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Sims v. Gregg

United States District Court, E.D. Pennsylvania

February 28, 2017

JOSEPH K. SIMS Plaintiff -Pro se
JOHN P. GREGG, et al. Defendants




         Before 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 disposition.

         For the reasons set forth, the motion for appointment of counsel is denied, the motions to dismiss are granted, and this matter is dismissed with prejudice.


         Plaintiff, 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.[1] [ECF 28]. Plaintiff's 36-page second amended complaint contains vague and incoherent rambling assertions against 28 named Defendants, [2] 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.[3] [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 removed).
• 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.).

         As 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].


         A 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. 2004).

         When 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).

         Even 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 ‚Äúcontain sufficient factual matter, accepted as true, ...

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