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Polite v. Rendell

April 1, 2010


The opinion of the court was delivered by: Tucker, J.


Presently before this Court is Defendants' Motion to Dismiss (Doc. 10) and Plaintiff Anthony Dickerson's Response in Opposition thereto (Doc. 11)*fn1. For the reasons set forth below, the Court grants Defendants' Motion.


Though Plaintiff's Complaint primarily contains legal argument, the Court has managed to extricate the following facts and construe them in the light most favorable to him.*fn2 At all times discussed infra, Plaintiff has been an inmate in the custody of the Pennsylvania State Correctional Institution at Graterford. On or about September 29, 2008, a temporary parole moratorium was instituted in the Commonwealth of Pennsylvania concerning state inmates. The parole moratorium was lifted for non-violent offenders on October 20, 2008 and for violent offenders on December 1, 2008. At some point, though it is not clear from Plaintiff's complaint, Plaintiff filed a grievance against Defendant Warden DiGuglielmo for complying with the parole moratorium.

On June 8, 2009, Plaintiff filed a Complaint (Doc. 8) in federal court against Defendants alleging that the temporary suspension of parole injured him and violated his rights under 42 U.S.C. § 1983 ("Section 1983"). Plaintiff's Complaint contains the following claims: (1) "Parole suspension, [sic] not recognized at common law;" (2) "Parole suspension, [sic] abolishes indeterminate sentencing;" (3) "Parole suspension, [sic] does violence to the Pennsylvania Constitution;" (4) "Parole suspension [sic] violates Article 3 Section 6 of the Pennsylvania Constitution;" (5) "Parole suspension, [sic] violates ex post facto laws;" and (6) "Parole suspension, [sic] removes trial courts [sic] discretion at sentencing." Plaintiff also seeks damages under various tort theories including, inter alia, negligence, false imprisonment, and invasion of privacy.

On July 27, 2009, Defendants filed a Motion to Dismiss Plaintiff's Complaint (Doc. 10) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff filed a Response in Opposition thereto on August 11, 2009 (Doc. 11). The Court now addresses the pending motion.


A. Motion to Dismiss under Rule 12(b)(1)

Under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction may be raised at any time. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004). See also Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995) ("Federal courts have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte.") Rule 12(b)(1) challenges are either facial or factual attacks. Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 815 (D.N.J. 2008). "A facial attack questions the sufficiency of the pleading," and "[i]n reviewing a facial attack, a trial court accepts the allegations in the complaint as true." Id. However,"when a court reviews a complaint under a factual attack, the allegations have no presumptive truthfulness, and the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. See also Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

In evaluating a Rule 12(b)(l) motion, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549F.2d at 891. See also Carpet Group Int'l, 227 F.3d at 69. "[T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891. The plaintiff has the burden of proving that jurisdiction does in fact exist. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (quoting Mortensen, 549 F.2d at 891). In addition, the plaintiff must demonstrate that a controversy existed when the suit was filed and that the controversy continues to exist throughout the litigation. See Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992).

Generally, the trial court should not allow "its consideration of jurisdiction to spill over into a determination of the merits of the case." Kestelboym, 538 F. Supp. 2d at 815 (quoting Dugan v. Coastal Indus., Inc., 96 F. Supp. 2d 481, 483 (E.D. Pa. 2000)). However, a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) based on the legal insufficiency of a claim "is proper... when the claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous.'" Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). To be wholly insubstantial and frivolous, a claim must be "so... implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974).

B. Motion to Dismiss under Rule 12(b)(6)

On a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff may be entitled to relief under any reasonable reading of the pleadings. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). The question is not whether a plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support their claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Where the plaintiff is pro se, the court must construe the complaint liberally. Bush, 367 F. Supp. 2d at 725. This more liberal standard of construction means that a pro se complaint may be dismissed for failure to state a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Haines v. Kerner, 404 U.S. 519, 520-21(1972). The complaint will be deemed to allege sufficient facts if it is adequate to "put the proper defendants on notice of the essential elements of plaintiffs' cause of action." District Council 47, AFSCME v. Bradley,795 F.2d 310, 313 (3d ...

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