United States District Court, E.D. Pennsylvania
JEFFREY L. SCHMEHL, J.
se Plaintiff Robert Merritt has filed a civil rights
Complaint pursuant to 42 U.S.C. § 1983 naming as
Defendants Judge Kelly L. Banach, Public Defender Earl
Supplee, Police Officer Mehmeti Bejtullah, DA Christin F.
Murphy Frances, the Allentown Police Department, the County
of Lehigh and the State of Pennsylvania. He also filed a
Motion for Leave to Proceed In Forma Pauperis. For
the following reasons, Merritt will be granted leave to
proceed in forma pauperis and his Complaint will be
dismissed with prejudice pursuant to 28 U.S.C. §
Complaint is brief. He asserts that on December 14, 2018 he
was charged by Defendant Police Officer Bejtullah with simple
assault and harassment charges. He alleges that Bejtullah was
himself charged with the same crimes and removed from his
position. Defendants Judge Kelly L. Banach and DA Christin F.
Murphy Frances are alleged to have willfully and knowingly
refused to dismissed the charges against Merritt or drop the
case. Merritt makes no substantive allegations against the
remaining Defendants other than to assert in conclusory
fashion that all were involved in his case. He seeks damages
of $100 million.
review of public records confirms that Merritt was charged on
December 14, 2018 by Defendant Bejtullah with simple assault,
harassment and disorderly conduct charges. See
Commonwealth v. Merritt, No. CP-39-CR-5614-2018 (Lehigh
Cty. C.C.P.). Defendant Banach was the judge assigned to the
case and Defendant Christine Murphy Francis (incorrectly
identified in Merritt's caption as “Christin F.
Murphy Frances”) was the district attorney assigned to
the case. On March 19, 2019, while represented by counsel
Merritt entered pleas of nolo contendere to charges of
harassment and disorderly conduct and the simple assault
charge was withdrawn. He was later sentenced to 90 days
probation. On April 4, 2019, Merritt filed a pro se
notice of appeal that appears to remain pending.
STANDARD OF REVIEW
Court will grant Merritt leave to proceed in forma
pauperis because it appears that he is incapable of
paying the fee to commence the civil action. Accordingly, 28
U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss
the Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard 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), which requires the Court to determine
whether the complaint contains “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) (quotations omitted). Conclusory
allegations do not suffice. Id. As Merritt is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011); but see Argentina v.
Gillette, No. 19-1348, 2019 WL 2538020, at *1 (3d Cir.
June 20, 2019) (holding that “liberal construction of a
pro se amended complaint does not mean accumulating
allegations from superseded pleadings”).
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law.” West v. Atkins, 487 U.S. 42, 48 (1988).
claim raised against Judge Kelly Banach is dismissed with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Judges are entitled to absolute immunity from civil rights
claims that are based on acts or omissions taken in their
judicial capacity, so long as they do not act in the complete
absence of all jurisdiction. See Stump v. Sparkman,
435 U.S. 349, 355-56 (1978); Harvey v. Loftus, 505
Fed.Appx. 87, 90 (3d Cir. 2012) (per curiam); Azubuko v.
Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam).
An act is taken in a judge's judicial capacity if it is
“a function normally performed by a judge.”
Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d
Cir. 2000). Moreover, “[g]enerally . . . ‘where a
court has some subject matter jurisdiction, there is
sufficient jurisdiction for immunity purposes.'”
Figueroa v. Blackburn, 208 F.3d 435, 443-44 (3d Cir.
2000) (quoting Barnes v. Winchell, 105 F.3d 1111,
1122 (6th Cir. 1997)). The allegation that Judge Banach
improperly refused to dismissed the charges, even if true,
was clearly taken in the Judge's judicial capacity and
within her jurisdiction. Accordingly, Judge Banach is
absolutely immune and Merritt's claim will be dismissed
with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii)
because it is legally implausible.
are entitled to absolute immunity from liability under §
1983 for acts that are “intimately associated with the
judicial phase of the criminal process” such as
“initiating a prosecution and . . . presenting the
State's case.” Imbler v. Pachtman, 424
U.S. 409, 430-31 (1976). Accordingly, the allegation that
Christine Frances Murphy improperly refused to dismiss the
charges, even if true, was clearly taken in her prosecutorial
capacity in presenting the Commonwealth's case against
Merritt and she is absolutely immune. Since Merritt's
claim against Frances Murphy is legally implausible, it will
be dismissed with prejudice under 28 U.S.C. §
is settled that criminal defense attorneys, even those
employed as public defenders, are not state actors for
purposes of § 1983. See Polk Cty. v. Dodson,
454 U.S. 312, 325 (1981) (“[A] public defender does not
act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal
proceeding.”) (footnote omitted); Angelico v.
Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir.
1999) (“Attorneys performing their traditional
functions will not be considered state actors solely on the
basis of their position as officers of the court.”).
Accordingly, the claim against Defendant Supplee, who is
identified by Merritt as his public defender even though his
name does not appear on the state court docket, must be
dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a plausible claim
since liability is based upon Supplee's alleged actions
as a defense attorney.
only relevant allegation against Police Officer Bejtullah is
that he arrested Merritt and was, thereafter, removed from
his position. To the extent that this may be read as
attempting to state a claim for false arrest under the Fourth
Amendment, it is not plausible. A plaintiff must allege facts
establishing that he was arrested without probable cause.
See Orsatti v. N.J. State Police, 71 F.3d 480, 482
(3d Cir. 1995). “[P]robable cause to arrest exists when
the facts and circumstances within the arresting
officer's knowledge are sufficient in themselves to
warrant a reasonable person to believe that an offense has
been or is being committed by the person to be
arrested.” Id. at 483. The allegation that
Bejtullah was himself later arrested does not establish a
plausible claim that Merritt's arrest was not supported
by probable cause or that it was otherwise unconstitutional.
claims against the Allentown Police Department, presumably
asserted because it was Defendant Bejtullah's employer,
is also dismissed with prejudice because it is legally
implausible. A police department is a sub-unit of the local
government and, as such, is merely a vehicle through which
the municipality fulfills its policing functions. See
e.g. Johnson v. City of Erie, Pa., 834 F.Supp. 873,
878-79 (W.D. Pa. 1993). Thus, while a municipality may be
liable under § 1983, a police department, as a mere
sub-unit of the municipality, may not. Id.;
Martin v. Red Lion Police Dept., 146 Fed.Appx. 558,
562 n.3 (3d Cir. 2005) (per curiam) (stating that police
department is not a proper defendant in an action pursuant to
42 U.S.C. § 1983 because it is a sub-division of its
municipality); Bonenberger v. Plymouth Twp., 132
F.3d 20, 25 (3d Cir. 1997) (“As in past cases, we treat
the municipality and its police department as a single ...