THOMAS v. COMMONWEALTH OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DONALD THOMAS, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 20-cv-174

:

CLIFT, et al. :

Defendants. :

MEMORANDUM OPINION

In a prior Memorandum and Order filed on November 12, 2020, pro se Plaintiff Donald

Thomas’ federal constitutional claims and his claims against the Commonwealth of Pennsylvania

were dismissed with prejudice and his remaining state law claims were dismissed without

prejudice for lack of subject matter jurisdiction as Thomas had not established diversity between

the Parties. Thomas, a convicted prisoner incarcerated at SCI-Dallas, was granted leave to file

an amended complaint if he was able to cure the defects in the claims dismissed without

prejudice. Thomas returned with an Amended Complaint in which he newly names as

Defendants Philadelphia Police Officers “Clift” and Sean Bennis.1 For the following reasons,

the civil rights claims asserted in the Amended Complaint are dismissed with prejudice pursuant

to the screening requirements of the in forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B).2 All

state law claims shall be dismissed without prejudice for want of subject matter jurisdiction.

I. FACTUAL ALLEGATIONS

Briefly stated, Thomas alleges that the Defendants violated his due process and equal

protection rights when they confiscated two dogs, a smart phone and “other precious items”

1 The original Complaint identified these individuals as “Sean Clift” and “Bennis.” The Court will refer to them by

the names used by Thomas in the Amended Complaint.

2 Thomas was granted leave to proceed in forma pauperis by prior order.

during his arrest on August 18, 2015. He asserts that two bichon frise dogs used for breeding

were never returned to him because the “two arresting officers . . . never followed police

protection procedure or safeguards with these two priceless animals.” He alleges that the loss of

the dogs has caused him and his wife confusion and acute psychological damage since he thinks

about the love, time, and money he invested in his dogs. In addition to civil rights claims,

Thomas also appears to assert a claim of professional negligence against the two police officer

Defendants for gross negligence, conflict of interest, violation of a duty of safekeeping of

personal property, breach of ethics, and misrepresentation. He seeks $60,000 in damages for his

loss.

As noted in the prior Memorandum, publicly available records indicate that Thomas was

arrested by Defendant Clift on August 19, 2015. See Commonwealth v. Thomas, CP-51-CR-668-

2016 (C.P. Phila.). Criminal charges including robbery, making terroristic threats and possession

of an instrument of crime were initiated on January 20, 2016. Thomas pled guilty to the charges

on May, 24, 2017. He was sentenced to a term of incarceration of 10-20 years on the robbery

conviction to run consecutively to concurrent terms of 2-4 years on the terroristic threats and

possession convictions. Thereafter, Thomas filed a petition pursuant to the Pennsylvania Post

Conviction Relief Act (“PCRA”) on April 27, 2018. He also filed a motion for return of

property on August 30, 2018. His PCRA petition was dismissed on January 18, 2019. His

motion for return of property was granted on June 18, 2019. There is no indication that he

appealed his conviction and sentence, the denial of his PCRA petition or the result of his motion

for return of property.

II. STANDARD OF REVIEW

Because the Court has granted Thomas leave to proceed in forma pauperis, 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 section 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 Ke v. Pa. State Emps. Retirement Sys., 838 Fed. App’x 699, 702 (3d Cir. 2020), 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); Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) (“At this early stage of the litigation, [w]e accept the facts alleged in [Plaintiff’s pro se]

complaint as true, draw[] all reasonable inferences in [the plaintiff’s] favor, and ask only whether

[that] complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.”

(alterations in original) (internal quotations omitted)). Conclusory allegations do not suffice.

Id. As Thomas is proceeding pro se, his allegations are liberally construed. Higgs v. Att’y Gen.,

655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

A. Civil Rights Claims Against Defendants Clift and Bennis

Federal constitutional claims may be brought in federal court pursuant to 42 U.S.C.

§ 1983, which in relevant part provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

42 U.S.C. § 1983. As police officers, Defendants Clift and Bennis are “state actors” who may be

held liable under § 1983. That said, the due process and equal protection claims alleged by

Thomas are simply not plausible and must be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii).

Thomas asserts a Fourteenth Amendment due process claim against Clift and Bennis

based on the loss of his two dogs. For due process purposes, dogs are considered to be personal

property. Brown v. Muhlenberg Twp., 269 F.3d 205, 209-10 (3d Cir. 2001) (“In Pennsylvania,

by statute, all dogs are . . . declared to be personal property. . . .” (internal citations and

quotations omitted)). However, there is no basis for a due process claim because the

Pennsylvania Tort Claims Act provides Thomas with an adequate remedy for the loss of his

personal property. “[A]n unauthorized intentional deprivation of property by a state employee

does not constitute a violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.” Spencer v. Bush, 543 Fed. App’x 209, 213 (3d Cir. 2013) (alteration in the original)

(quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)); Shakur v. Coelho, 421 Fed. App’x 132,

135 (3d Cir. 2011) (per curiam) (explaining that the Pennsylvania Tort Claims Act provides an

adequate remedy for a willful deprivation of property by a state actor). As Pennsylvania state

law provides Thomas with an adequate remedy for the loss of his dogs, Thomas has failed to

state a basis for a due process claim. As a result, Thomas’s Fourteenth Amendment due process

claim is not plausible and will be dismissed with prejudice.

Thomas also mentions the Equal Protection Clause of the Fourteenth Amendment but

makes no factual allegations upon which a plausible claim may be found. “The Equal Protection

Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within

its jurisdiction the equal protection of the laws,’ which is essentially a direction that all persons

similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To establish an equal

protection violation, a plaintiff must allege facts that a state actor treated him differently than

others who are similarly situated. Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)

(citing Holder v. City of Allentown, 987 F.2d 188, 197-98 (3d Cir. 1993). “Individuals are

‘similarly situated’ only if they are alike ‘in all relevant respects.’” Blunt v. Lower Merion Sch.

Dist., 767 F.3d 247, 273 (3d Cir. 2014). Furthermore, to state a race-based equal protection

claim, a plaintiff must allege that defendants were motivated by racial animus. Hill, 411 F.3d at

125 (holding that a plaintiff must establish that the unfair treatment was based on an

“unjustifiable standard, such as race, or religion, or some other arbitrary factor. . . .”).

Nothing in Thomas’s Complaint suggests that he was treated differently due to his

membership in a protected class. See Faruq v. McCollum, 545 Fed. App’x 84, 87 (3d Cir. 2013)

(“To state a claim for race- or religion-based discrimination, [plaintiff] needed to show

specifically that he received different treatment from that received by other similarly situated

inmates.”). As Thomas has not alleged that he was treated differently from others who were

similarly situated, the Fourteenth Amendment equal protection claim will be dismissed.

Moreover, since Thomas has already been provided an opportunity to amend his claims and has

still failed to allege a plausible equal protection claim, the dismissal will be with prejudice

because further attempts at amendment seem to be futile. Grayson v. Mayview State Hosp., 293

F.3d 103, 108, 110 (3d Cir. 2002) (instructing that complaints should be dismissed with leave to

amend “unless amendment would be inequitable or futile”).

B. Claims Based on State Law

Although it is not particularly clear from the Amended Complaint, Thomas seems to raise

claims against Defendants Clift and Bennis based on state law. Specifically, he asserts claims

for “professional negligence” based on the Defendants’ gross negligence, conflict of interest,

violation of a duty of safekeeping of personal property, breach of ethics, and misrepresentation.

Since Thomas’s federal claims have been dismissed, subject matter jurisdiction over his

remaining state law claims can be found only through diversity jurisdiction or the exercise of

supplemental jurisdiction under 28 U.S.C. § 1367(c). This Court, however, will not exercise

supplemental jurisdiction over any state law claims unless there is an independent basis for

jurisdiction. The only independent basis for jurisdiction over these claims is 28 U.S.C.

§ 1332(a), which grants a 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) (internal

citations omitted). An individual is a citizen of the state where he is domiciled, meaning the

state where he is physically present and intends to remain. See Washington v. Hovensa LLC, 652

F.3d 340, 344 (3d Cir. 2011). “[T]he domicile of a prisoner before his imprisonment

presumptively remains his domicile during his imprisonment.” Pierro v. Kugel, 386 Fed. App’x

308, 309 (3d Cir. 2010). It is the plaintiff's burden to establish diversity of citizenship. Gibbs v.

Buck, 307 U.S. 66, 72 (1939).

Thomas does not allege the citizenship of the parties. Rather, he alleges only that Clift

and Bennis are Philadelphia police officers and that he is presently incarcerated at SCI Dallas.3

3 Thomas’s state court criminal records indicate that his pre-incarceration home address was in Philadelphia,

Pennsylvania.

Accordingly, Thomas has not sufficiently alleged that the parties are diverse for purposes of

establishing the Court’s jurisdiction over any state law claims he intends to pursue.

Even if Thomas had properly alleged that the parties are of diverse citizenship, the Court

would still lack jurisdiction over his state law claims. “As a general rule, [the amount in

controversy] is determined from the good faith allegations appearing on the face of the

complaint.” Spectacor Mgmt. Grp. v. Brown, 131 F.3d 120, 122 (3d Cir. 1997). “The sum

claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a

legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”

Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir. 1999) (quotations omitted). Here, Thomas

seeks only $60,000 in damages, which is less than the $75,000 needed for diversity jurisdiction.

Since the pleaded amount in controversy is insufficient to create diversity jurisdiction over

Thomas’ state law claims, his claims will be dismissed without prejudice so that he may bring

them in an appropriate state court.

An appropriate order follows.

BY THE COURT:

/s/Wendy Beetlestone, J.

_________________________

WENDY BEETLESTONE, J.