United States District Court, E.D. Pennsylvania
F. KELLY, SR. J.
suit arises out of Plaintiff Retha Johnson's
(“Johnson”) arrest for her alleged failure to
report to one of her probation officers in Montgomery County
and failure to pay her probation fines, costs, and
restitution in Delaware County. She brings this action
against Defendants Mary Dollinger (“Dollinger”),
Eric Fetcher (“Fetcher”), Daniel Kuhn
(“Kuhn”), Lamont Pendleton
(“Pendleton”), Frances Harrison Bly
(“Officer Bly”), and Lee Ann Montgomery
(“Officer Montgomery”), alleging various civil
rights violations and state law claims.
before the Court is Officer Montgomery's Motion to
Dismiss, which seeks dismissal of the federal and state civil
conspiracy claims in Johnson's Amended
Complaint.Johnson has filed a Response in Opposition.
For the reasons that follow, Officer Montgomery's Motion
Court previously addressed this matter in a Memorandum
Opinion dated April 12, 2019. See Johnson v.
Dollinger, No. 18-4751, 2019 WL 1596340 (E.D. Pa. Apr.
12, 2019). As it relates to Officer Montgomery, the Court
dismissed with prejudice all claims asserted against her
except the civil conspiracy claims in Count IV. See Id.
at *7-8. The Court gave Johnson fifteen days to file an
Amended Complaint, and she has done so. The Complaint's
and Amended Complaint's “general allegations,
” located at paragraphs eight through twenty-five, are
nearly verbatim. Accordingly, we incorporate our factual
background in our prior Memorandum Opinion here. See
Id. at *1-2.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of a complaint. Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). “To
survive a motion to dismiss, a 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, 679 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(internal quotation marks omitted). In deciding a motion to
dismiss under Rule 12(b)(6), courts must “accept as
true all allegations in the complaint and all reasonable
inferences that can be drawn from them after construing them
in the light most favorable to the nonmovant.”
Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir.
2016) (quoting Foglia v. Renal Ventures Mgmt., LLC,
754 F.3d 153, 154 n.1 (3d Cir. 2014)) (internal quotation
marks omitted). However, courts need not “accept mere
conclusory factual allegations or legal assertions.”
In re Asbestos Prods. Liab. Litig. (No. VI), 822
F.3d 125, 133 (3d Cir. 2016) (citing Iqbal, 556 U.S.
at 678-79). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Twombly, 550 U.S. at 555.
Finally, we may consider “only the complaint, exhibits
attached to the complaint, matters of public record, as well
as undisputedly authentic documents if the complainant's
claims are based upon [those] documents.”
Davis, 824 F.3d at 341 (quoting Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010)) (internal
quotation marks omitted).
Montgomery again moves to dismiss the civil conspiracy claims
on the basis that there is no factual predicate to support
such claims among the multiple probation officers that work
in different jurisdictions. (Officer Montgomery's Mem.
Law Supp. Mot. to Dismiss 5.) In our prior Memorandum
Opinion, we dismissed Johnson's civil conspiracy claims
because the Complaint contained only conclusory labels of
conspiracy and did not “assert a single fact that would
allow the Court to infer that an agreement between the
Defendants has been made.” Johnson, 2019 WL
1596340, at *8. As explained below, Johnson's Amended
Complaint fares no better, and her civil conspiracy claims
against Officer Montgomery are dismissed with prejudice.
state a claim of conspiracy under § 1983, “a
plaintiff must establish (1) the existence of a conspiracy
involving state action; and (2) a deprivation of civil rights
in furtherance of the conspiracy by a party to the
conspiracy.” Rosembert v. Borough of E.
Lansdowne, 14 F.Supp.3d 631, 647 (E.D. Pa. 2014)
(quoting Gale v. Storti, 608 F.Supp.2d 629, 635
(E.D. Pa. 2009)). To properly plead a conspiracy claim, the
plaintiff “must assert facts from which a
conspiratorial agreement can be inferred.” Mikhail
v. Kahn, 991 F.Supp.2d 596, 645 (E.D. Pa. 2014) (quoting
Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 178 (3d Cir. 2010)). Indeed,
“[t]he plaintiff must make ‘specific factual
allegations of combination, agreement, or understanding among
all or between any of the defendants to plot, plan, or
conspire to carry out the alleged chain of
events.'” Church Mut. Ins. Co. v. All.
Adjustment Grp., 102 F.Supp.3d 719, 729 (E.D. Pa. 2015)
(quoting Panayotides v. Rabenold, 35 F.Supp.2d 411,
419 (E.D. Pa. 1999)). “‘[O]nly allegations of
conspiracy which are particularized, such as those addressing
the period of the conspiracy, the object of the conspiracy,
and certain other action of the alleged conspirators taken to
achieve that purpose will be deemed sufficient.'”
Panayotides, 35 F.Supp.2d at 419 (alteration in
original) (quoting Dutton v. Buckingham Twp., No.
97-3354, 1997 WL 732856, at *2 (E.D. Pa. Nov. 13, 1997)).
“[T]he law is clear that the plaintiff must plead more
than legal conclusions of a conspiracy or agreement.”
Mikhail, 991 F.Supp.2d at 645.
nearly verbatim from her original Response in Opposition to
Defendants' Motions to Dismiss, Johnson argues that
“[i]t is [her] contention that at the pleading stage,
all that is required to support a plausible finding of
[c]onspiracy between the above mentioned defendants is a well
pleaded allegation that the [Defendants] conspired together
to have the plaintiff unlawfully arrested and charged with
probation violations.” (Pl.'s Mem. Law Opp'n
Officer Montgomery's Mot. to Dismiss 7.) As we noted in
our prior Memorandum Opinion, the law clearly does not
support Johnson's “contention.” The Amended
Complaint, like the original Complaint, does not contain a
single factual allegation that would allow the Court to infer
that an agreement to violate Johnson's civil rights was
made between the several probation officers named as
defendants. Indeed, her general factual allegations in the
Amended Complaint nearly mirror those from the original
Complaint, which do not even mention Dollinger, Fetcher,
Kuhn, or Pendleton in a single paragraph. (See Am.
Compl. ¶¶ 8-25.) And although Johnson has added
averments below her civil conspiracy claims that state, as to
each probation officer, that he or she “conspired with
the other defendants to perpetuate plaintiff's illegal
arrest by deliberately ignoring plaintiff's lawful
probation transfer to Philadelphia, ” (id.
¶¶ 55-60), these statements are nothing more than
conclusory assertions of a conspiracy. In short, Johnson has
not alleged specific facts to show an agreement between the
named probation officers. See Church Mut., 102
F.Supp.3d at 729 (quoting Panayotides, 35 F.Supp.2d
at 419) (“The plaintiff must make ‘specific
factual allegations of combination, agreement, or
understanding among all or between any of the defendants to
plot, plan, or conspire to carry out the alleged chain of
events.'”). Therefore, her federal civil conspiracy
claim is dismissed.
prior Memorandum Opinion also dismissed without prejudice a
Pennsylvania state law claim of civil conspiracy to the
extent one was raised, as it was unclear from Johnson's
Complaint and briefing that she was even bringing one.
See Johnson, 2019 WL 1596340, at *8 n.7.
Johnson's Amended Complaint makes clear that she is
bringing such a claim, which Officer Montgomery also moves to
dismiss. To bring a civil conspiracy claim under Pennsylvania
law, “a plaintiff must allege the following: (1) a
combination of two or more persons acting with a common
purpose to do an unlawful act or to do a lawful act by
unlawful means or for an unlawful purpose; (2) an overt act
done in pursuance of the common purpose; and (3) actual legal
damage.” Tegg Corp. v. Beckstrom Elec. Co.,
650 F.Supp.2d 413, 426 (W.D. Pa. 2008) (citing Strickland
v. Univ. of Scranton, 700 A.2d 979, 987-88 (Pa. Super.
state law civil conspiracy claim fails for the same reason as
her federal claim. In particular, she does not assert a
single fact that would show a combination of two or more
individuals with a common purpose committing an unlawful act
or committing a lawful act with an unlawful purpose.
Likewise, she does not allege any facts showing an overt act
was done to pursue a common purpose. For these reasons,
Johnson's state law civil conspiracy claim is dismissed.
we have afforded Johnson the opportunity to cure her
deficiencies by filing an Amended Complaint, we find that
further amendment would be futile. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.
1997) (listing futility as a reason for denying leave to
amend). Accordingly, her civil conspiracy claims ...