United States District Court, E.D. Pennsylvania
JOSEPH K. SIMS Plaintiff -Pro se
JOHN P. GREGG, et al. Defendants
I. QUIÑONES ALEJANDRO, U.S.D.C. J.
this Court are: (a) motions to dismiss filed
pursuant to Federal Rules of Civil Procedure
(“Rule”) 12(b)(1) and 12(b)(6) by Defendants
Thomas C. Egan, III, Daniel Glammer, Susan M. Markofsky,
Cheryl L. Austin, Joanne Mancini, John P. Gregg, Wendy
Demchick-Alloy, Thomas McBride, Joseph J. Hylan, Chris
Parisi, Stephen Geday and Regina B. Guerin, [ECF 23], and
Defendant Kate M. Kelly, [ECF 25], (collectively,
“Moving Defendants”), and (b) a motion for
appointment of counsel filed by Plaintiff Joseph K. Sims
(“Plaintiff”), acting pro se. [ECF 38].
In their motions, Moving Defendants seek the dismissal of
this action for either a lack of subject matter jurisdiction
pursuant to Rule 12(b)(1) or for a failure to state a claim
on which relief can be granted pursuant to Rule 12(b)(6), and
specifically argue that Plaintiff's claims are barred
either by the statute of limitations, the
Rooker-Feldman and Heck doctrines, or
absolute immunity. The motions to dismiss and the motion for
appointment of counsel are opposed. The issues presented in
these motions have been fully briefed and are ripe for
reasons set forth, the motion for appointment of counsel is
denied, the motions to dismiss are granted, and this matter
is dismissed with prejudice.
proceeding pro se, initiated this action on
September 30, 2015, [ECF 1]. He filed an amended complaint on
November 11, 2015, [ECF 25], and a “Claim for
Relief” on March 17, 2016, [ECF 21], which was later
construed and docketed on April 13, 2016, as a second amended
complaint. [ECF 28]. Plaintiff's 36-page second
amended complaint contains vague and incoherent rambling
assertions against 28 named Defendants,  charging them
with violating his federal and state constitutional rights
during the prosecution of five state court criminal cases,
four of which resulted in a conviction, and which were
initiated against him during the period of 1990 to 2009, in
the Court of Common Pleas for Montgomery County,
Pennsylvania. [ECF 28 at 1]. The second amended
complaint is, however, vague and/or devoid of any specific
factual allegations against Moving Defendants. Instead, the
second amended complaint consists of conclusory assertions
that Moving Defendants committed misdeeds during the
prosecution of these four Montgomery County criminal cases.
By way of example, Plaintiff alleges that:
• Defendants Egan, III, Glammer, and Markofsky used a
legal process without probable cause against plaintiff,
Thomas Egan's name-signature, are not on any case paper
work for [two of the criminal cases], primarily to accomplish
a purpose for which the process was not designed. [ECF 28 at
7-8] (emphasis removed).
• No probable [c]ause for CR 1900-00. Only the [p]olice
criminal complaint, or, M.D.J., Francis J. Lawrence, Jr.
(Id. at 17).
• In the [n]otes of [t]ranscript, Kate Kelly and Cheryl
Austin, moved, from-to, Defendant and [w]itness, referring to
plaintiff. The three of they, M.D.J., 38-1-15, F.J. Lawrence,
Jr., Kate Kelly and Cheryl Austin, misrepresented the
01/09/01, Judge trial at the Montg. CTY. CRT. House before
the JDG. Del Ricci. (Id. at 18-19) (emphasis
• With CR 1900-00, Kate M. Kelly and Cheryl L. Austin,
actually represented Frank Snowden , a wooden handle knife,
so dull it wouldn't cut butter, currently also in the
Borough Police property room. (Id. at 24).
• Christopher Parisi with Frank Flick, used a legal
process CR 1761-06, EXHIBIT C 25, as CR 1900-00, [there was
Frank Snowden again in plaintiff's Mother's house
seducing her with narcotics, 06/05/06 dates on EXHIBITS 20,
25, 26, Amended Complaint], as, procurement, initiation and
continuation of civil proceedings, without probable cause,
against plaintiff . . . . (Id. at 26) (emphasis
removed) (brackets in original).
• He, Chris Parisi, committed the double jeopardy of CR
4070-90 and CR 4063-90, as, CR 1900-00 and Theft by Deception
. . . . (Id.).
stated, Moving Defendants move to dismiss Plaintiff's
claims as barred by the statute of limitations, by the
Rooker-Feldman doctrine and the Heck
doctrine, and/or absolute immunity. [ECF 23 at 7-11; ECF 25
at 6-7]. Plaintiff opposes the motions to dismiss. [ECF 30].
motion to dismiss under Rule 12(b)(1) challenges the
existence of subject matter jurisdiction. As the party
invoking this Court's jurisdiction, Plaintiff bears the
burden of proving that the requisite jurisdictional
requirements are met. Dev. Fin. Corp. v. Alpha Hous.
& Health Care, Inc., 54 F.3d 156, 158 (3d Cir.
1995); Packard v. Provident Nat'l Bank, 994 F.2d
1039, 1045 (3d Cir. 1993). “[W]hen there is a fact
question about whether a court has jurisdiction, the trial
court may examine facts outside the pleadings . . .
‘[b]ecause at issue in a factual 12(b)(1) motion is the
trial court's jurisdiction - its very power to hear the
case.'” Robinson v. Dalton, 107 F.3d 1018,
1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav.
& Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
Therefore, this Court is free to consider evidence outside
the pleadings, including publicly available records, to
resolve any factual issue bearing on the court's
jurisdiction. See Gotha v. United States, 115 F.3d
176, 179 (3d Cir. 1997); Jiricko v. Bennett, Bricklin
& Saltzburg, LLP, 321 F.Supp.2d 636, 640 (E.D. Pa.
considering a motion to dismiss for failure to state a claim
under Rule 12(b)(6), the court “must accept all of the
complaint's well-pleaded facts as true, but may disregard
any legal conclusions.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The
court 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 complaint must do more than merely allege the
plaintiff's entitlement to relief; it must “show
such an entitlement with its facts.” Id.
(citations omitted). “[W]here 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 (quoting
Fed.R.Civ.P. 8(a)) (alterations in original). “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.” Id. at 678 (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements do not
suffice.” Id. To survive a motion to dismiss
under Rule 12(b)(6), “a plaintiff must allege facts
sufficient to ‘nudge [her] claims across the line from
conceivable to plausible.'” Phillips v. County
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 570).
though pleadings and other submissions by pro se
litigants are subject to liberal construction and the court
is required to accept the truth of a plaintiff's
well-pleaded allegations while drawing reasonable inferences
in a plaintiff's favor, Wallace v. Fegan, 455 F.
App'x 137, 139 (3d Cir. 2011) (citing Capogrosso v.
Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per
curiam)), a pro se complaint must still
“contain sufficient factual matter, accepted as true,