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Harding v. Oshea

United States District Court, M.D. Pennsylvania

September 11, 2014

JOSHUA MOSHA HARDING, Plaintiff,
v.
JAMES PATRICK OSHEA, III, et al., Defendants.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Statement of Facts and of the Case

On March 13, 2014, the plaintiff, acting pro se, filed this federal civil rights action from the confines of the York County Prison. In his initial complaint, Harding sued his arresting officers, alleging that he suffered serious injuries due to excessive force used by police in effecting his arrest. (Id.) Along with this pro se complaint, Harding filed a motion for leave to proceed in forma pauperis, (Doc. 7.), which we granted.

Prior to service of this complaint, or the filing of any responsive pleadings by the original defendants, Harding filed an amended complaint, (Doc. 16-1.), which adds institutional defendants, including the Pennsylvania State Police, the Conewago Township Police Department and Adams County. (Id.) While we granted Harding leave to amend his complaint, we also placed Harding on notice that this amended complaint would be subject to a screening review and that certain claims and defendants may be subject to dismissal.

As a pro se litigant the plaintiff was also advised by this Court at this outset of this lawsuit of his responsibilities in this litigation. Thus, on March 14, 2014, the District Court entered its Standing Practice Order in this case, an order which informed the plaintiff of his responsibility to reply to defense motions, and warned him in clear and precise terms of the consequences which would flow from a failure to comply with briefing schedules on motions, stating:

If the party opposing the motion does not file his or her brief and any evidentiary material within the 14-day time frame, Local Rule 7.6 provides that he or she shall be deemed not to oppose the moving party's motion. The motion may, therefore, be granted if: (1) the court finds it meritorious; or (2) the opposing party fails to comply with Local Rule 7.6 despite being ordered to do so by the court.

(Doc. 4, p. 2.)

Following the filing of this amended complaint by Harding, on a screening review of that amended complaint, we recommended dismissal of the Pennsylvania State Police as an institutional defendant. (Doc. 19.) The District Court adopted this recommendation, and dismissed the state police from this action on July 10, 2014.

The complaint was then served upon the remaining defendants and defendant Adams County moved to dismiss the amended complaint on August 19, 2014. (Docs. 28 and 29.) In its motion Adams County aptly noted that, other than naming the county as a defendant in the caption of the case, the complaint contains no well-pleaded factual allegations against the county as a defendant. The plaintiff has not responded to this motion and the time for responding has now passed. Therefore, in the absence of any timely response by the plaintiff, we will deem this motion to be ripe for resolution.

For the reasons set forth below, we recommend that this motion to dismiss be granted. Further, upon an additional screening assessment of the amended complaint we recommend that the Conewago Township Police Department also be dismissed as an institutional defendant.

II. Discussion

A. Under The Rules of This Court This Motion to Dismiss Filed by Adams County Should Be Deemed Unopposed and Granted

At the outset, under the Local Rules of this Court the plaintiff should be deemed to concur in Adams County's motion to dismiss, since the plaintiff has failed to timely oppose the motion, or otherwise litigate this case. This procedural default completely frustrates and impedes efforts to resolve this matter in a timely and fair fashion, and under the Rules of this Court warrants dismissal of the action, since Local Rule 7.6 of the Rules of this Court imposes an affirmative duty on the plaintiff to respond to motions and provides that

Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief, or, if a brief in support of the motion is not required under these rules, within seven (7) days after service of the motion. Any party who fails to comply with this rule shall be deemed not to oppose such motion. Nothing in this rule shall be construed to limit the authority of the court to grant any motion before expiration of the prescribed period for filing a brief in opposition. A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.

Local Rule 7.6 (emphasis added).

It is now well-settled that "Local Rule 7.6 can be applied to grant a motion to dismiss without analysis of the complaint's sufficiency if a party fails to comply with the [R]ule after a specific direction to comply from the court.' Stackhouse v. Mazurkiewicz , 951 F.2d 29, 30 (1991)." Williams v. Lebanon Farms Disposal, Inc., No. 09-1704 , 2010 WL 3703808, *1 (M.D. Pa. Aug.26, 2010). In this case the plaintiff has not complied with the Local Rules, or this Court's Standing Practice Order, by filing a timely response to this motion. Therefore, these procedural defaults by the plaintiff compel the Court to consider:

[A] basic truth: we must remain mindful of the fact that "the Federal Rules are meant to be applied in such a way as to promote justice. See Fed.R.Civ.P. 1. Often that will mean that courts should strive to resolve cases on their merits whenever possible. However, justice also requires that the merits of a particular dispute be placed before the court in a timely fashion...." McCurdy v. American Bd. of Plastic Surgery , 157 F.3d 191, 197 (3d Cir.1998).

Lease v. Fishel , 712 F.Supp.2d 359, 371 (M.D.Pa. 2010).

With this basic truth in mind, we acknowledge a fundamental guiding tenet of our legal system. A failure on our part to enforce compliance with the rules, and impose the sanctions mandated by those rules when the rules are repeatedly breached, "would actually violate the dual mandate which guides this Court and motivates our system of justice: that courts should strive to resolve cases on their merits whenever possible [but that] justice also requires that the merits of a particular dispute be placed before the court in a timely fashion'." Id . Therefore, we are obliged to ensure that one party's refusal to comply with the rules does not lead to an unjustified prejudice to those parties who follow the rules.

These basic tenets of fairness apply here. In this case, the plaintiff has failed to comply with Local Rule 7.6 by filing a timely response to this summary judgment motion. These failures now compel us to apply the sanction called for under Rule 7.6 and deem the plaintiff to not oppose this dispositive motion filed by Adams County.

B. Dismissal of Adams County as Defendant in this Case is also Warranted Under Rule 41

Beyond the requirements imposed by the Local Rules of this Court, Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss a civil action for failure to prosecute, stating that: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b). Decisions regarding dismissal of actions for failure to prosecute rest in the sound discretion of the Court, and will not be disturbed absent an abuse of that discretion. Emerson v. Thiel College , 296 F.3d 184, 190 (3d Cir. 2002)(citations omitted). That discretion, however, while broad is governed by certain factors, commonly referred to as Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:

To determine whether the District Court abused its discretion [in dismissing a case for failure to prosecute], we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co. , 747 F.2d 863, 868 (3d Cir.1984).

Emerson , 296 F.3d at 190.

In exercising this discretion "there is no magic formula' that we apply to determine whether a District Court has abused its discretion in dismissing for failure to prosecute." Lopez v. Cousins , 435 F.Appx. 113, 116 (3d Cir. 2011)(quoting Briscoe v. Klem , 538 F.3d 252 (3d Cir. 2008)) Therefore, "[i]n balancing the Poulis factors, [courts] do not [employ] a... mechanical calculation' to determine whether a District Court abused its discretion in dismissing a plaintiff's case. Mindek v. Rigatti , 964 F.2d 1369, 1373 (3d Cir.1992)." Briscoe v. Klaus , 538 F.3d at 263. Consistent with this view, it is well-settled that "no single Poulis factor is dispositive, ' Ware , 322 F.3d at 222, [and it is] clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek , 964 F.2d at 1373." Briscoe v. Klaus , 538 F.3d at 263. Moreover, recognizing the broad discretion conferred upon the district court in making judgments weighing these six factors, the court of appeals has frequently sustained such dismissal orders where there has been a pattern of dilatory conduct by a pro se litigant who is not amenable to any lesser sanction. See, e.g., Emerson v. Thiel College, supra ; Tillio v. Mendelsohn , 256 F.Appx. 509 (3d Cir. 2007); Reshard v. Lankenau Hospital , 256 F.Appx. 506 (3d Cir. 2007); Azubuko v. Bell National Organization , 243 F.Appx. 728 (3d Cir. 2007).

In this case, a dispassionate assessment of the Poulis factors weighs heavily in favor of dismissing this action. At the outset, a consideration of the first Poulis factor, the extent of the party's personal responsibility, shows that the delays in this case are attributable to the plaintiff, who has failed to abide by court orders, or respond to this defense motion.

Similarly, the second Poulis factor-the prejudice to the adversary caused by the failure to abide by court orders-also calls for dismissal of this action. Indeed, this factor-the prejudice suffered by the party seeking sanctions-is entitled to great weight and careful consideration. As the United States Court of Appeals for the Third Circuit has observed:

"Evidence of prejudice to an adversary would bear substantial weight in support of a dismissal or default judgment." Adams v. Trustees of N.J. Brewery Employees' Pension Trust Fund , 29 F.3d 863, 873-74 (3d Cir.1994) (internal quotation marks and citation omitted). Generally, prejudice includes "the irretrievable loss of evidence, the inevitable dimming of witnesses' memories, or the excessive and possibly irremediable burdens or costs imposed on the opposing party." Id . at 874 (internal quotation marks and citations omitted).... However, prejudice is not limited to "irremediable" or "irreparable" harm. Id .; see also Ware v. Rodale Press, Inc. , 322 F.3d 218, 222 (3d Cir.2003); Curtis T. Bedwell & Sons, Inc. v. Int'l Fidelity Ins. Co. , 843 F.2d 683, 693-94 (3d Cir.1988). It also includes "the burden imposed by impeding a party's ability to prepare effectively a full and complete trial strategy." Ware , 322 F.3d at 222.

Briscoe v. Klaus , 538 F.3d at 259-60.

In this case the plaintiff's failure to litigate this motion to dismiss now wholly frustrates and delays the resolution of this action with respect to Adams County. In such instances, this defendant is plainly prejudiced by the plaintiff's continuing inaction and dismissal of the case clearly rests in the discretion of the trial judge. Tillio v. Mendelsohn , 256 F.Appx. 509 (3d Cir. 2007) (failure to timely serve pleadings compels dismissal); Reshard v. Lankenau Hospital , 256 F.Appx. 506 (3d Cir. 2007) (failure to comply with discovery compels dismissal); Azubuko v. Bell National Organization , 243 F.Appx. 728 (3d Cir. 2007) (failure to file amended complaint prejudices defense and compels dismissal).

When one considers the third Poulis factor-the history of dilatoriness on the plaintiff's part-it becomes clear that dismissal of this action is now appropriate. In this regard, it is clear that "[e]xtensive or repeated delay or delinquency constitutes a history of dilatoriness, such as consistent non-response..., or consistent tardiness in complying with court orders.' Adams , 29 F.3d at 874." Briscoe v. Klaus , 538 F.3d at 260-61 (some citations omitted). Here, the plaintiff has failed to respond to a potentially dispositive defense motion, despite having been advised in the Court's Standing Practice Order of his obligations in this regard. Thus, the plaintiff's conduct begins to display "consistent non-response..., or consistent tardiness in complying with court orders." Adams, 9 F.3d at 874.

The fourth Poulis factor-whether the conduct of the party or the attorney was willful or in bad faith-also cuts against the plaintiff in this case. n this setting we must assess whether this conduct reflects mere inadvertence or willful conduct, in that it involved "strategic, " "intentional or self-serving behavior, " and not mere negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund , 29 F.3d 863, 875 (3d Cir.1994). At this juncture, when the plaintiff has failed to comply with instructions of the Court directing the plaintiff to take specific actions in this case, and has violated the Local Rules, the Court is compelled to conclude that the plaintiff's actions are not accidental or inadvertent but instead reflect an intentional disregard for this case and the Court's instructions.

While Poulis also enjoins us to consider a fifth factor, the effectiveness of sanctions other than dismissal, cases construing Poulis agree that in a situation such as this case, where we are confronted by a pro se litigant who will not comply with the rules or court orders, lesser sanctions may not be an effective alternative. See, e.g., Briscoe v. Klaus , 538 F.3d 252, 262-63 (3d Cir. 2008); Emerson , 296 F.3d at 191. This case presents such a situation where the plaintiff's status as a pro se litigant severely limits the ability of the court to utilize other lesser sanctions to ensure that this litigation progresses in an orderly fashion. In any event, by entering our prior order, counseling the plaintiff on his obligations in this case, we have endeavored to use lesser sanctions, but to no avail. The plaintiff still declines to obey court orders, and otherwise ignores his responsibilities as a litigant. Since lesser sanctions have been tried, and have failed, only the sanction of dismissal remains available to the Court.

Finally, under Poulis we are cautioned to consider one other factor, the meritoriousness of the plaintiff's claims. In our view, however, consideration of this factor cannot save this particular plaintiff's claims, since the plaintiff is now wholly non-compliant with his obligations as a litigant. The plaintiff cannot refuse to address the merits of his claims, and then assert the untested merits of these claims as grounds for denying a motion to sanction him. Furthermore, it is well-settled that "no single Poulis factor is dispositive, ' Ware , 322 F.3d at 222, [and it is] clear that not all of the Poulis factors need be satisfied in order to dismiss a complaint.' Mindek , 964 F.2d at 1373." Briscoe v. Klaus , 538 F.3d at 263. Therefore, the untested merits of the non-compliant plaintiff's claims, standing alone, cannot prevent imposition of sanctions.

In any event, as discussed below, the plaintiff's claims against Adams County clearly fail on their merits, yet another factor which favors dismissal of this action. The legal flaws inherent in these claims are discussed separately below.

C. The Plaintiff's Claims Against Adams County Fail on Their Merits

In any event we note that Harding has failed to allege a claim against Adams County upon which relief may be granted. As the county aptly notes in its motion to dismiss, Harding lists the county as a defendant in the caption of his amended complaint, but the amended complaint contains absolutely no well-pleaded facts relating to the county. This will not do. Harding's curious pleading style of naming this defendant in the caption of the case, but not describing its conduct by name in the body of his pleading, is legally insufficient to state a claim. See Walthour v. Child & Youth Servs. , 728 F.Supp.2d 628, 636 (E.D. Pa. 2010)(dismissing claims against defendants only identified in exhibits attached to complaint). This cursory style of pleading is plainly inadequate to state a claim against this institutional defendant and compels dismissal of this defendant. Hudson v. City of McKeesport , 244 F.Appx. 519 (3d Cir. 2007)(affirming dismissal of defendant who was only named in caption of case.)

Further, to the extent that Harding seeks to hold the county liable for alleged civil rights violations, he must meet an exacting burden of pleading and proof. It is well-settled that local governmental entities may not be held liable under § 1983 for the acts of others under a theory of respondeat superior or vicarious liability. Ashcroft v. Iqbal , 556 U.S. 662 (2009); see also Colburn v. Upper Darby Twp. , 946 F.2d 1017, 1027 (3d Cir. 1991). Instead, such an agency may only be held liable "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 694 (1978).

Thus, to sustain a claim against this institutional defendant, a plaintiff must "identify a... policy' or custom' that caused the plaintiff's injury." Bd. of County Comm'rs of Bryan County v. Brown , 520 U.S. 397, 403 (1997). This custom must be "so widespread as to have the force of law." Id . at 404; see also Beck v. City of Pittsburgh , 89 F.3d 966, 971 (3d Cir. 1996) (a policy is an official proclamation or edict of a municipality, while a custom is a practice that is "so permanent and well settled as to virtually constitute law") (quoting Andrews v. City of Phila. , 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). The plaintiff must further "allege that a policy or custom' of [the defendants] was the moving force' behind the [constitutional] violation." Grayson v. Mayview State Hosp. , 293 F.3d 103, 107 (3d Cir. 2002) (citing Brown , 520 U.S. at 404). A municipality can be held liable on the basis of failure to train when "that failure amounts to deliberate indifference... [of the constitutional] rights of persons....'" Woloszyn v. County of Lawrence , 396 F.3d 314, 324 (3d Cir. 2005) (citations omitted). There must also be a causal nexus, in that the "identified deficiency in [the] training program must be closely related to the ultimate [constitutional] injury.'" Id . at 325 (citations omitted). Therefore, analysis of a claim under Monell requires separate analysis of two distinct issues: "(1) whether plaintiff's harm was caused by a constitutional violation, and (2) if so whether the [municipality] is responsible for that violation." Collins v. City of Harker Heights, Texas , 503 U.S. 115, 120 (1992).

An institutional defendant may also be liable for constitutional violations resulting from inadequate training or supervision of its employees if the failure to train amounts to a custom of the municipality. However, failure-to-train claims also must meet precise and demanding legal criteria. Such a failure must "amount[] to deliberate indifference to the constitutional rights of persons with whom the police come in contact." Colburn , 946 F.2d at 1028 (citing City of Canton v. Harris , 489 U.S. 378, 388 (1989)). Proving agency liability on a theory of deliberate indifference is an especially difficult showing for a plaintiff to satisfy where the plaintiff has alleged that insufficient training or supervision has caused constitutional violations. Reitz v. County of Bucks , 125 F.3d 139, 145 (3d Cir. 1997). Such a showing requires that "(1)... lawmakers know that employees will confront a similar situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights." Carter v. City of Phila. , 181 F.3d 339, 357 (3d Cir. 1999). Moreover, the plaintiff proceeding on such a theory must establish that the agency's "deliberate conduct... was the moving force' behind the injury alleged." Reitz , 125 F.3d at 145 (quoting Brown , 520 U.S. at 404). Therefore, the need for training, supervision, or other corrective action to avoid imminent deprivations of a constitutional right "must be so apparent that any reasonable policymaker or supervisor would have taken appropriate preventive measures." Horton v. City of Harrisburg, No. 06-2338 , 2009 U.S. Dist. LEXIS 63428, *13 (M.D. Pa. July 23, 2009) (quoting Strauss v. Walsh, No. Civ. A. 01-3625 , 2002 U.S. Dist. LEXIS 24717, 2002 WL 32341791, at *3 (E.D. Pa. Dec. 17, 2002)). Additionally, in order to recover for municipal liability on a failure-to-train theory, the alleged failure must be "closely related to the ultimate (constitutional) injury." Woloszyn , 396 F.3d at 325.

The Supreme Court has reaffirmed the exacting guiding principles which define institutional civil rights liability based upon a failure to train or oversee law enforcement officers. In Connick v. Thompson, ___ U.S. ___ , 131 S.Ct. 1350, 1359 (2011), the Court described the parameters of agency liability in the following terms:

A municipality or other local government may be liable...if the governmental body itself "subjects" a person to a deprivation of rights or "causes" a person "to be subjected" to such deprivation. See Monell v. New York City Dept. of Social Servs. , 436 U.S. 658, 692 (1978). But, under § 1983, local governments are responsible only for "their own illegal acts." Pembaur v. Cincinnati , 475 U.S. 469, 479(1986).... They are not vicariously liable under § 1983 for their employees' actions.... Plaintiffs who seek to impose liability on local governments under § 1983 must prove that "action pursuant to official municipal policy" caused their injury. Monell , 436 U.S., at 691. Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law These are "action[s] for which the municipality is actually responsible." Pembaur, supra, at 479-480. In limited circumstances, a local government's decision not to train certain employees about their legal duty to avoid violating citizens' rights may rise to the level of an official government policy for purposes of § 1983. A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. See Oklahoma City v. Tuttle , 471 U.S. 808, 822-823 (1985) (plurality opinion) ("[A] policy' of inadequate training'" is "far more nebulous, and a good deal further removed from the constitutional violation, than was the policy in Monell "). To satisfy the statute, a municipality's failure to train its employees in a relevant respect must amount to "deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.".... Only then "can such a shortcoming be properly thought of as a city policy or custom' that is actionable under § 1983.... "[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.".... Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.

Id. (some citations deleted).

Here, this amended complaint simply does not make sufficient allegations which would permit a finding of institutional liability against the county. With respect to these institutional liability claims, in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) Id . at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id . Fairly construed, these pleadings amount to nothing more than a formulaic recitation of the elements of a cause of action, a form of pleading that will not do. Therefore, Harding's claims against the county as an institutional defendant fail as a matter of law.

D. The Conewago Township Police Department Should Also Be Dismissed from this Action

Further, upon a continuing screening analysis of this complaint, we also conclude that the Conewago Township Police Department should be dismissed from this action. This Court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, when reviewing in forma pauperis complaints, 28 U.S.C. § 1915(e)(2)(B)(ii) specifically enjoins us to "dismiss the complaint at any time if the court determines that... the action... fails to state a claim upon which relief may be granted." This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6).

With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal ___ U.S. ___ , 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside , 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc. , 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a... plaintiff can prove facts that the... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters , 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id . at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal , 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:

[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.

Fowler , 578 F.3d at 210-11.

As the court of appeals has observed: "The Supreme Court in Twombly set forth the plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege enough facts to state a claim to relief that is plausible on its face.' Twombly , 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal , 129 S.Ct. at 1949 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing more than a sheer possibility that a defendant has acted unlawfully.' Id . A complaint which pleads facts merely consistent with' a defendant's liability, [ ] stops short of the line between possibility and plausibility of "entitlement of relief."'" Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S.Ct. 1861 , 182 L.Ed.2d 644 (U.S. 2012).

In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal , 129 S.Ct. at 1947. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.' Id . at 1950. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Tp. , 629 F.3d 121, 130 (3d Cir. 2010).

Judged against these benchmarks, we note that the Conewago Township Police Department also is not be a proper institutional defendant in this civil rights action since police departments serve only as an administrative arm of a municipality, and it is a municipality through which any liability must flow to the police department. Indeed, it has been repeatedly held that a police department is not a "person" for purposes of § 1983 and therefore is not a proper defendant in a § 1983 action. Blackwell v. Middletown Borough Police Dep't, 1:12-CV-825, 2012 WL 6012568 (M.D. Pa. Nov. 16, 2012), report and recommendation adopted, 1:12-CV-825, 2012 WL 6002689 (M.D. Pa. Nov. 30, 2012), citing Golya v. Golya , 2007 U.S. Dist. LEXIS 58093, *29-30 (M.D.Pa.2007) (explaining that courts within the Third Circuit have concluded that a police department is merely a sub-unit of the local government and is not amenable to suit under § 1983); Wivell v. Liberty Township Police Dept., 2007 U.S. Dist. LEXIS 54306, *5-6 (M.D.Pa.2007) (explaining that police department not subject to suit in a § 1983 action); Mitros v. Cooke , 170 F.Supp.2d 504, 507 (E.D.Pa.2001) (city police department is a sub-unit of the city government that is merely a vehicle through which the city fulfills its policing functions, and is not a separate entity for purposes of suit; Tobin v. Badamo, 3:00CV783, 2000 WL 1880262 (M.D.Pa. Dec.20, 2000) (municipal police department is not a proper party to a section 1983 action because it is merely a subunit of the city and not a separate corporate entity); McMahon v. Westtown-East Goshen Police Dept., No. Civ.A. 98-3919, 1999 WL 236565, 1999 U.S. Dist. LEXIS 5551, at *4 (E.D.Pa. Apr.22, 1999) (citing Johnson v. City of Erie , 834 F.Supp. 873, 878-79 (W.D.Pa.1993) and Agresta v. City of Philadelphia , 694 F.Supp. 117, 119 (E.D.Pa.1988)); Johnson v. City of Erie, Pa. , 834 F.Supp. 873, 879 (W. D.Pa.1993).

In light of this consistent case law rejecting efforts to name local police departments as institutional defendants in §1983 actions, it is recommended that Harding's claims against the Conewago Township Police Department as an institutional defendant also be dismissed.

Having concluded that this pro se complaint is flawed in these profound ways, we recognize that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors , 482 F.3d 247, 253 (3d Cir. 2007), unless it is clear that granting further leave to amend would be futile, or result in undue delay. Alston v. Parker , 363 F.3d 229, 235 (3d Cir. 2004). In this case, the current amended complaint fails to state a viable civil rights cause of action as to these institutional defendants, the factual and legal grounds proffered in support of this amended complaint make it clear that the plaintiff has no right to relief, the plaintiff has previously amended his complaint, and the plaintiff has declined to respond to court orders, or otherwise litigate these claims. On these facts, we conclude that granting further leave to amend would be futile or result in undue delay. Alston v. Parker , 363 F.3d 229, 235 (3d Cir. 2004). Therefore, it is recommended that the complaint be dismissed as to Adams County and the Conewago Township Police Department without further leave to amend.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendant Adams County's Motion to Dismiss (Doc. 28.), be GRANTED and the plaintiff's complaint be dismissed as to this defendant. IT IS FURTHER RECOMMENDED upon a screening review of the amended complaint that the plaintiff's amended complaint also be dismissed with respect to the Conewago Township Police Department as an institutional defendant for the failure to state a claim upon which relief can be granted

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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