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Berkery v. Gudknecht

United States District Court, E.D. Pennsylvania

July 24, 2018

JOHN C. BERKERY, SR., Plaintiff,



         John Berkery, proceeding pro se, sued Melvin Gudknecht, also unrepresented, for allegedly defaming Berkery in Gudknecht's autobiography. (Compl. at 2-7, ECF No. 3.) Pursuant to 28 U.S.C. § 1915, the Court dismisses the Complaint and grants Berkery leave to amend consistent with this Memorandum.



         In September 2017, Gudknecht published Working the Edge describing his career with the United States Organized Crime Strike Force, responsible for investigating and prosecuting organized crime. (Compl. at 2.) Berkery is mentioned only in the following passage:

One day John Berkery walked into the strike force office. Strike force attorney (SFA) Robert Courtney called me out of my office to introduce me to him. He wanted to plead his case. What case? This guy had gall and a good intelligence grid….The bon vivant [Berkery] said, “There were no embezzled union funds, Mel. No extortion, no mail fraud, or conspiracy. We incorporated and filed proper papers, all legal.” (This guy should be an attorney.) John Berkery had a colorful and checkered past. He was a “man about town, ” “a bon vivant, ” and a gadfly. He was also a member of the K&A Gang, located around Kensington and Allegheny Avenue. They were involved in burglaries, loan sharking, and drugs….[Berkery] had close ties with John McCullough and ties with Angelo Bruno and Ray Martorano. He worked closely with Scarfo, the southern faction of the Genovese family, the Greek mob, and the Jewish American criminals. He never got the film rights to the book. The film was never made. John fled the country to Ireland to avoid prosecution on drug charges involving two hundred gallons of P2P, the prime ingredient in making methamphetamine….Berkery was said to have IRA ties too. With all the ties he had, I didn't doubt it.

(Compl. at 2-7; Ex. A.)

         Berkery claims that these comments are false and accordingly asserts a claim for defamation per se under Pennsylvania law. (Id. at 12.) Because Berkery is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).[1]


         Berkery has twice sued other individuals for defamation for writing about his prior criminal conduct and associations. In Berkery v. Kinney, 936 A.2d 1010 (N.J. Ct. App. Div. Dec.18, 2007), Berkery sued a columnist with the Philadelphia Inquirer who wrote about Berkery's criminal past and his efforts to prevent the publication of Confessions of a Second Story Man: Junior Kripplebauer and the K & A Gang, a book which included a discussion of Berkery's participation in the K & A Gang. Id. at 1010. The Superior Court, Law Division granted summary judgment in Kinney's favor because Berkery “acknowledged six criminal convictions, including larceny, passing bogus traveler's checks, attempted burglary of an unoccupied warehouse, assault and battery, and two drug offenses[, ]” and thus “clearly qualifies as a limited-purpose public figure who must prove actual malice to recover in a defamation action.”[2] Id. at 1010. He had not done so by the requisite clear and convincing evidence standard and the Superior Court, Appellate Division affirmed the trial court's decision. Id. at 1015.

         In Berkery v. Estate of Stuart, 988 A.2d 1201, 1206-07 ( N.J.Super.Ct.App.Div. Feb. 19, 2010), Berkery sued a Temple University professor who wrote the book about the K & A Gang. 988 at 1204. The Appellate Division again affirmed the trial court's grant of summary judgment, holding that Berkery qualified as a limited purpose public figure because the issue had already been conclusively settled in Kinney and there was no reason to “modify or depart from [that] conclusion[.]” Id. at 1207. As in Kinney, Berkery failed to present evidence showing the professor acted with actual malice in publishing the book. Id. at 1211.


         Here, Berkery was allowed to proceed in forma pauperis (ECF No. 2) and 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which provides that the Court “shall dismiss the case at any time” if the Court determines that the complaint “fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii) (emphasis added). Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standards applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

         To survive dismissal under Rule 12(b)(6), the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pled “allow[ ] the court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ...

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