Plaintiff's claim of
malicious prosecution against Defendant Rauch under Count IV will not be
E. Count V: Pennsylvania Constitutional Claims and Conspiracy
In Count V, Plaintiff claims his rights were violated under the
Pennsylvania Constitution. However, the Supreme Court of Pennsylvania has
not ruled on the issue of whether there is a private cause of action for
damages under the state constitution, and the federal courts in this
Circuit that have considered the issue have concluded that there is no
such right under the Pennsylvania Constitution. Kelleher v. City of
Reading, C.A. No. 01-3386, 2001 U.S. Dist. LEXIS 14958, at *9-10
(E.D.Pa. Sept. 24, 2001) (citing Dooley v. City of Philadelphia,
153 F. Supp.2d 628, 663 (E.D.Pa. 2001); Sabatini v. Reinstein, C.A. No.
99-2393, 1999 U.S. Dist. LEXIS 12820, at *6 (E.D.Pa. Aug. 18, 1999);
Holder v. City of Allentown, C.A. No. 91-240, 1994 U.S. Dist. LEXIS
7220, at *11 (E.D.Pa. May 19, 1994); Lees v. West Greene Sch. Dist.,
632 F. Supp. 1327, 1335 (W.D.Pa. 1986); Pendrell v. Chatham Coll.,
386 F. Supp. 341, 344 (W.D.Pa. 1974)). Therefore, Plaintiff's claims fail
as a matter of law.
Additionally, Plaintiff's civil conspiracy claim, which is duplicative
of his claim in Count IV, is barred against Defendants Bucks County and
DA's Office by the PSTCA, as discussed in Section III.D.1, supra. His
civil conspiracy claim is barred against Defendants Gibbons, Henry, and
Damon by their absolute immunity as discussed in Section III.D.2, supra.
Plaintiff's civil conspiracy claim against Defendant Rauch will be
dismissed because Plaintiff has not alleged facts sufficient to state a
claim for conspiracy, as discussed in Section III.D.3c, supra.
For the reasons discussed above, Count V against all Defendants
will be dismissed.
F. Count VI: Unconstitutionally Inadequate State Appeals Procedure
Count VI of Plaintiff's Complaint is brought under 42 U.S.C. § 1983
and alleges that Defendant Schweiker "fails to have an adequate or
meaningful appeal process that meets federal constitutional due process
requirements designed to insure against prosecutorial misconduct." (Pl.'s
Compl. ¶ 52). Plaintiff seeks money damages and a declaratory
judgment that the "State appeal process [is] constitutionally
inadequate." Id. at ¶ 55. The Eleventh Amendment bars Plaintiff's
§ 1983 damages claim against Schweiker in his official capacity.*fn4
Federal courts can not consider suits by private parties against states
and their agencies unless the state has consented to the filing of such a
suit. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct.
3142, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 662, 94
S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity extends to suits
asserting civil rights violations where the state is named as a
defendant. Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). "Under
the Eleventh Amendment, a plaintiff other than the United States or a
state may not sue a state in federal court without the latter state's
consent unless Congress abrogates the state's Eleventh Amendment immunity
pursuant to a constitutional provision
granting Congress that power."
Chittister v. Dep't. of Community & Economic Dev., 226 F.3d 223, 226
(3d Cir. 2000).
The Commonwealth of Pennsylvania has not waived its rights under the
Eleventh Amendment. "By statute Pennsylvania has specifically withheld
consent [to be sued]." Laskaris, 661 F.2d at 25 (citing Pa. Cons. Stat.
Ann. § 8521(b)). Additionally, § 1983 does not abrogate the
Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59
L.Ed.2d 358 (1979). Further, the Eleventh Amendment immunizes state
officials acting in their official capacity, such as Schweiker, from
§ 1983 damages claims by individuals. Kentucky v. Graham, 473 U.S. 159,
169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
An essential element of any claim under § 1983 is that the alleged
wrongdoing was committed by a "person." 42 U.S.C. § 1983. "[N]either
a State nor its officials acting in their official capacities are
`persons' under § 1983." Will v. Michigan Dep't. of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989).
Plaintiff argues that the Eleventh Amendment does not bar his damages
claim against Defendant Schweiker in his official capacity because by
receiving federal money, the Commonwealth of Pennsylvania has contracted
away its right to Eleventh Amendment immunity. (Praecipe to Court of
8/21/02, at 1). In support of that proposition, Plaintiff cites Barnes
v. Gorman, ___ U.S. ___, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002) and South
Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987).
However, both of these cases are unavailing to Plaintiff. Barnes was
brought under § 202 of the ADA and § 504 of the Rehabilitation
Act and held that a remedy is appropriate under Spending Clause
legislation if the funding recipient is on notice that it is subject not
only to those remedies provided in the relevant legislation but also to
remedies usually available in breach of contract suits. 122 S.Ct. at
2101-02. Dole held that a federal statute conditioning a state's receipt
of highway funds on that state's adoption of a minimum drinking age was a
valid use of Congress' spending power. 483 U.S. at 208-09. Neither case
involved a § 1983 claim, and as discussed above, Congress has not
abrogated the Eleventh Amendment immunity of the states.
Additionally, Schweiker notes that only the Pennsylvania General
Assembly has the power to make laws which affect the criminal appeals
process. (Def. Schweiker's Mot. to Dismiss 7-8). "The `legislative power'
in its most pristine form is the power `to make, alter and repeal laws.'"
Blackwell v. State Ethics Comm'n, 567 A.2d 630, 636 (Pa. 1990) (citations
omitted); Pa. Const. art. I, § 1. The Pennsylvania Supreme Court has
the exclusive power to establish rules of procedure for Commonwealth's
judicial system. Commonwealth v. Brown, 669 A.2d 984, 988 (Pa.Super.
1995) (citing Pa. Const. art. V, § 10(c)). Even if the Governor did
not have sovereign immunity under the Eleventh Amendment, Plaintiff still
has not stated a claim against him because it is the General Assembly
and/or the Pennsylvania Supreme Court, not the Governor, which has the
power to change the state's criminal appeals process.
For the foregoing reasons, Plaintiff's § 1983 claim against
Defendant Schweiker in his official capacity will be dismissed.
For the reasons stated above, Defendants' Motions to Dismiss will
be granted in part and denied in part.
An appropriate Order follows.
AND NOW, this 23rd day of October, 2002, upon consideration of
Plaintiff's Complaint, Defendants' Motions to Dismiss, and responses and
replies thereto, it is hereby ORDERED as follows:
1. Defendants' Diane Gibbons, Michelle A. Henry, and Anne Scheetz
Damon's Motion to Dismiss Counts I-V is GRANTED with prejudice;
2. Defendants' County of Bucks and Bucks County District Attorney's
Office Motion to Dismiss Counts I, III, IV, and V is GRANTED with
3. Defendant Timothy Rauch's Motion to Dismiss Counts I, III, and
V is GRANTED with prejudice;
4. Defendant Timothy Rauch's Motion to Dismiss Count II in his
individual capacity is DENIED;
5. Defendant Timothy Rauch's Motion to Dismiss Count IV is GRANTED with
prejudice as to abuse of process and civil conspiracy and DENIED as to
6. Defendant Mark S. Schweiker's Motion to Dismiss Count VI of
Plaintiff's Complaint is GRANTED with prejudice;
7. Count II of Plaintiff's Complaint shall be answered by Defendants
County of Bucks and Bucks County District Attorney's Office and Defendant
Timothy Rauch within ten days;
8. Count IV of Plaintiff's Complaint alleging malicious prosecution
shall be answered by Defendant Timothy Rauch within ten days.