Opinion
CIVIL ACTION NO. 1:18-cv-01241
10-04-2018
CHARLES E. SMITH, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.
(CONNER, C.J.)
() REPORT AND RECOMMENDATION
This action was commenced by the plaintiff, Charles E. Smith, when he constructively filed his original pro se complaint (Doc. 1) on June 16, 2018, the date when he delivered it to prison officials for mailing. See generally Houston v. Lack, 487 U.S. 266, 270-71 (1988) (articulating the "prison mailbox rule"). At the time of filing, Smith was incarcerated at the Dauphin County Jail, located in Dauphin County, Pennsylvania.
In his complaint, Smith claims that his Fourth Amendment right to be free from unreasonable searches and seizures was violated by police officers following his June 20, 2016, arrest for loitering, prowling, disorderly conduct, and flight to avoid apprehension. Smith alleges that he was arrested by the Swatara Township Police Department, one of three defendants in this action, and transported to the Dauphin County Booking Center, the second of three defendants, where he was pat searched before being taken to a bathroom, where he was strip searched while handcuffed, shackled, pinned against a wall with a billy club, and further restrained by a county officer's hand around his neck. Smith further alleges that his detention at the time was unlawful because the criminal complaint and affidavit of probable cause upon which he was being held were never presented to a judge or magistrate. He claims that this conduct was also a violation of his rights under Article 5 of the Universal Declaration of Human Rights. He seeks an award of $3.5 million in compensatory and punitive damages from the two municipal defendants and a third defendant, the Commonwealth of Pennsylvania.
We note that this particular allegation appears to be contradicted by publicly available court records, which indicate that the criminal complaint was filed and a preliminary arraignment was held before a state magisterial district judge on June 20, 2016. See Commonwealth v. Smith, Docket No. MJ-12201-CR-0000663-2016 (Dauphin Cty. Magis. Dist. Ct.). --------
For the reasons set forth below, we recommend that this action be dismissed as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1).
I. LEGAL STANDARD
Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil complaint in which a prisoner is seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep't of Corr., 230 Fed. App'x 195, 197 (3d Cir. 2007). The Court must dismiss the complaint if it is "frivolous" or "fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1). The Court has a similar obligation with respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). See generally Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579, 587-89 (W.D. Pa. 2008) (summarizing prisoner litigation screening procedures and standards).
An action is "frivolous where it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Thomas v. Barker, 371 F. Supp. 2d 636, 639 (M.D. Pa. 2005). To determine whether it is frivolous, a court must assess a complaint "from an objective standpoint in order to determine whether the claim is based on an indisputably meritless legal theory or clearly baseless factual contention." Deutsch v. United States, 67 F.3d 1080, 1086 (3d Cir. 1995) (citing Denton v. Hernandez, 504 U.S. 25, 34 (1992)); Thomas, 371 F. Supp. 2d at 639. Factual allegations are "clearly baseless" if they are "fanciful," "fantastic," or "delusional." See Denton, 504 U.S. at 32-33. "[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Id. at 33. A district court is further permitted, in its sound discretion, to dismiss a claim "if it determines that the claim is of little or no weight, value, or importance, not worthy of serious consideration, or trivial." Deutsch, 67 F.3d at 1089.
The legal standard for dismissing a complaint for failure to state a claim under § 1915A(b)(1) or § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Brodzki v. Tribune Co., 481 Fed. App'x 705, 706 (3d Cir. 2012) (per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010); Banks, 568 F. Supp. 2d at 588. "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept "unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required to credit factual allegations contradicted by indisputably authentic documents on which the complaint relies or matters of public record of which we may take judicial notice. In re Washington Mut. Inc., ___ Fed. App'x ___, No. 17-2360, 2018 WL 4600668, at *2 n.3 (3d Cir. Sept. 25, 2018); Sourovelis v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks, 568 F. Supp. 2d at 588-89.
II. DISCUSSION
Smith has brought this federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or
the District of Columbia, 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 . . . .42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, Smith alleges a violation of his Fourth Amendment right to be free from unreasonable searches and seizures based on a strip search conducted at the Dauphin County Booking Center subsequent to his arrest on June 20, 2016. He alleges that this same conduct also violated his Article 5 rights under the Universal Declaration of Human Rights.
A. Eleventh Amendment Immunity
Smith has sued the Commonwealth of Pennsylvania for damages based on the alleged violation of his constitutional rights. But, absent abrogation by Congress or waiver by the state, the Eleventh Amendment to the United States Constitution provides that states, and their constituent agencies or departments, are immune from suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); see also 42 Pa. Cons. Stat. Ann. § 8521(b) (expressly declining to waive Eleventh Amendment immunity). In light of this clear and absolute immunity defense, any claims against the Commonwealth are clearly based on an indisputably meritless legal theory and thus should be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1). See Neitzke, 490 U.S. at 327 (noting that claims against defendants who are clearly immune from suit are "based on an indisputably meritless legal theory"); McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991) (affirming dismissal for frivolousness of claims barred by the Eleventh Amendment); Pinkney v. Commonwealth, No. CIV. A. 93-1292, 1993 WL 120338, at *1 (E.D. Pa. Apr. 16, 1993) (dismissing claims against the Commonwealth of Pennsylvania as frivolous).
Accordingly, it is recommended that all claims against the Commonwealth of Pennsylvania be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1).
B. Municipal Liability Claims
"On its face, § 1983 makes liable 'every person' who deprives another of civil rights under color of state law." Burns v. Reid, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those "persons" subject to liability under § 1983. Id. at 690. As a matter of law, the Swatara Township Police Department and the Dauphin County Booking Center are merely subunits of their respective municipalities, and not "persons" subject to suit under § 1983. See Terrell v. City of Harrisburg Police Dep't, 549 F. Supp. 2d 671, 686 (M.D. Pa. 2008) (municipal police department); Benard v. Washington County, 465 F. Supp. 2d 461, 470 (W.D. Pa. 2006) (county sheriff's office). However, in light of Smith's status as an incarcerated pro se plaintiff, the Court will liberally construe his claims against the Swatara Township Police Department and the Dauphin County Booking Center as having been asserted against the township and county themselves, each of which is a municipality subject to liability as a "person" under § 1983. See Monell, 436 U.S. at 694; Mullholland v. Gov't County of Berks, 706 F.3d 227, 237 (3d Cir. 2013) (county); Postie v. Frederick, 2015 WL 1219263, at *4 (M.D. Pa. Mar. 17, 2015) (township).
But "[u]nder Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather, a municipality can be liable under § 1983 only if the conduct alleged to be unconstitutional either "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or is "visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision-making channels." Monell, 436 U.S. at 690-91. "[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Jiminez, 503 F.3d at 249. "A plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered." Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). The complaint in this case does not identify any such policy or custom adopted or promulgated by Swatara Township or its police department, nor by Dauphin County or its booking center.
Accordingly, it is recommended that the plaintiff's § 1983 claims against Swatara Township (or its police department) and Dauphin County (or its booking center) be dismissed for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1)
C. Universal Declaration of Human Rights
The pro se plaintiff also claims that the alleged conduct of the defendants violated his rights under Article 5 of the Universal Declaration of Human Rights. But the Universal Declaration of Human Rights, upon which the plaintiff relies, "is a non-binding declaration that provides no private rights of action." See United States v. Chatman, 351 Fed. App'x 740, 741 (3d Cir. 2009) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004)). Thus, the plaintiff's claim for relief based upon the Universal Declaration of Human Rights is clearly based on an indisputably meritless legal theory and should be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1). See Fulop Family v. United States, 919 F.2d 738, 1990 WL 198256 (6th Cir. 1990) (unpublished table decision) (affirming dismissal of claims under the Universal Declaration of Human Rights for frivolousness); Broodnox v. Wal-Mart Stores E., LP, Case No. 3:15cv425/MCR/EMT, 2015 WL 8903537, at *4 (N.D. Fla. Nov. 20, 2015) (dismissing claims under the Universal Declaration of Human Rights as frivolous).
Accordingly, it is recommended that the plaintiff's claim for the alleged violation of his rights under the Universal Declaration of Human Rights be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1).
D. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Although it is clear that the plaintiff's claims against the Commonwealth of Pennsylvania and under the Universal Declaration of Human Rights are legally frivolous and thus clearly futile, it is not clear that amendment with respect to his § 1983 claims against the municipal defendants would be futile, nor is there any basis to believe it would be inequitable. It is therefore recommended that Smith be granted leave to file an amended complaint within a specified time period following dismissal of the original complaint.
III. PLRA "THREE STRIKES" WARNING
The plaintiff is hereby notified that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915,
if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
If this recommended disposition is adopted by the presiding United States District Judge, and the plaintiff fails to file an amended complaint, the dismissal of this action as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1) will constitute a "strike" under 28 U.S.C. § 1915(g), and the accumulation of additional strikes may bar the plaintiff from proceeding in forma pauperis in later cases absent a showing of imminent danger. See generally Byrd v. Shannon,715 F.3d 117, 126 (3d Cir. 2013) (articulating Third Circuit standard for application of § 1915(g) "three strikes" rule).
IV. RECOMMENDATION
For the foregoing reasons, it is recommended that:
1. The complaint (Doc. 1) be DISMISSED as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), § 1915(e)(2)(B)(ii), and § 1915A(b)(1);
2. The plaintiff be granted leave to file an amended complaint within a specified period of time following dismissal of the original complaint;
3. The Clerk be directed to CLOSE this case if an amended complaint is not timely filed; and
4. This matter be remanded to the undersigned for further proceedings if an amended complaint is allowed and timely filed. Dated: October 4, 2018
s/ Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 4, 2018. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: October 4, 2018
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge