MCCRACKEN v. BLEI

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TED A. MCCRACKEN, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-CV-2187

:

JACQUELINE MCCRACKEN BLEI, :

et al., :

Defendants. :

MEMORANDUM

ROBRENO, J. JANUARY 26, 2022

This matter comes before the Court by way of a Complaint (ECF No. 2), brought by

Plaintiff Ted A. McCracken, proceeding pro se. By Order dated September 7, 2021, the Court

previously determined that McCracken was not able to afford to pay the filing fee in this action

and granted him leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, and provided

that the Complaint was still subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B). The

Court has now conducted the required screening. For the following reasons, McCracken’s

federal claims will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as frivolous

and for failure to state a claim, and his state law claims will be dismissed for lack of jurisdiction

without prejudice to McCracken’s right to proceed in the appropriate state court.

I. FACTUAL ALLEGATIONS1

McCracken filed this civil rights action pursuant to 42 U.S.C. § 1983 and § 1985 alleging

violations of his rights under the First, Fifth, Eighth, and Fourteenth Amendments. (See ECF

1 The facts set forth in this Memorandum are taken from McCracken’s Complaint. (See ECF

No. 2.) Where the Court cites a page number rather than a paragraph number, the Court will

adopt the pagination supplied to the Complaint by the CM/ECF docketing system.

No. 2 at 2.) He also seeks to assert RICO claims and several claims under state law. (Id. ¶¶ 103-

111, 115-131, 143-162.) McCracken’s Complaint is difficult to summarize because it attempts

to assert many distinct legal claims, under both federal and state law, arising out of a complicated

series of events that, according to McCracken, sound in a broad-based, wide-ranging conspiracy

between multiple individuals (with no apparent connection to each other) and several municipal

police departments in Pennsylvania designed to deprive McCracken of his “liberty interest in

[his] inheritance” from his mother, Eunice McCracken. (See generally id. at 2-5; see also id. ¶

23.) In essence, McCracken contends that Defendants’ alleged conspiracy was so extensive that

multiple private individuals conspired with one another to bring multiple police officers from

three different municipalities into the alleged conspiracy, and that they worked in concert to

design a multifaceted ploy using the Facebook account of a police officer’s wife to entrap

McCracken in false criminal charges in order to “get him out of the way” so that they could

access his mother’s assets. (Id. at 2-5; see also id. ¶¶ 35-64.)

McCracken names the following individuals as Defendants in this case: (1) Joseph Blei, a

police officer with the Abington Township Police Department; (2) Jacqueline McCracken Blei

(wife of Defendant Joseph Blei);2 (3) C.K. Kenneth Weber; (4) Lorna Simons; (5) John Doe,

who is allegedly a police officer; (6) Jane Doe, a “Caucasian female” who “accompanied”

Defendant John Doe; and (7) Michelle Taylor.3 (Id. ¶¶ 2-7, 107-09.) McCracken also names the

following additional police officers: (1) Officer Gershanick with the Upper Moreland Township

2 Despite the sur name they share, the Complaint does not allege any familial relation between

Plaintiff and Defendant Jacqueline McCracken Blei.

3 Although she is not listed as a Defendant in the caption of the Complaint or in the subsection

entitled “Parties”, it is clear from Count III that McCracken seeks to bring claims against her as a

Defendant. (ECF No. 2 ¶¶ 107-09.)

Police Department; (2) Officer Torres of the Upper Gwynedd Township Police Department; (3)

Officer Moriarty of the Upper Gwynedd Township Police Department; (4) Officer Ramonowitz

of the Upper Gwynedd Township Police Department; (5) Patrick Molloy, the Chief of the

Abington Township Police Department;4 and (6) David Duffy, the Chief of the Upper Gwynedd

Township Police Department. (Id. ¶¶ 8, 10-12, 135, 137-140, 148, 163-68.) Finally, McCracken

names three Pennsylvania municipalities as Defendants: (1) Upper Moreland Township; (2)

Upper Gwynedd Township; and (3) Abington Township, in addition to the respective police

departments for each: (1) Upper Moreland Township Police Department; (2) Upper Gwynedd

Township Police Department; and (3) Abington Township Police Department. (Id. at 1; see also

id. ¶¶ 9, 13-16.)

As best as the Court can discern, McCracken alleges that in 2011 while he was away on a

“trip to Europe and Africa[,]” McCracken’s mother, Eunice McCracken, “signed an agreement

giving Power of Attorney” to Defendant Weber and Defendant Simons, two individuals she met

at the Gwynedd Square Presbyterian Church. (Id. ¶ 25.) Upon returning in 2018, McCracken

learned from his mother that she had changed her will. (Id. ¶ 26.) Although McCracken alleges

that he was previously the sole beneficiary of her will, under the changes his mother made in his

absence he was now “only entitled to 33 1/3 %” of her estate with the remaining two-thirds being

distributed equally to (1) her sister-in-law, Laura Adams, and (2) the Gwynedd Square

Presbyterian Church. (Id.) McCracken alleges that in 2018, his mother directed her attorney,

Cynthia Dengler, to (1) restore McCracken’s 100% share of her estate under the will and (2) to

4 At certain points in the Complaint, McCracken refers to Molloy as “John Doe1” – which

appears to be separate and distinct from his references to Defendant “John Doe” who he

associates with a specific Pennsylvania license plate number: GVE5173. For consistency, the

Court refers to Molloy solely by his sur name to avoid confusion between him (as John Doe1)

and Defendant John Doe.

inform Defendant Weber and Defendant Simons that Gwynedd Square Presbyterian Church was

no longer a beneficiary under Eunice McCracken’s will. (Id. ¶¶ 27-28.) McCracken asserts that

Attorney Dengler informed Defendants Weber and Simons about the changes to the will in early

2019. (Id. ¶ 28.)

Upon learning of this change, McCracken alleges that Defendants Weber and Simons

“became enraged” and “sought out” Defendant Molloy, Chief of the Abington Township Police

Department, and asked him to “instruct members of his police force to try to induce

[McCracken] to commit a crime, so [he could] . . . be arrested and they could take control of

Eunice McCracken and her property.”5 (Id. ¶ 29.) McCracken further asserts that after the

changes to the will in 2018, Defendants Weber and Molloy “instructed” Defendant Officer Blei

“to have his wife [Defendant] Jacqueline McCracken Blei . . . start soliciting [McCracken]

surreptitiously on Face[]book, [by] feigning friendship, [and] trying to arouse sympathy, [and]

pity” in order to “induce [McCracken] to become interested in the welfare of her and her

children.”6 (Id. ¶ 32.) According to McCracken, Defendants put this plan in motion so that “as

soon as [McCracken] went to check on their welfare, [D]efendant Jacqueline McCracken Blei

would file criminal charges to get [McCracken] arrested, [and] incarcerated” so that Defendants

5 The Complaint alleges that Defendant Weber “was employed as [an] EMS worker” and that he

“frequently traveled to Abington” and Abington Hospital and was “acquainted with the police

personnel in Abington Township” as a result. (Id. ¶ 30.) McCracken contends that based on this

fact, “it can be assumed” that Weber approached Molloy in 2011 – at the time the original Power

of Attorney was signed – to discuss how Weber could “capitalize on his opportunity.” (Id.)

6 McCracken alleges that that Defendant Blei was hired as a police officer in Abington

Township by Defendant Molloy in 2014 “not because of his excellent qualifications, but, rather

because his wife’s maiden name was McCracken, so specifically to compliment the conspiracy

to take control, institutionalize the elderly Eunice McCracken and steal the assets.” (Id. ¶ 31.)

Weber and Simons could then “move to institutionalize [McCracken’s] mother and

take/embezzle all [her] assets.” (Id.; see also id. ¶¶ 58, 63.)

McCracken’s Complaint also sets forth a number of details with respect to Facebook

posts made by Defendant McCracken Blei and information McCracken learned about her and her

children through her Facebook page and pictures she posted on the social media site. (Id. ¶¶ 37-

46.) McCracken contends that based on what he learned from Facebook, “suspicions arose” that

either Defendant McCracken Blei and her children “were being neglected, [and] abused” or that

she “was mispresenting the facts and actively inducing/inciting [McCracken] to investigate [the

situation] further by stopping by her residence.” (Id. ¶ 47.) McCracken alleges that he and

Defendant McCracken Blei “were exchanging texts in a conversation at approximately 11pm on

or about February 27[, 2019]” before she signed off. (Id. ¶ 48.) McCracken admits that he

“went to her house at 9:30 am” the next morning, knocked on the door, and introduced himself

after she answered. (Id. ¶ 49.) When Defendant McCracken Blei asked how McCracken

obtained her address, McCracken informed her that he located her address via “anywho.com,

internet white pages.” (Id. ¶ 60).

On or about May 8, 2019, McCracken was arrested by Upper Gwynedd Township Police

Officers Townsend and Torres,7 who transferred custody of him over to Defendant Officer

Gershanick of the Upper Moreland Township Police Department, on charges of stalking,

harassment, unsworn falsification to authorities, and two counts of making false reports of child

abuse arising out of his interaction with Defendant McCracken Blei and two letters he sent to

Montgomery County Child Protective Services. (Id. ¶ 69.) McCracken admits that he pled

guilty to one count of making a false report of child abuse and was sentenced to one year of

7 Officer Townsend is not named as a Defendant in this action.

probation, and that his remaining charges were dismissed. (Id. ¶ 70.) A review of public records

reveals that McCracken entered a negotiated guilty plea on or about January 29, 2020, and a

condition of his probation prohibited him from having any contact with the victims. See

Commonwealth v. McCracken, CP-46-CR-0004080-2019, (C.P. Montgomery County). It is

McCracken’s contention that Defendant Gershanick talked to Defendants Blei and Molloy of the

Abington Township Police Department and learned that Defendant Weber “was looking to get

[McCracken] out of the way” by “stack[ing] bogus criminal charges/arrest[ing]/incarcerat[ing]”

McCracken so that “they could get $200,000.00 in assets” which supposed to be McCracken’s

inheritance. (Id. ¶ 72.) McCracken further claims that Gershanick “stacked the charges” in order

to ensure that McCracken had a high bail, initially set at $25,000, causing McCracken to remain

incarcerated for two months because he was unable to make bail.8 (Id. ¶¶ 72-73.) Based on

these allegations, McCracken seeks compensatory damages in the amount of $1 million and

punitive damages in the amount of $9 million (Id. ¶¶ 49-52.)

II. STANDARD OF REVIEW

The Court previously granted McCracken leave to proceed in forma pauperis because it

appeared that he was incapable of paying the fees to commence this 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),

8 In June of 2019 McCracken’s bail was reduced and he was released on his own recognizance.

(Id. ¶ 73.) The remainder of McCracken’s Complaint details a series of events that occurred with

respect to Eunice McCracken’s hospitalization and admittance to a rehabilitation facility while

McCracken was incarcerated, and McCracken’s attempts to learn of his mother’s whereabouts

and communicate with her and visit her after his release. (See generally id. ¶¶ 74-97.)

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). Moreover, 28 U.S.C. § 1915(e)(2)(B)(i) requires the Court to dismiss the

Complaint if it is frivolous. A complaint is frivolous if it “lacks an arguable basis either in law

or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). The use of the term “frivolous” in §

1915 “embraces not only the inarguable legal conclusion, but also the fanciful factual

allegation.” Id. Section 1915 accords judges “the unusual power to pierce the veil of the

complaint’s factual allegations and dismiss those claims whose factual contentions are clearly

baseless[,]” including claims that describe “fantastic or delusional scenarios[.]” Id. at 327. “[A]

finding of factual frivolousness is appropriate when the facts alleged rise to the level of the

irrational or the wholly incredible[.]” Denton v. Hernandez, 504 U.S. 25, 33 (1992). 9

In assessing whether a Complaint states a claim, “[a]t this early stage of the litigation,’

‘[the Court will] accept the facts alleged in [the 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.’” Shorter v. United States, 12 F.4th 366,

374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).

Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As McCracken is proceeding pro

se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021)

(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

9 Though the Prison Litigation Reform Act amended section 1915, “the provisions of § 1915(e)

apply to all in forma pauperis complaints, not simply those filed by prisoners.” Atamian v.

Burns, 236 F. App'x 753, 755 (3d Cir. 2007); see also Grayson v. Mayview State Hosp., 293 F.3d

103, 113 n.19 (3d Cir. 2002) (“non-prisoner indigent plaintiffs” are within the scope of

1915(e)(2)).

III. DISCUSSION

As set forth in the Complaint, McCracken brings this “civil rights action pursuant to [42]

U.S.C. [§] 1983, [and] [42] U.S.C. [§] 1985” for violations of his rights under the First, Fifth,

Eighth, and Fourteenth Amendments, including his right to free association, due process, equal

protection under the law, and to be free from cruel and unusual punishment.10 (See ECF No. 2 at

2.) The Court addresses the plausibility of McCracken’s claims under both § 1983 and § 1985 in

turn.

A. McCracken’s Claims Under § 1983

The vehicle by which federal constitutional claims may be brought in federal court is

Section 1983 of Title 42 of the United States Code, which provides in part:

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. “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

10 McCracken is the only named Plaintiff in this action, but it remains unclear from the

Complaint whether McCracken seeks to raise these claims solely on his own behalf, on behalf of

his mother, or both. To the extent McCracken seeks to raise any claims on behalf of his mother,

he is prohibited from doing so. A pro se litigant who is not an attorney may not seek to appear

on behalf of or represent another party. Accordingly, because McCracken is appearing pro se and

is not an attorney, he may not seek to appear on behalf of his mother. See Osei-Afriyie ex rel.

Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991).

Therefore, the Court will dismiss Counts II and III of the Complaint (see ECF No. 2 ¶¶ 103-

108) without prejudice for lack of standing as it appears these Counts raise claims against

Defendant Simons and Defendant Taylor for actions they took with respect to Eunice

McCracken. Throughout the remainder of this Memorandum, the Court’s analysis focuses on all

remaining claims as though they are brought solely on McCracken’s own behalf.

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988).

1. Claims Against Defendants Weber, Simons, McCracken Blei and

Taylor

McCracken seeks to assert § 1983 claims for violations of his constitutional rights against

Defendants Weber, Simons, McCracken Blei, and Taylor. 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). Pursuant to § 1983, action under color of state law

requires that the one liable under that statute have exercised power possessed by virtue of state

law and made possible only because the wrongdoer is clothed with the authority of state law.

Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011). However, “purely private

acts which are not furthered by any actual or purported state authority are not acts under color of

state law.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). “To answer [the

state action] question, [the Third Circuit has] outlined three broad tests generated by Supreme

Court jurisprudence to determine whether state action exists: (1) whether the private entity 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).

Throughout the Complaint, McCracken repeatedly refers to Defendants Weber, Simons,

and McCracken Blei as private persons and concedes that these individuals are not state actors.

(See, e.g., ECF No. 2 at 2 (“In 2011, two (2) private persons (KENNETH WEBER and LORNA

SIMONS) met at church”); id. at 22 (“COUNT 1 DEPRIVATION OF RIGHTS BY PRIVATE

PERSON ACTING UNDER COLOR OF STATE LAW JACQUELINE . . . (McCRACKEN)

BLEI”); id. ¶ 99 (“Defendant JACQUELINE MARIE (McCRACKEN) BLEI is not a state

official.”); id. at 26 (“COUNT V PRIVATE PERSON ACTING UNDER COLOR OF STATE

LAW” when referring to claim against Defendant Weber); id. ¶ 113 (“Defendant . . . KENNETH

WEBER is not a state official.”); id. ¶ 168 (“. . . the two (2) private persons

(WEBER/SIMONS)”)(emphasis added). McCracken also alleges that Defendant Taylor is the

Administrator at Gwynedd Rehabilitation and Healthcare. (Id. ¶ 146.) Thus, it is clear from the

face of McCracken’s Complaint that these Defendants are private citizens and they cannot be

held liable under § 1983. See Grapentine v. Pawtucket Credit Union, 755 F.3d 29, 31 (1st Cir.

2014) (“Significantly, [Section] 1983 does not apply to merely private conduct, no matter how

discriminatory or wrongful.”) (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50

(1999)(internal quotations omitted); see also Massey v. Crady, Civ. A. No. 17-241, 2018 WL

4328002, at *6 (W.D. Pa. Aug. 8, 2018) (“Private citizens ... are not state actors, and therefore ...

any § 1983 claims against [them] should be dismissed.”).

Seeming to recognize the fact that these Defendants are private citizens and do not

qualify as state actors for purposes of § 1983, McCracken asserts that these individuals conspired

with a number of state actors, specifically several police officers, in an attempt to nudge his

claims from the possible to the plausible. See generally Iqbal, 556 U.S. at 678 (“Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the

line between possibility and plausibility of entitlement to relief.” (internal quotations omitted));

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Because the plaintiffs here have not

nudged their claims across the line from conceivable to plausible, their complaint must be

dismissed.”). In general, “private individuals can act under color of state law for purposes of §

1983 when they corruptly conspire with a state actor.” See Adams v. Cty. of Erie, Pa., 558 F.

App’x 199, 203 (3d Cir. 2014) (internal quotations omitted). However, to plausibly allege such a

conspiracy, a plaintiff must provide factual allegations supporting an agreement and concerted

action rather than relying on labels and conclusions. Capogrosso v. The Supreme Court of N.J.,

588 F.3d 180, 184-85 (3d Cir. 2009).

None of the factual allegations in McCracken’s Complaint support a plausible basis for a

conspiracy or joint action among any of these Defendants sufficient to render them state actors.

McCracken’s allegations about the existence of this conspiracy either rely on legal conclusions

and generalized statements about what constitutes a conspiracy or they are vague, undeveloped,

conclusory allegations that are insufficient to plausibly allege state action. While the Court

generally must accept the allegations of a complaint as true for screening purposes, the Court can

properly “pierce the veil of the complaint’s factual allegations and dismiss those claims whose

factual contentions are clearly baseless.” See Neitzke, 490 U.S. at 327. McCracken factual

allegations regarding this broad-based, wide ranging conspiracy spanning a period of eight years

involving seemingly unconnected individuals from across at least three municipalities in

Pennsylvania are wholly incredible,11 and the Court need not credit these baseless allegations.

11 The incredibility of McCracken’s conspiracy is reflected in the fact that several of his

allegations are wholly inconsistent with others and defy common sense. For example, with

respect to the origins and timing of this alleged conspiracy, McCracken alleges that Defendant

Weber and Defendant Simons initiated this conspiracy against him in 2011 when the Power of

Attorney for his mother was first signed – a time during which McCracken was not even in the

country. Although McCracken alleges that the active portion of the conspiracy did not occur

until Defendants Weber and Simons learned that his mother’s will had been changed to restore

him as the sole beneficiary in early 2019, he simultaneously asserts that Defendant Weber

approached Defendant Molloy in 2011 when the Power of Attorney was signed – approximately

Accordingly, the Court concludes that McCracken has failed to sufficient allege a plausible

conspiracy sufficient to render Defendants Weber, Simons, or McCracken Blei state actors under

§ 1983.

To the extent McCracken also contends that Defendant McCracken Blei (or Defendants

Weber or Simons for that matter) should be considered a state actor because of her involvement

in McCracken’s subsequent criminal charges, any such allegations are insufficient to render

these Defendants state actors. “Complaining in person to the police or filing a civilian criminal

complaint are not acts of the State; they are acts that anyone can do. Filing a report or a civilian

complaint does not transform a private citizen into a State actor.” Sous v. Timpone, Civ. A. No.

15-7972, 2016 WL 2625325, at *4 (D.N.J. May 9, 2016) (citing Boyce v. Eggers, 513 F. Supp.

2d 139, 144-45 (D.N.J. 2007)). Participation in the related police investigation does not render a

private person a state actor for purposes of § 1983. See Baack v. Rodgers, Civ. A. No. 14-875,

2014 WL 4632380, at *1, 3 (E.D. Pa. Sept. 17, 2014) (rejecting § 1983 false arrest claim against

a hospital and two of its employees who filed a police report regarding plaintiff’s conduct

because “reporting suspicious conduct to the police — or answering police questions about that

conduct — without more, does not transform the Hospital Defendants into state actors” (citations

omitted)). This remains true even where private citizens are alleged to have acted under false

pretenses with respect to those criminal charges as McCracken alleges here. See, e.g., Collins v.

Christie, Civ. A. No. 06-4702, 2007 WL 2407105, at *4 (E.D. Pa. Aug. 22, 2007) (“[E]ven if Dr.

Columbo intentionally provided the false information to the police, the plaintiff would still fail to

eight years earlier – in order to discuss how Weber could “capitalize” on this opportunity.

Similarly, while the alleged Facebook “entrapment” by Defendant McCracken Blei allegedly

took place in approximately 2019, McCracken contends that her husband Defendant Blei was

hired five years earlier – in 2014 – solely because of her maiden name and the ability to further

the conspiracy.

state a claim under § 1983.”); O’Neil v. Beck, Civ. A. No. 04-2825, 2005 WL 2030319, at *2

(M.D. Pa. Aug. 4, 2005) (concluding that allegations that a private citizen filed a false police

report and wanted to see the plaintiff arrested are “simply insufficient” to establish that the

private citizen is a state actor for purposes of a claim brought pursuant to section 1983).

Accordingly, because Defendants Weber, Simons, McCracken Blei, and Taylor are not state

actors, McCracken’s claims against them under § 1983 must be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii) for failure to state a claim. As it appears that any attempt to amend his

claims against these Defendants would be futile, the Court will dismiss McCracken’s claims

against them with prejudice. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d

Cir. 2002) (stating that leave to amend claims dismissed on screening should be generally be

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

2. Claims Against Various Police Departments

McCracken names the following police departments as Defendants in this action: (1) the

Upper Moreland Township Police Department; (2) the Upper Gwynedd Police Department; and

(3) the Abington Township Police Department. However, McCracken’s claims against the

police departments are not plausible. Following the decision in Monell v. Dept. of Social Servs.,

436 U.S. 658, 694 (1978), courts concluded that 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 F. App’x. 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 entity for purposes of section 1983 liability” citing Colburn v.

Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir.1988)); Hadesty v. Rush Twp. Police

Dep’t, Civ. A. No. 14-2319, 2016 WL 1039063, at *9 n.4 (M.D. Pa. Mar. 15, 2016). Therefore,

neither the Upper Moreland Township Police Department, the Upper Gwynedd Township Police

Department, nor the Abington Township Police Department are proper defendants in this case

under §1983 and all claims against these Departments must be dismissed for failure to state a

claim pursuant to § 1915(e)(2)(B)(ii). These claims will be dismissed with prejudice as any

attempt to amend would be futile. Grayson, 293 F.3d at 108, 110 .

3. Claims Against the Municipalities

McCracken also seeks to bring § 1983 claims against Upper Moreland Township,

Abington Township, and Upper Gwynedd Township. (See ECF No. 2 ¶¶ 9, 13, 15.) To plead a

basis for municipal liability under § 1983, a plaintiff must allege that the municipality’s policy or

custom caused the violation of his constitutional rights. See Monell, 436 U.S. at 694. “To satisfy

the pleading standard, [the plaintiff] must . . . specify what exactly that custom or policy was.”

McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009). “‘Policy is made when a

decisionmaker possess[ing] final authority to establish municipal policy with respect to the

action issues an official proclamation, policy, or edict.’” Estate of Roman v. City of Newark, 914

F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d

Cir. 1990)). “‘Custom, on the other hand, can be proven by showing that a given course of

conduct, although not specifically endorsed or authorized by law, is so well-settled and

permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850

(3d Cir. 1990)). For a custom to be the proximate cause of an injury, a plaintiff must establish

that the Defendant “had knowledge of similar unlawful conduct in the past, failed to take

precautions against future violations, and that its failure, at least in part, led to [plaintiff’s]

injury.” Id. (internal quotations and alterations omitted). Allegations that simply paraphrase the

standard for municipal liability, are too vague and generalized to support a claim against the

City. See, e.g., Szerensci v. Shimshock, Civ. A. No. 20-1296, 2021 WL 4480172, at *7 (W.D.

Pa. Sept. 30, 2021) (“Plaintiffs’ conclusory allegation, which generally paraphrases the relevant

standard, is insufficient to state a claim for § 1983 liability under Monell.”) (citing cases).

Counts VIII, IX, X, and XI essentially seek to bring Monell claims against Upper

Moreland Township, Abington Township, and Upper Gwynedd Township. (See ECF No. 2 ¶¶

132-142.) McCracken has failed to allege a plausible Monell claim against any of the three

municipalities named in his action. In short, McCracken’s allegations: (1) simply paraphrase and

reiterate the standard for municipal liability; (2) fail to set forth a specific policy or custom of

any municipality but instead assert that certain policy makers directed the creation of this broad-

based conspiracy or sought assistance in completing the conspiracy; or (3) allege a failure to

adequately train police officers on various aspects of Pennsylvania law including defrauding the

elderly which do not amount to a violation of McCracken’s constitutional rights. Accordingly,

the Court will dismiss McCracken’s claims against the municipalities with prejudice pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state without leave to amend as any attempt to do so

would be futile.12

12 McCracken seeks to sue all Defendants in both their individual and official capacities. Claims

against police officers in their official capacity are, in essence, claims against the employing

municipal entity. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (“Official-capacity

suits . . . ‘generally represent only another way of pleading an action against an entity of which

an officer is an agent.’”) (quoting Monell, 436 U.S. at 690, n.55). For the same reason that his

claims against the municipalities fail here, McCracken’s official capacity claims are also not

plausible and will be dismissed for failure to state a claim pursuant to § 1915(e)(2)(B).

4. McCracken’s Remaining Claims are Barred Under Heck

McCracken appears to assert claims for false arrest, false imprisonment, and malicious

prosecution. (See ECF No. 2 at 2; see id. ¶¶ 133, 135.) “[T]o recover damages [or other relief]

for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove

that the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus[.]” Heck v. Humphrey, 512 U.S.

477, 486-87 (1994) (footnote and citation omitted); see also Wilkinson v. Dotson, 544 U.S. 74,

81-82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior invalidation) — no

matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit

(state conduct leading to conviction or internal prison proceedings) — if success in that action

would necessarily demonstrate the invalidity of confinement or its duration.” (emphasis

omitted)).

McCracken repeatedly asserts that this conspiracy resulted in his false arrest, false

imprisonment, and malicious prosecution. However, the Complaint itself and public records

make clear that McCracken was later criminally charged in state court with a number of offenses

arising from the events he asserts were part of this conspiracy and that he plead guilty in state

court. It is also clear that his guilty plea remains intact and has not been invalidated. See

Commonwealth v. McCracken, CP-46-CR-0004080-2019, (C.P. Montgomery County). Heck is

applicable to convictions based on guilty pleas. See Gilles v. Davis, 427 F.3d 197, 209 n.8 (3d

Cir. 2005) (“[U]nder Heck, both a guilty plea and an ARD are sufficient to bar a subsequent §

1983 claim.”). Accordingly, McCracken’s civil rights claims for false arrest, false

imprisonment,13 and malicious prosecution – which seek to challenge the validity of his intact

guilty plea and conviction – are not cognizable in a civil rights action at this time and must be

dismissed.14

B. McCracken’s Claims Under § 1985

McCracken asserts that he is bringing claims pursuant to § 1985. (See ECF No. 2 at 2);

(see id. ¶¶ 105, 108, 118, 120, 128-29, 133, 142, 157, 171-72, 177). 42 U.S.C. § 1985(3) creates

a cause of action against persons who “conspire . . . for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws. . . .” 42 U.S.C. § 1985(3). To state a plausible claim

under § 1985(3) a plaintiff must allege the following elements: (1) a conspiracy; (2) motivated

by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any

person or class of persons of the equal protection of the laws; (3) an act in furtherance of the

conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of

a citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997). Significantly,

“‘[t]he [statutory] language requiring intent to deprive of equal protection . . . means that there

must be some racial . . . invidiously discriminatory animus behind the conspirators’ action.’”

United Bhd. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 835

13 It appears McCracken was arrested pursuant to a warrant in connection with charges filed

against him. Accordingly, his false arrest and false imprisonment claims are more akin to

malicious prosecution claims.

14 Even if Heck is not applicable here, McCracken has not adequately alleged that probable cause

was lacking for his prosecution since his allegations on this point are predicated on the vast

conspiracy that this Court has already concluded lacked a basis in fact as set forth above.

(1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). Moreover, a plaintiff must

allege specific facts to sustain a § 1985(3) claim:

With near unanimity, the courts have rejected complaints containing mere

conclusory allegations of deprivations of constitutional rights protected

under § 1985(3). A conspiracy claim based upon § 1985(3) requires a clear

showing of invidious, purposeful and intentional discrimination between

classes or individuals.

Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972). “An allegation of conspiracy is

insufficient to sustain a cause of action under [section 1985]; it is not enough to use the term

conspiracy without setting forth supporting facts that tend to show an unlawful agreement.”

Suber v. Guinta, 902 F. Supp. 2d 591, 608 (E.D. Pa. 2012) (internal quotation marks and citation

omitted) (alteration in original). “[T]o properly plead an unconstitutional conspiracy, a plaintiff

must assert facts from which a conspiratorial agreement can be inferred.” Great W. Mining &

Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). “[A] bare assertion of

conspiracy will not suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); see, e.g.,

Farrar v. McNesby, 639 F. App’x 903, 906 (3d Cir. 2016) (affirming dismissal of a section

1985(3) claim where the plaintiff “failed to set forth any facts that would allow one to infer that

the Defendants entered into an agreement for the purpose of targeting her protected rights.”);

Kornafel v. Green, Civ. A. No. 20-4687, 2020 WL 6118786, at *3 (E.D. Pa. Oct. 15, 2020)

(“With near unanimity, the courts have rejected complaints containing mere conclusory

allegations of deprivations of constitutional rights protected under § 1985(3).”) (citation

omitted).

McCracken’s Complaint does not allege a plausible claim under § 1985. Even if the

Court were to credit McCracken’s conclusory allegations that multiple Defendants conspired

together to get him arrested and incarcerated in order to have access to his mother’s assets,

McCracken fails to sufficiently allege that the conspiracy against him was based on his race or

membership in a class. In fact, McCracken’s Complaint is completely silent with respect to his

own race. Accordingly, any claims brought pursuant to § 1985 are implausible and will be

dismissed for failure to state a claim pursuant to § 1915(e)(2)(B)(ii). Cf. Balthazar v. Atl. City

Med. Ctr., 279 F. Supp. 2d 574, 592 (D.N.J. 2003), aff’d, 137 F. App’x 482 (3d Cir. 2005)

(dismissing § 1985 conspiracy claim for failure to state a claim where plaintiff, an indigent,

African-American woman, asserted that a medical center and several doctors conspired to

deprive her of her Medicaid benefits because she did “not provide a factual basis for her claims

that the alleged conspiracy was motivated by ‘racial . . . or otherwise class based’ animus.”). As

any attempt to amend this claim would be futile, McCracken will not be granted leave to amend

on this issue.

C. RICO Claims

The Racketeer Influenced and Corrupt Organizations Act (“RICO” ) “makes it unlawful

‘for any person employed by or associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in

the conduct of such enterprise’s affairs through a pattern of racketeering activity.’” In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 362 (3d Cir. 2010) (quoting 18 U.S.C. § 1962(c)). To

state a civil RICO claim, a plaintiff must plausibly allege the following elements: “ (1) conduct

(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Id. (internal quotations

omitted). “In order to have standing to litigate a civil RICO claim, a plaintiff must show that

[he] suffered an injury to [his] business or property and that the injury was proximately caused

by the defendant’s racketeering activities.” Miller v. Pocono Ranch Lands Prop. Owners Ass’n

Inc., 557 F. App’x 141, 145 (3d Cir. 2014) (per curiam).

To the extent McCracken is again raising RICO claims, they rest entirely on conclusory

references to racketeering, which may not be credited as true on their own. His allegations of

racketeering are wholly unsupported by any factual allegations supporting a pattern of

racketeering activity here. Accordingly, McCracken has failed to state a plausible RICO claim.

D. Claims Under the Pennsylvania Constitution

McCracken also appears to bring claims under the Pennsylvania Constitution. (See ECF

No. 2 ¶¶ 102, 120, 129, 172.) However, as there is no private right of action for damages under

the Pennsylvania Constitution, these claims must be dismissed with prejudice as legally frivolous

pursuant to § 1915(e)(2)(B)(i). See Plouffe v. Cevallos, 777 F. App’x 594, 601 (3d Cir. 2019)

(“[N]or is there a private right of action for damages under the Pennsylvania Constitution”);

Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 F. App’x 681, 687 (3d Cir.

2011) (“No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private

cause of action for damages under the Pennsylvania Constitution.”). McCracken will not be

granted leave to amend these claims as any amendment would be futile.

F. State Law Claims

McCracken also alleges a number of claims arising under Pennsylvania state law. The

Court declines to exercise supplemental jurisdiction over such claims pursuant to 28 U.S.C. §

1367, having dismissed all of McCracken’s federal claims. Accordingly, the only independent

basis for jurisdiction over any state law claims is 28 U.S.C. § 1332, which provides that a district

court can exercise subject-matter 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.” 28 U.S.C. § 1332(a). 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)). An

individual is a citizen of the state where he or she is domiciled, meaning the state where he or she

is physically present and intends to remain. See Washington v. Hovensa LLC, 652 F.3d 340, 344

(3d Cir. 2011). “The burden of establishing federal jurisdiction rests with the party asserting its

existence.” Lincoln Ben. Life Co., 800 F.3d at 105 (citing DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 342 n.3 (2006)).

McCracken does not adequately allege the citizenship of any of the parties to this action.

With respect to both his own citizenship and the citizenship of the individual Defendants –

McCracken Blei, Blei, Molloy, Weber, Simons, Taylor, Gershanick, Torres, Moriarty,

Ramonowitz, and Duffy – McCracken does not set forth the state where any of these parties are

domiciled as is required for diversity jurisdiction.15 Accordingly, McCracken has failed to meet

his burden of demonstrating that this Court has subject matter jurisdiction over any state law

15 The Court notes that McCracken provided a Pennsylvania address as his address of record, and

alleges in the Complaint that “at all times mentioned herein” he “reside[d] . . . [in] North Wales,

PA[.]” (ECF No. 2 ¶ 1.) With respect to several individual Defendants (specifically McCracken

Blei, Blei, Weber, and Simons), McCracken alleges that each of these individuals “resides” in a

Pennsylvania municipality including Willow Grove, North Wales, and Lansdale. None of

McCracken’s allegations are sufficient allegations from which the Court can determine the

citizenship of these parties for purposes of diversity. Additionally, even if the Court accepted

these allegations as sufficient for purposes of citizenship, it appears that McCracken, McCracken

Blei, Blei, Weber, and Simons would all be citizens of Pennsylvania. In that instance, complete

diversity is lacking and the Court cannot maintain diversity jurisdiction over McCracken’s state

law claims.

claims he may be raising. See Lincoln Ben. Life Co., 800 F.3d at 105. Thus, all state law claims

will be dismissed for lack of subject matter jurisdiction without prejudice to McCracken’s right

to assert those claims in an appropriate state court.

IV. CONCLUSION

For the foregoing reasons, the Court will, dismiss McCracken’s § 1983 claim predicated

on his alleged malicious prosecution as barred by Heck. McCracken may not amend this portion

of his § 1983 claim since any such claim is currently subject to the Heck bar and must be brought

in a new civil action if that bar is ever removed. McCracken’s remaining federal claims are

dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). McCracken will not be

granted leave to amend because amendment of these remaining federal claims would be futile.16

See Grayson, 293 F.3d at 114. McCracken’s state law claims will be dismissed for lack of

subject matter jurisdiction without prejudice to McCracken’s right to raise those claims in an

appropriate state court. An appropriate Order follows.

BY THE COURT:

/s/ Eduardo C. Robreno_____

EDUARDO C. ROBRENO, J.

16 The “kitchen-sink” nature of McCracken’s Complaint makes it difficult to accurately discern

the full scope of his claims in this action. To the extent the Complaint could be liberally

construed to raise any additional federal constitutional claims not specifically addressed above,

the Court has concluded that those claims are either frivolous or inadequately pled and do not

warrant further discussion.