United States District Court, E.D. Pennsylvania
JOHN C. BERKERY, SR., Plaintiff,
MELVIN ROSS GUDKNECHT, Defendant.
J. PAPPERT, JUDGE
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
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.)
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).
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.” 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.
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.
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).
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, ...