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Farrar v. McNesby

United States District Court, E.D. Pennsylvania

March 24, 2015

NONA FARRAR
v.
JOHN T. MCNESBY, PHILADELPHIA FOP LODGE #5, MAUREEN FAULKNER, DELTA AIRLINES, INC., DELTA AIRLINES DOE NO. 1, DELTA AIRLINES DOE NO. 2, U.S. AIRWAYS, INC., U.S. AIRWAYS, INC. DOE NO. 3, U.S. AIRWAYS, INC. DOE NO. 4, U.S. AIRWAYS, INC., DOE NO. 5, HILTON WORLDWIDE, INC., HILTON GARDEN INN DOE NO. 6, CHUCK CANTERBURY, DAVID GERSH, PAT MASENGILL, SEPHIRA SHUTTLESWORTH, FRATERNAL ORDER OF POLICE, HOLIDAY INN BIRMINGHAM AIRPORT, HOLIDAY INN BIRMINGHAM AIRPORT DOE NO. 7 AND ERIC H. HOLDER, and UNIDENTIFIED TSA AGENT DOE NO. 8

MEMORANDUM

NORMA L. SHAPIRO, District Judge.

Prose piaintiff Nona Farrar alleges that numerous defendants participated in a conspiracy to thwart her business activities and abridge her constitutional rights because of her race and association with Mumia Abu-Jamal, the inmate convicted of the murder of Philadelphia police officer Daniel Faulkner. Among those named as defendants are the National Fraternal Order of Police ("FOP"), Philadelphia FOP Lodge #5, President of the National FOP Chuck Canterbury, President of Philadelphia FOP Lodge #5 John McNesby, and Maureen Faulkner, the wife of officer Daniel Faulkner (collectively, the "FOP defendants").

Plaintiff asserts claims against the FOP defendants under the Hobbs Act (18 U.S.C. § 1951); 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986; the civil RICO provisions of 18 U.S.C. § 1962(c) and (d); and for conspiracy to "breed and cover-up [a] code of silence" and "inten[t]ionally interfere with contracts and prospective contract[u]al relationships." The FOP defendants filed an omnibus motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).

I. DISCUSSION

Plaintiffs complaint contains a litany of conclusory allegations failing to state a claim against the FOP defendants.

Standard

To determine the sufficiency of a complaint, a court must identify the elements of each claim at issue, see Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010); disregard all conclusory allegations or "naked assertions devoid of further factual enhancement, " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); and assume the veracity of all well-pleaded factual allegations to determine whether they plausibly give rise to an entitlement for relief. See Iqbal, 556 U.S. at 679.

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678.

A) Hobbs Act (18 U.S.C. § 1951)

The Hobbs Act, 18 U.S.C. § 1951, a criminal statute, does not permit a private right of action. "[T]he United States Attorney is responsible for the prosecution of all criminal cases within his or her district." United States v. Friedland, 83 F.3d 1531, 1539 (3d Cir. 1996). Plaintiff does not state a claim against the FOP defendants under the Hobbs Act.

B) 42 U.S.C. § 1983

42 U.S.C. § 1983 provides a right of action to a person deprived of "any rights, privileges, or immunities secured by the Constitution and laws" by a person acting "under color of any statute, ordinance, regulation, custom, or usage." 42 U.S.C. § 1983. To state a claim under Section 1983, "a plaintiff must allege that the defendant acted under color of state law, in other words, that there was state action." Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175-76 (3d Cir. 2010).

With the possible exception of defendants Canterbury and McNesby, the FOP defendants are not state officials and Farrar fails to allege state action. Her complaint is devoid of well-pleaded factual allegations against Canterbury and McNesby. She ...


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