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Kalomiris v. Monroe County Syndicate

January 8, 2009

ANASTASIOS [TOMMY] KALOMIRIS, PLAINTIFF
v.
THE MONROE COUNTY SYNDICATE, ELMER D. CHRISTINE, JR., DEBBY YORK, JENNIFER FORD, JENNA FIORENTINO, JODI HAZEN, CHARLES HAZEN, KERRY KNAPP, JACKIE WENTZEL, ROBERT CUVO, JR., KARRI DODSON, MICHAEL R. MUTH, MARK MATTHEWS, WILLIAM KOEHLER, ROBERT LAUDENSLAGER, RICHARD H. SALTER, III, MARTHA MILLER, JOSEPH, MILLER, JEFF KNITTER, ROBIN COSTENBADEN, LINDA WALLACH MILLER, CHRISTOPHER J. O'DONNELL, AND GEORGE WARDEN, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Pro se plaintiff Anastasios Kalomiris ("Kalomiris") brings the instant action, alleging numerous racketeering and civil rights violations arising from his arrest and prosecution for disorderly conduct on two occasions in the spring of 2006. Among defendants are residents, public officials, and community members of the greater East Stroudsburg area of Monroe County, Pennsylvania. Defendants have collectively filed six motions to dismiss (Docs. 9, 11, 14, 16, 18, 24) the complaint on various procedural and substantive grounds. For the reasons that follow, Kalomiris's claims against the moving defendant will be dismissed, and he will be permitted to file an amended complaint against a limited number of defendants.

I. Factual Background*fn1

The alleged infringements of Kalomiris's rights arise from two incidents that occurred at Penelope's Diner, located in Monroe County, on March 17 and May 14, 2006.*fn2 (Doc. 1 ¶¶ 9, 20.)*fn3 Kalomiris's ex-wife, Arlene Dunn ("Dunn"), owns the diner and employs Kalomiris as a cook and server. (Id. ¶¶ 8, 13.) Kalomiris is Dunn's sole employee. (Id. ¶ 18.)

A. The March 17, 2006 Incident*fn4

On March 17, 2006, Jennifer Ford and Jenna Fiorentino (hereinafter collectively "Ford and Fiorentino") were driving on Route 115 near Penelope's Diner when their car ran out of gasoline. They maneuvered the stalled automobile into the diner's driveway, blocking vehicular access to the parking lot.*fn5 Defendant Charles Hazen ("Hazen") arrived at the scene and identified himself as a police officer,*fn6 presumably for the purpose of assisting Ford and Fiorentino. (Id. ¶ 30.)

For reasons unspecified in the complaint, Hazen requested Kalomiris's driver's license, vehicle registration, and social security number. (Id. ¶¶ 30, 39.) A tussle ensued between Kalomiris and Hazen during which Hazen radioed for assistance and Kalomiris received a laceration above his right eye. (Id.) Hazen also damaged the diner's pickup truck in an amount of approximately $1,000. (Id. ¶ 30.)

Defendant Police/Fire Captain Jeff Knitter ("Knitter") and defendant Pennsylvania State Troopers Robert Cuvo ("Cuvo") and Karri Dodson ("Dodson") responded to the diner. (Id. ¶¶ 31, 41, 48-49.) Cuvo parked his police cruiser in the driveway, further obstructing access to the restaurant. (Id. ¶ 41.) Kalomiris asked Cuvo to move his automobile, and Cuvo initially refused until Kalomiris and Dunn called the police barracks to request that he be instructed to do so. (Id. ¶¶ 42, 44.) Police dispatchers apparently relayed the request, and Cuvo moved the vehicle. (Id. ¶ 45.) While at the diner, Cuvo purportedly demanded Kalomiris's driver's license and social security number. (Id. ¶¶ 46-48.) Kalomiris provided the former but refused to divulge the latter. As a result, Cuvo allegedly informed him that he would receive a citation for disorderly conduct as a result of his conduct during the incident. (Id. ¶ 49.) Dodson also participated in the incident, ordering Kalomiris to "shut up" on several occasions. (Id. ¶¶ 48-49.) At some point, Knitter allegedly assaulted Kalomiris, causing unspecified injuries. (Id. ¶ 31.) Kalomiris avers that he remained calm throughout these events and did not provoke any of defendants. (Id. ¶¶ 22, 27, 40, 43.)

B. The May 14, 2006 Incident

Misfortune again beset Penelope's Diner on the evening of May 14, 2006, when defendant spouses Martha and Joseph Miller (hereinafter respectively "Martha" and "Joseph") and their family were finishing a meal at Penelope's Diner with Joseph's mother, Frances Miller ("Frances").*fn7 (Id. ¶ 51.) Near the end of the meal, Frances began to choke while drinking water. (Id. ¶ 56.) Martha, a registered nurse, directed Joseph to call 911 while she positioned Frances on the floor with the elder woman's head between her knees. (Id. ¶¶ 57-58.) Joseph reported the emergency and retreated to the parking lot to signal the soon-to-arrive ambulance. (Id.)

Kalomiris noticed the developing emergency as Martha was moving Frances to the floor. He was aware that Frances, a regular patron at Penelope's Diner, occasionally had difficulty swallowing liquids. (Id. ¶ 54.) Upon noticing Frances's distress, he attracted Dunn's attention by shouting, "Do the Wilma," a code phrase suggesting that Dunn move Frances to a lateral position. (Id. ¶ 59.) Dunn followed the suggestion, and water flowed from Frances's mouth. (Id.)

Emergency personnel arrived on the scene as Frances was recuperating. (Id. ¶ 60. ) An emergency medical technician ("EMT") measured her blood pressure while another attempted to move a stretcher into the restaurant. (Id. ¶ 61.) The doorway was not wide enough to accommodate the stretcher, and the EMT cracked the diner's entrance window while attempting to force it inside. (Id.) For reasons unspecified in the complaint, one of the EMTs then allegedly "grabbed [Kalomiris] by his apron, dragged him outside, and began punching, battering . . . and assaulting him." (Id. ¶ 62 (ellipsis in original); see also id. ¶ 65.) The EMTs vacated the premises after verifying that Frances was not in immediate danger.

C. Kalomiris's Criminal Proceedings

Kalomiris received two disorderly conduct citations for his conduct during the March 17 and May 14 incidents. (Id. ¶ 66.) Cuvo issued the first citation, and Dodson issued the second.*fn8 (Id. ¶ 49; Doc. 38, Ex. C.) The complaint is unclear about the precise nature of the ensuing criminal proceedings but alleges that the participants therein exhibited bias against him. It describes the criminal prosecution as follows:

Magistrates York and Muth . . . and Judge Linda Wallach Miller, as well as Assistant District Attorney Matthews[,] exceeded their authority and used threats and abusive, intimidating actions, and prejudicial conduct towards this Complainant by maliciously constructing false statements that seriously alleged that he was well-known within the system [their "just us" system].

Also, Justice Muth and Judge Miller used threats and judgment [sic] based upon neither law nor facts, and held this Complainant up to public ridicule and humiliation throughout The Poconos.

In essence, this Complainant clearly became just another one of their needed dupes slated for selective enforcement and selective prosecution - above and beyond their authority . . . as well as the existing statutes would dare allow.

Additionally: This Complainant has subsequently been unjustly cited with "disorderly conduct" . . . which he certainly did not commit, and tried unsuccessfully to fight this false indictment in Magistrate's court - resulting in only being further victimized by District Justice Michael Muth. (Doc. 1 ¶¶ 25-27, 66 (all emphasis, brackets, and ellipses in original except first alteration and notation of "[sic]")).

The state court criminal dockets bring clarity to these allegations. The March 17 and May 14 charges against Kalomiris were originally assigned to non-defendant Magisterial District Judge JoLana Krawitz and defendant Magisterial District Judge Debby A. York ("Judge York"),*fn9 both of whom recused due to potential conflicts of interest.*fn10 Both cases were reassigned to defendant Magisterial District Judge Michael R. Muth ("Judge Muth"), who presided over separate trials for each charge on July 24, 2006. (Doc. 41, Exs. 1-2.)*fn11 Defendant Assistant District Attorney Mark Matthews ("Attorney Matthews") appeared for the Commonwealth, and Kalomiris proceeded pro se. (Id.) He was convicted of disorderly conduct in both proceedings. (Doc. 1 ¶¶ 22, 28, 66; Doc. 41, Ex. 1 at 141; Doc. 41, Ex. 2 at 104.)

Kalomiris then filed a summary appeal with the Monroe County Court of Common Pleas, where defendant George Warden ("Warden") is the Clerk of Court. (Doc. 1 ¶ 17.) Judge Linda Wallach Miller ("Judge Wallach Miller") presided over the appeal.*fn12 (Doc. 41, Ex. 3.) Attorney Matthews again represented the Commonwealth, and Kalomiris retained a private attorney, defendant Christopher O'Donnell ("Attorney O'Donnell"), to represent him. (Doc. 1 ¶ 29.) On September 20, 2006, the court found Kalomiris guilty of the disorderly conduct charge arising from the May 14 incident, for which he was fined $300 in addition to court costs. (Doc. 41, Ex. 3 at 1, 36.)*fn13 All charges associated with the March 17 incident were dismissed. (Doc. 31 at 5; Doc. 41, Ex. 3 at 37.)*fn14 At the conclusion of proceedings, Attorney O'Donnell allegedly informed Kalomiris that "he was doomed from the very beginning." (Doc. 1 ¶ 29.)

D. Procedural History

Kalomiris commenced the instant matter on March 24, 2008 by filing a complaint with this court. He alleges that all defendants, including eight against whom the complaint lodges no factual averments, are members of a conspiracy that he has denominated "The Monroe County Syndicate." (Id. ¶¶ 4, 74.) The complaint advances claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO" or "the Act"), 18 U.S.C. §§ 1961-1968, and for violations of constitutional rights pursuant to 42 U.S.C. § 1983. Defendants have filed six separate motions to dismiss on various grounds. The parties have fully briefed these motions, which are now ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to "give the defendant notice of what the ... claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, --- U.S. ---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, 550 U.S. 544, ---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at ---, 127 S.Ct. at 1965). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

Kalomiris alleges that defendants engaged in racketeering activity and violated his civil rights, exposing them to liability under RICO and 42 U.S.C. § 1983. Defendants have raised numerous defenses to his claims, including inter alia the statue of limitations, favorable termination rule, and prosecutorial and judicial immunity. Cuvo and Dodson also challenge the sufficiency of service. The court will first assess plaintiff's RICO claims followed by the civil rights allegations. Issues of service are addressed at the end of this memorandum.*fn15

A. RICO Claims

RICO prohibits "any person . . . associated with any enterprise engaged in . . . interstate or foreign commerce[ from] conduct[ing] or participat[ing], directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity." 18 U.S.C. § 1962(c). The Act authorizes persons whose "business or property" has been injured to enforce RICO through private suits for money damages. Id. § 1964(c). To establish a RICO claim, a plaintiff must demonstrate: (1) "the existence of an enterprise affecting interstate commerce," (2) "that the defendant was employed by or associated with the enterprise," (3) "that the defendant participated, either directly or indirectly, in the conduct of the affairs of the enterprise," and (4) that the defendant's participation involved a pattern of at least two criminal acts of racketeering, known as "predicate acts." Bailey v. Reed, 29 F. App'x 874, 875 (3d Cir. 2002) (quoting Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989)).

The latter element of the offense requires that the defendant perform two or more crimes within the statutorily delineated list of predicate acts. See 18 U.S.C. § 1961(1). A plaintiff must establish all elements of the predicate act crimes in addition to the elements enumerated within RICO. See Warden v. McKelland, 288 F.3d 105, 114 (3d Cir. 2002) (requiring RICO plaintiff to "establish a 'pattern' of . . . predicate acts[] and demonstrate that the scheme caused injury"); Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 521-29 (3d Cir. 1998) (setting aside verdict imposing liability under § 1692(c) because plaintiffs failed to prove the defendants engaged in the alleged predicate acts). The predicate acts must be committed by a racketeering enterprise*fn16 rather than by disparate and unassociated individuals, and the mere existence of predicate acts, without more, does not establish an enterprise. United States v. Console, 13 F.3d 641, 650 (3d Cir. 1993).

In the matter sub judice, Kalomiris's RICO claim is irreparably deficient in at least two respects. First, Kalamoris lacks standing to maintain a RICO action. RICO requires that the plaintiff sustain injury to "business or property." 18 U.S.C. § 1964(c). Personal injuries, loss of earnings, and other indirect injuries do not confer standing under RICO. See Anderson v. Ayling, 396 F.3d 265, 270-71 (3d Cir. 2005) (upholding dismissal of the plaintiffs' RICO claims because the complaint failed to allege a direct, causal link between the plaintiff's loss of employment and the alleged racketeering activity); Genty v. Resolution Trust Corp., 937 F.2d 899, 918-19 (3d Cir. 1991) (concluding that personal injuries cannot confer standing under RICO). Kalomiris contends that Penelope's Diner has lost business as a result of defendants' actions, (Doc. 1 ¶ 8); however, he avers that Dunn-who is not a party hereto-is the proprietor and sole owner of the diner, (id. ¶¶ 16-17). Defendants' actions have not jeopardized Kalomiris's employment at the diner,*fn17 and the complaint fails to allege any injury to a property or business that he owns. The complaint therefore contains no averment of a direct, cognizable harm to Kalomiris for which RICO provides a remedy.

Second, Kalomiris has not alleged predicate acts that demonstrate a "pattern of racketeering activity." 18 U.S.C. § 1962(c). The complaint does not reflect either the intent or activity necessary to criminal culpability and merely raises vague, unsubstantiated allegations of collusion among defendants. It does not allege that they perpetrated any of the predicate acts identified in § 1961(1), that they engaged in a pattern of criminal conduct, that they participated in a centralized racketeering organization, or that they conspired against Kalomiris. Indeed, it alleges little more than a "metaphysical possibility" of relief under RICO. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Ridge at Red Hawk, L.L.C. v. Schneider, 491 F.3d 1174, 1177 (10th Cir. 2007)). The complaint raises no "'reasonable expectation that discovery will reveal evidence of' the necessary element[s]" of a RICO claim. Id. (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, ---, 127 S.Ct. 1955, 1965 (2007)). All of the motions to dismiss will be granted with respect to RICO liability. Leave to amend will be denied as futile in light of the frivolous nature of the RICO claim. See Grayson v. ...


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