaley, Jr. (“Whaley”) claims that he was improperly stopped by a police officer, and subsequently issued a citation, for driving an unregistered car. Currently pending are three motions to dismiss the complaint. For the reasons set forth below, we recommend that the court grant these motions and dismiss the action without leave for Whaley to amend the complaint.
II. Background and Procedural History.
Whaley began this action by filing a complaint on June 22, 2022. Doc. 1. On July 5, 2022, he filed an amended complaint. Doc. 9. The amended complaint does not, however, include a recitation of facts providing the basis for his claims. Id. Instead, Whaley merely writes: “Defendants did invade constitutional [l]y protected rights of Plaintiff. Exhibits attached.” Id. at 3-4. But there are no exhibits attached purporting to provide facts of the case; rather, the only exhibits attached to the amended complaint are a certificate of service and several documents purporting to provide proof of service. Id. at 4-13.
“[I]n general, an amended pleading-like [any] amended complaint here- supersedes the earlier pleading and renders the original pleading a nullity.” Palakovic v. Wetzel, 854 F.3d 209, 220 (3d Cir. 2017). In other words, when an amended complaint is filed, the original complaint has no role in the future litigation of the case. At the same time, “[a] statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion.” Fed. R. Civ. P. 10(c). Further, “a court must make reasonable allowances to protect pro se litigants from the inadvertent forfeiture of important rights due merely to their lack of legal training.” Garrett v. Wexford Health, 938 F,3d 69, 92 (3d Cir. 2019).
Keeping these principals in mind, we note that the amended complaint contains several pages identical to those in the initial complaint. The first page is nearly identical in content, though it is labeled “ammended [sic.] complaint” rather than simply “complaint.” Doc. 1, 9. The second and third pages of the amended complaint, however, appear to be copies of the first and second page of the initial complaint. Doc. 1, 9. The reference to “exhibits attached” in the amended complaint is thus identical to that same reference in the initial complaint. Doc. 1 at 2, 9 at 3. To “protect [Whaley] from the inadvertent forfeiture of important rights due merely to [his] lack of legal training[,]” Garrett, 938 F.3d at 92, we construe the reference in the amended complaint to “exhibits attached” as adopting by reference those documents attached to the initial form complaint which lay out the facts. Doc. 1 at 3, DI, 1-2, 1-3, 1-4, 1-5, 1-6, 1-7, 1-8, 1-9, 1-10, 1-11, 1-12, 1-13.
We note that the defendants also cited to the documents attached to the initial complaint in their briefs in support of their motions to dismiss. Doc. 23 at 2, 38 at 2, 43 at 4-5, 14.
After he filed his amended complaint, on July 25, 2022, Whaley filed a document titled “complaint add[i]tion[.]” Doc. 20. This document included only a description of the oaths taken by commonwealth employees-cut short in the middle of a sentence-and a certificate of service. Id. The following facts are taken from Whaley's amended complaint, the exhibits attached to the initial complaint incorporated in the amended complaint by reference, and the complaint “add[i]tion” (collectively, the “amended complaint”). Doc. 1, 9, 20.
The amended complaint names nine defendants: (1) the Commonwealth of Pennsylvania (“Commonwealth”), (2) Clinton County, Pennsylvania (“Clinton County”), (3) Magisterial District Judge Keith Kibler (“MDJ Kibler”), (4) Police Officer Bryan Green (“Green”), (5) Senior Judge Richard Lewis (“Judge Lewis”), (6) District Attorney Dave Strouse (“DA Strouse”), (7) Chief Judge Craig Miller (“Judge Miller”), (8) Clerk of Courts Cynthia Love (“Clerk Love”), and (9) Magisterial District Judge Frank Mills (“MDJ Mills”). Doc. 9. The amended complaint also included a document indicating the summons was mailed to a “Chief Kristin Smith” (“Smith”). Id. at 11. Whaley's subsequently filed “complaint addition” explicitly identifies Smith as a defendant, in addition to naming all nine of the defendants listed in the amended complaint. Doc. 20. Smith is thus the tenth defendant in this action.
Green has not entered an appearance to date. See docket generally. A defendant must serve a responsive pleading “within 21 days after being served with the summons and complaint[.]” Fed. R. Civ. P. 12. The duty to respond to a complaint, therefore, arises only when served. A plaintiff must serve the defendants within 90 days after filing the complaint. Fed. R. Civ. P. 4(m). On July 5, 2022, Whaley filed an “ammended [sic.] complaint” including Proof of Service for an Officer Bryan Green. Doc. 9 at 10. Whaley indicated that he mailed the summons to Green through certified mail. Id. The Federal Rules of Civil Procedure, however, permit service on an individual in a judicial district of the United States via four defined methods: (1) “delivering a copy of the summons and of the complaint to the individual personally;” (2) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there;” (3) “delivering a copy of each to an agent authorized by appointment or by law to receive service of process[;]” or (4) “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made[.]” Fed. R. Civ. P. 4(e). Certified mail thus will only be proper if it is proper under Pennsylvania law for serving a complaint on an individual. Pennsylvania provides that process may be served only by handing a copy to the defendant or to certain persons at the defendant's residence or his usual place of business. 231 Pa. Code § 402. In Pennsylvania, service by mail is only proper in certain instances, none of which apply here. 231 Pa. Code § 403. Whaley, therefore, failed to properly serve Green within 90 days of filing the complaint. Fed. R. Civ. P. 4(m). When “a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” Fed. R. Civ. P. 4(m). This Report and Recommendation shall serve as notice to Whaley that service was improper.
DA Strouse has also not entered an appearance to date. See docket generally. The docket does not reflect any attempts by Whaley to serve DA Strouse. Doc. 9, 14. Again, we refer to Federal Rule of Civil Procedure 4(m) and note that this Report and Recommendation shall serve as notice to Whaley that he failed to serve DA Strouse within 90 days after the complaint was filed.
Whaley does not specify whether he brings complaints against any of these individual defendants in their official or individual capacities.
Smith has also not entered an appearance to date. See docket generally. Whaley again filed a proof of service document in which he wrote that he served Smith by certified mail. Doc. 9 at 11. Again, because neither the federal nor state rules permit service in this manner in this circumstance, service was improper. See Fed. R. Civ. P. 4(e); 231 Pa. Code §§ 402-03. This Report and Recommendation shall serve as notice to Whaley that service was improper. See Fed. R. Civ. P. 4(m).
Though Whaley's complaint spans many pages, and multiple documents by incorporation, it contains very few facts. Whaley alleges that on September 19, 2021, he was driving a car when he was pulled over by a police officer in Clinton County. Doc. 7 at 4. The officer informed Whaley that he was stopped because he was driving an unregistered car. Id. Whaley responded that he considered himself to be a Foreign National and provided identification to that effect. Id. Nevertheless, the officer issued a citation. Id.
Whaley claims that the following day he “rescinded the citation/ ticket, attached and returned it with many documents stating traveler was a U.S. National, Indian, has a Micro Nation and Certificates of Service to Clinton County Pa. Clerk of Court via USPS OverNight Mail attached.” Id. Whaley asserts that he later handed these same documents to “a lady in the Clerk of Courts Clinton County, Pa.” Id. According to Whaley, he has been “refused by the Clerk of Courts in Clinton County, Pa to the stamping, filing & return of the documents as submitted as evidence,” and that “as of October 9, 2021, still no documents have been returned to traveler.” Id. at 4-5.
When Whaley did not pay the fine, MDJ Kibler issued a letter explaining that Whaley's license would be suspended “if the fine was not paid due to failure to respond to a citation or summons.” Id. at 5. Whaley responded by, in his words, “rescinding] the citation/ticket/letter as per the Truth in Lending Act and sent to The Honorable Keith G. MDJ Kibler via USPS Overnight along with many other documents showing traveler was a Foreign/U.S. National, Indian, has a Micro Nation and Certificates of Service attached as [sic].” Id.
Whaley also alleges that “Clinton County, Pa/Magistrate made a security in GEORGE HENRY WHALEY JR. name without any permission, which is Embezzlement, which is not permissible according to the UCC-1 lien and Security Agreement making Claimant holder in due course.” Id. Whaley provides no further facts in support of this allegation.
Each of these allegations are rooted in Whaley's claim that he is a “Foreign National of the United States of America [ ] Republic as Claimant/Specially Intervening GEORGE HENRY WHALEY JR.” Doc. 7 at 3. Whaley classifies his claims as “Involuntary Servitude and Peonage due to wanton and malicious acts and threats, duress, coercion, fraud by Defendants. . . an admir[a]lty/maritime cause of action.” Id. at 4. He demands “libel of review” and cites the Articles of Confederation. Id. at 8, 9.
In their briefs in support of their motions to dismiss, Clinton County, Clerk Love, and the Commonwealth all argue that Whaley fails to allege sufficient facts to invoke this court's admiralty or maritime jurisdiction. Doc. 43 at 5, 23 at 4-6. In his brief in opposition to the Commonwealth's motion to dismiss, Whaley asserts that he also relies on common law jurisdiction in his complaint. Doc. 33 at 2. Because this court has jurisdiction over these claims insofar as Whaley brings federal claims, see 28 U.S.C. § 1331, we do not further address these arguments.
Throughout the complaint, Whaley indicates his intent to bring claims under the following statutes and rules: (1) 28 U.S.C. §§ 1333, 1441-1447, and 1604 (doc. 9 at 1, doc. I at 5); (2) 18 U.S.C. §§ 2, 3, 4, 113(b), 153, 219, 241, 242, 371, 654, 709, 951, 1001, 1028, 1341, 1581, 1621, 1622, 1651, 1652, 1961,2071, 2076, 2111, and 2382 (doc. 7 at 4, 5); (3) 42 U.S.C. §§ 1983, 1985, and 1986 (id. at 4, 5); (4) 13 Pa. Cons. Stat. 1308, 3305, 3306, 8506, 8507, and 8508 (id. at 5, 6); and (5) 74 Pa. Cons. Stat. 1303 and 75 Pa. Cons. Stat 1303 (doc. 1 at 5).
Whaley also includes in his list of violations the Sixth, Ninth, and Tenth Amendments of the U.S. Constitution. Doc. 7 at 6. However, constitutional amendments do not create private rights of actions. See Muhammad v. Butler, No. 3:10-CV-2374, 2011 WL 4565768, at *3 (M.D. Pa. Sept. 29, 2011). Rather, “[t]o enable individuals to enforce the rights created by the Constitution, Congress enacted 42 U.S.C. § 1983 as a federal cause of action.” Id. (citing Town of Castle Rock, Colo. V. Gonzales, 545 U.S. 748, 755 (2005); Brown v, Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001)). Therefore, we consider these alleged violations under Whaley's § 1983 claims.
As a remedy, Whaley demands $11,228,000 “for fee schedule violations x 2 as they have been violated twice.” Doc. 1 at 6. He also demands that the court “Notify Defendants et. al., to return all properties (monies) taken from Petitioners/Claimants fiduciaries, as was taken from funds deposited intrust[,]” “Remove all Notices of Liens on record[,]” or “that said suit shall be reviewed, in the original, in the alternative, that said alleged liens be removed and levies dismissed along with the return of all property of Petitioners/Claimants and that Petitioners/Claimants.” Id. at 9.
After waiving service (doc. 17), the Commonwealth filed a motion to dismiss for failure to state a claim (doc. 18) and a brief in support of this motion (doc 23). Judge Miller, MD J Mills, MD J Kibler, and Judge Lewis (collectively “the judicial defendants”) each waived service as well (doc. 26-29), and then jointly filed a motion to dismiss (doc. 37) and a brief in support of that motion (doc. 38). Similarly, Clinton County and Clerk Love also waived service (doc. 12) and filed a motion to dismiss (doc. 41) and a brief in support of that motion (doc. 43). Whaley filed briefs in opposition to each of these motions to dismiss. Doc. 33-35, 42, 43, 45.
III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether [the] 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 making that determination, we “consider [ ] the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiffs] claims are based upon these documents.” Id. at 230. In the instant case, we also rely upon Fed. R. Civ. P. 10(c) and additionally consider the statements in the initial complaint that are incorporated in the amended complaint by reference. Fed. R. Civ. P. 10(c) (“A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion.”).
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiffs entitlement to relief.” Fowler v. UPMC Shadyside, 578 F,3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. Of Luzerne, 716 F.3d 169, 175 (3d Cir. 2015)). But a 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). A court also need not “assume that a .. . plaintiff can prove facts that the .. . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiffs claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” 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.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint fded by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. Discussion.
All of the defendants assert that they are not proper defendants for multiple reasons. The Commonwealthjudicial defendants, and Clerk Love all argue that they are entitled to immunity from suit. The judicial defendants and the Commonwealth claim Eleventh Amendment immunity (doc. 23, 38), the judicial defendants argue they are entitled to absolute judicial immunity (doc. 38), Clerk Love argues that she is entitled to quasi-judicial immunity and qualified immunity (doc. 43), and Clerk Love and Clinton County argue that they are entitled to immunities created under state law (doc. 43). Additionally, the Commonwealth and Clinton County both argue that they are not “persons” for purposes of § 1983 liability. Doc. 23, 43.
Additionally, all defendants argue that the claims themselves fail to state a claim upon which relief can be granted. Doc. 23, 38, 43. The Commonwealth further asserts that this court lacks jurisdiction over the claims because there is no active case or controversy in the complaint. Doc. 23. Finally, Clinton County and Clerk Love argue that these claims are barred by res judicata Doc. 43.
Specifically, the Commonwealth argues that Whaley's claims are moot and that the Commonwealth is a separate entity from its administrative agencies. Doc. 23 at 8-10. Though mootness would create the jurisdictional problems the Commonwealth describes, the Commonwealth fails to set forth a cohesive argument that these claims are moot, and utterly fails to address Whaley's claims for damages. Id. The Commonwealth then confuses its argument about jurisdiction with pleading standards of the Federal Rules of Civil Procedure. Id. The Commonwealth correctly points out that the complaint lacks any specific allegations against the Commonwealth as an entity, but this does not cause a jurisdictional problem. We, therefore, do not further address this jurisdictional argument as such.
“The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.”' Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Claim preclusion and issue preclusion “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980). “Recognizing the severity of claim preclusion's consequences, we apply the doctrine with care and only in appropriate circumstances.” Beasley v. Howard, 14 F.4th 226, 232 (3d Cir. 2021) (citing Papera v. Pa. Quarried Bluestone Co., 948 F.3d 607, 611 (3d Cir. 2020)). Though Clinton County and Clerk Love argue that Whaley is making the “same allegations that he had made in the Federal lawsuit that was filed to Docket No. 4:21-CV-01760” (doc. 43), it is not clear from the facts that this suit is, in fact, “a subsequent suit based on the same cause of action” as another suit with “a final judgment on the merits in a prior suit involving [ ] the same parties or their privies,” In re. Healthcare Real Est. Partners, LLC, 941 F.3d 64, 72 (3d Cir. 2019) (quoting In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008)). We, therefore, decline to further address the argument that Whaley's claims are barred by res judicata.
A. Improper Defendants.
The defendants argue that suit against them must be dismissed because they are not proper defendants, either due to their entitlement to various immunities or because they are not subject to suit on these claims. Doc. 23, 38, 43. Whaley, however, argues that the defendants are not entitled to immunity. Doc, 34, 42.
1. Eleventh Amendment Immunity.
a. The Commonwealth.
The Commonwealth asserts in its brief in support of its motion to dismiss that it is entitled to Eleventh Amendment immunity from these claims. Doc. 23. Whaley counters by noting that state employees “are sworn to uphold the Constitution of the United States of American [sic.] and The Pennsylvania Constitutions,” (doc, 33 at 1) and by citing statutes that waive the states' Eleventh Amendment immunity for suit under certain chapters. Doc, 33 at 5.
“Our federalist system of government accords respect for the sovereignty of the States in a variety of ways, including the Eleventh Amendment to the United States Constitution, which immunizes States from suits brought in federal court by both their own citizens and citizens of other States.” Maliandi v. Montclair State Univ., 845 F.3d 77, 81 (3d Cir. 2016). It has been observed that “the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.” Blanciakv. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996); see also Christ the King Manor, Inc. v. Sec 'y U.S. Dep ‘t of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013) (“Therefore unless Congress has ‘specifically abrogated' the states' sovereign immunity or a state has unequivocally consented to suit in federal court, we lack jurisdiction to grant relief in such cases.”); but see Lombardo v. Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190, 197 (3d Cir. 2008) (noting that “the Supreme Court's jurisprudence has not been entirely consistent in the view that the Eleventh Amendment restricts subject matter j urisdiction”).
The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.U.S. Const. Amend. XI. Although its text appears to restrict only the Article III diversity jurisdiction of the federal courts, the Eleventh Amendment has been interpreted “‘to stand not so much for what it says, but for the presupposition . . . which it confirms.'” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). That presupposition is that each state is a sovereign entity in our federal system and it is inherent in the nature of sovereignty that a sovereign is not amenable to suit unless it consents. Id.
“Immunity from suit in federal court under the Eleventh Amendment is designed to preserve the delicate and ‘proper balance between the supremacy of federal law and the separate sovereignty of the States.”' Karns v. Shanahan, 879 F.3d 504, 512 (3d Cir. 2018) (quoting AIden v. Maine, 527 U.S. 706, 757 (1999)). It “serves two fundamental imperatives: safeguarding the dignity of the states and ensuring their financial solvency.” Id. Thus, “the Constitution does not provide for federal jurisdiction over suits against nonconsenting States.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000).
There are two circumstances when the Eleventh Amendment does not bar a suit against a state or state agency. First, a state may waive its Eleventh Amendment immunity by consenting to suit. College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Second, Congress may abrogate a state's Eleventh Amendment immunity when it unequivocally intends to do so and when it acts pursuant to a valid grant of constitutional authority. Geness v. Admin. Off. of Pennsylvania Cts., 974 F.3d 263, 269-70 (3d Cir. 2020).
Neither of these circumstances are present here. The Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity. See 42 Pa. Stat, and Cons. Stat. Ann. § 8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”); Downey v. Pennsylvania Dep't of Corr., 968 F.3d 299, 310 (3d Cir. 2020) (“Pennsylvania has not waived its sovereign immunity defense in federal court.”). And Whaley has not cited to any statute that waives the Commonwealth's Eleventh Amendment immunity in the circumstances of this case. Whaley cites 15 U.S.C. § 1122 and 42 U.S.C. § 12202 “in support of [his] claim of rights.” Doc. 33 at 5. Though these statutes do waive states' Eleventh Amendment immunities, they only do so for suits brought under each chapter. Whaley does not attempt to bring suit under either chapter. 15 U.S.C. § 1122; 42 U.S.C. § 12202. Further, amid citations to statutes that do not provide a private cause of action, Whaley cites 42 U.S.C. §§ 1983, 1985, and 1986. Doc. 7 at 4, 5. None of these sections, override a state's Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332 (1979); Kokinda v. Pennsylvania Department of Corrections, 779 Fed.Appx. 944, 948 (3d Cir. 2019) (“The District Court properly concluded that Kokinda's claimed violations of §§ 1983, 1985(3), and 1986 against the DOC and the individual prison staff members sued in their official capacities are barred by the Eleventh Amendment.”) (citing Pa Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002)). The Eleventh Amendment, therefore, provides the Commonwealth with immunity from suit in this case.
b. The Judicial Defendants.
Similarly, the judicial defendants assert that any claims brought against them in their official capacities must fail due to Eleventh Amendment immunity. Doc. 38. Official-capacity suits are “only another way of pleading an action against an entity of which an officer is an agent.” Monell v. New York City Dept, of Social Services, 436 U.S. 658, 690 n.55 (1978). In an official-capacity suit, the real party in interest is the entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 166 (1985). “[T]he Eleventh Amendment's protection ... is not limited to the States alone, but rather extends to entities that function as ‘arms of the State.'” Maliandi, 845 F.3d at 81. “All courts and agencies of the unified judicial system ... are part of ‘Commonwealth government' and thus are state rather than local agencies.” Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) (citing Pa. Const, art. V, § 6(c); 42 Pa. Const. Stat. Ann. § 102; 42 Pa. Cons. Stat. § 301). Because the judicial defendants are part of the unified judicial system, which is a Commonwealth entity, the claims against the judicial defendants are really claims against the Commonwealth and, as such, are barred by the Eleventh Amendment. See Benn v, First Judicial Dist. Of Pa., 426 F.3d 233, 241 (3d Cir. 2005) (“The Pennsylvania constitution envisions a unified state judicial system, of which the Judicial District is an integral component. From a holistic analysis of the Judicial District's relationship with the state, it is undeniable that Pennsylvania is the real party in interest in Benn's suit and would be subjected to both indignity and an impermissible risk of legal liability if the suit were allowed to proceed.”); see also Haybarger v. Lawrence Cty. Adult Prob. <£ Parole, 551 F.3d 193, 198 (3d Cir. 2008) (concluding that “as an arm of the State, an individual judicial district and its probation and parole department are entitled to Eleventh Amendment immunity,” but holding that in that case, the Eleventh Amendment was waived by acceptance of federal funds under the Rehabilitation Act). Accordingly, we recommend that the court grant the motion to dismiss the complaint to the extent that it seeks dismissal of official-capacity claims.
We analyze all judicial defendants without differentiating between their titles as senior judges or magisterial district judges because magisterial district judges, acting in their official capacities, are also protected by Eleventh Amendment immunity. Mawson v, Kokura-Kravitz, Civ. No. 3:21-CV-00337, 2021 WL 3705009, *3-4 (M.D. Pa. June 28, 2021) (“Magisterial district courts are part of Pennsylvania's united judicial system, which is an arm of the state that is entitled to Eleventh Amendment Immunity. .. . Moreover, magisterial district judges are protected by Eleventh Amendment immunity.” (internal citations omitted)), Report and Recommendation, adopted by Mawson v. Kokura-Kravitz, Civ. No. 3:21-337, 2021 WL 3030277 (M.D. Pa. July 19, 2021).
2. Common Law Immunities.
a. Judicial Defendants.
The judicial defendants also assert that any claims against them in their individual capacities must fail due to their entitlement to absolute judicial immunity. Doc, 38,
We again analyze all judicial defendants without differentiating between their titles as senior judges or magisterial district judges because magisterial district judges are similarly entitled to absolute judicial immunity as analyzed below. See Surine v. Edgcomb, 479 Fed.Appx. 405, 407 (3d Cir. 2012) (upholding properly the dismissal of a defendant, a Magisterial District Judge, “pursuant to the doctrine of judicial immunity.”).
The Eleventh Amendment does not bar claims against state officials in their individual or personal capacities. Hafer v. Melo, 502 U.S. 21, 30-31 (1991). However, “[a]lthough § 1983 purports to subject ‘[e]very person' acting under color of state law to liability for depriving any other person in the United States of ‘rights, privileges, or immunities secured by the Constitution and laws,' the Supreme Court has recognized that § 1983 was not meant to ‘abolish wholesale all common-law immunities.'” Yarris v. County of Delaware, 465 F.3d 129, 134-35 (3d Cir. 2006) (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).
There are two kinds of immunity under § 1983: qualified immunity and absolute immunity. Id. at 135. Although most public officials are entitled to only qualified immunity, 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). “This immunity was and still is considered necessary ‘to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation.'” McArdle v. Tronetti, 961 F.2d 1083, 1084 (3d Cir. 1992) (quoting Butz, 438 U.S. at 512).
A functional approach is used to determine whether absolute or qualified immunity applies. Forrester v. White, 484 U.S. 219, 224 (1988). The inquiry focuses on the nature of the function performed, not the identity of the actor who performed it. Id. “The Supreme Court long has recognized that judges are immune from suit under section 1983 for monetary damages arising from their judicial acts.” Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000). The Court has described the reasons for recognizing judicial immunity as follows:
[T]he nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have .... [T]his is the principal characteristic that adjudication has in common with legislation and with criminal prosecution, which are the two other areas in which absolute immunity has most generously been provided. If judges were personally liable for erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious, would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits. The resulting timidity would be hard to detect or control, and it
would manifestly detract from independent and impartial adjudication.Forrester, 484 U.S. at 226-27 (citations omitted).
A two-part inquiry is used to determine whether judicial immunity is applicable. Gallas, 211 F.3d at 768, First, because immunity applies only to actions taken in a judge's judicial capacity, a determination must be made whether the challenged actions of the judge were taken in his or her judicial capacity. Id. The relevant factors “‘relate to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e,, whether they dealt with the judge in his judicial capacity.'” Id. at 768 (quoting Stump V. Sparkman, 435 U.S. 349, 362 (1978)). “Our task is to ‘draw the line between truly judicial acts for which immunity is appropriate and acts that simply happen to have been done by judges,' such as administrative acts.” Id. (quoting Forrester, 484 U.S. at 227).
“Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. In this regard, “we must distinguish between acts in the ‘clear absence of all jurisdiction,' which do not enjoy the protection of absolute immunity, and acts that are merely in ‘excess of jurisdiction,' which do enjoy that protection.” Id. at 769 (quoting Stump, 435 U.S. at 357 n.6). The Supreme Court has explained that distinction:
Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend.Stump, 435 U.S. at 356 n.6 (quoting Bradley v. Fisher, 80 U.S. 335, 351-52 (1871)). “Generally, therefore, ‘where a court has some subject matter jurisdiction, there is sufficient jurisdiction for immunity purposes.'” Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (quoting Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)); see also Gallas, 211 F.3d at 771 (holding that “a judge does not act in the clear absence of all jurisdiction when the judge enters an order at least colorably within the jurisdiction of her court even though a court rule or other procedural constraint required another judge to act in the matter”).
As to the first part of this inquiry judicial immunity shields a judge from liability for judicial acts even if those acts were taken in error, if they were done maliciously, if they were in excess of the judge's authority, if the judge committed grave procedural errors, or if the judge's actions were unfair or controversial. Gallas, 211 F.3d at 769. A judge will be subject to liability only when he or she has acted in the clear absence of all jurisdiction. Id. “In sum, our analysis must focus on the general nature of the challenged action, without inquiry into such ‘specifics' as the judge's motive or the correctness of his or her decision.” Id.
As to the second part of this inquiry, Whaley argues that the court lacked jurisdiction over him. Doc. 42 at 2-3. However, this argument is based on his claim of sovereign citizenship and is frivolous. To the contrary, the Constitution of the Commonwealth of Pennsylvania provides for a “unified” judicial system in which the Courts of Common Pleas have “unlimited original jurisdiction in all cases except as may otherwise be provided by law.” Pa. Const, art. V §§ 1, 5. The Pennsylvania Supreme Court has held that “[c]ontroversies arising out of violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution.” Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003), “Every jurist within that tier of the unified judicial system is competent to hear and decide a matter arising out of the Crimes Code.” Id.
Whaley claims that MDJ Kibler sent him a letter laying out the consequences for failing to respond to a citation or summons. Doc. 1. This is a function normally performed by judicial officers and, as such, is a judicial act. Given that MDJ Kibler was also acting with jurisdiction over this criminal matter, MDJ Kibler is entitled to absolute immunity. The other judicial defendants, however, do not appear by name in the amended complaint or those documents incorporated by reference; it is, therefore, impossible to determine whether the acts of which Whaley is complaining were taken in the judicial defendants' judicial capacities. Doc. 1, 9, 20. To the extent that Whaley is complaining of judicial acts by these defendants, these defendants would also be entitled to absolute immunity.
b. Clerk Love.
Clerk Love asserts that she is eligible for quasi-judicial immunity and qualified immunity. Doc. 43. Whaley alleges that Clerk Love refused to “stamp[ ], fil[e], & return” documentary evidence he submitted in person. Doc. 1 at 4-5. Clerk Love argues that she is entitled to quasi-judicial immunity for these actions because “the activities complained of involve the filing of a document which is a duty of the Clerk of Court under the direction [of] the judges of the county [.]” Doc. 43 at 15. The complaint does not allege that Clerk Love was operating under direct instructions from any judge, however. Instead, Whaley alleges that Clerk Love refused to stamp, file, and return the documentary evidence of her own violation. Thus, we must determine whether a Clerk of Court is entitled to quasijudicial immunity for the act of choosing whether to file documents with the court.
“Quasi-judicial immunity attaches to public officials whose roles are “‘functionally comparable' to that of a judge.” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quoting Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir. 2003) (quoting in tarn Butz, 438 U.S. at 513). “Such immunity ‘flows not from rank or title or location within the Government, but from the nature of the responsibilities of the individual official.'” Id. (quoting Cleavinger v. Saxner, 474 U.S. 193, 201 (1985)). “Thus, in evaluating whether quasi-judicial immunity grants immunity to a particular official, a court inquires into ‘the official's job function, as opposed to the particular act of which the plaintiff complains.'” Id. (quoting Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006)). “Regardless of his job title, if a state official must walk, talk, and act like a judge as part of his job, then he is as absolutely immune from lawsuits arising out of that walking, talking, and acting as are judges who enjoy the title and other formal indicia of office.” Dotzel, 438 F.3d at 325.
“The doctrine of judicial immunity is supported by a long-settled understanding that the independent and impartial exercise of judgment vital to the judiciary might be impaired by exposure to potential damages liability.” Antoine v, Byers & Anderson, Inc., 508 U.S. 429, 436 (1993) (footnote omitted). “When judicial immunity is extended to officials other than judges, it is because their judgments are ‘ functional [ly] comparab[le] to those of judges-that is, because they, too, ‘exercise a discretionary judgment' as a part of their function.” Id. (alterations in original) (citing Imbler v. Pachtman, 424 U.S. 409 at 423, n.20 (1976); Westfall v. Erwin, 484 U.S. 292, 297-98 (1988)). The duties of clerks of court, however, according to the Pennsylvania Supreme Court, are “ministerial.” Commonwealth v. Williams, 630 Pa. 169, 179 (Pa. 2014)), The Third Circuit has depended on the “ministerial” nature of the Clerk of Court's duties to conclude that “immunity ofthe[se] court personnel cannot be based on the discretionary nature of their duties.” Flinches v. Bucks County, 586 Fed.Appx. 864, 867-68 (3d Cir. 2014) (holding that the Clerk of Court in this case was entitled not, as the District Court found, due to their discretionary functions but instead due to the action in question having been performed only at the specific, express instruction of a judge). Clerk Love, therefore, as Clerk of Court for the Clinton County Court of Common Pleas, is not entitled to quasi-judicial immunity in this case.
Clerk Love also argues that she is entitled to qualified immunity for these acts. Despite their participation in constitutionally impermissible conduct, government officials “may nevertheless be shielded from liability for civil damages if their actions did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity ensures that before officials are subjected to suit, they have notice that their conduct is unlawful. “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S, 223, 231 (2009), “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19.
Whaley argues that Clerk Love, “is a trustee of the people (as all public officials are) and is not immune.” Doc. 54 at 4. Whaley then reiterates his allegations that he asked for a “document to be returned as needed in case of physical court appearance” but he “never got any response as to anything about evidence [he] submitted to the Clinton County, Pa. Clerk of Courts.” Id. He characterizes these actions as concealment, and asserts that the qualified immunity defense must fail. Id.
“While it is true that qualified immunity should be resolved at the earliest possible stage of litigation, see Hunter v. Bryant, 502 U.S. 224, 227 (1991), at the motion to dismiss stage, ‘qualified immunity will be found only when the immunity is established on the face of the complaint.'” O'Donnell v. Cumberland Cty., 195 F.Supp.3d 724, 734-35 (M.D. Pa. 2016) (quoting Schor v. North Braddock Borough, 801 F.Supp.2d 369, 378-79 (W.D.Pa.2011) (citing Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir.2006))). “Thus, only where a plaintiff ‘fails to state a claim of a violation of a clearly established law, [is] a defendant pleading qualified immunity . .. entitled to dismissal before the commencement of discovery.'” Id. (quoting Schor, 801 F.Supp.2d at 379). The complaint in the instant case, as discussed further below, fails to state a claim upon which relief can be granted. We, therefore, save for another date, the fact-intensive analysis required to conclude whether Clerk Love is entitled to qualified immunity in the instant action.
3. State Statute-Based Immunity Claims.
Clinton County argues that, “to the extent there are claims that do not arise pursuant to Section 1983 claims, [it] is immune from suit pursuant to the Political Subdivision Tort Claims Act [(“PSTCA”)], 42 Pa. C.S.A. 8541.” Doc. 43 at 12. Clerk Love similarly argues that she is entitled to the defense of official immunity as created by another Pennsylvania statute, 42 Pa. C.S.A. § 8546. Doc. 43 at 13.
Because “the PSTCA cannot immunize a municipality or political subdivision against a federal cause of action,” “the PSTCA has no application” to the federal claims in the instant case. John G. v. Northeastern Educational Intermediate Unit 19, 490 F.Supp.2d 565, 584-85 (M.D. Pa. 2007). Similarly, 42 Pa C.S.A. § 8546 applies only to state actions. See LaVerdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003) (analyzing claims for immunity as defined by 42 Pa C.S.A. 8546 only as to the supplemental state-law claims in the case and not the federal claims). As discussed in further detail below, Whaley fails to state any federal claim upon which relief can be granted and we, therefore, recommend that the court not exercise supplemental jurisdiction over the state claims. Because these immunities pertain only to the state claims, we do not analyze their applicability further.
2. 42 U.S.C § 1983.
Whaley brings claims under 42 U.S.C. § 1983. To establish a claim under § 1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Wbloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005). The judicial defendants, in their official capacities, and the Commonwealth all argue that they are not “persons” for the purposes of § 1983 liability.
Clinton County also asserts that it “Is Not a Proper Party Regarding Any Potential Section 1983 Claim.” Doc. 43 at 7. Though the County titles its section as a question of whether it is a proper party, the argument is instead about whether Whaley failed to meet the threshold required for § 1983 claims as set forth in Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1978), and we will thus address the argument in the section below in which we discuss Whaley's general failure to state a claim upon which relief can be granted.
Because, as described above, a suit brought against a judge in his or her official capacity is treated as a suit brought against the state itself, Kentucky, 473 U.S. at 166, insofar as the state is not a “person” for purposes of § 1983, the judicial defendants, in their official capacities, are not “persons” either. The Supreme Court has stated clearly “that a State is not a person within the meaning of § 1983.” Will v. Michigan Dept, of State Place, 491 U.S. 58, 64 (1989). The judicial defendants, in their official capacities, and the Commonwealth are thus not “persons” under § 1983 and cannot be proper defendants for a § 1983 claim.
B. Insufficient Claims.
Each of Whaley's allegations are rooted in his self-identification as a “U.S. National, Indian, [who] has a Micro Nation[.]” Doc. 1 at 4. Whaley's language is reminiscent “of the now infamous ‘flesh and blood' movement, similar to the beliefs and rhetoric espoused by the American Moorish and Sovereign Citizen movements, all of which has been uniformly rejected as legally frivolous by this and other Courts across the country.” Weese v. Maryland, No. CV PWG-17-25 84, 2017 WL 8780880, at *1 (D. Md. Dec. 8, 2017) (footnote omitted). The complaint echoes the rhetoric of these movements.
For example, Whaley not only describes himself as a “Micro Nation,” but claims that Clinton County “made a security in GEORGE HENRY WHALEY JR['s] name without any permission, which is Embezzlement[.]” Doc. 1 at 5. Whaley describes his complaint as “an admiralty/maritime cause of action,” and demands “Libel of Review pursuant to the Law of Nations.” Id. at 4. He also repeatedly cites the UCC and refers to the Commonwealth and the City of Lock Haven as “private corporations]” Id. at 3. Whaley further asserts that he “never was a citizen of the United States, as according to The Articles of Confederation, claimant is a Citizen of The United States of America * Republic and is a foreign national[.]” Id. at 8. Whaley also asserts that he “never had a social security number because claimant never agreed to any contract because at the time those contracts were created, claimant was a baby and a baby could never agree to such a contractf.]” Id.
Whaley's language and ideas are typical of the sovereign citizen movement. This movement promotes the concept “that a person has a split personality: a real person and a fictional person called the ‘strawman.'” Monroe v. Beard, 536 F.3d 198, 203 n.4 (3d Cir. 2008). Adherents to the movement believe that “the government has power only over the strawman and not over the live person, who remains free.” Id. “Individuals can free themselves by filing UCC financing statements, thereby acquiring an interest in their strawman.” Id. “Thereafter, the real person can demand that government officials pay enormous sums of money to use the strawman's name or, in the case of prisoners, to keep him in custody.” Id.
Whaley demonstrates that he adheres
to the belief that even though he was born and resides in the United States, he is his own sovereign and is therefore not a United States citizen. This belief is the hallmark of the sovereign citizen movement. So-called sovereign citizens believe that they are not subject to government authority and employ various tactics in an attempt to, among other things, avoid paying taxes, extinguish debts, and derail criminal proceedings.Smithson v. York County Court of Common Pleas, No. 1:15-cv-01794, 2016 WL 4521854, at *2 (M.D. Pa. Aug. 3, 2016) (citing Gravatt v. United States, 100 Fed.Cl. 279, 282 (2011)). Claims based solely on these beliefs have repeatedly been dismissed as frivolous by the courts. See e.g., Weese, 2017 WL 8780880, at *1 (stating that Weese “parrots the language of the now infamous ‘flesh and blood' movement, similar to the beliefs and rhetoric espoused by the American Moorish and Sovereign Citizen movements, all of which have been uniformly rejected as legally frivolous by this and other Courts across the country” (footnote omitted)); Smithson v. Koons, No. 1:15-CV-01757, 2017 WL 3016165, at *1 n.l (M.D. Pa. June 26, 2017) (describing similar strawman and contract-based claims and recommending that the complaint be dismissed as frivolous and for failure to state a claim), adopting report and recommendation, 2017 WL 3008559, at * 1 (M.D. Pa. July 14, 2017); Washam v. Mahally, No. L15-CV-2397, 2016 WL 235025, at * 1 (M.D. Pa. Jan. 20, 2016) (dismissing complaint that referred to Washam as a vessel with prejudice as factually and legally frivolous and for failure to state a claim for which relief may be granted).
Because each of Whaley's claims are based on this theory of sovereign citizenship, each claim must fail. Whaley further fails to state a claim upon which relief can be granted because he cites federal statutes and rules that do not create a cause of action and fails to allege the defendants' personal involvement in the perceived violations of his rights.
1. Statutes With No Personal Cause of Action.
When completing the complaint form he titled “ammended [sic.] complaint,” Whaley wrote that he “wishes to file a complaint under Title 28 U.S.C. Section 1441 - 1447[ J Title 28 Section 1333, FRCP Rule 24(a).” Doc. 9 at 1.
28 U.S.C. § 1333 is titled “Admiralty, maritime and prize cases” and gives the district courts exclusive original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction” and “[a]ny prize brought into the United States and all proceedings for the condemnation of property taken as prize.” 28 U.S.C. § 1331, This statute sets out rules for the court's subject matter jurisdiction rather than creating a cause of action. Any attempt by Whaley to bring a cause of action under this section, therefore, must fail.
Similarly, 28 U.S.C. §§ 1441-1447 lay out rules for removal of civil actions. Again, these statutes do not create causes of action. Thus, any claims that Whaley attempts to bring under these sections also must fail. Further, these rules do not apply in this case because Whaley is not removing to federal court a civil case filed against him in state court. Doc. 9.
Whaley also includes “U.S. code 1604- Immunity of a foreign state from jurisdiction” in his list of statutes that were allegedly violated. Doc. 1. 28 U.S.C. § 1604 states “[s]ubject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in section 1605 to 1607 of this chapter.” This section defines immunity for foreign states to protect such entities from suit and, again, does not create a private action for alleged violations. See, e.g., Federal Republic of Germany v. Philipp, 141 S.Ct. 703, 709 (2021) (“The Act creates a baseline presumption of immunity from suit.”). Any attempt to bring a claim under this section must also fail.
The Federal Rules of Civil Procedure “govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81.” Fed. R. Civ. P. 1. Whaley attempts to bring a claim under “FRCP Rule 24(a).” Doc. 9 at 1. Federal Rule of Civil Procedure 24(a) governs who the court must permit to intervene into a federal civil action. These rules do not create a private right of action for their violation. Further, Whaley asserts no facts that implicate intervention of right in either this case or the underlying criminal case of which he complains. Whaley's claims under this rule, therefore, must fail.
Whaley also attempts to bring claims against defendants under numerous sections of Title 18 of the United States Code. Doc. 1 at 4. However, each of these sections are criminal statutes. Section 2 sets forth simply that committing an offense against the United States is “punishable as a principal,” while § 3 defines “accessory after the fact.” 18 U.S.C. §§ 2, 3. Violations of each of the other sections Whaley cites from Title 18 of the United States Code are punishable by fines or imprisonment or both. See 18 U.S.C. §§ 4, 113(b), 153, 219, 241, 242, 371, 654, 661, 709, 951, 1001, 1028, 1341, 1581, 1621, 1622, 1651, 1652, 1961, 2111, 2382. Whaley cannot seek these punishments through a civil complaint because there is no “federal right to require the government to initiate criminal proceedings.” Rodriguez v. Salus, 623 Fed.Appx. 588, 590 (3d Cir. 2015); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
Further, there is no private right of action for alleged violations of criminal statutes. Courts have time and time again found that criminal statutes do not create private causes of action. See Davis v. Warden Lewisburg USP, 594 Fed.Appx. 60, 61 n.3 (3d Cir. 2015) (“§ 242 is a criminal statute, through which no private cause of action is created.”); Greenblatt v. Klein, 634 Fed.Appx. 66, 69 (3d Cir. 2015) (“Finally, we agree that there is no private cause of action under 18 U.S.C. § 1001,”); Carpenter v. Young, No. Civ.A. 04-927, 2005 WL 1364787, at *7 (E.D. Pa. June 1, 2005) (“[P]laintiff may not maintain a private cause of action based on violations of criminal provisions of the Bankruptcy Code [including 18 U.S.C. § 153].”); Pankey v. Webster, 816 F.Supp. 553, 559 (W.D. Missouri 1993) (“18 U.S.C. § 4 defines a criminal offense and does not provide civil complaints with a private right of action. Thus, plaintiff cannot base a civil cause of action on 18 U.S.C. § 4, and cannot invoke that statute as a jurisdictional basis for her present complaint.” (internal citations omitted)) (citing Dugar v. Coughlin, 613 F.Supp. 849, 852 n.l (S.D.N.Y 1985)); Dugar, 613 F.Supp. at 852 n.l (“Sections 241, 242, and 245 relate to deprivation of civil rights, however there is no private right of action under any of these statutes.”); Risley v. Hawk, 918 F.Supp. 18, 21 (D.D.C. 1996) (“First, 18 U.S.C. [§ 113] defme[s] certain acts ... as criminal offenses. Such criminal offense provisions do not create a private cause of action.”) (citing Lundt v. Hodges, 627 F.Supp. 373, 375 (N.D. Iowa 1985)); Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.Supp.2d 17, 23 (“However, the plaintiff is precluded from asserting any claims pursuant to 18 U.S.C §§ 242 and 371 because, as criminal statutes, they do not convey a private right of action.”), Whaley cannot bring a private action under any of the criminal statutes he cites because no such private action exists.
2. 42 U.S.C. § 1983 Personal Involvement.
Liability in a 42 U.S.C. § 1983 action is personal in nature, and to be liable a defendant must have been personally involved in the wrongful conduct. Thus, respondeat superior cannot form the basis of liability. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 290 (3d Cir. 2018). In other words, “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). “[A] plaintiff must aver facts to show the defendants' personal involvement in the alleged misconduct.” Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020). “Personal involvement requires particular ‘allegations of personal direction or of actual knowledge and acquiescence.'” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
Here, Whaley fails to allege several defendants' personal involvement. Four defendants appear in the complaint only once: when they are identified as defendants. Whaley fails to allege any acts taken by DA Strouse, Judge Miller, MDJ Mills, or Judge Lewis. Further, Whaley names Smith only when listing her as a defendant in the “complaint add[i]tion,” including a proof of service form naming her as being served, and nowhere else in the complaint.
Similarly, Whaley fails to identify acts appropriately attributed to Clinton County for purposes of § 1983 liability. A municipality cannot be held liable under 42 U.S.C. § 1983 for the unconstitutional acts of its employees on a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, “under § 1983, local governments are responsible only for ‘their own illegal acts.'” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original)).
“[A] § 1983 claim against a municipality may proceed in two ways.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). One way for a plaintiff to present a claim against a municipality is to allege “that an unconstitutional policy or custom of the municipality led to his or her injuries.” Id. Another way for a plaintiff to present a claim against a municipality is to allege that his injuries “were caused by a failure or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.'” Id. (quoting Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)).
To plead a claim against a municipality under the policy-or-custom strand of municipal liability, “a plaintiff must allege that ‘a [local] government's policy or custom .. . inflict[ed] the injury' in question.” Estate of Roman, 914 F.3d at 798 (quoting Monell, 436 U.S. at 694). “‘Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict.'” Id. (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration in original) (internal quotation marks omitted)). “‘Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.'” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
“To satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir, 2009). “Although a policy or custom is necessary to plead a municipal claim, it is not sufficient to survive a motion to dismiss.” Estate of Roman, 914 F.3d at 798. “A plaintiff must also allege that the policy or custom was the ‘proximate cause' of his injuries.” Id.
Here, Whaley has not alleged facts from which it can reasonably be inferred that a policy or custom of Clinton County violated his rights. In fact, Whaley alleges nothing in this regard.
Another way for a plaintiff to present a claim against a municipality is to allege that his or her injuries “were caused by a failure or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.'” Forrest, 930 F.3d at 105 (quoting Estate of Roman, 914 F.3d at 798). “The latter avenue arose in the failure-to-train context, but applies to other failures and inadequacies by municipalities, including those related to supervision and discipline of its . . . officers.” Id.
A plaintiff asserting a municipal liability claim based on a failure or inadequacy of training, supervision, or discipline “need not allege an unconstitutional policy.” Estate of Roman, 914 F.3d at 798. Rather, he must show that the municipality's failure to train, supervise, or discipline “its employees ‘reflects a deliberate or conscious choice.'” Id. (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir, 2001)). In this regard, the plaintiff must show “a failure or inadequacy amounting to deliberate indifference on the part of the municipality.” Forrest, 930 F.3d at 106. “This consists of a showing as to whether (1) municipal policymakers know that employees will confront a particular situation, (2) the situation involves a difficult choice or a history of employees mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.” Id. In addition to deliberate indifference, a plaintiff asserting a municipal liability claim based on a failure or inadequacy of training, supervision, or discipline must also allege causation. Elliott v. Pennsylvania Interscholastic Athletic Assoc., No. 3:19-CV-01934, 2022 WL 987887, at *5 (M.D. Pa. Mar. 31, 2022). “[T]he causation inquiry focuses on whether ‘the injury [could] have been avoided had the employee been trained under a program that was not deficient in the identified respect.” Thomas v. Cumberland Cty., 749 F.3d 217, 226 (3d Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 391 (1989)).
Here, Whaley has not alleged facts from which it can reasonably be inferred that a failure or inadequacy of training, supervision, or discipline by Clinton County caused a violation of his rights. Again, Whaley alleges nothing in this regard. In sum, Whaley does not allege facts in which DA Strouse, Judge Miller, MDJ Mills, Judge Lewis, and Clinton County are personally involved as required for liability in a 42 U.S.C. § 1983 action.
3. 42 U.S.C. §§ 1985 and 1986.
Whaley also cites to 42 U.S.C. § 1985, which contains three subparts. Neither 42 U.S.C. § 1985(1), which deals with preventing an officer from performing his or her duties, nor the first part of 42 U.S.C. § 1985(2), which deals with intimidation of parties, witnesses, or jurors, are relevant here. The second part of § 1985(2), which “applies to conspiracies to obstruct the course of justice in state courts,” Kush v. Rutledge, 460 U.S. 719, 725 (1983), is potentially relevant in this case, but that part of § 1985(2) is limited to conspiracies based on racial or some other class-based invidiously discriminatory animus. Davis v. Twp. of Hillside, 190 F.3d 167, 171 (3d Cir. 1999). 42 U.S.C. § 1985(3) “permits an action to be brought by one injured by a conspiracy formed ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.'” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (quoting § 1985(3)). Section 1985(3) is also limited to conspiracies based on racial or some other class-based invidiously discriminatory animus. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
Here, Whaley fails to assert against whom he is bringing a § 1985 claim or the basis for any such claim. Further, because Whaley has not alleged a racial or other class-based discriminatory animus, and because he has not set forth allegations from which a conspiracy can reasonably be inferred, any claims under 42 U.S.C. § 1985(2) and (3) are without merit.
Whaley also cites to 42 U.S.C. § 1986, which provides a cause of action for failing to prevent a conspiracy under Section 1985. “Section 1986, therefore, is derivative of section 1985.” Dennison v. PA Dept, of Corrections, 268 F.Supp.2d 387, 402 n.lO (M.D. Pa. 2003). Accordingly, since the complaint fails to state a § 1985 claim upon which relief can be granted, it follows that the complaint fails to state a § 1986 claim upon which relief can be granted.
V. Supplemental Jurisdiction Over State-Law Claims.
In addition to the federal claims, Whaley is asserting state law claims. Such claims would fall within the court's supplemental jurisdiction. Whether to exercise supplemental jurisdiction is within the discretion of the court. 28 U.S.C. § 1367(c)(3) provides that district courts may decline to exercise supplemental jurisdiction over a state-law claim if the district court has dismissed all claims over which it has original jurisdiction. When deciding whether to exercise supplemental jurisdiction, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.” City of Chicago v. Int'l Coll, of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988)). The Third Circuit has held that “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of WestMiflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
There is nothing unique about this case such that considerations of judicial economy, convenience, and fairness provide an affirmative justification for exercising supplemental jurisdiction over Whaley's state-law claims. Accordingly, because we conclude that the complaint fails to state any federal claims upon which relief can be granted, the court should decline to exercise supplemental jurisdiction over Whaley's state-law claims.
VI. Amendment.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). In a civil rights action, the court “must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend.” Id.
“Under Rule 15(a), futility of amendment is a sufficient basis to deny leave to amend.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010). “Futility ‘means that the complaint, as amended, would fail to state a claim upon which relief could be granted.'” Id. (quoting in re Merck & Co. Sec., Derivative, & ERISA Litig., 493 F.3d 393, 400 (3d Cir. 2007)). Thus, in determining whether an amendment would be futile, we apply the same standard as we apply in determining whether a complaint fails to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Id. “In other words, ‘ [t]he District Court determines futility by talcing all pleaded allegations as true and viewing them in a light most favorable to the plaintiff.'” Id. (quoting Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007)).
Whaley's amended complaint is based solely on a frivolous legal theory. Many of the defendants he identifies are immune from suit. Further, Whaley's amended complaint is deficient in both form and substance. We, therefore, conclude that leave to amend would be futile and recommend that the court dismiss Whaley's amended complaint (doc. 1, 9, 20) without leave to amend.
VIL Recommendation.
For the foregoing reasons, we recommend that the court grant the defendants' motions to dismiss (doc. 18, 37, 41) as the defendants are improper and the amended complaint fails to state a claim upon which relief can be granted. Accordingly, we further recommend that the court dismiss as moot Whaley's motions for summary judgment (doc. 21, 22, 50), motions for reward and award (doc. 46, 51), motions to act on constitutional amendments (doc. 47, 53), motion to be heard (doc. 48), motion to rule on objections and motions (doc. 52), and motion for discovery (doc. 58).
Further, pursuant to Federal Rule of Civil Procedure 4(m), this report and recommendation serves as notice to Whaley that Green, DA Strouse, and Smith have not been properly served. Accordingly, we recommend that the claims against Green, DA Strouse, and Smith be dismissed without prejudice for failure to serve the defendants.
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 47 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.