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Vacek v. Pennsylvania Judicial Conduct Board

August 3, 2010

DAN L. VACEK PLAINTIFF
v.
PENNSYLVANIA JUDICIAL CONDUCT BOARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Baxter

District Judge McLaughlin

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Court grant the motion to dismiss [ECF No. 86] filed by Defendants Pennsylvania Judicial Conduct Board, Joseph A. Massa, Jr., Esq., Magisterial District Judge Dominick D. DiPaolo, Magisterial District Court Sixth Ward, Magisterial District Judge Suzanne C. Mack, and Magisterial District Court First Ward. It is further recommended that the Court grant the motion to dismiss [ECF No. 105] filed by the Pennsylvania State Police, Lt. Michael Gillelan, Ashley E. Wheeler, the Pennsylvania Motor Vehicle Department, and Janet L. Dolan. The Clerk of Courts should be directed to close this case.

II. REPORT

A. Relevant Procedural History

This case was originally filed in the United States District Court for the Middle District of Pennsylvania on June 30, 2008, and was transferred to this Court by Order of U.S. District Court Judge Yvette Kane on August 6, 2008.

Plaintiff, non-prisoner and acting pro se, has sued numerous individuals and entities alleging that his constitutional rights have been violated in a myriad of ways. Plaintiff's original complaint was 166 pages long and was accompanied by almost 400 pages of exhibits. [See ECF Nos. 1, 3, 4, 5, and 6.] On July 6, 2009, Plaintiff filed an Amended Complaint. [ECF No. 30.] The Amended Complaint is more prolix than the original complaint, but adds no new Defendants.*fn1 Plaintiff asserts claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986 and 1988.*fn2 As relief, he seeks monetary damages and what he characterizes as declaratory relief.*fn3 The named Defendants are divided into three groups:

(1) City of Erie Traffic Court/City of Erie; Erie Police Department; John Doe #1/Erie Police Department; John Doe #2/Erie Police Department; John Doe #3/Erie Police Department; Lt. Liebel; Sgt. Talarico; and Sgt. Dahlstrand (hereafter, "City Defendants"). The City Defendants, who have been dismissed from this action, were represented by the City of Erie Solicitor's Office;

(2) the Pennsylvania Judicial Conduct Board; Joseph A. Massa, Jr., Esq., who is the Chief Counsel for the Judicial Conduct Board; the Magisterial District Courts for the First and Sixth Wards; Magisterial District Judge Suzanne C. Mack, who is the judge for Magisterial District Court 06-1-01 in Erie County, Pennsylvania; and Dominick D. DiPaolo, who is the judge for Magisterial District Court 06-1-05 in Erie County, Pennsylvania (hereafter, "Judicial Defendants"). The Judicial Defendants are represented by the Administrative Office of the Pennsylvania Courts; and, (3) the Pennsylvania State Police; Lt. Michael Gillelan; State Police "staffed employee" Ashley E. Wheeler; the Pennsylvania "Motor Vehicle Department"*fn4; and, its Director, Janet L. Dolan (hereafter, "Commonwealth Defendants"). The Commonwealth Defendants are represented by the Office of the Attorney General of the Commonwealth of Pennsylvania.

Each group of Defendants filed their own motion to dismiss. On February 2, 2010, I issued a Report and Recommendation [ECF No. 108] that the Court: (1) grant the motion to dismiss filed by the City Defendants; and (2) dismiss Claim 12 of the Amended Complaint, which alleged the "Denial of Property Rights to Cause of Action in violation of 42 U.S.C. § 1982" and which Plaintiff brought against all named Defendants in both their individual and official capacities. By Memorandum Order dated March 4, 2010 [ECF No. 110], that Report and Recommendation was adopted by the Court, as modified therein. The City Defendants were dismissed from this case and Count 12 was dismissed in its entirety against all Defendants in both their individual and official capacities.

This Report and Recommendation addresses the motion to dismiss filed by the Judicial Defendants [ECF No. 86] and the motion to dismiss filed by the Commonwealth Defendants [ECF No. 105]. They seek in their respective motions the dismissal of this entire action against them. Plaintiff has not filed an Opposition to either motion to dismiss.

B. Standards Of Review

1. Pro Se Pleadings

Pro se pleadings, "however inartfully pleaded,"must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 647 (7th Cir. 1992); Freeman v. Dep't of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

2. Motion to Dismiss Pursuant to 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

The Court need not accept inferences drawn by Plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, ___ U.S. at ___, 129 S.Ct. at 1949 ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, No. 07-cv-528, 2008 WL 482469, at *1 (D.Del. Feb. 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "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, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 (internal quotations omitted).

Recently, the United States Court of Appeals for the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:

To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct."

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - that the pleader is entitled to relief." This "plausibility" requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Fowler v. UPMC Shadyside, 578 F.3d. 203, 210-11 (3d Cir. 2009) (internal quotations and citations ...


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