United States District Court, E.D. Pennsylvania
GERALD J. PAPPERT, District Judge.
There are two motions before the Court. Defendant Harrah's Philadelphia Casino & Racetrack, a/k/a Chester Downs and Marina LLC ("Harrah's") has filed a motion to dismiss Plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Defendant Pennsylvania State Police (the "State Police") has filed a motion to dismiss Plaintiff's amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, respectively.
Plaintiff Vincent Damico ("Damico"), who is represented by counsel, did not file an opposition to either motion. This allows the Court, if it so chooses, to grant the motions without analyzing the merits of the arguments. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991) (explaining that if a party represented by counsel fails to oppose a motion to dismiss, the district court may treat the motion as unopposed and subject to dismissal without a merits analysis). Nevertheless, the Court has thoroughly analyzed the merits of the arguments advanced by Harrah's and the State Police in support of their motions and for the reasons stated below, both motions are granted.
Plaintiff's claims against Harrah's are dismissed without prejudice, and Plaintiff's claims against the State Police are dismissed with prejudice. Additionally, the parties are ordered to show cause why Plaintiff's claims against Defendant Pennsylvania State Gaming Board (the "Gaming Board") and Plaintiff's claims against Defendant Trooper Ryan Buch ("Buch") in his official capacity should not be dismissed as well.
Damico filed an amended complaint (Doc. No. 2) asserting 16 causes of action against Harrah's, the State Police, Buch, and the Gaming Board. Damico's claims stem from his arrest on suspicion of attempting to pass counterfeit $100 bills at Harrah's. Five of Damico's asserted causes of action arise under 42 U.S.C. § 1983 (Counts 1-5), and the remaining asserted causes of action arise under Pennsylvania state law (Counts 6-16). In each count, Damico seeks damages against all defendants.
Damico alleges that he was playing slot machines at Harrah's when he was "stopped, detained, and arrested for use of suspected counterfeit dollars without any explanation to be given." (Am. Compl., ¶ 17.) According to the criminal complaint, which Damico incorporates by reference into his amended complaint, a Harrah's cage supervisor became suspicious of a $100 bill that Damico and his wife attempted to exchange at the casino cage. ( Id., Ex. B.) The cage supervisor marked the bill and determined that it was counterfeit. ( Id. ) When the cage supervisor informed Damico and his wife that the bill was counterfeit, they grabbed a number of other $100 bills they were trying to exchange and attempted to leave the casino. ( Id. ) Harrah's security detained Damico and contacted Buch for further investigation. ( Id. )
Damico told Buch that Damico's wife had given him two $100 bills that she had received at Valley Forge Casino. ( Id. ) Buch inspected one of the bills that Damico still had in his possession and determined that it was suspicious. ( Id. ) Buch then queried that bill and the others that Damico and his wife had attempted to exchange through the U.S. Secret Service U.S. Dollar Note Search website. ( Id. ) All of the bills came back as known counterfeits. ( Id. )
Damico was jailed, strip-searched, and a criminal complaint was filed against him. ( See id. ¶¶ 19, 20.) The suspect counterfeit bills later "came out to be  genuine United States Hundred Dollar Bills." ( Id. ¶ 18.) Yet Buch "continued with the criminal complaint and commenced and continued criminal proceedings" against Damico despite knowing that the suspect bills turned out to be authentic. ( Id. ¶ 19.) The charges against Damico were withdrawn approximately two months after the bills were determined to be authentic. ( See id. ¶ 34.) The charges, however, have not been expunged, and Damico retains a criminal record. ( Id. ¶ 35.)
Damico's Claims Against Harrah's
Harrah's moves for dismissal pursuant to Rule 12(b)(6), contending that the amended complaint fails to state a claim against Harrah's under 42 U.S.C. § 1983. A Rule 12(b)(6) motion tests the sufficiency of the factual allegations in the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When confronted with a 12(b)(6) motion, a district court must conduct a two-step analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the district court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. Then, it "must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The district court must "construe the complaint in the light most favorable to the plaintiff...." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
Under this standard, Damico's amended complaint fails to state a claim against Harrah's for violation of 42 U.S.C. § 1983. Section 1983 provides, in relevant 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 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...." A plaintiff suing pursuant to § 1983 must show (i) a violation of a right secured by the Constitution and laws of the United States and (ii) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). "The color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law." Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).
Private action can be converted into action under color of state law for § 1983 purposes where the private actor "exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Id. "A private action is not converted into one under color of state law merely by some tenuous connection to state action." Id. Nor does a private party become a state actor simply because it is subject to state regulation or receives state funding. See Rendell-Baker v. Kohn, 457 U.S. 830, 841-42 (1982); Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 189 (3d Cir. 2000) ("State regulation and the [state law] authorization of casino activities do not transform the casinos into state actors."). Rather, there must be "a sufficiently close nexus ...