The opinion of the court was delivered by: Judge John E. Jones III
This case is before the Court for screening pursuant to 28 U.S.C. § 1915(e), as well as the Plaintiff Jeffrey Dale Soder's "Motion to Show Cause" why the complaint has not been served on the remaining defendants in this action (Doc. 35). For the reasons set forth below, the complaint shall be dismissed and Soder's motion to show cause shall be denied.
Soder filed his pro se § 1983 complaint on August 7, 2006, naming ten public officials and their wives as defendants. (Doc. 1.) Soder generally alleges that the defendants violated his constitutional rights in connection with alleged harassment by a police officer. Soder also filed a request to proceed in forma pauperis (Doc. 2), which was granted by the Court (Doc 6). By three separate orders, the Court dismissed Soder's complaint as to eighteen of the defendants. (Docs. 18-19, 28, 33.) The Court will detail only the procedural and factual background relating to the two remaining defendants in this action.
According to the complaint, Defendant Curran was the chief of police of the Borough of Millerstown. The complaint alleges that Curran "assaulted" Soder "by stabbing [his] index finger into the chest of Mr. Soder." (Compl. ¶ VII.) Soder further alleges that Curran "went on a campaign of retaliation toward the Soder family" by waiting outside their home, making traffic stops of Soder's wife's vehicle, following Soder's son around Millerstown, and following the Soders around a local carnival. (Compl. ¶¶ VIII-XII.) The complaint further alleges that Curran slandered Soder by calling him a liar and giving false testimony. (Compl. ¶¶ XIII-XIV.) Finally, the complaint alleges that Curran obtained Soder's social security number and "did use said numers and/or information (Fruit) obtained from a poisonous tree to go on a campaign of TERROR inflicted on Mr. Soder and the Soder family." (Compl. ¶ XV [emphasis in original].)
On August 30, 2006, the Court granted Soder's application to proceed in forma pauperis and ordered the United States Marshals Service to serve the complaint on the defendants. (Doc. 6.) An attempt was made to serve Curran, but on April 10, 2007, the Marshal Service reported that Curran had been committed to the Norristown State Hospital in Norristown, Pennsylvania, located in the Eastern District of Pennsylvania. (Doc. 31.) On April 11, 2007, the Court directed the Marshals Service to attempt to serve Curran at Norristown State Hospital, and summons was re-issued for that purpose. (Doc. 32.) The Marshals again attempted service, but on June 26, 2007, the Marshals Service indicated that Curran is no longer committed to the hospital. (Doc. 34.) On November 9, 2007, Soder filed a "motion to show cause" requesting that the Marshals Service explain why Curran has not been served. (Doc. 35.)
Soder's complaint also names as defendants each of the wives of the ten public officials named as defendants. One such defendant is "Jane Doe Biehle", purportedly the wife of the now-dismissed defendant Allen D. Biehle. The only claim asserted against the wives, including Jane Doe Biehle, is that they "failed, refused or neglected to protect Plaintiff from the conspiracy of their husbands and said failure is intentional, purposeful and malicious." (Compl. ¶ XXVIII.) All claims against the other wives and Allen D. Biehle have previously been dismissed. (Docs. 18-19, 28, 33.)
The complaint seeks $1,000,000 in damages and $2,000,000 in punitive damages from each defendant, "payable to the Plaintiff in Constitutional Lawful Money redeemable in gold or silver coin as set forth in Article 1, Sec. 10 of the constitution." (Compl. ¶¶ XXXIII-XXXVI.)
Title 28 U.S.C. § 1915(e)(2)(B) states that where a plaintiff is granted permission to proceed in forma pauperis, "the court shall dismiss the case at any time if the court determines that ... the action ... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Section 1915(e)(2)(B)(i) gives a court the authority to "dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. at 327. Thus, in determining whether a claim is frivolous, "a court is not bound ... to accept without question the truth of the plaintiff's allegations" and the court need not "accept as having an arguable basis in fact, all allegations that cannot be rebutted by judicially noticeable facts." Denton v. Hernandez, 504 U.S. 25, 32 (1992).
A complaint fails to state a claim on which relief may be granted if, with all well-pleaded allegations taken as true, and viewed in the light most favorable to plaintiff, it does not state any valid claim for relief. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). In applying § 1915(e)(2)(B)(ii), the Court applies the same standard used when considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). The court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse, 132 F.3d at 906. The Court need not, however, credit the plaintiff's "bald assertions" or "legal conclusions."
Id. The "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations in the complaint are true (even if doubtful in fact)." ...