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Degenes v. Murphy

February 15, 2008


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

Judge Nora Barry Fischer


This is a civil rights action brought by Anthony A. DeGenes ("Plaintiff"), a pro se litigant, who alleges that Congressman Tim Murphy ("Defendant") violated his right under the First Amendment to listen and receive information by deciding not to send Plaintiff a written explanation as to why he would not present Plaintiff's proposed legislation before the United States Congress. For the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss [DE 4].


This matter arises from a prior legal representation in which Plaintiff requested that a former attorney investigate information about Plaintiff with respect to a Pennsylvania Child Abuse History Clearance check and a Freedom of Information Act ("FOIA") check. Docket No. 1, Complaint at ¶ 6 (hereinafter, "Complaint"). Plaintiff states that he did not receive any information regarding the FOIA check, except a letter from his former attorney stating that all the information was disclosed. Id.

Subsequently, Plaintiff contacted Defendant's office in November of 2006 in order to propose legislation regarding the formation of an agency or department that would gather and prepare "an impartial and unbiased investigative report" for Plaintiff and other individuals in his situation. Complaint, Exh. 4 at 13. Plaintiff stated that he did not receive a response from Defendant. Complaint at ¶¶ 34-35. As a result, Plaintiff instituted this suit, requesting that the Court require Defendant to give a written explanation as to why Defendant will not present Plaintiff's legislation. Complaint at 5.

However, Exhibit 6 to his Complaint is an email from Michael Baxter, Legislative Director in the office of Defendant, to Plaintiff responding to Plaintiff's inquiry about the proposed legislation.*fn1 Moreover, Plaintiff replied by letter on "2/20/2008 [sic]".*fn2 Subsequently, Plaintiff faxed a privacy release form to Defendant's office and received a reply from John Savinda, Congressional Aide in the office of Defendant. Complaint, Exhs. 8 and 9.

Despite Plaintiff's Complaint of lack of communication with Defendant, the exhibits tell a different story.


On October 11, 2007, Plaintiff filed this Complaint. On October 25, 2007, Defendant filed the instant Motion to Dismiss and Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss. (Docket No. 4) (hereinafter, "Defendant's Motion"). On December 21, 2007, Plaintiff filed his Brief in Opposition to Defendant's Motion to Dismiss (hereinafter, "Plaintiff's Opposition") (Docket No. 10). On December 28, 2007, Defendant filed his Reply Brief in Support of his Motion to Dismiss. (Docket No. 12).

As set forth above, Defendant moves to dismiss Plaintiff's Complaint for the following reasons: (1) pursuant to Rule 12(b)(1), Defendant challenges this Court's subject matter jurisdiction over this action by claiming Plaintiff lacks standing to sue and Defendant is immune from this lawsuit; (2) pursuant to Rule 12(b)(6), Defendant argues that Plaintiff fails to state a claim upon which relief can be granted, because the government's failure to act in a way desired by a particular individual does not give rise to a legal cause of action; and (3) pursuant to Rule 12(b)(5), Defendant asserts that Plaintiff failed to properly serve his Complaint as required by Federal Rule of Civil Procedure 4(i)(2)(A). Because the Court finds that Plaintiff lacks standing and Defendant is absolutely immune from suit for Plaintiff's allegations, pursuant to Rule 12(b)(1), the Court declines to reach Defendant's other arguments.


As a preliminary matter, "pleadings filed by pro se litigants are to be construed liberally." Gagliardi v. Kratzenberg, 404 F. Supp. 2d 858, 861 (W.D. Pa. 2005) (citing McNeil v. United States, 508 U.S. 106, 113 (1993)); Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002). Moreover, "in such circumstances[,] the court has an obligation to 'apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'" Gagliardi v. Kratzenberg, 404 F. Supp. 2d at 861 (citing Higgins, 293 F.3d at 688).

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (U.S. 2007) (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (U.S. 2007)). Moreover, when a movant invokes multiple bases for a motion to dismiss, the court should consider the Rule 12(b)(1) challenge first because all other defenses will become moot if the court must dismiss the complaint for lack of subject matter jurisdiction. Hoyoung Song v. Klapakas, Case No. 06-05589, 2007 U.S. Dist. LEXIS 27203, at *2 (E.D. Pa. April 12, 2007) (citing In re Corestates Trust Fee Litig., 837 ...

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