GUERRIER v. PENNSYLVANIA STATE POLICE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BLESSING AUTO REPAIR, INC. and CIVIL ACTION

MARCDER M. GUERRIER,

Plaintiffs,

NO. 20-6569

v.

PENNYSYLVANIA STATE POLICE,

ANDREW AVDULLA a/k/a ANDI I.

AVDULLA and THE PHILADELPHIA

PARKING AUTHORITY,

Defendants.

MEMORANDUM

Joyner, J. July 14, 2021

Introduction

Pennsylvania State Police and Trooper Andrew Avdulla,

collectively “Commonwealth Defendants”, move to dismiss

Plaintiffs’ Amended Complaint under Fed. R. Civ. P. 12(b)(6) for

failure to state a claim and Fed. R. Civ. P. 12(b)(1) for lack

of subject matter jurisdiction. We grant in part and deny in

part Commonwealth Defendants’ Motion to Dismiss.

Factual Background

According to the allegations set forth in the complaint, on

May 3, 2019, Pennsylvania State Trooper Avdulla entered the

property of Blessing Auto Repair, Inc. and informed Mr. Marcder

Guerrier, president of Blessing Auto Repair, that his vehicle

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was being confiscated as part of an investigation. Pls.’ Am.

Compl., Doc. No. 10, at 1-2. The Pennsylvania State Police towed

Mr. Guerrier’s vehicle from Blessing Auto Repair’s property and

turned it over to the Philadelphia Parking Authority. Id. at 3.

That same day, Mr. Guerrier paid the $175.00 towing charge

but was advised that his vehicle could not be released. Id. Mr.

Guerrier alleges that he returned to the impoundment lot at

least two more times requesting that his vehicle be released to

him but was denied each time. Id. Mr. Guerrier then learned that

the Philadelphia Parking Authority sold his vehicle in an

auction. Id. He alleges that he received no notice of the

auction and that he did not receive proceeds from the sale. Id.

Plaintiffs Mr. Guerrier and Blessing Auto Repair brought

this civil action against Philadelphia Parking Authority,

Pennsylvania State Police, and Trooper Avdulla. Id. at 1-2. The

action was initially filed in state court, but Defendant

Philadelphia Parking Authority removed the action to federal

court on December 31, 2020 and filed a Notice of Removal on

January 4, 2021. Defs.’ Mot. to Dismiss, Doc. No. 13, at 3;

Pls.’ Resp. in Opp’n, Doc. No. 17, at 6. On January 7, 2021,

Commonwealth Defendants acknowledged the removal and requested

Waivers of Service from Plaintiffs. Pls.’ Am. Compl., Doc. No.

10, at 6.

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Plaintiffs brought the following claims against all three

Defendants in an amended complaint: conversion under state law

(Count 1); violation of 42 U.S.C. § 1983 (Count 2); civil

conspiracy (Count 3); Fourth Amendment violation (Count 4);

Fifth Amendment violation (Count 5); Eighth Amendment violation

(Count 6); trespass under state law (count 7); and a claim for

punitive damages (Count 8). Defs.’ Mot. to Dismiss, Doc. No. 13,

at 3; Pls.’ Am. Compl., Doc. No. 10, at 10-12. Commonwealth

Defendants move to dismiss all claims under Fed. R. Civ. P.

12(b)(6) for failure to state a claim and move to dismiss Counts

2 through 6 under Fed. R. Civ. P. 12(b)(1) for lack of subject

matter jurisdiction. Defs.’ Mot. to Dismiss, Doc. No. 13, at 2.

Plaintiffs filed a Motion to Strike (Doc. No. 16) Commonwealth

Defendants’ Motion to Dismiss, and contemporaneously filed a

response in opposition. Pls.’ Resp. in Opp’n, Doc. No. 17.

Standard of Review

A Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) requests

the Court dismiss claims that fail to assert a basis upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v.

Iqbal, 556 U.S. 698, 678 (2009). To survive a Rule 12(b)(6)

Motion to Dismiss, a plaintiff’s complaint must contain

sufficient factual matter to “state a claim to relief that is

plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). The Court accepts all well-pleaded

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allegations as true, viewing them in the light most favorable to

the Plaintiff. See Id. at 679. However, legal conclusions must

be supported by sufficient factual allegations. Id. at 678-79.

A motion to dismiss under Fed. R. Civ. P. 12(b)(1) for lack

of subject matter jurisdiction filed prior to an answer is a

“facial challenge to jurisdiction.” Cardio-Med. Assocs. v.

Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). A

court can dismiss a claim under a Rule 12(b)(1) motion if the

facts alleged are not sufficient to invoke jurisdiction on the

face of the complaint. Id.

Discussion

Commonwealth Defendants Waived Their Eleventh Amendment

Sovereign Immunity

Commonwealth Defendants assert in their Motion to Dismiss

that this Court lacks subject matter jurisdiction over all

federal claims because the Pennsylvania State Police and Trooper

Avdulla in his official capacity benefit from Eleventh Amendment

sovereign immunity. Defs.’ Mot. to Dismiss, Doc. No. 13, at 7-9.

Plaintiffs assert that Commonwealth Defendants waived their

Eleventh Amendment sovereign immunity when Defendant

Philadelphia Parking Authority removed the case to federal court

and Commonwealth Defendants consented, therefore establishing

federal jurisdiction by consenting to litigate in a federal

forum. Pls.’ Resp. in Opp’n, Doc. No. 17, at 6.

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The Eleventh Amendment grants states and state actors

sovereign immunity from private litigation in federal court.

Lapids v. Bd. of Regents, 535 U.S. 613, 616 (2002) (citing Hans

v. Louisiana, 134 U.S. 1 (1890)); Atkin v. Johnson, 432 F.

App’x. 47, 48 (3d Cir. 2011) (finding a Pennsylvania State

Trooper sued in his official capacity qualified for Eleventh

Amendment immunity). However, if a State removes an action from

state court to federal court, they voluntarily agree to litigate

in a federal forum and waive their immunity. Lapids, 535 U.S. at

623-25 (finding that a State who joins the removal of a case to

federal court voluntarily invokes federal jurisdiction

sufficient to waive their Eleventh Amendment sovereign immunity

to litigate state law claims). It would be inconsistent and

produce unfair results if a State could both invoke federal

jurisdiction by consenting to removal and claim Eleventh

Amendment immunity. Id. at 619. While the Supreme Court in

Lapids limited its holding to state law claims, the Third

Circuit decided to follow the Ninth and Tenth Circuits to find

that a State can waive Eleventh Amendment sovereign immunity for

both state and federal law claims when removing the case to

federal court. Lombardo v. Pennsylvania, 540 F.3d 190, 197 (3d

Cir. 2008).

Here, Commonwealth Defendants waived their immunity under

the Eleventh Amendment when consenting to remove federal and

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state law claims to federal court. Defendant Philadelphia

Parking Authority filed a Notice of Removal on January 4, 2021.

Pls.’ Resp. in Opp’n, Doc. No. 17, at 6. On January 7, 2021,

Commonwealth Defendants acknowledged this removal by requesting

Waivers of Service from Plaintiffs. Id. Commonwealth Defendants

assert in their Motion to Dismiss that they do not consent to

litigate in federal court. Defs.’ Mot. to Dismiss, Doc. No. 13,

at 8. However, there is no indication that they objected to the

removal. Therefore, because Commonwealth Defendants consented to

removing the case to federal court, they consented to federal

jurisdiction, waiving Eleventh Amendment immunity for federal

and state law claims. We deny Commonwealth Defendants’ motion to

dismiss for lack of subject matter jurisdiction due to Eleventh

Amendment immunity for all federal claims.

Federal Law Claims

Commonwealth Defendants also move to dismiss Plaintiffs’

federal claims under Counts 2 through 6 for failure to state

claims which relief can be granted. Defs.’ Mot. to Dismiss, Doc.

No. 13, at 9.

A. Count 2

Under Count 2, Plaintiffs claim Defendants violated 42

U.S.C. § 1983. Pls.’ Am. Comp., Doc. No. 10, at 3-5.

Commonwealth Defendants assert that a Section 1983 claim cannot

be brought independently from the other Constitutional

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violations because Section 1983 is not an independent cause of

action. Defs.’ Mot. to Dismiss, Doc. No. 13, at 8-9. Plaintiffs

respond asserting that claiming a violation of Section 1983 in a

separate count is “more a matter of style than substance,” and

argue that dismissing Count 2 would be inappropriate without

granting leave to amend the Complaint because it would be

construed as Plaintiffs failing to raise Section 1983 claims at

all. Pls.’ Resp. in Opp’n, Doc. No. 17, at 9. Plaintiffs also

argue that the Section 1983 claim provides clear violations of

numerous provisions of the Constitution including Fourth,

Eighth, Fourteenth Amendment violations and violations of

Article 1 and 26 of the Pennsylvania Constitution. Id.

Plaintiffs concede that they did not specifically reference

violations of Article 1 and 26 of the Pennsylvania Constitution

and a Fourteenth Amendment violation claim in their amended

complaint, however, now seek leave to amend to specifically

raise these claims under new counts. Id. at 10.

Section 1983 “is not itself a source of substantive rights,

[but rather] a method for vindicating federal rights elsewhere

conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). A

successful Section 1983 claim must identify “the precise

constitutional violation with which [the defendant] is charged.”

Id. at 140. Courts dismiss Section 1983 claims that fail to

allege that a specific federal right was violated. E.g., Id. at

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146-47 (holding that a respondent was not deprived of any rights

secured under the Constitution and therefore has no cognizable

claim under Section 1983); Beauchamp v. Chichester Sch. Dist.,

No. 05-4141, 2005 U.S. Dist. LEXIS 28677, at *8-9 (E.D. Pa. Nov.

17, 2005)(granting a motion to dismiss by reasoning that

plaintiffs failed to state a claim under Section 1983 because

they did not allege a federal right of which they were

deprived).

Here, Plaintiffs failed to bring a Section 1983 claim under

Count 2. Plaintiffs presented sufficient facts to establish a

Constitutional violation by asserting Defendants were performing

under the color of state and local law, and that Plaintiffs

suffered the loss of his vehicle and unlawful entry onto his

property. Pls.’ Am. Comp., Doc. No. 10, at 3-4. However,

Plaintiffs failed to assert a “precise constitutional violation”

under Count 2. Baker, 443 U.S. at 140; Beauchamp, No. 05-4141,

2005 U.S. Dist. LEXIS 28677, at *8-9. For that reason, we

dismiss Count 2 for failing sufficiently state a Section 1983

claim.

D. Count 3

Under Count 3, Plaintiffs bring a civil conspiracy claim

against all Defendants. Pls.’ Am. Comp., Doc. No. 10, at 5.

Commonwealth Defendants argue this claim should be dismissed for

failing to make allegations showing a conspiratorial agreement

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between Defendants to deprive Plaintiffs of their civil rights.

Defs.’ Mot. to Dismiss, Doc. No. 13, at 13. Plaintiffs responded

by asserting the amended complaint provides sufficient facts and

allegations at this pre-discovery stage to “infer a conscious

intent to sell the vehicle without following appropriate

procedures” for the purpose of a conspiracy to sell the vehicle

without required notice. Pls.’ Resp. in Opp’n, Doc. No. 17, at

12-13.

For a successful civil conspiracy claim, a plaintiff must

establish the existence of an agreement to deprive the plaintiff

of a constitutional right and assert that the conspirators acted

under the color of state law. LeBlanc v. Stedman, No. 10-5215,

2011 U.S. Dist. LEXIS 80093, at *10-11 (E.D. Pa. July 21, 2011)

(dismissing a civil conspiracy claim because the plaintiff

failed to present facts from which the court could infer the

defendants entered into an agreement and a “bare assertion that

defendants ‘acted in concert’” was not sufficient). A plaintiff

must present sufficient facts from which the court can infer a

conspiratorial agreement or “meeting of the minds” to violate

the plaintiff’s constitutional rights. Great W. Mining & Min.

Co. v. Fox Rothschild LLP, 615 F.3d 159, 179 (3d Cir. 2010)

(reasoning the plaintiff failed to allege, except in general

terms, the specifics of the alleged conspiracy to establish a

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sufficient factual allegation to create plausible grounds to

infer an agreement under Twombly, 550 U.S. at 556).

Here, Plaintiffs failed to allege sufficient facts that

allow the Court to infer a conspiratorial agreement existed

between Defendants to violate Plaintiffs’ rights. Plaintiffs

claim that Defendants conspired to confiscate Mr. Guerrier’s

vehicle “without legal cause or justification...without notice,”

and “with malice and or reckless disregard” for their rights is

conclusory. Pls.’ Am. Comp., Doc. No. 10, at 5. Under Twombly,

legal conclusions are not accepted as true and must be supported

with factual allegations. 550 U.S. at 678-79. While Plaintiffs

incorporate various factual allegations by reference in their

amended complaint under Count 3, the facts plead are not

sufficient for the Court to infer a meeting of the minds between

Defendants to violate Plaintiffs’ constitutional rights. In

Plaintiffs’ Response, they assert there is a clear inference

that Trooper Avdulla confiscated the vehicle for an improper

purpose and that Philadelphia Parking Authority was aware or

consciously avoided inquiring about the legal cause for

retention, and thus the Court can infer Trooper Avdulla and

Philadelphia Parking Authority “effected the purpose of the

conspiracy through the sale of the vehicle without the benefit

to Plaintiffs of the required subsequent notice.” Pls.’ Resp. in

Opp’n, Doc. No. 17, at 13. While it is certainly possible that

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Defendants may have conspired to confiscate and sell Mr.

Guerrier’s vehicle, the facts alleged on the face of Plaintiffs’

amended complaint do not meet the required plausibility standard

under Twombly for the Court to infer a conspiratorial agreement

to unlawfully deprive and sell Mr. Guerrier’s vehicle.

Therefore, we dismiss Count 3 for failure to state a claim.

B. Count 4

Under Count 4, Plaintiffs claim all Defendants violated

their Fourth Amendment protection against unreasonable searches

and seizures when seizing Mr. Guerrier’s vehicle without

justification. Pls.’ Am. Comp., Doc. No. 10, at 6. The

Philadelphia Parking Authority Moved to dismiss this claim in a

separate motion asserting the claim was inappropriately asserted

towards them because Commonwealth Defendants directed the

seizure of the vehicle. Defs.’ Mot. to Dismiss, Doc. No. 11, at

10-11. Commonwealth Defendants did not address this claim in

their Motion to Dismiss apart from claiming they are immune from

all federal claims under Eleventh Amendment sovereign immunity.

Defs.’ Mot. to Dismiss, Doc. No. 13, at 7-9. Plaintiffs also did

not address this claim in their Response (Doc. No. 17).

Therefore, we do not dismiss Count 4 because Commonwealth

Defendants do not move to dismiss this claim apart from claiming

sovereign immunity.

C. Count 5

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Plaintiffs concede in their response (Doc. No. 17) that

Count 5 for violation of the Fifth Amendment does not apply to

Commonwealth Defendants because they are state actors. Pls.’

Resp. in Opp’n, Doc. No. 17, at 10. Therefore, we do not need to

examine Count 5, and the Plaintiffs’ Fifth Amendment violation

claim should be dismissed.

Plaintiffs seek leave to amend to include a claim for

violation of Pa. Const. Art. 1 § 9 which provides that for

criminal proceedings no person can “be deprived of his life,

liberty, or property, unless by judgment of his peers or the law

of the land.” Id. We grant Plaintiffs’ request for leave to

amend the complaint to include a claim for violation of Pa.

Const. Art. 1 § 9.

E. Count 6

Under Count 6, Plaintiffs claim all Defendants violated the

Eighth Amendment when confiscating and selling Mr. Guerrier’s

vehicle without any judgment or fines levied against him. Pls.’

Am. Comp., Doc. No. 10, at 8. Commonwealth Defendants argue the

amended complaint failed to allege specific actions taken by

Commonwealth Defendants to sell the vehicle and the allegations

under Count 8 which relate to the sale and proceeds from the

sale instead relate to actions taken by Philadelphia Parking

Authority. Defs.’ Mot. to Dismiss, Doc. No. 13, at 12.

Plaintiffs respond by asserting the amended complaint provides

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sufficient facts at the pre-discovery stage for this claim

against Commonwealth Defendants. Pls.’ Resp. in Opp’n, Doc. No.

17, at 12.

A Plaintiff must allege facts that indicate a specific

defendant and their personal involvement to be liable under a

Section 1983 claim for a civil rights violation. Iqbal, 556 U.S.

at 676; Pettus v. City of Phila., No. 11-1575, 2011 U.S. Dist.

LEXIS 87525, at *4 (E.D. Pa. Aug. 5, 2011) (reasoning that

alleging “‘all’ defendants acted together for a common purpose

is not sufficient” to put defendants on notice of the alleged

unlawful conduct). Also, Courts find that towing and impounding

a vehicle does not amount in an Eighth Amendment violation.

Barrett v. City of Allentown, 152 F.R.D. 50 (E.D. Pa. 1993)

(dismissing an Eighth Amendment violation claim for failing to

specify which Defendants were accused and reasoning that towing

a vehicle does not amount to cruel or unusual punishment);

Berger v. Phila. Parking Auth., 413 F. Supp. 3d. 412, 420-21

(E.D. Pa. 2019) (reasoning the impoundment and sale of the

plaintiff’s vehicle due to unpaid parking tickets was not

excessive and did not violate the Eighth Amendment).

Here, Plaintiffs do not specify which Defendants are

brought under Count 6 and therefore incorporates all Defendants.

Pls.’ Am. Comp., Doc. No. 10, at 8. However, Plaintiffs do claim

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that both the confiscation and sale of the vehicle constitutes

excessive fines and cruel and unusual punishment under the

Eighth Amendment. Id. By incorporating previously alleged facts

by reference, Plaintiffs allege that Trooper Avdulla and the

Pennsylvania State Police confiscated Mr. Guerrier’s vehicle and

concede Trooper Avdulla informed him it was for an

investigation. Id. at 2. Nevertheless, the Plaintiffs do not

sufficiently explain how Trooper Avdulla seizing Mr. Guerrier’s

vehicle violates the Eighth Amendment. See Sun Jung Yun v. New

Jersey, No. 18-17283 2019 U.S. Dist. LEXIS 32084, at *10 (D.N.J.

Feb. 28, 2019) (dismissing a plaintiff’s Eighth Amendment claim

that a New Jersey police officer imposed excessive fines when

impounding her vehicle because she failed to allege that the

costs she incurred were imposed as punishment); Barrett, 152

F.R.D. at 55 (“the towing of an automobile hardly constitutes

cruel and unusual punishment”). Therefore, we dismiss Count 6

for failing to sufficiently state an Eighth Amendment claim

against Commonwealth Defendants.

Commonwealth Defendants Did Not Waive State Sovereign Immunity

for State Law Claims under 1 Pa. Cons. Stat. § 2310.

Plaintiffs bring a state law conversion claim under Count 1

against all Defendants and a state trespass claim under Count 7

against Trooper Avdulla and Philadelphia Parking Authority.

Pls.’ Am. Comp., Doc. No. 10, at 2, 9. Commonwealth Defendants

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move to dismiss both state law claims due to their sovereign

immunity under 1 Pa. Cons. Stat. § 2310 and argue no exceptions

to immunity apply. Defs.’ Mot. to Dismiss, Doc. No. 13, at 14,

16. Plaintiffs assert in their response that Commonwealth

Defendants may be liable under exceptions to immunity found in

title 42 of the Sovereign Immunity Act, specifically the

negligence and personal property exceptions. 42 Pa. Cons. Stat.

§ 8522(b); Pls.’ Resp. in Opp’n, Doc. No. 17, at 14.

Sovereign Immunity is a “dual concept” that includes

Eleventh Amendment sovereign immunity and immunity from

liability created by State law. Lewis v. Mainer, No. 16-CV-1674,

2016 U.S. Dist. LEXIS 195625, at *9-10 (E.D. Pa. Aug. 23, 2016)

(citing Lombardo, 540 F.3d at 198-200). Under Lapids, when a

State waives Eleventh Amendment sovereign immunity through

removal to federal court, they retain their state sovereign

immunity. Id. The Commonwealth has state sovereign immunity

under 1 Pa. Cons. Stat. § 2310. Exceptions to this immunity can

include “damages arising out of a negligent act where the

damages would be recoverable. . .if the injury were caused by a

person not having available the defense of sovereign immunity,”

or the “care, custody, and control of personal property in the

possession or control of Commonwealth parties.” 42 Pa. Cons.

Stat. § 8522; Lewis, No. 16-CV-1674, 2016 U.S. Dist. LEXIS

195625, at *9-10. Pennsylvania courts hold that “the personal

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property exception may only be applied to those cases where the

property itself is alleged to cause the injury” rather than the

Commonwealth’s conduct. E.g., Urella v. Pa. State Troopers

Ass’n, 628 F. Supp. 2d. 600, 606 (E.D. Pa. 2008) (citing

Sugalski v. Commonwealth, 131 Pa. Commw. 173 (Pa. Commw. 1990)).

Here, Plaintiffs argue in their response that Commonwealth

Defendants’ immunity may be waived through exceptions such as

committing a negligent act and the control and possession of

personal property. Pls.’ Resp. in Opp’n, Doc. No. 17, at 14-15.

Plaintiffs did not sufficiently allege in their amended

complaint that Commonwealth Defendants acted negligently when

committing trespass and conversion of Plaintiffs’ property.

While Plaintiffs argue in their response that they did not

intend to exclude the possibility that Defendants were

negligent, the complaint alleges Commonwealth Defendants acted

intentionally when trespassing by claiming Trooper Avdulla acted

“with malice and or reckless indifference” when entering

Plaintiffs’ property, confiscating the vehicle, and delivering

it to the Philadelphia Parking Authority. Pls.’ Am. Comp., Doc.

No. 10, at 9. Further, while Plaintiffs claim that Defendants

were “either willful or negligent” under Count 1 for conversion,

simply stating Defendants may have acted negligently is not

sufficient to plead a negligent act. Id. at 2-3. Additionally,

the personal property exception to immunity does not apply here

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because Plaintiffs, rather than claiming Mr. Guerrier’s vehicle

is the cause of their injuries, are claiming Commonwealth

Defendants’ actions caused the alleged trespass and conversion.

Urella, 628 F. Supp. 2d. at 606. Therefore, the exceptions to

the Commonwealth’s Sovereign Immunity do not apply and we

dismiss Count 1 and Count 7.

Motion to Strike

Plaintiffs assert in their response and contemporaneously

file a Motion to Strike Commonwealth Defendants’ Motion to

Dismiss for containing a single unnumbered paragraph referencing

the attached Memorandum of Law containing Commonwealth

Defendants’ request for relief, citing Fed. R. Civ. P. 7(b)(2)

and 10(b). Pls.’ Resp. in Opp’n, Doc. No. 17, at 15-16; Pls.’

Mot. to Strike, Doc. No. 16. We deny Plaintiffs’ Motion to

Strike.

Motions to strike under Fed. R. Civ. P. 12(f) “[strike]

pleadings not dispositive motions.” Bond v. ATSI/Jacksonville

Job Corps Ctr., 811 F. Supp 2d 417, 421 (D.D.C. 2011) (denying a

motion to strike because “federal rules only provide for

striking pleadings, not dispositive motions”). A motion to

dismiss is not a pleading, therefore a motion to strike a motion

to dismiss would be inappropriate. See Id.; Personacare of

Reading, Inc. v. Lengel, No. 16-1965, 2017 U.S. Dist. LEXIS

38519, at *6 (E.D. Pa. Mar. 17, 2017) (denying a plaintiff’s

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motion to strike a defendant’s motion to compel because “a

motion is not a pleading”). Moreover, courts disfavor motions to

strike unless the allegations are unrelated to the claims,

confuse the issues in the case, or may prejudice the other

party. E.g., AJ v. Lancaster Cnty., No. 5:19-cv-01768, 2019 U.S.

Dist. LEXIS 177012, at *6 (E.D. Pa. Oct. 11, 2009) (citing River

Rd. Dev. Corp. v. Carlson Corp., No. 89-7037, 1990 U.S. Dist.

LEXIS 6201, at *3 (E.D. Pa. May 23, 1990)); Papacoda v. A.I.

Dupont Hosp. for Child. of the Nemours Found., No. 05-cv-3003,

2006 U.S. Dist. LEXIS 43425, at *19 (E.D. Pa. June 26, 2006)

(citing McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp.

2d 393, 402 (E.D. Pa. 2002) to reason that motions to strike are

disfavored and the moving party must show how they will be

prejudiced if the allegations remain).

Here, Plaintiffs assert that Commonwealth Defendants’

Motion is inappropriately formatted by failing to state claims

in numbered paragraphs as required for pleadings under Fed. R.

Civ. P. 10(b). Pls.’ Resp. in Opp’n, Doc. No. 17, at 15-16. They

explain that under Fed. R. Civ. P. 7(b)(2), the rules governing

matters of forms in pleadings under Rule 10(b) also apply to

motions. Id. at 16. However, Plaintiffs’ Motion to Strike

Commonwealth Defendants’ Motion to Dismiss (Doc. No. 13) is not

appropriate because a motion to dismiss is not a pleading. See

Personacare of Reading, Inc., No. 16-1965, 2017 U.S. Dist. LEXIS

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38519, at *6. Further, even if it were appropriate to strike the

Commonwealth Defendants’ Motion, the Motion did not prejudice

Plaintiffs considering that they successfully filed a Response

in Opposition (Doc. No. 17). Therefore, we deny Plaintiffs’

Motion to Strike.

Conclusion

We grant Commonwealth Defendants’ Motion to Dismiss in part

and dismiss Counts 1, 2, 3, 5, 6, and 7 of the Amended

Complaint. Plaintiffs failed to state claims under Section 1983,

Fifth Amendment, Eighth Amendment, and civil conspiracy claims,

and lack jurisdiction for their trespass and conversion claims.

Additionally, in the interest of justice we grant Plaintiffs’

request for leave to amend their complaint to include claims

under Pa. Const. Art. 1, Pa. Const. Art. 1 § 9, Pa. Const. Art.

26, and the Fourteenth Amendment.

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