# WARDEN v. MCCAULEY

> District Court, E.D. Pennsylvania · October 18, 2019

URL: https://www.frixlaw.com/law-library/cases/10397835

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 18, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WESTLEY RETZLER, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 19-CV-1800
:
WILLIAM McCAULEY, III, :
et al., :
Defendants. :

LAURA WARDEN, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 19-CV-1801
:
WILLIAM McCAULEY, III, :
et al., :
Defendants. :

MEMORANDUM

Schiller, J. October 17, 2019
In a prior Memorandum and Order, the Court granted pro se Plaintiffs Westley Retzler and
Laura Warden leave to proceed in forma pauperis, dismissed their Complaints without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) as to certain Defendants, dismissed the Complaints with
prejudice as to certain other Defendants, and permitted them to proceed against certain Defendants
and file amended complaints. After each filed an Amended Complaint that were identical in all
respects, the Court entered another Memorandum and Order in which the two cases were Ordered
consolidated for all further purposes under Civil Action Number 19-1800, and the Amended
Complaints were dismissed without prejudice for failure to comply with Rule 8. Retzler and
Warden were granted leave to file a consolidated Second Amended Complaint (“SAC”), in which
they were instructed to follow certain guidelines to ensure that the Court and the defendants they
chose to name therein would be able to understand their claims and allegations.1 The SAC, signed
by both Retzler and Warden, is now subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

For the reasons that follow, certain claims and Defendants will be dismissed with prejudice and
the balance of the SAC will be served on the remaining Defendants.
I. FACTS
The SAC names 49 individuals and governmental entities as Defendants.2 Retzler and
Warden assert civil rights claims, apparently pursuant to 42 U.S.C. § 1983, based on two

1 Retzler and Warden were directed to provide a caption in which they listed each defendant; use
numbered paragraphs with each paragraph setting forth one complete allegation against one
named Defendant; avoid repeating the same allegation once completely set forth in one
numbered paragraph; describe how that Defendant acted personally to harm them; eliminate
extraneous material, personal opinions, and characterizations; and avoid referring collectively to
“Defendants.” (ECF No. 7 at 4-5.) The Court notes, initially, that Retzler and Warden have
failed to follow the Court’s directive that they avoid repetitious allegations. The SAC,
comprising 69 numbered paragraphs of factual allegations, is highly repetitive, asserting the
same basic facts over and over again. Rather than following the Court’s instruction to set forth
paragraphs containing one complete allegation against one named Defendant, each of their
numbered paragraphs again include allegations against numerous named Defendants without, in
many cases, identifying how each person was responsible for the conduct they describe. In other
instances, rather than name individuals, they merely list persons by the “number” they assigned
to them in the caption without articulating any particular action the referenced individual may
have taken to harm them. In addition, each named Defendant is named in numerous repetitive
paragraphs containing similar allegations.

2 As “numbered” by Retzler and Warden, the Defendants, whose affiliations are scattered among
the SAC factual allegations and whose names are inconsistently spelled throughout, are: 1.
William McCauley, III, Bristol Township Manager; 2. Adam D. Flager, attorney for Bristol
Township; 3. Edward J. Zanie (no affiliation provided; the Court notes that an attorney named
Edward J. Zanine is noted as a deceased member of Flager & Associates on that law firm’s
website www.flagerlaw.com (last visited October 11, 2019)); 4. Scott Swichar, Bristol Township
employee; 5. Craig Bowen, Bristol Township Council; 6. Amber Longitano, Bristol Township
Council; 7. Patrick Antonello, Bristol Township Council; 8. Robert Coulton, Bristol Township
Police Chief; 9. Bristol Township Sewer Department; 10 Randell C. Flager, attorney for Bristol
Township and Bucks County Prothonotary; 11. Thomas Scott, Bristol Township Building and
apparently separate but related incidents as well as a third, unrelated, incident. The first incident,
which makes up the bulk of the SAC’s repetitive allegations, involves the removal of three motor
vehicles and a motor home from their property by Bristol Township employees on April 26 and/or
April 27, 2017, apparently in response to nuisance complaints from neighbors. This was allegedly

accomplished under the direction of Defendants William McCauley, III, Robert McTaque, Thomas
Scott, Scott Swichar, and supervised by Bristol Township Police Chief Robert Coulton, Lieutenant
Ralph Johnson, Police Officer Mark Titus and Police Officer Robert Swartzwalter. (SAC, ECF
No. 13, at ¶¶ 20-21, 25, 27, 56-61.) Also named on these claims are members of the Bristol
Township Council, Bristol Township employees and attorneys. (Id. ¶ 20.)
The vehicles were allegedly removed by Defendant Raymond Blalock and his company
Blalock Automotive. (Id. ¶¶ 22, 38.) During the incident, Police Officer Kevin Jackson allegedly
restrained Retzler and Warden from their attempt to interfere with the activities of the Bristol
officials. (Id. ¶ 27.) Bristol Township Public Works employees Dave Capponi and Carl Demidio
removed the mobile home. (Id. ¶¶ 23, 34-36.) Defendant Ronald Flager, an attorney and solicitor

Planning Officer; 12. Ralph Johnson, Bristol Township Police Lieutenant; 13. Cynthia Murphy,
Bristol Township Council; 14. Joseph Glasson, Bristol Township Council; 15. Howard Allen,
Bristol Township Council; 16. Raymond Blalock, owner of Blalock Automotive; 17. Robert
Swartzwalter, Bristol Township Police Officer; 18. Thomas Barton, Bristol Township Police
Officer; 19. Kevin Jackson, Bristol Township Police Officer; 20. Jeffery Trauger, Bucks County
Judge; 21. Francis X. Phillips, Finance Director (employer not stated); 22. Robert McTaque,
Bristol Township employee; 23. Mark Titus, Bristol Township employee; 24. Larry J. Mascia III,
Bristol Township employee; 25. Carl Demidio, Bristol Township employee; 25-1. John Doe #1;
26. Dave Capponi, Bristol Township employee; 27. Township of Bristol; 28. Dennis Eustace,
neighbor; 29. Cheryl Eustace, neighbor; 30. Wayne Duke, neighbor; 31. Elizabeth Duke,
neighbor; 32. Kenneth Meehan, neighbor; 33. Michael Litz, neighbor; 34. Carol Litz, neighbor;
35. Theodore Shire, neighbor; 36. Howard McGoldrick, neighbor; 37. George Shetzline,
neighbor; 38. Helen Kustowski, neighbor; 39. Joseph Tillo, neighbor; 40. Deborah Tillo,
neighbor; 41. Rob’s Towing & Hauling; 42. Robert A. Leipziger (no affiliation provided); 43.
Blalock Automotive; 44. County of Bucks; 45. Sherry Flager, attorney for Bristol Township; 46.
John Doe #2; 47. Michael S. Levin, attorney for Bristol Township; 48. Tina Davis (no affiliation
provided).
for the Township, allegedly conspired with the Township Deputy Manager Scott Swichar and
others to enter onto Retzler’s and Warden’s property and, when contacted by telephone by other
Defendants who were on-site, Flager allegedly told them “I don’t care just take it all, those two
(Retzler and Warden) don’t deserve to have nothing!” (Id. ¶ 25 (quotation marks and punctuation

in original).) Retzler and Warden repeatedly allege that the Township Defendants acted to enter
their property and seize their vehicles based on the complaints of their neighbors, Dennis Eustace,
Cheryl Eustace, Michael Litz, Carol Litz, Kenneth Mehan, Wayne Duke, Elizabeth Duke, Joseph
Tillo, Deborah Tillo, Theodore Shire, George Shetzline, Howard McGoldrick, and Helen
Kustowski (collectively “the Neighbor Defendants”). (Id. ¶ 26, 53-54, 56.) They also repeatedly
allege that the Township officials refused to tell them who ordered the removal of their vehicles
and damaged their property during the operation. (Id. ¶¶ 24-39, 50-51, 52.) Defendant Blalock
refused to release the vehicles that had been stored at his business. (Id. ¶¶ 40, 64.) Retzler and
Warden assert that Randell Flager, Edward Zanie, Adam Flager and Sherry Flager badgered and
physically assaulted them. (Id. ¶ 61.)

The second and perhaps related incident involves a case or cases filed in the Bucks County
Court of Common Pleas by Bristol Township against Retzler, and possible, cases filed by Retzler
and Warden against many of the same Bristol Township and Bucks County Defendants named in
this case. Retzler and Warden assert that the Defendants therein were represented by Randell
Flager, Adam Flager and Michael S. Levin, in their capacity as solicitors for the Bucks County
Prothonotary.3 (Id. ¶¶ 28, 42.) The case was assigned to Defendant Judge Jeffrey Trauger, who
allegedly allowed the case to remain dormant for five years. (Id.) The case was then calendared

3 It is unclear from the SAC whether the court case in Bucks County contains any claim also
alleged here. For § 1915 screening purposes only, the Court will assume the claims are distinct
and there are no collateral estoppel issues.
for a date that Retzler was in the hospital and allegedly proceeded without him present. (Id. ¶¶
29-30.) The attorneys allegedly defamed Retzler during the proceeding, and were operating under
conflicts of interest. (Id. ¶¶ 31, 47, 49.) Retzler and Warden allege that they eventually learned
that the entry onto their property and the removal of the vehicles was ordered by Judge Trauger

after the hearing that Retzler could not attend. (Id. ¶ 41.) They also assert that their applications
to proceed in forma pauperis in that Court have been delayed by the judges in their cases at the
behest of Randell Flager. (Id. ¶¶ 43-46.)
Finally, in what appears to be an entirely unrelated allegation, Retzler and Warden assert a
civil rights violation because payments they made for their sewer bills were not properly credited.
(Id. ¶¶ 65-68.)
II. STANDARD OF REVIEW
Retzler and Warden were previously granted leave to proceed in forma pauperis.
Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the SAC 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 Retzler and Warden are proceeding pro
se, the Court construes their 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”).
Section 1915(e)(2)(B)(i) requires the Court to dismiss claims if they are frivolous. A claim
is frivolous if it “lacks an arguable basis either in law or in fact,” Neitzke v. Williams, 490 U.S.
319, 325 (1989), and is legally baseless if it is “based on an indisputably meritless legal theory.”
Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995).

III. DISCUSSION
A. Claims Against the Neighbor Defendants
Retzler and Warden have sued numerous of their neighbors for civil rights violations who
allegedly complained to Bristol Township officials about the condition of their property. The
vehicle by which one may assert civil rights claims in federal court is 42 U.S.C. § 1983. “To 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). Whether a
defendant is acting under color of state law — i.e., whether the defendant is a state actor — depends
on whether there is “such a close nexus between the State and the challenged action that seemingly

private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337,
339 (3d Cir. 2005) (internal quotations omitted). “To answer that question, [the Third Circuit has]
outlined three broad tests generated by Supreme Court jurisprudence to determine whether state
action exists: (1) whether the private person has exercised powers that are traditionally the
exclusive prerogative of the state; (2) whether the private party has acted with the help of or in
concert with state officials; and (3) whether the state has so far insinuated itself into a position of
interdependence with the acting party that it must be recognized as a joint participant in the
challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and
alteration omitted).
There is no plausible assertion that the Neighbor Defendants qualify as state actors for
purposes of § 1983. There is no allegation that they exercised a traditional state power, acted in
concert with state actors, or were joint participants in the actions of the Bristol Township
Defendants. Merely making complaints to municipal officials about an alleged nuisance does not

convert a private person into a state actor subject to liability for constitutional violations under §
1983. See e.g., Orkowski v. McCauley, Civ. A. No. 19-2087, 2019 WL 2246781, at *4 (E.D. Pa.
May 22, 2019) (holding that neighbors who passed information to Township officials or police
that caused them to act were not state actors) (citing Simmer v. Kehler, Civ. A. No. 15-2285, 2015
WL 6737017, at *3 (D.N.J. Nov. 2, 2015) (collecting cases and holding that “[m]erely giving
information to police officers is insufficient to convert a private party into a state actor”)); Cvetko
v. Derry Twp. Police Dep’t, Civ. A. No. 09-1260, 2010 WL 1791140, at *4 (M.D. Pa. May 4,
2010) (“[A] private actor does not proceed under color of state law merely by furnishing the police
with information pertaining to a possible public disturbance.”). Allegations that certain neighbors
were hostile, boastful bullies, who made rude gestures or watched as the Township employees

conducted the removal of the vehicles (see ECF No. 13 at ¶ 26), are likewise insufficient to convert
them into state actors.4 Accordingly, the claims against Dennis Eustace, Cheryl Eustace, Michael
Litz, Carol Litz, Kenneth Mehan, Wayne Duke, Elizabeth Duke, Joseph Tillo, Deborah Tillo,
Theodore Shire, George Shetzline, Howard McGoldrick, and Helen Kustowski are dismissed
pursuant to § 1915(e)(2)(B)(ii). As Retzler and Warden have already been granted two prior
opportunities to state plausible claims against the Neighbor Defendants and it appearing that any
further attempt would be futile, the dismissal of the Neighbor Defendants will be with prejudice.

4 Dennis Eustice, Cheryl Eustice and Kenneth Mehan also allegedly ignored provisions of a
settlement agreement. (ECF No. 13 at ¶ 19.) This too fails to state a plausible § 1983 claim.
B. Claims Against Judge Trauger
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 F. App’x

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 claims against Defendant Trauger are based on actions that fall within this sphere of
judicial immunity. All claims asserted against Judge Trauger stem from his adjudication of
Retzler’s and Warden’s lawsuits in the Bucks County Court of Common Pleas. (See ECF No. 13,
¶¶ 19, 28-33, 37, 41.) While they assert that Judge Trauger (or perhaps another, non-Defendant

judge) purposefully delayed the adjudication of their motions to proceed in forma pauperis and
decided a case while Retzler was hospitalized and unavailable to attend, even if true these are
clearly activities taken in his judicial capacity and for which he is absolutely immune.
Accordingly, the claims against Judge Trauger are dismissed with prejudice as legally frivolous
pursuant to § 1915(e)(2)(B)(i).
C. Claims Against Bristol Township Council Members
Although named as Defendants in the caption of the SAC, Retzler and Warden fail to allege
any act concerning members of the Bristol Township Council other than to refer to them by their
“number” in paragraphs that concern the actions of other Defendants (see e.g., ECF No. 13 at ¶¶
16, 18, 19, 25), or to assert liability for any reasons other than their membership in that body.
Other than conclusory allegations that they engaged in a conspiracy with others, the only
substantive allegations against Defendants Craig Bowen, Amber Longitano, Patrick Antonello,
Cynthia Murphy, Joseph Glasson, and Howard Allen is that they are members of the Bristol

Township Council, several of whom refused to respond to Retzler’s and Warden’s letters or
requests for information. (ECF No. 13 at ¶¶ 20, 37.) Because these conclusory allegations and
limited specific allegations fail to state a plausible claim for civil rights violations, the claims
against these Defendants will also be dismissed with prejudice pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) since Retzler and Warden have already been granted the opportunity to amend
their pleading and further amendment would be futile.
D. Claims Against Robert A. Leipziger and Tina Davis
The Court’s review of the SAC reveals that Retzler and Warden do not appear to assert any
substantive factual allegation concerning Robert A. Leipziger or Tina Davis. Leipziger is referred
to by reference to his number in the list of Defendants (Number 42) in Paragraphs 1-5, 7, 23, 60,

and 61 of the SAC, but those paragraphs contain no mention of his name or a factual allegation
that identifies him. Davis, likewise, is referred to by reference to her number in the list (Number
48) in Paragraphs 37-40 and 69, but those paragraphs contain no mention of her name or factual
allegations that identify her. The only time Davis is mentioned by name is in Paragraph 63 where
Retzler and Warden allege that “Tina Davis went along to get along politically to get her
[indecipherable] James Davis clear of criminal charges.” This allegation fails to state any plausible
civil rights claim against Davis. In light of the prior opportunities to amend granted to Retzler and
Warden, the Court finds that further amendment would be futile and these Defendants are
dismissed with prejudice.
E. Claims Against Rob’s Towing and Hauling, Inc.
In their initial Complaint, Retzler and Warden named Rob’s Towing and Hauling, Inc. as
a Defendant, alleging that it failed to produce legal documentation stating it had a right to seize
their property. (ECF No. 2 at 17.) Rob’s Towing was dismissed because the allegation against it

failed to comply with Fed. R. Civ. P. 8’s requirement that Retzler and Warden provide a short
plain statement showing that they were entitled to relief under § 1983 against this Defendant. (ECF
No. 4 at 5.) Retzler and Warden have again included Rob’s Towing and Hauling, Inc. in the
caption of the SAC, listing it as Defendant Number 41. The only substantive allegations that
names this Defendant asserts, after mentioning their motor home, that “Rob’s Towing and Hauling
removed from the Plaintiff(s) property . . . without authorization to do so.” (ECF No. 13 at ¶ 60
(address omitted.) This allegation again fails to state a plausible § 1983 claim. There is insufficient
information alleged in order to consider Rob’s Towing and Hauling, Inc. a state actor or that it can
be deemed to be a state actor under the standard set forth above. Accordingly, Rob’s Towing and
Hauling, Inc. is dismissed with prejudice since Retzler and Warden have already been given an

opportunity to amend, have failed to follow the Court’s instruction to provide sufficient
information to comply with Rule 8, and further amendment would be futile.
F. Claims That Are Time Barred
In introductory paragraphs of the SAC, Retzler and Warden repeatedly assert that they were
injured due to conduct by the Defendants — identified only by their “number” — occurring during
the past ten to twenty years. (See, e.g., ECF No. 13 at ¶ 3 (“The Plaintiff(s) have had forced upon
them mental anguish numerous amount of times causing medical issues and a most significant
shortening of their lifespan most probably more than ten (10) years due to Defendant(s) actions
(some more than 20 years).”); ¶ 5 (mentioning fifteen year time period); ¶ 8 (alleging mental and
physical injury “since 1999”); ¶¶ 9-14 (asserting injury for 20 years); ¶¶ 52-53 (same). They also
specifically assert that, in 2000, 2003, 2005, and 2009, Bristol Township and Bucks County
engaged in malicious and selective prosecution of them for criminal, traffic and property
violations, instituted by Defendants William McCauley, Thomas Scott, Randell Flager and Adam

Flager, in order to appease neighbors. (Id. ¶ 15.) To the extent that these introductory paragraphs
and Paragraph 15 attempt to state separate civil rights claims apart from the incidents described
above, the allegations are wholly conclusory and are clearly time barred.
The timeliness of a § 1983 claim is governed by the limitations period applicable to
personal injury actions of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626,
634 (3d Cir. 2009). The Pennsylvania statute of limitations for a personal injury action is two
years. Id. at 634 (citing 42 Pa. Cons. Stat. § 5524(2)). Thus, limitations period applicable to all
of Retzler’s and Warden’s § 1983 claims is two years.
In Pennsylvania, however, the discovery rule may operate to delay the running of the
statute of limitations in certain circumstances. Nicolaou v. Martin, 195 A.3d 880, 892 (Pa. 2018)

(“[T]he discovery rule tolls the statute of limitations where the plaintiff is reasonably unaware that
he has been injured and that his injury has been caused by another party’s conduct”) (citing Fine
v. Checcio, 870 A.2d 850, 858 (Pa. 2005)). “As the discovery rule has developed, the salient point
giving rise to its application is the inability of the injured, despite the exercise of reasonable
diligence, to know that he is injured and by what cause.” Fine, at 859. “The reasonable diligence
standard is objective, as the question is not what the plaintiff actually knew of the injury or its
cause, but what he might have known by exercising the diligence required by law.” Nicolaou, 195
A.3d at 893. (citations omitted). However, “the objective reasonable diligence standard is
‘sufficiently flexible . . . to take into account the differences between persons and their capacity to
meet certain situations and the circumstances confronting them at the time in question.’” Id.
(quoting Fine, 870 A.2d at 858).
Whether or not Pennsylvania’s discovery rule applies in a given case is a question of fact.
Id. at 894; Gleason v. Borough of Moosic, 15 A.3d 479, 485 (Pa. 2011). As such, it is properly a

question for the jury unless no reasonable juror could find otherwise. Fine, 870 A.2d at 858-59.
“A complaint is subject to dismissal for failure to state a claim on statute of limitations grounds
only when the statute of limitations defense is apparent on the face of the complaint.” Wisniewski
v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017).
It is clear on the face of Retzler’s and Warden’s SAC that claims dating back up to 20 years
are time barred since no reasonable juror could find otherwise. Given the considerable history of
prior litigation between the parties, Retzler and Warden cannot be deemed to have been unable
despite the exercise of reasonable diligence to have known they were injured and what allegedly
caused their injury. Accordingly, to the extent that they assert any plausible factual basis for a
claim preceding the two-year limitations period, those claims are deemed time barred and

dismissed with prejudice.
G. Claims Against Attorneys/Solicitors
Defendants Randell Flager, Adam Flager, Sherry Flager, Michael S. Levin (and possibly
Edward Zanie/Zanine) are sued by Retzler and Warden for actions they took as attorneys or
solicitors for Bristol Township or the Bucks County Prothonotary. Randell5 is alleged to have
“abused his given authority and conspire[d]” with Bristol Township officials and police officers
to enter Retzler’s and Warden’s property and take their property, (ECF No. 13 at ¶¶ 21, 25, 51);

5 Because there are multiple Defendants with the same last name, the Court will refer to them in
this section by their first names.
failed to properly notify them of hearings in civil actions (id., ¶¶ 16, 18, 28, ); slandered Retzler
during a court hearing (id., ¶¶ 31, 48); ignored a registered letter and a process server about the
vehicles6 (id., ¶¶ 39, 63); acted under a conflict of interest when he wrote a letter to a Bucks County
judge in his capacity as Solicitor for the Prothonotary questioning whether Retzler was entitled to

proceed in forma pauperis, (id., ¶ 43); “worked” to delay and have one of Retzler’s civil actions
dismissed, (id. ¶ 46); filed lawsuits against Retzler and Warden “over the last 20 years” based on
the complaints of neighbors, (id. ¶¶ 52-54); and badgered, verbally harassed and threatened Retzler
and Warden when the two went to his law office to ask about their property (id., ¶ 61). Adam and
Defendant Levin are named in many of the same Paragraphs as Randell and are additionally
alleged to have acted to have one of Retzler’s and Warden’s lawsuits dismissed before they were
granted in forma pauperis status and slandered them. (Id., ¶¶ 45, 47.) The only substantive
allegation against Sherry is that she, along with the other Attorney Defendants verbally harassed,
threatened and physically assaulted Retzler when he came to the law office. (Id., ¶ 61.) There are
no substantive allegations against Zanie/Zanine. All of the Attorney Defendants are also listed by

number in numerous other paragraphs of the SAC, without being identified by name and without
any specific action being asserted.
While Courts have repeatedly held that an attorney does not act under color of state law
simply by virtue of acting as an attorney or solicitor on behalf of a municipal entity, see, e.g.,
Angelico v. Lehigh Valley Hosp., 184 F.3d 268, 277 (3d Cir. 1999); Anderson v. Perhacs, Civ. A.
No. 11-289, 2013 WL 1336124, at *4 (W.D. Pa. Mar. 29, 2013); Spradlin v. Borough of Danville,

6 The allegation in Paragraph 39 is incomprehensible. Retzler and Warden appear to assert
something about the attempt to recover their vehicles, and to notify Defendants of their intent to
recover their vehicles by registered mail and through a process server. They also mention the
Pennsylvania Department of Transportation, and mention they were ignored. In Paragraph 63
they assert that Randall would not “give Plaintiff(s) a hearing as per title letter from PennDot.”
Civ. A. No. 02-2237, 2005 WL 3320788, at *3 (M.D. Pa. Dec. 7, 2005), “there are three
exceptional circumstances in which an attorney may become a state actor: (1) by acting as a state
official, (2) by conspiring with a state official to deprive a person of his or her constitutional rights,
or (3) by engaging in some action that is by its nature, chargeable to the state.” Willis v. Carroll

Twp., Civ. A. No. 07-949, 2008 WL 644762, at *5 (M.D. Pa. Mar. 5, 2008) (internal citations and
quotation marks omitted). In contrast, where the attorney is engaging in the rendering of advice
to a municipal client, drafting legal documents, or otherwise engages in litigation or equivalent
legal activities, he or she will generally not be subject to liability as a state actor. Angelico, 184
F.3d at 276-78; Willis, 2008 WL 644762, at *5-6. In short, “[w]hen a municipality’s attorney goes
beyond the traditional attorney-client relationship, she may become a state actor.” Belkowski v.
Kruczek, Civ. A. No. 09-1549, 2010 WL 1433099, at *3 (W.D. Pa. Apr. 7, 2010) (citing
Frompovicz v. Twp. of S. Mannheim, Civ. A. No. 06-2120, 2007 WL 2908292, at *8 (M.D. Pa.
Oct. 4, 2007) (plaintiff stated a viable § 1983 claim against an attorney who goes beyond making
recommendations and decides official government policies); Willis, 2008 WL 644762, at *6

(characterizing Frompovicz as “holding that a township solicitor acted under color of state law
when he exercised policy-making authority”)).
The claims against the Attorney Defendants described above are, with the exceptions
indicated next, all based on their actions as lawyers representing clients who interests were adverse
to those of Retzler and Warden and cannot be the basis of a plausible § 1983 claim. These include
the claims based on their advising and representing Bristol Township officials and police officers
with regard to the incident involving the entry onto Retzler’s and Warden’s property and taking of
their property, and their representation of Bristol Township and the Bucks County Prothonotary in
lawsuits involving Retzler and Warden. Because the Attorney Defendants were engaged in
traditional attorney-client relationship activities, they cannot be considered state actors based on
these activities and the claims asserted against them must be dismissed pursuant to §
1915(e)(2)(B)(ii).7
The only § 1983 claims that do not appear to be directly based on the Attorney Defendants’

representational activities are those involving the alleged incident at the law office. However, the
allegation that Randell, Adam, Sherry and Levin badgered, verbally harassed, threatened, and/or
physically assaulted Retzler when he came to the law office do not rise to the level of a
constitutional violation for which they would be subject to liability under § 1983. Rather, the
conduct described in this allegation states only possible state law tort claims. See, e.g., Garvey v.
Barnegat Bd. of Educ., Civ. A. No. 07-6134, 2008 WL 2902617, at *6 (D.N.J. July 24, 2008)
(holding that allegations of threats and verbal harassment do not constitute the violation of any
federally protected right, and thus, cannot establish a Section 1983 claim) (citing Banda v. Corzine,
Civ. A. No. 07-4508, 2007 WL 3243917 (D.N.J. Nov. 1, 2007) (verbal harassment, taunts, threats,
or use of profanity alone do not state constitutional claims and are not actionable under § 1983));

Crouch v. Archer, Civ. A. No. 06-5629, 2006 WL 3676488, at *3 (D.N.J. Dec. 11, 2006) (“To the
extent that Crouch is asserting a claim of assault, battery or other intentional tort against this non-
state actor, such claims are common law tort actions.”); Bieros v. Nicola, 860 F. Supp. 226, 233
(E.D. Pa. 1994) (noting that “[m]ere verbal harassment . . . does not rise to the level of a

7 In many of the cited paragraphs, Retzler and Warden include the “number” of other Defendants
with no explanation how they were involved in the alleged actions described therein. To the
extent that any other Defendant was intended to be named on these claims, they are dismissed
pursuant to § 1915(e)(2)(B)(ii) and Rule 8 since they are not identified by name — or any other
information other than the number — that would permit the Defendants and the Court to
understand the basis for any claim against them. Having permitted prior attempts at amendment,
given the failure to provide any information the claims are dismissed with prejudice and further
amendment will be not permitted.
constitutional deprivation so as to qualify for a claim under [S]ection 1983, unless fulfillment of
that threat was conditioned on plaintiff exercising some constitutionally protected right”).
Accordingly, all § 1983 claims against the Attorney Defendants are subject to dismissal.
Because the Court has dismissed the § 1983 claims against the Attorney Defendants, the

Court will not exercise supplemental jurisdiction over any state law claims against them.
Accordingly, the only independent basis for jurisdiction over any such claims is 28 U.S.C. §
1332(a), which grants a district court jurisdiction over a case in which “the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens
of different States.”
Section 1332(a) requires “‘complete diversity between all plaintiffs and all defendants,’
even though only minimal diversity is constitutionally required. This means that, unless there is
some other basis for jurisdiction, ‘no plaintiff [may] be a citizen of the same state as any
defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 104 (3d Cir. 2015) (quoting
Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli Fireworks Mfg. Co. v. Wood,

592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). Because all parties are
Pennsylvania citizens, there is no basis to assert diversity jurisdiction over Retzler’s and Warden’s
state law claims against the Attorney Defendants which will be dismissed without prejudice.
H. Claims Involving Sewer Bills
The Court previously dismissed the Bristol Township Sewer Department with prejudice
since a subunit of a municipal government is not a proper party in a § 1983 action. (See ECF No.
4 at 8.) Nonetheless, Retzler and Warden have again named it as a Defendant. For the reasons
previously stated, the Bristol Township Sewer Department is again dismissed with prejudice.
Although the Bristol Township Sewer Department is not a proper party, the claims
involving Retzler’s and Warden’s sewer bills may be plausible. Francis X. Phillips, who is
identified as the “Director of Finance” (ECF No. 13 at ¶ 65), allegedly received bank checks in
2017 from Retzler and Warden totaling $3584 to pay their sewer bills from 2012-2014, but did not

negotiate the checks, and held them for a period of nine months. (Id. ¶ 21, 25, 65, 66 and 68.)
They allege this violated their civil rights. This claim, however, appears to be entirely unrelated
to the other claims raised by Retzler and Warden about the entry onto their property.
The Court will sever the claims based on sewer bills from the claims based on the entry
onto Retzler’s and Warden’s property and the seizure of their vehicles. Federal Rule of Civil
Procedure 20 allows a plaintiff to join multiple defendants in one action if: (a) “any right to relief
is asserted against them jointly, severally, or in the alternative with respect to or arising out of the
same transaction, occurrence, or series of transactions or occurrences”; and (b) “any question of
law or fact common to all defendants will arise in the action.” “For courts applying Rule 20 and
related rules, ‘the impulse is toward entertaining the broadest possible scope of action consistent

with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.’”
Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir. 2009) (quoting United Mine Workers of Am. v. Gibbs,
383 U.S. 715, 724 (1966)).
“But this application, however liberal, is not a license to join unrelated claims and
defendants in one lawsuit.” McKinney v. Prosecutor’s Office, Civ. A. No. 13-2553, 2014 WL
2574414, at *14 (D.N.J. June 4, 2014) (internal quotations omitted). “Thus multiple claims against
a single party are fine, but Claim A against Defendant 1 should not be joined with unrelated Claim
B against Defendant 2.” George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Indeed, “[t]he
courts[] . . . have frowned on prisoners’ attempts to lump together their multifarious grievances
about life in a single prison, let alone multiple prisons.” McKinney, 2014 WL 2574414, at *15.
To remedy a misjoinder, a Court may add or drop a party or sever any claims. Fed. R. Civ. P. 21.
“A district court has broad discretion in deciding whether to sever a party pursuant to Federal Rule
of Civil Procedure 21.” Boyer v. Johnson Matthey, Inc., Civ. A. No. 02-8382, 2004 WL 835082,

at *1 (E.D. Pa. Apr. 16, 2004). Because the allegations concerning the sewer bills concern an
essentially distinct sets of events, the claim will be severed under Rule 21.8
IV. CONCLUSION
For the reasons stated, all § 1983 claims against the following Defendants, as numbered in
the caption of the SAC, are dismissed with prejudice: 2. Adam D. Flager; 3. Edward J. Zanie; 5.
Craig Bowen; 6. Amber Longitano; 7. Patrick Antonello; 9. Bristol Township Sewer Department;
10 Randell C. Flager; 13. Cynthia Murphy; 14. Joseph Glasson; 15. Howard Allen; 20. Jeffery
Trauger; 28. Dennis Eustace; 29. Cheryl Eustace; 30. Wayne Duke; 31. Elizabeth Duke; 32.
Kenneth Meehan; 33. Michael Litz; 34. Carol Litz; 35. Theodore Shire; 36. Howard McGoldrick;
37. George Shetzline; 38. Helen Kustowski; 39. Joseph Tillo; 40. Deborah Tillo; 41. Rob’s Towing

& Hauling; 42. Robert A. Leipziger; 45. Sherry Flager; 47. Michael S. Levin; and 48. Tina Davis.
The state law claims against Adam D. Flager, Randell C. Flager, Sherry Flager and Michael S.
Levin are dismissed without prejudice for want of subject matter jurisdiction. In addition, the

8 In the accompanying Order, the Clerk of Court will be directed to open a new civil action using
a copy of that Order and a copy of the SAC filed in this action naming. The new civil action will
name Retzler and Warden as the Plaintiffs and Francis X. Phillips as the Defendant. To the
extent Retzler and Warden seeks to proceed on claims related to their sewer bills, they must do
so in the new civil action rather than in this case. Retzler and Warden will be granted leave to
file an amended complaint in the newly opened matter within thirty (30) days if they choose to
do so. The Order will also provide that any new version of the pleading: (1) must be limited to
only those claims involving sewer bills, (2) may not include any claim previously dismissed or
permitted to be served in this case, and (3) must follow the guidelines previously set forth in the
Court’s Memorandum and Order entered on June 17, 2019, that Retzler and Warden were
required to use in drafting amended pleadings.
claim against Francis X. Phillips (Defendant 21) is severed pursuant to Rule 21, and the Clerk of
Court will be directed to open a new civil action naming Phillips as the sole Defendant to permit
Retzler and Warden to pursue their claim against him involving their sewer bills. Retzler and
Warden will also be permitted to file an amended complaint in that new civil action to attempt to

state a plausible claim.
The remaining Defendants as numbered in the caption of the SAC, are: 1. William
McCauley III; 4. Scott Swichar; 8. Robert Coulton; 11. Thomas Scott; 12. Ralph Johnson; 16.
Raymond Blalock; 17. Robert Swartzwalter; 18. Thomas Barton; 19. Kevin Jackson; 22. Robert
McTaque; 23. Mark Titus; 24. Larry J. Mascia III; 25. Carl Demidio; 25-1 John Doe #1; 26. Dave
Capponi; 27. Township of Bristol; 43. Blalock Automotive; 44. County of Bucks; and 46. John
Doe #2. Only these Defendants will be served with the SAC. The only claims that survive § 1915
screening, and for which the remaining Defendants will be required to file a responsive pleading,
are those claims involving the incident alleged to have occurred on April 26 and/or April 27, 2017
involving the entry onto Retzler’s and Warden’s land and the seizure of their property. An

appropriate Order follows.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397835. Public record. Not legal advice.