The opinion of the court was delivered by: Yohn, J.
Plaintiff Anthony Johnson brought this pro se civil rights action against federal District Judge Robert B. Kugler, Lee Karl, Daren B. Waite, the City of Philadelphia, and the "Third Circuit Court Eastern Dist." He seeks to proceed in forma pauperis. For the following reasons, the Court will grant plaintiff leave to proceed in forma pauperis and dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) without prejudice to plaintiff's filing an amended complaint.
Plaintiff's claims arise out of two civil lawsuits that he filed in the Eastern District of Pennsylvania. In Johnson v. City of Philadelphia, Civ. A. No. 07-3110, plaintiff sued numerous defendants, including several federal and state judges, the Eastern District of Pennsylvania, the City of Philadelphia, and the Philadelphia District Attorney. He asserted that his constitutional rights were violated by his conviction for rape and an alleged conspiracy to deny him post-conviction and habeas relief in the state and federal courts. Judge Kugler of the District of New Jersey was assigned to preside over the case. Karl of the United States Attorney's Office represented the federal judges and courts whom plaintiff sued, while Waite of the Philadelphia District Attorney's Office represented the District Attorney and an Assistant District Attorney whom plaintiff sued.
On September 10, 2010, Judge Kugler issued a Memorandum and Order
dismissing plaintiff's complaint. Plaintiff did not appeal.*fn2
Before 07-3110 was dismissed, plaintiff filed another
lawsuit, Johnson v. City of Philadelphia, Civ. A. No. 10-2800, in
which he alleged that his constitutional rights were violated in
connection with criminal proceedings initiated against him in the wake
of a domestic dispute that he had with his ex-girlfriend. Judge
Kugler, who was assigned to the case, denied plaintiff's motion to
proceed in forma pauperis without prejudice. Plaintiff did not file an
amended motion to proceed in forma pauperis nor did he
In this lawsuit, plaintiff claims that the defendants conspired to
"sabotage" 07-3110 by dismissing it through "a fraudulent order and
memorandum." (Compl. ¶ 4.) Plaintiff also claims that Judge Kugler
improperly denied the motion to proceed
in forma pauperis in 10-2800 because he lacked
Based on those allegations, plaintiff appears to be asserting due process and conspiracy claims pursuant to 42 U.S.C. §§ 1983 and 1985, and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). He seeks "reinstatement" of 10-2800 and an order granting him leave to proceed in forma pauperis so that the case may proceed; the removal of Judge Kugler from the bench; and an evidentiary hearing to designate a judge to preside over his civil rights claims.
The Court grants plaintiff leave to proceed in forma pauperis because he has satisfied the criteria set forth in 28 U.S.C. § 1915. Accordingly, 28 U.S.C. § 1915(e)(2)(B) applies. That provision requires the Court to dismiss the amended complaint if it is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune. Whether a complaint fails to state a claim under § 1915(e) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). To state a claim, a complaint must do more than recite "labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Additionally, the Court may consider matters of public record. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
To state a due process claim, plaintiff must establish that
he was deprived of a protectable interest by government action, and that the deprivation was without due process. See Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984); see also Burns v. Pa. Dep't of Corr., 544 F.3d 279, 284 (3d Cir. 2008) ("[A] procedural due process violation is complete at the moment an individual is deprived of a liberty or property interest without being afforded the requisite process."). To prevail on his conspiracy claim under § 1983 or Bivens, plaintiff must establish that persons acting under the color of law entered into an agreement to deprive him of a constitutional right. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), overruled on other grounds by, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir. 2003); Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir. 1989). "[A] plaintiff must assert facts from which a conspiratorial agreement can be inferred" and may not base his claim solely on conclusory allegations. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010).
Stripped of its bare allegations of "conspiracy" and "sabotage," the complaint fails to assert any facts that would support a due process or a conspiracy claim. The sole factual basis for plaintiff's claims is the dismissal of 07-3110 and the denial of his motion to proceed in forma pauperis in 10-2800. Nothing about those facts suggests a basis for a due process or conspiracy claim.*fn4 See Miller v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999) ("The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.") (quotations omitted); see also Dennis v. Sparks, 449 U.S. 24, 28 (1980) ("[M]erely . . . being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge."). Furthermore, to the extent plaintiff's conspiracy claim is based on § 1985, it fails because nothing in the complaint suggests that the alleged conspiracy was motivated by racial or class-based discriminatory animus. See Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
A district court should generally provide a pro se plaintiff with leave to amend unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Accordingly, plaintiff will be given the ...