United States District Court, E.D. Pennsylvania
BERLIN J. THEODORE
DEFENSE LOGISTICS AGENCY -TROOP SUPPORT, et al.
R. SANCHEZ, C.J.
Berlin Theodore alleges Defendants Pennsylvania Unemployment
Compensation Board and Janet Tarczy denied his unemployment
benefits without due process. These Defendants now move to
dismiss Theodore's Second Amended Complaint. The Court
will grant the motion because the Board is immune from suit
and the Second Amended Complaint has failed to allege a claim
against Tarczy. Because Theodore has already had three
chances to plead his claims, the Court will not grant him
leave to further amend his Complaint.
worked for former defendant Defense Logistics Agency, a
federal government agency under the Department of Defense. He
was fired from Defense Logistics in April 2016 after a
dispute about his leave under the Family Medical Leave Act.
He then sought unemployment benefits from the Pennsylvania
Unemployment Compensation Board. Even though Theodore was a
federal employee, his unemployment compensation was
administered by the commonwealth of Pennsylvania pursuant to
5 U.S.C.§ 8502. The Board initially denied
Theodore's benefits and Theodore appealed in Pennsylvania
state court. After considering his appeal, the state court
remanded Theodore's case to the Board. On remand, the
Board granted Theodore's request for unemployment
April 11, 2018, Theodore filed his first complaint in this
case. One of the Defendants he named was Janet Tarczy, the
Board's Deputy Chief Counsel. All the Defendants,
including Tarczy, moved to dismiss this complaint. On March
27, 2019, the Court granted the Defendants' motions and
dismissed the case against all Defendants. However, the Court
granted Theodore leave to amend his Complaint against
Tarczy. Theodore then filed an Amended Complaint
against Tarczy under Bivens v Six Unknown
Federal Narcotics Agents. 403 U.S. 388 (1971). This
Amended Complaint was again dismissed without prejudice.
Then, on August 26, 2019, Theodore filed his Second Amended
Complaint against Tarczy. In the Second Amended Complaint, he
also added the Board as a defendant. Theodore alleged both
Defendants violated his due process rights. He brings claims
under 42 U.S.C. § 1983 and Bivens. Both
Defendants now move to dismiss Theodore's Second Amended
Court will dismiss Theodore's Second Amended Complaint
against both Defendants. The Court will dismiss
Theodore's claims against the Board because the Board is
immune from suit under the Eleventh Amendment. The Court will
dismiss Theodore's claims against Tarczy in her personal
capacity because he has failed to allege she did anything to
contribute to his alleged due process violation. The Court
will address each Defendant in turn. Because Theodore is
appearing pro se, the Court will construe his complaint
liberally and "apply the applicable law, irrespective of
whether [Theodore] has mentioned it by name." Dluhos
v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).
Board is immune from suit because it is a state executive
agency. "State governments and their subsidiary units
are immune from suit in federal court under the Eleventh
Amendment." Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 253 (3d Cir. 2010). This sovereign
immunity extends to any entity that is an "arm of the
state." Patterson v. Pa. Liquor Control Bd, 915
F.3d 945, 950 (3d Cir. 2019). "[A]n administrative
agency without existence apart from the Commonwealth" is
an arm of the state entitled to sovereign immunity.
Betts, 621 F.3d at 255. The Board falls into this
category. The Board is a subdivision of Pennsylvania's
Department of Labor, which is an administrative agency.
See 43 Pa. Stat, and Cons. Stat. Ann. § 763
(creating the Board as part of the Department of Labor); 71
Pa. Stat, and Cons. Stat. Ann. § 61 (listing the
Department of Labor as a state administrative agency). The
Board is therefore immune from suit. See Betts, 621
F.3d at 255-56 (finding that a subdivision of a state
administrative agency was immune from suit under the Eleventh
incorrectly asserts that the Board should be treated as a
federal agency because it was administering his benefits as
former federal employee. Even though the Board was
administering federal benefits, it is still organized as
apart of the Commonwealth of Pennsylvania. See 43
Pa. Stat. § 763; see also 5 U.S.C. §
8502(d) (explaining that a state agency administering federal
benefits should be treated no differently than a state agency
administering state benefits for purposes of appealing those
benefits). Even if the Board were a federal agency, it would
still not be the proper defendant in a Bivens
action. See F.D.I.C v. Meyer, 510 U.S. 471, 484-86
(1994) (holding that Bivens actions cannot be brought against
federal agencies). Nor would it be the proper defendant in a
§ 1983 action. See Hindes v. F.D.I.C, 137 F.3d
148, 158 (3d Cir. 1998) ("[F]ederal agencies are not
'persons' subject to section 1983 liability.").
claims against Tarczy in her personal capacity will be
dismissed because he has not alleged she was personally
involved in his due process violation. To bring a claim under
either Bivens or § 1983, a plaintiff must
allege that the defendant had direct personal involvement in
the violation of his constitutional rights. With respect to
§ 1983, the Third Circuit has explained this requirement
A defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.
Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988) (internal citations omitted). The same specific
pleading requirements also apply to Bivens claims.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
("Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Theodore does not allege any facts linking Tarczy to his
alleged denial of due process. There is only one factual
allegation in the Second Amended Complaint that mentions
Tarczy by name: "Defendant Tarczy is the PA Unemployment
Compensation Board's Deputy Chief Counsel." Second
Am. Compl. 2. The only other relevant allegations in the
Second Amended Complaint are conclusory allegations alleging
both Defendants "violated Mr. Theodore's right to
due process when it denied [his] claim for unemployment
compensation." Id. at 4. Even though this
allegation appears to include both Defendants, the factual
allegations in the rest of the Second Amended Complaint state
that the Board, not Tarczy, denied Theodore's claim.
There is no allegation that Tarczy was personally involved in
this denial. Theodore's conclusory allegations, devoid of
facts, are not enough to state a claim. See Iqbal,
556 U.S. at 678 ("A pleading that offers labels and
conclusions or ...