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Barzyk v. Marsico

United States District Court, M.D. Pennsylvania

December 18, 2014

LORI MAY BARZYK, Plaintiff,
v.
ED MARSICO, et al., Defendants

Submitted this 18th day of December, 2014.

Lori May Barzyk, Plaintiff, Pro se, Harrisburg, PA.

Martin C. Carlson, United States Magistrate Judge. Judge Kane.

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge

I. Statement of Facts and of the Case

We are now called upon in this case to write the second chapter in federal court of the story of a past abusive relationship, albeit a relationship which the federal courts, courts of limited jurisdiction, are unable to address at this late date.

On October 17, 2014, the plaintiff, Lori May Barzyk, acting pro se, filed two companion cases in federal court. According to Baryzk's initial complaints, for some two decades she was in a physically and sexually abusive relationship with her ex-spouse, Robert William Barzyk. (Doc. 1.) Beginning in 2005 Barzyk alleged that she complained to authorities regarding this abuse, complaints that culminated in October, 2009 with the arrest of her former husband by the Pennsylvania State Police. (Id.) Following his arrest, Barzyk's former spouse allegedly pressured the plaintiff to recant her claims, and at a November 2009 preliminary hearing, Barzyk stated that she could not remember the incidents that led to these charges. (Id.) Given the plaintiff's announced failure of recollection regarding these events, the district attorney's office withdrew the charges. (Id.)

Barzyk later apparently experienced misgivings regarding her decision, and sought to recant her recantation regarding this domestic violence. (Id.) The district attorney's office, however, declined to reinstate this case, a case in which the complainant had now, sadly, taken three different positions regarding whether she had been assaulted. (Id.)

Expressing anger and frustration at the outcome of this 2009 criminal case and asserting continuing harassment by her ex-spouse, Barzyk filed two companion cases. In this case she sued the Dauphin County District Attorney's Office and the Pennsylvania State Police, alleging that these institutional defendants violated her federal rights. (Id.) As relief for these constitutional infractions, Barzyk initially sought $10, 000, 000 in damages, and also appeared to demand a state criminal prosecution of her former spouse. In a companion case Barzyk initially sued her former spouse, seeking $25, 000 in damages along with the state criminal prosecution of her ex-husband.

We granted Barzyk leave to proceed in forma pauperis but as part of our legally-mandated duty to screen pro se in forma pauperis pleadings, we reviewed her initial complaint and recommended that this complaint be dismissed without prejudice to the filing of an amended complaint. (Doc. 4.) This recommendation was adopted by the district court, (Doc. 5.), and Barzyk has now filed an amended complaint. (Doc. 6.)

That amended complaint names the Dauphin County District Attorney, two assistant district attorneys, a victim-witness specialist, and the police officer who handled the 2009 investigation of Barzyk's ex-spouse as defendants. The complaint then recites in a summary fashion that the actions of these defendants violated various federal civil rights statutes and constitutional guarantees, including the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § § 1983, 1985 and 1986, the Violence Against Women Act, 42 U.S.C. § 13981, and the Americans with Disabilities Act. Notably missing from the amended complaint, however, are any well-pleaded facts describing actions taken by any defendant within the past two years. Indeed, no well-pleaded facts whatsoever are alleged with respect to District Attorney Marsico in the body of this pleading.

Having conducted a second screening review of this amended complaint, for the reasons set forth below we conclude that this amended complaint is also fatally flawed and should be dismissed.

II. Discussion

A. Screening of Pro Se In Forma Pauperis Complaints--Standard of Review

This Court has an on-going statutory obligation to conduct a preliminary review of complaints filed by plaintiffs who seek leave to proceed in forma pauperis, and seek redress against government officials. See 28 U.S.C. § § 1915 and 1915A. Specifically, we must assess whether a pro se, in forma pauperis complaint " fails to state a claim upon which relief may be granted." This statutory text, in turn, 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should " begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, " [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 also 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 Twp., 629 F.3d 121, 130 (3d Cir. 2010).

In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:

(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

In our view, these pleading standards apply to all aspects of the Court's analysis of the legal sufficiency of this amended complaint. Thus, we will apply this analysis both when assessing the adequacy of the factual assertions set forth in the amended complaint, and when examining whether the amended complaint properly invokes the jurisdiction of this Court.

B. This Complaint Fails to State A Claim Upon Which Relief Can Be Granted

Applying these legal benchmarks in this case, dismissal of this amended complaint is still warranted because the amended complaint fails on a number of scores to meet the substantive standards required by law, in that it does not set forth a " short and plain" statement of a cognizable violation of some right guaranteed by the Constitution or laws of the United States.

1. Barzyk May Not Bring a Civil Action Under 42 U.S.C. § 13981

At the outset, Barzyk's reliance upon the civil enforcement provisions of the Violence Against Women's Act, 42 U.S.C. § 13981, is misplaced here. This effort to invoke relief under § 13981 fails for a simple reason. The United States Supreme Court has struck down this law holding that: " Congress' effort in § 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment. . . . [N]o civilized system of justice could fail to provide . . . a remedy for [violence against women] . . . But under our federal system that remedy must be provided by the [the states], and not by the United States." United States v. Morrison, 529 U.S. 598, 627, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). In light of the Supreme Court's holding in Morrison, striking down § 13981 as unconstitutional, this particular claim simply fails and should be dismissed.

2. Barzyk Has Not Stated a Claim Under the Americans With Disabilities Act (ADA)

Similarly, Barzyk's claim under the Americans with Disabilities Act also fails. As alleged by Barzyk, these allegations fall well short of what is required to state a claim upon which relief may be granted. Indeed, Barzyk's amended complaint simply recites the statutory definition of a disability, and alleges without further elaboration that Barzyk meets this definition, without describing any discriminatory conduct that targeted her because of her disability. Thus, the pleading simply does not allege a civil rights violation that is causally related to some disability experienced by Barzyk.

Much more is needed, however, to state a claim under the ADA. " To establish a violation of Title II of the ADA, a [plaintiff] must allege that: (1) [s]he is a qualified individual with a disability; (2) [s]he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of h[er] disability. See 42 U.S.C. § 12132." Pierce v. Pitkins, 520 F.App'x 64, 67 (3d Cir. 2013). Thus, the gravamen of an ADA violation is discrimination against someone " because of a disability, " Id., something that simply is not alleged here by Barzyk. Since Barzyk's pleading, on its face, does not recite well-pleaded facts satisfying the elements of an ADA claim, this claim should be dismissed.

3. The Allegations Which Pre-date September 2012 Are Time-Barred

In addition, dismissal of the allegations in this amended complaint which pre-date September 2012 is still warranted because these allegations fall outside the statute of limitations that is applicable to federal civil rights claims. When conducting a screening review of a pro se complaint under 28 U.S.C. § 1915, a court may consider whether the complaint is barred under the applicable statute of limitations. As the United States Court of Appeals for the Third Circuit recently explained when it affirmed the screening dismissal of a pro se complaint on statute of limitations grounds:

Civil rights claims are subject to the statute of limitations for personal injury actions of the pertinent state. Thus, Pennsylvania's two year statutory period applies to [these] claims. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir.2000). The limitations period begins when the plaintiff knows or had reason to know of the injury forming the basis for the federal civil rights action. Gera v. Commonwealth of Pennsylvania, 256 Fed.Appx. 563, 564-65 (3d Cir.2007). Although we have not addressed the issue in a precedential decision, other courts have held that although the statute of limitations is an affirmative defense, district court may sua sponte dismiss a complaint under § 1915(e) where the defense is obvious from the complaint and no development of the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.2006); see also Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir.2006) (citation omitted)(finding that a district court's screening authority under § 1915(e) " differentiates in forma pauperis suits from ordinary civil suits and justifies an exception to the general rule that a statute of limitations defense should not be raised and considered sua sponte.").

Smith v. Delaware County Court, 260 F.App'x. 454, 455 (3d Cir. 2008). It is well-settled that claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Pennsylvania, the statute of limitations for a personal injury action is two years. 42 Pa.C.S. § 5524. A cause of action accrues for statute of limitations purposes when the plaintiff knows or has reason to know of the injury that constitutes the basis of the cause of action. Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also, Nelson v. County of Allegheny, 60 F.3d 1010 (3d Cir. 1995).

While this two-year limitations period may be extended based upon a continuing wrong theory, and Barzyk seeks to extend the statute by alleging that she has been subjected to a " continual offense, " a plaintiff must make an exacting showing to avail herself of this grounds for tolling the statute of limitations. For example, it is well settled that the " continuing conduct of [a] defendant will not stop the ticking of the limitations clock [once] plaintiff obtained requisite information [to state a cause of action]. On discovering an injury and its cause, a claimant must choose to sue or forego that remedy." Barnes v. American Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (quoting Kichline v. Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986)). See also Lake v. Arnold, 232 F.3d 360, 366-68 (3d Cir. 2000). Instead:

The continuing violations doctrine is an " equitable exception to the timely filing requirement." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir.1995). Thus, " when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred." Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). In order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is " more than the occurrence of isolated or sporadic acts." West, 45 F.3d at 755 (quotation omitted). Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter-whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency-whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence-whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. See id. at 755 n. 9 (citing Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971, 981 (5th Cir.1983)). The consideration of " degree of permanence" is the most important of the factors. See Berry, 715 F.2d at 981.

Cowell v. Palmer Township. 263 F.3d 286, 292 (3d Cir. 2001).

In this case, Barzyk complains about an array of matters which began more than 20 years ago and continued up through 2009. In every instance, the factual narrative set forth in the amended complaint, while spare, plainly reveals that Barzyk attached a high degree of significance and permanence to the events set forth in this pleading. Thus, Barzyk seems to recite well-pleaded facts in this amended complaint which reveal that, to the extent these events entailed violations of the plaintiff's constitutional rights, those violations were known and recognized by Barzyk when they occurred, many years ago. Therefore, these events would have had the degree of significance and permanence which should have triggered the plaintiff's awareness of her duty to assert her rights. Accordingly, in this case a straightforward application of the two-year statute of limitations continues to compel dismissal of all claims in this action which pre-date October 2012 as untimely. This conclusion, in turn, is fatal to the allegations set forth in Barzyk's amended complaint since a reveiw of the exhibits attached to that amended complaint reveals that none of the named defendants is alleged to have taken any action affecting Barzyk within the past two years.

4. The District Attorney's Office Staff Must Also Be Dismissed as Defendants

Likewise Barzyk's claims against the district attorney's office staff fail as a matter of law. It appears that the plaintiff is attempting to sue these prosecutors for their prosecutive actions; namely, the decision to pursue, and later dismiss, the criminal case after Barzyk recanted her testimony, as well as prosecutive judgments they have made regarding protection from abuse orders sought by Barzyk.

This she may not do. It is well-settled prosecutors' prosecutive decisions are cloaked in immunity from civil liability. The immunity conferred upon prosecutors for the quasi-judicial act of filing, bringing and discontinuing criminal charges is broad and sweeping:

[T]he Supreme Court [has] held that state prosecutors are absolutely immune from liability under § 1983 for actions performed in a quasi-judicial role. This immunity extends to acts that are " intimately associated with the judicial phase of the criminal process, " such as " initiating a prosecution and ... presenting the State's case." Court has noted numerous public policy considerations underlying its extension of absolute immunity to prosecutors: [S]uits against prosecutors for initiating and conducting prosecutions " could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State's advocate"; lawsuits would divert prosecutors' attention and energy away from their important duty of enforcing the criminal law; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity; and potential liability " would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." ... [T]here are other checks on prosecutorial misconduct, including the criminal law and professional discipline.

Yarris v. County of Delaware, 465 F.3d 129, 135 (3d Cir. 2006)(citations omitted).

This immunity applies both to decision to institute cases, and decisions like those made her to dismiss a case. " [D]ismissal decisions fit within the same tradition of common law immunity as charging decisions; both are entitled to absolute immunity under § 1983." Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 31 (1st Cir. 1995). Since the district attorney's office staff are immune from liability for their actions in bringing, and later dismissing this criminal case against Barzyk's ex-spouse after she recanted her testimony, Barzyk's claims against these defendants arising out of the decision to charge, and later dismiss, this state case in 2009 should also be dismissed. Likewise, decisions by prosecutors to decline prosecution of protection from abuse matters entail an exercise of prosecutive discretion that typically is cloaked in immunity from civil liability.

5. Barzyk Has Failed to State Viable Claims Against the District Attorney

Barzyk also names the Dauphin County District Attorney, Ed Marsico, as a defendant in the amended complaint, but this amended complaint contains no factual averments relating to the district attorney. This will not do to allege personal liability against this supervisory official. In considering claims brought against supervisory officials arising out of alleged constitutional violations, the courts recognize that supervisors may be exposed to liability only in certain, narrowly defined, circumstances.

At the outset, it is clear that a claim of a constitutional deprivation cannot be premised merely on the fact that the named defendant was an agency supervisor when the incidents set forth in the complaint occurred. Quite the contrary, to state a constitutional tort claim the plaintiff must show that the supervisory defendants actively deprived him of a right secured by the Constitution. Morse v. Lower Merion School Dist., 132 F.3d 902 (3d Cir. 1997); see also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Constitutional tort liability is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997).

In particular, it is well-established that:

" A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988).

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

As the Supreme Court has observed:

Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior . . . . See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (finding no vicarious liability for a municipal " person" under 42 U.S.C. § 1983); see also Dunlop v. Munroe, 11 U.S. 242, 7 Cranch 242, 269, 3 L.Ed. 329 (1812) (a federal official's liability " will only result from his own neglect in not properly superintending the discharge" of his subordinates' duties); Robertson v. Sichel, 127 U.S. 507, 515-516, 8 S.Ct. 1286, 32 L.Ed. 203 (1888) (" A public officer or agent is not responsible for the misfeasances or position wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons properly employed by or under him, in the discharge of his official duties"). Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.

Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Applying these benchmarks, courts have frequently held that, in the absence of evidence of supervisory knowledge and approval of subordinates' actions, a plaintiff may not maintain an action against supervisors based upon the misdeeds of their subordinates. O'Connell v. Sobina, No. 06-238, 2008 WL 144199, * 21 (W.D. Pa. Jan. 11, 2008); Neuburger v. Thompson, 305 F.Supp.2d 521, 535 (W. D. Pa. 2004). Rather, " [p]ersonal involvement must be alleged and is only present where the supervisor directed the actions of supervisees or actually knew of the actions and acquiesced in them. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)." Jetter v. Beard, 183 F.App'x 178, 181 (3d Cir. 2006).

Here, as to this supervisory defendant, the amended complaint continues to largely base liability on Mr. Marsico's supervisory status without any further, specific and well-pleaded facts describing his involvement in this matter. This cursory style of pleading is plainly inadequate to state a claim against agency supervisors and compels dismissal of this defendant. Hudson v. City of McKeesport, 244 F.App'x 519 (3d Cir. 2007)(affirming dismissal of defendant who was only named in caption of case.) Therefore, these officials should be dismissed from this action.

Nor can Barzyk sustain a supervisory liability claim against this defendant by simply alleging in a talismanic fashion that he failed to train, oversee or supervise their subordinate employees. In this regard, we note that: " 'Numerous courts, including this one, have expressed uncertainty as to the viability and scope of supervisory liability after Iqbal.' Santiago, 629 F.3d at 130 n. 8 (collecting cases); see also Argueta, 643 F.3d at 70." Bistrian v. Levi, 696 F.3d 352, 366 n. 5 (3d Cir. 2012). To the extent that supervisory liability survives after Iqbal, the scope of that liability is clearly and narrowly defined. As the United States Court of Appeals for the Third Circuit has observed: " '[t]here are two theories of supervisory liability' one under which supervisors can be liable if they 'established and maintained a policy, practice or custom which directly caused [the] constitutional harm, ' and another under which they can be liable if they 'participated in violating plaintiff's rights, directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.' A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004) (second alteration in original)." Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010).

Barzyk has not adequately pleaded either of these theories of supervisory liability to support her current amended complaint. First, Barzyk has not alleged well-pleaded facts showing that " the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.' A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004) (second alteration in original)." Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010). Moreover, there are no well--pleaded facts alleged here which support a claim of supervisory liability grounded upon an assertion that the defendant " established and maintained a policy, practice or custom which directly caused [a] constitutional harm." Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010). Therefore, District Attorney Marsico should also be dismissed from this action.

In closing, while Barzyk's personal circumstances continue to evoke great sympathy, we are confined by what the law permits when we assess the merits of her pro se, in forma pauperis complaint. That assessment compels the conclusion that the amended complaint still fails to state a claim upon which relief may be granted. While we recognize that pro se plaintiffs should be afforded an opportunity to amend a complaint before the complaint is dismissed with prejudice, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), it is also clear that leave to amend can be denied when 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 plaintiff has not alleged facts that would state a claim upon which relief may be granted, despite having been afforded an opportunity to amend her pleadings. Therefore, allowing further leave to amend would be a futile gesture, and this amended complaint should instead simply be dismissed.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's amended complaint be dismissed.

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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