United States District Court, M.D. Pennsylvania
RICHARD P. CONABOY United States District Judge
Folk, an inmate presently confined at the Allenwood United
States Penitentiary, White Deer, Pennsylvania (USP-Allenwood)
initiated his pro se civil rights action. By
Memorandum and Order dated August 18, 2016, dismissal was
granted in favor of Defendants Perry County, Pennsylvania
Prison; Warden David Yeingst, Deputy Warden Thomas Long;
Lieutenant Twigg; Sergeant Keller; the Perry County Prison
Board and Chairman Charles Chenot. See Doc. 64.
August 24, 2016 Memorandum and Order granted the Attorney
General of Pennsylvania's motion to dismiss. See
Doc. 67. By Memorandum dated September 1, 2016, a motion to
dismiss by Defendants City of Harrisburg, Dauphin County
Prison, and Warden DeRose was granted. See Doc. 69.
Defendants are Prime Care Medical, staff members of the
Dauphin County Prison facility; and Assistant Federal Public
Defender Heidi R. Freese. Plaintiff states that Attorney
Frees was court appointed to represent him with respect to a
federal criminal prosecution. Folk briefly alleges that
Freese violated his constitutional rights by failing to
obtain a trial continuance. The Complaint vaguely contends
only that Plaintiff had informed counsel that he
wanted a continuance, Freese, when asked by the court is she
was ready, gave an answer which made no sense. See
Doc. 1, ¶ IV (2). The Plaintiff adds that he eventually
elected to proceed pro se in those proceedings
because of “poor advice” and Frees thereafter
acted as standby counsel. Id.
remainder of the Complaint raises claims which do not pertain
to Attorney Freese. Presently pending is Defendant
Freese's motion to dismiss. See Doc. 58. The
opposed motion is ripe for consideration.
Freese claims entitlement to dismissal on the grounds that:
(1) she is not a properly named defendant; (2) a viable due
process claim has not been stated; and (3) the claims against
Freese are barred by Heck v. Humphrey, 512 U.S. 477
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of complaints that fail to state a claim upon which relief
can be granted. When ruling on a motion to dismiss under Rule
12(b)(6), the court must “accept as true all factual
allegations in the complaint and all reasonable inferences
that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v.
Barella, 489 F.3d 170, 177 (3d Cir. 2007)(quoting
Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.
2005)). A plaintiff must present facts that, if true,
demonstrate a plausible right to relief. See
Fed.R.Civ.P. 8(a)(stating that the complaint should include
“a short and plain statement of the claim showing that
the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
requirement “calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence
of” the necessary elements of the plaintiff's cause
of action. Id. at 556. A complaint must contain
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Id. Legal conclusions must be
supported by factual allegations and the complaint must state
a plausible claim for relief. See id. at 679. Legal
conclusions must be supported by factual allegations and the
complaint must state a plausible claim for relief. See
id. at 679.
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, at 555. The reviewing court
must determine whether the complaint “contain[s] either
direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable
legal theory.” Id. at 562; see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008)(in order to survive a motion to dismiss, a
plaintiff must allege in his complaint “enough facts to
raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s]” of a particular
cause of action). Additionally, pro se pleadings are
to be construed liberally, Haines v. Kerner, 404
U.S. 519, 520 (1972).
plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements: (1) that the
conduct complained of was committed by a person acting under
color of law, and (2) that said conduct deprived the
plaintiff of a right, privilege, or immunity secured by the
Constitution or laws of the United States. Groman v.
Township of Manalapan, 47 ...