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Spence v. Balchon

United States District Court, W.D. Pennsylvania

April 11, 2019

ROBERT RUSSELL SPENCE, JR., Plaintiff,
v.
CHRISTOPHER BALCHON, Special Agent of D.E.A.; HERBERT STROBEL, Task Force Officer of D.E.A.; DRUG ENFORCEMENT ADMINISTRATION, Defendants.

          David S. Cercone, District Judge

          REPORT AND RECOMMENDATION ECF NO. 31

          Lisa Pupo Lenihan, United States Magistrate Judge

         I. RECOMMENDATION

         It is respectfully recommended that the Motion to Dismiss (ECF No. 31) filed by Defendants the Drug Enforcement Agency (“DEA”), DEA Special Agent Christopher Balchon, and DEA Task Force Officer Herbert Strobel, be granted in all respects, and the Complaint be dismissed with prejudice.

         II. REPORT

         A. Factual Background and Procedural History

         Plaintiff, Robert Russell Spence (“Plaintiff”), is an inmate incarcerated at Federal Correctional Institution Berlin. In 2014, Plaintiff was convicted of conspiracy to distribute cocaine and to engage in money laundering. Br. In Supp. Of Defs' Mot. to Dismiss (“Defs.' Br.”) at 3 (ECF No. 32) (citing United States v. Spence, 703 Fed.Appx. 121, 122 (3d Cir. 2017)).

         Named as defendants in this action are DEA Special Agent Christopher Balchon, DEA Task Force Officer Herbert Strobel, and the Drug Enforcement Agency itself. Plaintiff does not specify whether he is suing the individual Defendants in their individual or official capacities. Without naming any particular individual, Plaintiff alleges in his Complaint that DEA agents stole his property, including a fleet of vehicles that had belonged to him through his luxury vehicle rental service, as well as $1.8 million “in cash and assets” which was allegedly divided between one of the cooperating witnesses and the agents. Compl. at ¶¶ 19-21, 34. Plaintiff also alleges that DEA agents compelled Plaintiff's attorney to lie to a federal jury in his criminal trial. Id. at ¶ 23. Furthermore, Plaintiff alleges that DEA agents caused Plaintiff to become addicted to pain pills in order to entrap him. Id. at ¶¶ 25-26. Finally, Plaintiff alleges that DEA agents planted evidence of drug paraphernalia in his warehouse. Id. at ¶ 28.

         As to all Defendants, Plaintiff seeks monetary relief in the amount of $10 million as compensatory damages, as well as an injunction to prevent Defendants from harassing Plaintiff's witnesses and to return to Plaintiff the property which Plaintiff claims belongs to him, and lastly an order declaring that Defendants have acted in violation of the United States Constitution. Id. at p. 13.

         Plaintiff initiated this civil rights action by filing a Motion for Leave to Proceed in Forma Pauperis, which was granted by the Court on March 30, 2016. (ECF Nos. 1-2.) Plaintiff filed the Complaint against Defendants on April 12, 2016. (ECF No. 4). Defendants filed the instant Motion to Dismiss or for Summary Judgement in the alternative on November 30, 2018, pursuant to Rules 12(b)(1), 12(b)(6), and 56(c) of the Federal Rules of Civil Procedure. (ECF No. 31.) In an order dated December 6, 2018, the Court notified the parties that the Motion to Dismiss will be treated as a Motion for Summary Judgement on the issue of whether Plaintiff's claims are time-barred, and allowed Plaintiff to submit affidavits and any other appropriate documentation that is sworn-to in support of his position on the Statute of Limitations issue. (ECF No. 34.) Plaintiff filed his Response in Opposition on January 8, 2019 (ECF No. 36), to which Defendants filed their Reply on February 5, 2019 (ECF No. 40.) The Motion to Dismiss or for Summary Judgment in the alternative is ripe for disposition.

         B. Legal Standard

         The Defendants move to dismiss the Complaint against them, or in the alternative for Summary Judgement, pursuant to Rules 12(b)(1), 12(b)(6), and 56(c) of the Federal Rules of Civil Procedure.

         Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, pleadings and in particular, pro se complaints, are to be liberally construed. Abdul-Akbar v. McKelvie, 239 F.3d 307, 322 (3d Cir. 2001)); Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (holding that, when a plaintiff files a complaint pro se, the pleadings must be liberally construed and the Court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.”)). Indeed, a pro se complaint “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972).

         In a § 1983 or Bivens[1] action, the court must liberally construe the pro se litigant's pleadings and “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Higgins, 293 F.3d at 688 (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.” (quoting Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993))). However, there are limits to the court's procedural flexibility- “pro se litigants still must allege sufficient facts in their complaints to support a claim…they cannot flout procedural rules-they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted).

         A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Patsakis v. Greek Orthodox Archdiocese of America, 339 F.Supp.2d 689, 692 (W.D. Pa. 2004) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); Gould Electronics, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). In the case at bar, Defendants are asserting a facial challenge, as evidenced by their brief in support of their Motion to Dismiss. In a facial attack, the court must consider the allegations of the complaint as true, in the light most favorable to the plaintiff, similar to a motion to dismiss under Rule 12(b)(6). Mortensen, 549 F.2d at 891; In re Kaiser Group Int'l, Inc., 399 F.3d 558, 561 (3d Cir. 2005).

         A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). “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.” Iqbal, 556 U.S. at 678 (citing Twombly at 556). The Supreme Court further explained:

The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

Id. (citing Twombly at 556-57). The Court of Appeals has expounded on this standard in light of its decision in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the ...


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