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Cap v. Kelshaw

United States District Court, E.D. Pennsylvania

January 26, 2015

JOSEPH CAP, Plaintiff,
JAMES L. KELSHAW, JR., et al., Defendants.


LAWRENCE F. STENGEL, District Judge.

This action was removed from the Court of Common Pleas of Lehigh County. It alleges two counts of malicious prosecution against Price Rite Corporation, two of its managers, two of its security guards, and an Allentown police officer. The police officer removed the case here due to its federal question, then filed a motion to dismiss the claims against him. Joseph Cap, the pro se plaintiff, has not responded to the motion and the time in which to respond has expired. For the following reasons, I will grant the motion in its entirety, and find that granting leave to amend the complaint would be futile. Further, I decline to exercise supplemental jurisdiction over the remaining state claims, and I will remand this action to the state court.


The complaint alleges that on May 28, 2010, Mr. Cap was a customer at the Price Rite supermarket in Allentown, Pennsylvania. While there, an elderly customer accused him of stealing the store's shopping cart, groceries, and some green bags. See Compl. ¶ 14. Subsequently, on June 10, 2010, Mr. Cap returned to the Price Rite store to serve an "injunction to preserve the store videos." Id . ¶ 15. The injunction notified the store manager of the date and time that Mr. Cap would be in court seeking the videos. Id . On that assigned day, the store manager appeared before the Lehigh County Court of Common Pleas and requested a continuance. The court denied the continuance and Mr. Cap's injunction requesting the videos. Id . ¶ 16. Undaunted, Mr. Cap initiated a civil action against Defendant Price Rite in an additional attempt to preserve the videos. Id . ¶ 17. On June 10, 2010, Mr. Cap personally served the complaint on Defendant Jon Wiltrout, a manager at Price Rite. Id . Defendant Wiltrout instructed the store's security guard to detain Mr. Cap while the Allentown police were summoned. Id . ¶ 18. Defendant James L. Kelshaw, Jr., an Allentown police officer, arrived on the scene and asked that Mr. Cap sit in the back of his police cruiser. Officer Kelshaw also advised Mr. Cap that he was not under arrest. Mr. Cap complied with the request, and Officer Kelshaw drove him home. Id . ¶ 20.

Several days later, Mr. Cap received a summary citation in the mail charging him with Defiant Trespass, in violation of 18 Pa.C.S. § 3503(b)(1)(i), [1] setting a hearing date of July 10, 2010. Id . ¶ 21. At the hearing, Defendant Kelshaw requested a continuance which was granted. Id . ¶ 27. Subsequently, Mr. Cap was notified through first class mail that he had been found guilty of the summary offense in absentia on August 25, 2010, and was fined $457.50. Id . ¶ 32. Mr. Cap immediately but unsuccessfully sought a new trial date because he had not been notified of the August date. Id . Mr. Cap appealed, and on September 14, 2012, after a hearing, was found not-guilty "by agreement of the parties." See Compl. Exh. A.

Mr. Cap brought this case seeking "special damages as may be shown and for general compensatory damages in tort as may be fixed by the jury, punitive damages as may be assessed by the jury, and for costs, disbursements, and reasonable attorney fees incurred as a result of defending the malicious defiant trespass action." See Compl. ¶ 52.


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Following the Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), pleadings standards in federal actions have 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 under Fed. R. Civ. P.12(b)(6). Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008).

Therefore, 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 court must accept all of the complaint's well-pleaded facts as true but may disregard legal conclusions. Iqbal, 556 U.S. at 679. Second, a district court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id . 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. Id .; see also Phillips, 515 F.3d at 234-235. "Where 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.'" Iqbal, 556 U.S. at 679.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, the pleading standard Rule 8 announces does not require "detailed factual allegations, " but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557.


Mr. Cap originally brought this action in the Court of Common Pleas for Lehigh County against the defendants for malicious prosecution. Defendant Kelshaw, a police officer for the City of Allentown, removed the case here pursuant to 28 U.S.C. § 1331, citing this court's original jurisdiction over federal questions, i.e., a violation of Mr. Cap's Fourth Amendment rights pursuant to 42 U.S.C. § 1983. Under 42 U.S.C. § 1983, a private party may recover in an action against any person acting under the color of state law who deprives the party of his or her constitutional rights. Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person... to the deprivation of any rights, privileges or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983 does not by itself confer substantive rights, but instead provides a remedy for redress when a constitutionally protected right has been violated. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Therefore, in order to succeed on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) the violation of a right secured by the Constitution, and (2) that the constitutional deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Here, Officer Kelshaw is the only named ...

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