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Ward v. Commonwealth

United States District Court, E.D. Pennsylvania

September 22, 2014



THOMAS N. O'NEILL, Jr., District Judge.

Presently before me are three motions to dismiss plaintiff's second amendment complaint. First is a motion to dismiss by the Commonwealth of Pennsylvania Board of Probation and Parole (CPBPP), chairman of CPBPP Michael Potteiger (in his individual and official capacity) and the Commonwealth of Pennsylvania (Dkt. No. 38) and plaintiff's response thereto (Dkt. No. 41). Second is a motion to dismiss by Delaware County Office of Adult Probation and Parole (DCOAPP), director of DCOAPP Michael Raith and DCOAPP probation officer Alicia Sweeney in their official capacities (Dkt. No. 32), plaintiff's response (Dkt. No. 39) and defendants' reply thereto (Dkt. No. 36). Third is a motion to dismiss by Raith and Sweeney in their individual capacities and Delaware County (Dkt. No. 30), plaintiff's response (Dkt. No. 37) and defendants' reply thereto (Dkt. No. 40). For the following reasons I will grant defendants' motions.


On January 3, 2012 plaintiff was working as a traffic controller. Dkt. No. 29 at ¶ 33. On that day, Nicolas DeSimone struck plaintiff with his motor vehicle while driving under the influence of a controlled substance. Id. at ¶¶ 35, 38. At the time of the incident DeSimone was a probationer under DCOAPP's supervision and was assigned to DCOAPP probation officer Sweeney. Id. at ¶¶ 11-15. As a result of the incident DeSimone was criminally prosecuted and incarcerated. Id. at ¶ 39.

Plaintiff alleges that before he struck her with his motor vehicle DeSimone met with Sweeney for a scheduled appointment where he admitted to Sweeney that he was under the influence of a controlled substance in violation of the terms of his probation. Id. at ¶¶ 17, 25. Plaintiff claims that Sweeney failed to detain or arrest DeSimone for violating the terms of his probation and that Sweeney knew or should have known that he would leave and operate a motor vehicle. Id. at ¶¶ 27, 29, 30, 56, 70. Plaintiff further alleges that Sweeney acted pursuant to defendants' policy and custom of intentionally failing to enforce probation terms in order to create the false impression of reduced recidivism rates. Id. at ¶¶ 25, 29.

On January 3, 2014 plaintiff brought this action. Dkt. No. 1. On March 11, 2014 plaintiff filed her first amended complaint. Dkt. No. 16. On April 1, 2014 I granted plaintiff's motion for leave to file a second amended complaint. Dkt. No. 22. On April 17, 2014 plaintiff filed her second amended complaint. Dkt. No. 29. In her second amended complaint, plaintiff brings suit pursuant to 42 U.S.C. § 1983 claiming that defendants violated her Constitutional rights under the Fourth and Fourteenth Amendments (Count I) when Sweeney released DeSimone on January 3, 2012 in accordance with defendants' policy and practice of failing to detain probationers under the influence of controlled substances. See Id. at ¶¶ 82-89. Plaintiff also alleges defendants violated her rights pursuant to Article I, § 1 of the Pennsylvania Constitution (Count II). See Id. at ¶¶ 90-97. Plaintiff requests monetary damages, punitive damages (Count III) and declaratory and injunctive relief (Count IV), presumably pursuant to both her federal and state law claims. See Id. at ¶¶ 98-100, 101-03.


I. Motion to Dismiss for Lack of Subject Matter Jurisdiction: 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of subject matter jurisdiction. A motion under Rule 12(b)(1) may be treated as either a facial attack on the complaint or a factual challenge to the court=s subject matter jurisdiction. Gould Elecs., Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000). A court reviewing a facial attack may consider only the allegations of the complaint and any documents referenced therein or attached thereto in the light most favorable to the plaintiff. Id . In reviewing a factual attack, a court may consider evidence outside the pleadings. Id.

Plaintiff bears the burden of persuasion when subject matter jurisdiction is challenged, but the legal standard for surviving a Rule 12(b)(1) motion is a low one. Kehr Packages v. Fidelcor, Inc. , 926 F.2d 1406, 1409 (3d Cir. 1991). "A claim may be dismissed under Rule 12(b)(1) only if it clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction' or is wholly insubstantial and frivolous.'" Gould , 220 F.3d at 178. Nevertheless, "dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'" Kulick v. Pocono Downs Racing Ass'n , 816 F.2d 895, 899 (3d Cir. 1987), quoting Oneida Indian Nation v. Cnty. of Oneida , 414 U.S. 661, 666 (1974).

Since Eleventh Amendment immunity deprives a court of subject matter jurisdiction, a motion to dismiss based on Eleventh Amendment grounds "may properly be considered a motion to dismiss the complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1)." Blanciak v. Allegheny Ludlum Corp. , 77 F.3d 690, 694 n.2 (3d Cir. 1996). Furthermore, a court may consider the effect of the Eleventh Amendment on its jurisdiction sua sponte. See Sindia Expedition, Inc. v. Wrecked & Abandoned Vessel, Known as The Sindia , 895 F.2d 116, 119 (3d Cir. 1990).

II. Motion to Dismiss for Failure to State a Claim: 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, " though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level... on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id . (citations omitted). This "simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" the necessary element. Id. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal , 556 U.S. 662 (2009), "conclusory or bare-bones' allegations will no longer survive a motion to dismiss: threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal , 556 U.S. at 678. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal:

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 ...

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