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Richard Anthony Disco v. Roth

United States District Court, E.D. Pennsylvania

July 12, 2018

DANA L. ROTH, et al., Defendants.


          SLOMSKY, J.


         Plaintiff Richard Anthony Disco, proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983[1] against his former parole agent, Dana L. Roth, and her supervisor, Stewart Greenberg. Plaintiff alleges that Defendant Roth willfully and maliciously wrote a false and incriminating statement about him in Plaintiff's 2003 Supervision History Report to influence the Commonwealth of Pennsylvania Board of Probation and Parole (“Parole Board”) to keep him in prison for as long as possible. He further alleges that Defendants conspired against him when Defendant Greenberg signed off on the Supervision History Report containing the false statement. Plaintiff contends that this conduct violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution.

         Before the Court is Defendants' Motion to Dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. No. 8.) Plaintiff has filed a Response in Opposition (Doc. No. 12), and Defendants have filed a Reply (Doc. No. 13). Plaintiff also has filed Supplemental Responses in Opposition. (Doc. Nos. 15, 16.) On February 22, 2018, the Court held a hearing on the Motion to Dismiss. For reasons that follow, Defendants' Motion to Dismiss (Doc. No. 8) will be granted.[2]

         II. BACKGROUND[3]

         On May 19, 2003, a jury in the Philadelphia Court of Common Pleas found Plaintiff guilty of involuntary deviate sexual intercourse, endangering the welfare of children, corruption of minors, and indecent assault. (Doc. No. 4, Ex. B at 19:24-20:4.) After the verdict was read, Plaintiff said to the prosecutor: “It's far from over. Believe that, Ms. Smith. It's far from over. They came to court lying on me. They fucking lied, fucking motherfuckers. You haven't heard the last of me, bitch.” (Id. at 20:18-22.)

         At the time of the events giving rise to this conviction, Plaintiff was on parole and under the supervision of parole agent, Defendant Dana L. Roth. (Doc. No. 4 at 5; Ex. A.) Defendant Roth, who was present at Plaintiff's trial and testified as a witness for the Commonwealth, prepared a Supervision History Report (“Report”) for the Parole Board, in which she included a description of what took place after the verdict was read. (Id. at 5; Ex. A.) In the Report, Defendant Roth states as follows:

It should be noted that on the date of subject's conviction, 5/19/2003, subject showed hostile behavior in the courtroom. After the verdict was read, subject attempted to jump over the bar of the court and attack the victim and her mother. Subject was restrained by seven court sheriffs. At this time, subject stated “You fucking slut. You fucking came to court and lied on me. This is not over. You will pay for this!”

(Id., Ex. A.) The above statement does not appear in the trial transcript. The Report is signed by Defendant Roth and by her supervisor, Defendant Stewart Greenberg. (Id. at 2.) On July 24, 2003, the Report was sent to the Parole Board by facsimile. (Id.)

         Plaintiff alleges that he received a copy of this Report and became aware of Defendant Roth's statement in it on December 27, 2016 after filing a petition for review in the Pennsylvania Commonwealth Court challenging a Parole Board decision recorded on December 8, 2015. (Doc. No. 4 at 4.) He alleges that he did not attempt to jump over the bar of the court, did not attempt to attack the alleged victim and her mother, was not restrained by seven court sheriffs, and did not make the statement written in the Report. (Id.) Instead, he contends that Defendant Roth engaged in willful misconduct when she intentionally and with malice made false and incriminating statements about him to convince or influence the Parole Board to keep him in prison for as long as possible. (Id. at 5.)

         Finally, Plaintiff asserts that he is three years past his “actual minimum expiration date”[4] and has not been interviewed for parole by the Parole Board. (Id.) He also states that he is challenging in the Commonwealth Court a Parole Board decision that changed his “maximum parole violation expiration date”[5] on his original sentence from August 4, 2006 to May 14, 2009, adding thirty-three months to the minimum and maximum terms on his current sentence. (Id.)

         On September 15, 2017, Plaintiff filed the instant Complaint against Defendants, alleging that Defendant Roth's actions violated his Eighth and Fourteenth Amendment rights. (Id. at 6.) He further alleges that Defendants conspired against him when Defendant Roth's supervisor, Defendant Greenberg, signed the Report. (Id.) Plaintiff seeks $500, 000 in damages. (Id. at 16.)


         The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive dismissal, ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678). Facial plausibility is “more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Iqbal, 556 U.S. at 678). Instead, “[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. (quoting Iqbal, 556 U.S. at 678).

         Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a Rule 12(b)(6) motion to dismiss:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”

Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). The inquiry is normally broken into three parts: “(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

         A complaint must do more than allege a plaintiff's entitlement to relief, it must “show” such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[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 (alteration in original) (citation omitted). The “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         When determining a motion to dismiss, the court must “accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Where, as here, the complaint is filed pro se, the “complaint, ‘however inartfully pleaded' must be held to ‘less stringent standards than formal pleadings drafted by lawyers.'” Fatone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). It should be dismissed only if it appears “beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief.” Olaniyi v. Alexa Cab Co., 239 Fed.Appx. 698, 699 (3d Cir. 2007) (citing McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)).

         IV. ANALYSIS

         Plaintiff has filed suit under 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment rights. He contends that Defendant Roth violated his constitutional rights by willfully and maliciously writing false and incriminating statements about him in the Report. He also alleges that Defendants conspired to violate his constitutional rights when Defendant Greenberg signed off on the Report containing the false statement.

         As noted, § 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the ...

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