United States District Court, W.D. Pennsylvania
HERBERT L. JOSEPH, III Plaintiff,
ALLEGHENY COUNTY AIRPORT AUTHORITY, ALLEGHENY COUNTY AIRPORT POLICE, CITY OF PITTSBURGH POLICE, and CITIZENS BANK, Defendants.
OPINION AND ORDER
Donetta W. Ambrose, Senior Judge
civil action, Plaintiff, acting pro se, brings claims against
Defendants that sound in constitutional tort. In response to
Motions to Dismiss Plaintiff's initial Complaint,
Plaintiff filed an Amended Complaint. Defendants filed
Motions to Dismiss the Amended Complaint, which the Court
granted without prejudice by Opinion and Order dated February
15, 2019 (“February 15 Order”). Subsequently,
Plaintiff filed a Second Amended Complaint and New Matter.
The following day, he filed a Motion for Leave to File a
Third Amended Complaint, seeking to join two additional
parties, Fairmont Hotel and Progressive Insurance Company
Court ordered Defendants to respond to Plaintiff's Motion
for Leave to File. Defendants Citizens Bank
(“Citizens”) and Defendants Allegheny County
Airport Authority (“Airport Authority”) and
Allegheny County Police (“County Police”)
responded by filing Motions to Dismiss Plaintiff's Second
Amended Complaint. The remaining Defendants, Allegheny County
Airport Police (“Airport Police”) and the City of
Pittsburgh Police (“City Police”), filed direct
responses to Plaintiff's Motion for Leave to File.
was directed to respond to the Defendant's Motions by
April 18, 2019. Apparently in lieu of such a response,
Plaintiff submitted a letter to this Court dated April 29,
2019 (“April 29 Letter”). The letter, inter alia,
indicates that Plaintiff “will not respond as to”
the Defendants. Defendants' and Plaintiff's Motions
are pending before the Court, and are ripe for review. For
the following reasons, Plaintiff's Motion will be denied,
and Defendants' granted. This matter will be dismissed
with prejudice as against all Defendants.
MOTIONS TO DISMISS SECOND AMENDED COMPLAINT
deciding a motion to dismiss, all factual allegations, and
all reasonable inferences therefrom, must be accepted as true
and viewed in a light most favorable to the plaintiff.
Kamdem-Ouaffo v. Task Mgmt., No. 17-7506, 2018 U.S.
Dist. LEXIS 113899, at *19 (D.N.J. July 9, 2018). A claim is
plausible on its face, and not subject to dismissal,
"when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Ashcroft v.
Iqbal, U.S., 129 S.Ct 1937, 1949, 173 L.Ed.2d 868 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). While
"[t]he plausibility standard is not akin to a
'probability requirement' ... it asks for more than a
sheer possibility...." Id. at 949.
and the Allegheny County Police/Airport Police, have filed
Motions to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
Plaintiff's Second Amended Complaint raises allegations
against Citizens only in his New Matter. Therein,
Plaintiff's New Matter asks that this Court have Reed
Smith removed as counsel for Citizens, because the
receptionist allegedly sought to keep Plaintiff in the lobby
where he might take ill, and because the firm's security
director sent Plaintiff a cease and desist harassment letter.
This Court is without authority to control a party's
representation, under such circumstances, and Plaintiff
states no cognizable claim to that extent. A similar
deficiency is apparent with respect to Plaintiff's claims
against the Allegheny County/Airport Police. As Defendant
points out, Plaintiff's Second Amended Complaint does not
state any factual allegations against this Defendant, The
Second Amended Complaint otherwise fails to cure the
deficiencies identified in this Court's February 15 Order
as regards these Defendants. Plaintiff's Second Amended
Complaint against Citizens and the Allegheny County Police
will be dismissed.
the Airport Authority nor the City of Pittsburgh Police, both
named in Plaintiff's Second Amended Complaint, have filed
formal dismissal motions. They have, however, addressed
deficiencies in Plaintiff's Second Amended Complaint in
response to his Motion for Leave to Amend. It is apparent
that Plaintiff's Motion for Leave to File Third Amended
Complaint, filed the day after his Second Amended Complaint,
created an ambiguity about the necessity of responding
directly to Plaintiff's Second Amended Complaint. The
City of Pittsburgh Police has, for example, stated that
“[t]o the extent necessary, ” it moves to dismiss
the Second Amended Complaint, and opposes the filing of
Plaintiff's proposed Third Amended Complaint. Although
the Court typically declines to consider requests for relief
contained in briefs, these non-moving Defendants make clear
that they challenge the sufficiency of Plaintiff's Second
the Airport Authority and City of Pittsburgh Police were
required to more formally respond to the Second Amended
Complaint, “[a] district court may sua sponte dismiss a
complaint for failure to comply with Rule 8… dismissal
‘is usually reserved for those cases in which the
complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well
disguised.'" Tillio v. Northland Grp.,
Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012) (quoting
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
“The Court of Appeals for the Third Circuit has
recognized that ‘there are times when a court may sua
sponte raise the issue of the deficiency of a pleading under
Rule 12(b)(6),' provided the litigant is afforded
‘notice and an opportunity to respond.'"
Fino v. Key Bank, No. 00-375, 2001 U.S. Dist. LEXIS
24358, at *23 (W.D. Pa. July 27, 2001) (citing Roman v.
Jeffes, 904 F.2d 192, 196 (3d Cir. 1990)). In this case,
the moving Defendants addressed the deficiencies in
Plaintiff's Second Amended Complaint; the non-moving
Defendants did so in their responses to Plaintiff's
Motion for Leave to Amend; and the alleged deficiencies are
carryovers from Plaintiff's earlier pleadings, which were
fully addressed by all Defendants and the Court. Plaintiff
had ample notice and opportunity to respond regarding his
failures to state a claim.
I noted that local police departments, including that of the
City of Pittsburgh, are not proper defendants in a Section
1983 action. I further noted that the Airport Authority was
immune from Plaintiff's claims. Plaintiff now claims that
the Airport Authority singled him out and treated him, a
“Negro Injun, ” differently from other
permittees. He does not state any factual allegations against
the City of Pittsburgh Police. His Second Amended Complaint
does nothing to cure the defects identified in this
Court's February 15 Order. Instead, the allegations of
the Complaint, as regards these Defendants, continue to fall
short of applicable pleading standards, for reasons similar
to those previously stated by the Court. Plaintiff has
filed three different complaints in this action -- not
including the one appended to his Motion for Leave to File -
none of which have remained standing. Under the
circumstances, dismissal is appropriate.
MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
has filed a Motion for Leave to File Third Amended Complaint.
Plaintiff proposes a Third Amended Complaint, in which he
sues all previously named Defendants, as well as newly
proposed defendants Fairmont Hotel and Progressive Insurance
Company (“Progressive”). Plaintiff, as in prior
iterations of his complaint, proposes to seek one billion
dollars in damages, as well as a cease and desist order
against the Fairmont Hotel.
to Fed.R.Civ.P. 15(a), leave to amend should be freely given
when justice so requires. However, such leave need not be
granted if amendment would be futile, insofar that the
amended pleading would fail to state a claim upon which
relief could be granted. Munsif v. Am. Bd. of Internal
Med., No. 11-5949, 2012 U.S. Dist. LEXIS 128974, at *20
(E.D. Pa. Sep. 11, 2012). Plaintiff's Third Amended
Complaint fails to cure the defects in his Second Amended
Complaint against the existing Defendants; the Second Amended
Complaint, as discussed supra, failed to cure the defects
identified in Plaintiff's initial and First Amended
Complaints. Following a Complaint, an Amended Complaint, and
a Second Amended Complaint, Plaintiff has continued to fail
to state a claim against Defendants under Rules 12(b)(6) and
8. The third amendment as against those Defendants,
therefore, would be futile. Given that Plaintiff cannot
proceed against the named ...