MILLER v. GOGGIN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN RYAN MILLER, CIVIL ACTION

Plaintiff,

NO. 22-3329-KSM

v.

THOMAS NELLING, et al.,

Defendants.

MEMORANDUM

MARSTON, J. March 31, 2023

Pro Se Plaintiff John Ryan Miller brings this action against dozens of school district

officials and law enforcement officers from various localities across southeastern Pennsylvania.

(See Doc. No. 1.) Plaintiff contends that the Octorara School District’s enforcement of its public

participation policy is unconstitutional, and that members of the school board conspired with local

public servants to prevent him from speaking at or attending school board meetings on behalf of a

group of parents. (Id. at 66–93.) Presently before the Court are 33 motions to dismiss, by which

55 defendants (“Moving Defendants”) seek dismissal of Counts VIII and IX. (Doc. Nos. 108, 141,

147, 166, 167, 168, 169, 170, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 192,

193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 211.)1 Moving Defendants argue that Count

VIII and Count IX fail to state a claim upon which relief can be granted because they assert

violations of criminal statutes that do not provide private rights of action. (Id.) Plaintiff opposes

1 Several defendants also filed replies in support of their motions. (See Doc. Nos. 231, 232, 233, 234, 235,

236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 247.)

the motions. (Doc. Nos. 171, 175, 230, 248, 250.) For the following reasons, Moving Defendants’

motions are granted.

I. FACTUAL BACKGROUND

Because we write for the benefit of the parties, who are familiar with the issues before us,

we include only a brief recitation of the relevant facts.2 Accepting all of Plaintiff’s allegations as

true, the facts are as follows.

Plaintiff attended an Octorara School District board meeting on January 24, 2022, after he

had been “engaged by several parents of students enrolled in Octorara School District” to attend

the meeting on their behalf and speak during the public comment period.3 (Doc. No. 1 at ¶¶ 38,

73.) Before making his public comment, Plaintiff was required to provide his name and state his

residence in accordance with “District Policy 903.” (Id. at ¶¶ 74–90.) Following the meeting,

Plaintiff emailed Chester County law enforcement officials, explaining that he believed his rights

were violated by the school board members and that District Policy 903 was unconstitutional. (Id.

at ¶ 104.) He promised that he would “seek redress/remedy if Plaintiff’s rights were violated

further.” (Id.) To that end, he provided law enforcement with “role-play scenarios, which created

a base of expectations and how the Plaintiff would conduct himself if/when Plaintiff could

encounter law enforcement” and described “actions [Plaintiff would take] if Plaintiff were to

encounter public servants who might violate their oath to their position.” (Id. at ¶¶ 102–08.) The

Chester County District Attorney’s Office, in conjunction with the Chester County Police

2 The Court recently recounted the facts of this case at length in a Memorandum Opinion published on

February 8, 2023. (Doc. No. 254.)

3 Plaintiff’s engagement was “related to parental concerns, regarding actions/consequences, resulting from

policy enforcement, mandates, guidelines and other harms which children were experiencing within

Octorara School District through their administration and actions through elected School Board members.”

(Doc. No. 1 at ¶ 38.)

Department, subsequently circulated Plaintiff’s correspondence to other local police departments

via email, “with the implication that the Plaintiff’s exercise of his constitutional rights is suspicious

and allegedly suggest criminal behavior in nature.” (Id. at ¶ 109.)

Upon learning of this email correspondence, Plaintiff requested communications between

“Chester County Detectives, local law enforcement, Pennsylvania State Troopers, [and] School

Board officials, through the RTKL [Pennsylvania’s Right-to-Know Law, 65 PA. CONS. STAT.

§§ 67.101–67.3104] process,” regarding Plaintiff’s interactions or grievances with the Octorara

School Board. (Id. at ¶¶ 119, 283, 290.) According to Plaintiff, these RTKL requests “produced

no documents.” (Id. at ¶ 119.) Plaintiff asserts that no documents were produced because any

documents were destroyed by Moving Defendants. (Id. at ¶¶ 402–04.) Following an attempt to

attend another board meeting on February 14, 2022, and an incident with Pennsylvania State

Troopers at a school board meeting on March 21, 2022, Plaintiff was ultimately banned from

Octorara School District property. (Id. at ¶¶ 159–94.)

II. PROCEDURAL BACKGROUND

Plaintiff filed this lawsuit on August 18, 2022, challenging the constitutionality of District

Policy 903 and alleging that members of the Octorara School Board conspired with local public

servants to prevent him from speaking at or attending school board meetings. (Id.) Plaintiff brings

ten4 counts against 84 total defendants. (Id. at ¶¶ 330–412.) More specifically, Plaintiff brings

only Count VIII and Count IX against 60 of those 84 defendants, 555 of whom have filed the

4 At the end of his Complaint, Plaintiff attached a “Defendant Matrix” that identifies the specific claims

brought against each defendant. (Doc. No. 1 at 100–01.) There appears to be a typographical error in

Plaintiff’s “Defendant Matrix.” Although it includes a “Count XI,” there is no Count XI articulated in the

body of the Complaint.

5 The remaining five defendants against whom Plaintiff also brings only Counts VIII and IX are: Gerald

Bonmer, Matt Williams, Sanjay Bridges, John Frye, and Raymond Stevenson. Defendant Bonmer filed a

motion for more definite statement in this case, which the Court denied, and subsequently ordered

following motions to dismiss:6

Motion Filing Defendant(s)

Doc. No. 108 Benjamin Pratt

Doc. No. 141 Dixie Strachnik

Doc. No. 1477 Jack Laufer

Frank Galbraith

Doc. No. 166 Dolores D’Amore

Mary Friedberg

Doc. No. 167 Timothy Parker

Howard Holland

Doc. No. 168

Georgene Carbo8

Doc. No. 169 James Morehead

Doc. No. 170 Eric Hughes

William Mossman

Chris Yeager

Joe Miles

Mike Beaty

Doc. No. 178

Timothy Brown

John DeMarco

Michael Swinginger9

Gerald Simpson

Doc. No. 179 Marc Partee

Doc. No. 180 William Holdsworth

Defendant Bonmer to respond to Plaintiff’s Complaint by April 17, 2023. (Doc. Nos. 255, 272.)

Defendants Williams, Bridges, and Frye were dismissed on February 22, 2023 for lack of prosecution, due

to Plaintiff’s failure to timely serve the Complaint. (Doc. No. 273.) And Defendant Raymond Stevenson

filed a motion to dismiss in conjunction with Defendants Erin Burlew, Kevin Kochka, Melissa Laughlin,

Andrew Lovette, William Rozier, Rachel Zeltman, and Sharon Maitland. (Doc. No. 206.) That motion is

still under advisement.

6 Plaintiff brings either Count VIII or Count IX, or both, against the Moving Defendants. The Court need

not specify which counts are brought against which defendants because, as explained within, neither Count

VIII nor Count IX are viable causes of action.

7 Defendant Laufer responded to Counts X, VIII, IX and X in his motion to dismiss. (See Doc. No. 147 at

6 –8.) But according to the Defendant Matrix, Defendant Laufer has only been named in Count IX. (See

Doc. No. 1 at 100.)

8 Defendant Carbo is incorrectly identified as “Georgene D’Carbo” in the Complaint. (Doc. No. 168 at 2.)

9 Defendant Swinginger is incorrectly identified as “Michael Swininger” in the Complaint. (Doc. No. 178

at n.11.)

Motion Filing Defendant(s)

Tracey Laws

Mitchell Rock

Robert Clarke

Brian Sheller

Doc. No. 181

Joseph Elias

Kevin Pierce

Michael Carroll

Jessica Harpel10

Doc. No. 182 Diane Moore

Doc. No. 183 Lisa Taraschi

Samuel Iacono

Doc. No. 184 Maria Zavala11

Doc. No. 185 Calvin Wilson

Doc. No. 186 Scott Alexander

Doc. No. 187 Michael Hawley

Doc. Nos. 188, 20512 Ryan White

Doc. No. 189 Shane Clark

Doc. No. 192 Matthew Gordon

Doc. No. 193 Yvette Johnson

Lee Benson13

Doc. No. 194

Jennifer Keller

Doc. No. 195 Thomas Siedenbuehl

Doc. No. 196 Jeff Kimes

Doc. No. 197 Louis Marcelli14

Doc. No. 198 Richard Finfrock15

Doc. No. 199 Thomas Nelling

Brian Marshall

Doc. No. 200

Danielle Wade

10 Defendant Harpel is incorrectly identified as “Jeassica Harper” in the Complaint. (Doc. No. 181 at 8.)

11 Defendant Zavala is incorrectly identified as “Maria Avala” in the Complaint. (Doc. No. 184 at 3.)

12 Defendant White’s motion to dismiss was filed on December 5, 2022. (Doc. No. 188.) The following

day, he filed a praecipe to substitute his brief due to an error in his original filing. (Doc. No. 205.) The

Court will construe Defendant White’s substituted brief as the operative document in considering Defendant

White’s motion.

13 Defendant Benson was mistakenly named twice in the Complaint and in the “Defendant Matrix.” (Doc.

No. 1 at 4, 101.)

14 Defendant Marcelli was mistakenly named twice in the Complaint and in the “Defendant Matrix.” (Doc.

No. 1 at 3, 100.)

15 Defendant Finfrock was mistakenly named twice in the Complaint and in the “Defendant Matrix.” (Doc.

No. 1 at 2, 100.)

Motion Filing Defendant(s)

Doc. No. 201 Brenda Bernot

Matthew Delchert

Doc. No. 202

Ann Gery

Michelle Major

Doc. No. 203

Joseph Heyman

Doc. No. 211 Robert LaCourt

The above-named defendants argue, inter alia,16 that Counts VIII and IX must be dismissed

because they are based on criminal statutes that do not afford a civil cause of action. (Doc. No.

108 at 6–7; Doc. No. 141 at 6–7; Doc. No. 147 at 6–7; Doc. No. 166 at 11–20; Doc. No. 167 at

10; Doc. No. 168 at 12; Doc. No. 169 at 10; Doc. No. 170 at 10–11; Doc. No. 178 at 10; Doc. No.

179 at 6–7; Doc. No. 180 at 5–6; Doc. No. 181 at 14; Doc. No. 182 at 9–10; Doc. No. 183 at 9–

10; Doc. No. 184 at 10; Doc. No. 185 at 9–11; Doc. No. 186 at 10–12; Doc. No. 187-2 at 7; Doc.

No. 205-1 at 8; Doc. No. 189-2 at 7; Doc. No. 192-2 at 7; Doc. No. 193-2 at 7; Doc. No. 194-2 at

7–9; Doc. No. 195-2 at 7; Doc. No. 196-2 at 7.; Doc. No. 197-2 at 7–9; Doc. No. 198-2 at 7; Doc.

No. 199-2 at 7; Doc. No. 200 at 7–8; Doc. No. 201-2 at 7–9; Doc. No. 202-2 at 7–9; Doc. No. 203-

2 at 7–9; Doc. No. 211-1 at 2.) Plaintiff opposes these motions, but notably, does not address

Moving Defendants’ arguments that his civil claims cannot be brought under the criminal statutes

he has identified. (See Doc. Nos. 171, 175, 230, 248, 250.)17

16 The Court acknowledges that Moving Defendants have made additional arguments for dismissal based

on Article III standing, Rule 8(a)(2)’s “short and plain statement” requirement, improper service, and

qualified immunity. Here, because the Court finds that Counts VIII and IX fail to state a claim upon which

relief can be granted as Plaintiff’s claims invoke criminal statutes, the Court need not address any alternative

arguments raised in these motions to dismiss.

17 Plaintiff also filed hundreds of pages of “exhibits” on the docket, which he claims support his opposition

to Moving Defendants’ motions. (See Doc. Nos. 149, 172, 214.) But “[a]s a general matter, a district court

ruling on a motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

III. LEGAL STANDARD

In deciding a motion to dismiss under Rule 12(b)(6), the court must 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) (quotation marks omitted). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. “Factual allegations must be enough to

raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). When reviewing a motion to dismiss, courts “must accept the allegations in the complaint

as true, but are not compelled to accept unsupported conclusions and unwarranted inferences, or a

legal conclusion couched as a factual allegation.” Castleberry v. STI Grp., 863 F.3d 259, 263 (3d

Cir. 2017) (quotation marks omitted).

“While a plaintiff’s factual allegations must be enough to raise a right to relief above a

speculative level, complaints filed pro se must be liberally construed.” Muchler v. Greenwald,

624 F. App’x 794, 797 (3d Cir. 2015) (cleaned up); see also Smith v. Shop Rite, Civil Action No.

3:17-cv-0907, 2018 WL 2424136, at *2 (M.D. Pa. May 9, 2018) (noting that although “[a]

complaint by a pro se litigant is to be liberally construed,” “pro se litigants still must allege

sufficient facts in their complaint to support a claim” (cleaned up)); Strader v. U.S. Bank Nat’l

Ass’n, Civil Action No. 2:17-cv-684, 2018 WL 741425, at *5 n.8 (W.D. Pa. Feb. 7, 2018) (“It is

true that pro se plaintiffs are not held to the same standard as lawyers when the Court analyzes

formal pleadings, but any pleading must still contain sufficient factual allegations that, when

accepted as true, state a claim to relief that is plausible on its face.” (cleaned up)).

IV. DISCUSSION

The Court is guided by the general principle that courts are “reluctant to infer a private

right of action from a criminal prohibition alone,” especially where the criminal statute is “bare”

as to private enforcement. Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S. 164,

190 (1994); see also Leeke v. Timmerman, 454 U.S. 83, 86 (1981) (holding that private citizens

cannot compel criminal prosecution). To this end, the Third Circuit has repeatedly held that

criminal statutes generally do not create private rights of action. See Tezler v. Borough of

Englewood Cliffs, 783 F. App’x 253, 257–58 (3d Cir. 2019); Timm v. Wells Fargo Bank, 701 F.

App’x 171, 175 (3d Cir. 2017); Coleman v. Academy Bus, LLC, 858 F. App’x 584, 585 (3d Cir.

2021); see also Caterbone v. Lancaster City Bureau of Police, Civil Action No. 18-CV-2710, 2018

WL 3549266 at *3 (E.D. Pa. July 24, 2018) (“Criminal statutes do not generally provide a basis

for a litigant’s civil claims, and this Court lacks the authority to initiate criminal proceedings.”).

The Court addresses Counts VIII and IX in turn, and for the reasons set out below, finds that both

counts should be dismissed against Moving Defendants because they rely upon criminal statutes

for which there is no private right of action.

A. Count VIII

Count VIII is entitled “CONSPIRACY TO VIOLATE CIVIL RIGHTS U.S. CONST.

AMENDS. 18 U.S.C. § 242.” (Doc. No. 1 at ¶¶ 396–401.) The statute to which Plaintiff cites—

18 U.S.C. § 242—is a federal statute that criminalizes the deprivation of federally protected rights

by government officials.18 Plaintiff alleges that Moving Defendants acted “under color of law”

18 18 U.S.C. § 242 reads, in its entirety:

Whoever, under color of any law, statute, ordinance, regulation, or custom,

willfully subjects any person in any State, Territory, Commonwealth,

Possession, or District to the deprivation of any rights, privileges, or

immunities secured or protected by the Constitution or laws of the United

and “conspired to convert constitutionally protected rights under the Fourth Amendment, and the

First Amendment….[and] the Fourteenth Amendment….in to [sic] suspicious conduct [or] a

criminal act” in violation of 18 U.S.C. § 242. (Id. at ¶¶ 397–98.) Liberally construing his

allegations, Plaintiff appears to claim that Moving Defendants violated his First, Fourth, and

Fourteenth Amendment rights by corresponding with Chester County law enforcement about

Plaintiff’s interactions with the Octorara School Board and implying that Plaintiff’s behavior at

school board meetings was suspicious or criminal in nature. Plaintiff alleges that this conspiracy

to criminalize the exercise of his constitutional rights runs afoul of 18 U.S.C. § 242.

But as Moving Defendants correctly point out, Plaintiff “cannot bring a civil claim under

18 U.S.C. § 242 because § 242 creates no private right of action and none can be implied.” Mikhail

v. Kahn, 991 F. Supp. 2d 596, 639 (E.D. Pa. 2014), aff’d, 572 F. App’x 68 (3d Cir. 2014) (citing

Carpenter v. Ashby, 351 F. App’x 684, 688 (3d Cir. 2009) (“[W]e agree with the District Court's

dismissal of the 18 U.S.C. § 241 and § 242 claims. Neither statute creates a civil cause of

action.”)). Indeed, the Third Circuit has expressly declined to infer a civil cause of action under

18 U.S.C. § 242 because a statutory civil remedy already exists under 42 U.S.C. § 1983 for

individuals whose constitutional rights have been violated.19 See United States v. City of

States, or to different punishments, pains, or penalties, on account of such

person being an alien, or by reason of his color, or race, than are prescribed

for the punishment of citizens, shall be fined under this title or imprisoned

not more than one year, or both; and if bodily injury results from the acts

committed in violation of this section or if such acts include the use,

attempted use, or threatened use of a dangerous weapon, explosives, or

fire, shall be fined under this title or imprisoned not more than ten years,

or both; and if death results from the acts committed in violation of this

section or if such acts include kidnapping or an attempt to kidnap,

aggravated sexual abuse, or an attempt to commit aggravated sexual abuse,

or an attempt to kill, shall be fined under this title, or imprisoned for any

term of years or for life, or both, or may be sentenced to death.

19 Plaintiff’s Complaint illustrates that he is aware that the proper avenue for seeking relief for an alleged

constitutional deprivation is 18 U.S.C. § 1983, as he cites that statute in Counts I, II, III, IV, V, VI, and VII.

Philadelphia, 644 F.2d 187, 191–93 (3d Cir. 1980), overruled on other grounds, Leatherman v.

Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163 (1993) (“Persons denied

constitutional rights may sue state officials for damages or injunctive relief under 42 U.S.C.

§§ 1981, 1982, 1983, and 1985.”); see also Colon-Montanez v. Pa. Healthcare Serv. Staffs, 530 F.

App’x 115, 118 (3d Cir. 2013) (confirming that 18 U.S.C. § 242, “which criminalizes the

deprivation of rights under color of law” provides “no private right of action for use” by a civil

litigant).20

Courts in this District have consistently followed this precedent by holding that § 242

cannot be a basis for remedy in a civil suit. See Hall v. Sampson, No. 21-CV-4839, 2022 WL

2068248, at *2 n.2 (E.D. Pa. June 8, 2022) (“[A] plaintiff cannot bring criminal charges against

defendants through a private lawsuit, and these sections [18 U.S.C. §§ 241, 242] do not give rise

to a civil cause of action.”); Walthour v. Herron, No. CIV.A.10-01495, 2010 WL 1877704, at *3

(E.D. Pa. May 6, 2010) (“It is clear that none of the criminal statues [18 U.S.C. §§ 241, 242] cited

by Plaintiff provide him with a private right of action.”); McCauley v. Computer Aid Inc., 447 F.

Supp. 2d 469, 477 (E.D. Pa. 2006) (“It is well-settled that these criminal statutes [18 U.S.C. §§

241, 242] cannot be the bases for remedy in a civil suit.”), aff’d, 242 F. App’x 810 (3d Cir. 2007);

Molina v. City of Lancaster, 159 F. Supp. 2d 813, 818 (E.D. Pa. 2001) (“[T]he Court deems the

Nonetheless, he did not attempt to utilize 18 U.S.C. § 1983 in Count VIII or otherwise name the Moving

Defendants under other Counts.

20 The court in Mikhail noted that, “No sister circuit has reached a contrary conclusion” as to the lack of

private remedy under § 242. 991 F. Supp. 2d at 639 & n.34 (citing Pope v. Thornburgh, 978 F.2d 744 (D.C.

Cir. 1992) (table opinion); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989); Robinson v. Overseas Military

Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994); Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir. 1960);

Ali v. Shabazz, 8 F.3d 22 (5th Cir. 1993) (table opinion); Owens v. Johnson, 191 F.3d 452 (6th Cir. 1999)

(table opinion); Nasserizafar v. Ind. Dep’t of Transp., 546 F. App’x 572, 573–74, No. 13–1827, 2013 WL

5421674, at *1 (7th Cir. Sept. 30, 2013); United States v. Wadena, 152 F.3d 831, 846 (8th Cir. 1998)

(addressing 18 U.S.C. § 241, but following Cok, 876 F.2d at 2, and citing language regarding both §§ 241

and 242); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); Houck v. Gurich, 515 F. App’x 724 (10th

Cir. 2013)).

Plaintiff’s claim for relief pursuant to 18 U.S.C. §§ 241–242 unmeritorious because those statutes

do not create a civil cause of action enforceable by the Plaintiff.”); Dunyan v. Jackson, No. CIV.A.

86-1894, 1986 WL 4810, at *1 (E.D. Pa. Apr. 22, 1986) (“Civil liability may not be based on these

statutes [18 U.S.C. §§ 241, 242].”); Shaffer v. Jennings, 317 F. Supp. 446, 447 n.2 (E.D. Pa. 1970)

(“[18 U.S.C. §§ 241, 242], which provide for punishment by fine or imprisonment for deprivation

of certain Federal rights, privileges or immunities, have no application to a civil suit under the

Federal Civil Rights Act, 42 U.S.C. § 1981 et seq.”).

The Court is compelled to find that, as a matter of law, 18 U.S.C. § 242 does not provide

Plaintiff with a private right of action. Therefore, Count VIII must be dismissed for failure to state

a claim upon which relief may be granted.

B. Count IX

Count IX is entitled, “DESTRUCTION OF PUBLIC RECORDS IN VIOLATION OF 18

U.S.C. § 2071.” (Id. at ¶¶ 402–04 (emphasis in original).) The statute to which Plaintiff cites—

18 U.S.C. § 2071—is a federal statute that criminalizes the destruction of public records.21

Plaintiff alleges that “Defendants identified [in] Defendant Matrix under Claim 9, in response to a

21 18 U.S.C. § 2071 reads, in its entirety:

(a) Whoever willfully and unlawfully conceals, removes, mutilates,

obliterates, or destroys, or attempts to do so, or, with intent to do so takes

and carries away any record, proceeding, map, book, paper, document, or

other thing, filed or deposited with any clerk or officer of any court of the

United States, or in any public office, or with any judicial or public officer

of the United States, shall be fined under this title or imprisoned not more

than three years, or both. (b) Whoever, having the custody of any such

record, proceeding, map, book, document, paper, or other thing, willfully

and unlawfully conceals, removes, mutilates, obliterates, falsifies, or

destroys the same, shall be fined under this title or imprisoned not more

than three years, or both; and shall forfeit his office and be disqualified

from holding any office under the United States. As used in this

subsection, the term ‘office’ does not include the office held by any person

as a retired officer of the Armed Forces of the United States.

public record request, was [sic] denied such a record exists. Plaintiff [sic] evidence reveals that a

document does exist and that the Defendants in ability [sic] to produce such document … affirmed

the nonexistence of a public record. Named defendants operated in their own capacity to destroy

a public record, which included exculpatory information, in addition to fabrications to malign,

defame, slander, the lawful actions of the Plaintiff.” (Id. at ¶¶ 403–04.) Plaintiff appears to allege

that Chester County law enforcement officials emailed local police departments and security

personnel about Plaintiff’s grievances with the Octorara School Board, and when Plaintiff

requested documentary proof of any responses to that email, his RTKL requests on this subject did

not produce any documents. Plaintiff claims that these documents were not produced because they

were destroyed by Moving Defendants.

Again, Plaintiff seeks a civil remedy under a criminal statute that does not provide a private

right of action. Courts both in and outside of this Circuit have held that 18 U.S.C. § 2071 cannot

be invoked in a civil suit. See James v. N.J. Dep’t of Health & Senior Servs., No.

318CV10461BRMTJB, 2020 WL 5758154, at *6 (D.N.J. Sept. 28, 2020), aff’d, No. 20-3038, 2022

WL 1564191 (3d Cir. May 18, 2022) (dismissing civil claim under § 2071 because there was no

private right of action available to a plaintiff under the statute); Dugar v. Coughlin, 613 F. Supp.

849, 852 n.1 (S.D.N.Y. 1985) (holding there is no private right of action arising under § 2071); see

also Trapp v. State, No. 320CV10404BRMZNQ, 2021 WL 2680244, at *8 n.10 (D.N.J. June 30,

2021) (relying on Dugar in finding that no private right of action is available under § 2071);

Winston v. Daniels, No. 1:10-CV-74-SJM, 2011 WL 2680282, at *16 (W.D. Pa. July 8, 2011)

(citing Dugar for the proposition that there is no civil remedy for § 2071). In light of this precedent,

the Court finds that Plaintiff cannot seek relief under 18 U.S.C. § 2071 for Moving Defendants’

alleged destruction of public records. Therefore, Count IX must be dismissed for failure to state a

claim upon which relief may be granted.

Moreover, to the extent Plaintiff challenges Moving Defendants’ failure to provide public

records requested pursuant to the RTKL, the Court lacks jurisdiction over this claim “because state

courts provide the exclusive forum for litigating under that statute.” Olick v. Pennsylvania, No.

CV 15-5786, 2016 WL 6679880, at *4 (E.D. Pa. Nov. 14, 2016), vacated in part on other grounds,

739 F. App’x 722 (3d Cir. 2018) (quoting Hill v. Supervisor, No. 97–cv–4996, 1998 WL 175879,

at *2 (E.D. Pa. Apr. 8, 1998)); McCullough v. County of Allegheny, No. CV 16-534, 2016 WL

7116640, at *2 (W.D. Pa. Dec. 7, 2016) (federal courts lack jurisdiction to compel the production

of documents requested under the RTKL); Degenes v. Mueller, No. CIV.A. 11-916, 2012 WL

260038, at *3 (W.D. Pa. Jan. 27, 2012) (granting motion to dismiss plaintiff’s RTKL claim for

lack of subject matter jurisdiction).

Chapter 11 and 13 of the RTKL provide the appropriate method of relief when a state

agency denies a citizen’s document request. See 65 PA. CONS. STAT. §§ 67.1101–67.1310.

Plaintiff must first file an appeal with “the Office of Open Records or judicial, legislative or other

appeals officer” to review the agency’s denial. Id. § 67.1101. Plaintiff may seek judicial review

of that appeal with either the Commonwealth Court (if the document is in the custody of a

Commonwealth agency) or the Court of Common Pleas for the county where the local agency is

located (if the document is in the custody of a local agency). Id. §§ 67.1301, 67.1302. This

statutory remedy is exclusive; it does not permit judicial review at the federal level. See Proffitt

v. Davis, 707 F. Supp. 182, 188 (E.D. Pa. 1989) (“Thus, original exclusive jurisdiction to entertain

review of action denying a citizen’s access to information within the control of the DER lies in the

Commonwealth Court of Pennsylvania, not in the United States District Court for the Eastern

District of Pennsylvania.”); see also Wiley v. Woods, 141 A.2d 844, 849 n.9 (Pa. 1958) (confirming

that the RTKL’s judicial review provision “provides the exclusive remedy to a person denied the

right of examination and inspection of public records.”). For these reasons, Count IX dismissed

on this alternative basis.22

C. Leave to Amend

The Court acknowledges that, especially in civil rights cases, pro se plaintiffs are usually

afforded an opportunity to amend a complaint. See Brayboy v. Johnson, No. CV 17-4371, 2018

WL 6018863, at *18 (E.D. Pa. Nov. 16, 2018) (citing Alston v. Parker, 363 F3d 229, 235–36 (3d

Cir. 2004)). But “a district court need not permit a curative amendment if such an amendment

would be inequitable or futile, or there has been some showing of bad faith, undue delay, or

prejudice.” Id.; Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (“If a complaint

is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an

amendment would be inequitable or futile.”). “Futility means that the complaint, as amended,

would fail to state a claim upon which relief could be granted.” White v. Bush, No. CV 20-2059-

KSM, 2021 WL 2255981, at *6 (E.D. Pa. June 3, 2021) (quoting Holst v. Oxman, 290 F. App’x

508, 510 (3d Cir. 2008)); Geness v. Admin. Off. of Pennsylvania Cts., 974 F.3d 263, 271 n.6 (3d

Cir. 2020) (“The standard for assessing futility is the same standard of legal sufficiency as applies

under…12(b)(6).”). Where leave to amend would not cure a plaintiff’s failure to state a plausible

claim for relief, the district court may dismiss the claim with prejudice. See In re Westinghouse

Sec. Litig., 90 F.3d 696, 703–04 (3d Cir. 1996).

Courts have routinely denied leave to amend for claims brought under criminal statutes

because amendment would be futile. See Brown v. City of Phila. Office of Human Res., 735 F.

22 “The dismissal is without prejudice to plaintiff’s right to file the claims in the appropriate forum.” Olick,

2016 WL 6679880, at *4 (citing Degenes v. Mueller, 2012 WL 260038, at *3).

App’x 55, 56 n.2 (3d Cir. 2018) (finding the district court did not err in denying leave to amend

where plaintiff asserted civil violations of criminal law); Mikhail, 991 F. Supp. 2d at 639–40 (“As

there is no meritorious argument under any theory that would give Mr. Mikhail the authority to

bring suit, criminal or civil, under 18 U.S.C. § 242, his claims in Counts I and II brought pursuant

to § 242 must be dismissed with prejudice.”); Molina, 159 F. Supp. 2d at 823 (dismissing

plaintiff’s claims under 18 U.S.C. §§ 241–242 with prejudice); Johnson v. Koehler, No. 3:14-CV-

1490, 2015 WL 1470948, at *21 (M.D. Pa. Mar. 31, 2015) (dismissing claim brought under 18

U.S.C. § 1622 with prejudice, as “there is no private action for damages to enforce federal perjury

statutes”); Winston v. Daniels, No. 1:10-CV-74-SJM, 2011 WL 2680282, at *16 (W.D. Pa. July 8,

2011) (denying leave to amend plaintiff’s claims brought under criminal statutes because they

“suggest no basis for the existence of a viable legal claim”); cf. Ford v. Se. Pa. Transp. Auth., 374

F. App’x 325, 326 (3d Cir. 2010) (affirming district court’s dismissal of claim without leave to

amend because the claim was “without any viable legal basis” given that “no private right of action

lies against a state actor under § 1981”); Shrieves v. Phila. Facilities Mgmt. Corp., No. CV 19-

4865-KSM, 2020 WL 7240450, at *8 n.12 (E.D. Pa. Dec. 8, 2020) (denying leave to amend claim

made under § 1981 because “Section 1983 remains the exclusive remedy for violations of Section

1981 by a state actor.”).

The statutes cited in Counts VIII and IX do not provide private causes of action. Moreover,

federal court is not the proper forum for Plaintiff’s sought-after relief under the RTKL. Even if

the Court granted leave to amend, Plaintiff cannot state a plausible claim for relief under either

statute. For this reason, amendment would be futile. Accordingly, Counts VIII and IX are

dismissed against Moving Defendants without leave to amend.

V. CONCLUSION

For these reasons, the Court finds that Plaintiff has failed to state a claim upon which relief

can be granted in Counts VIII and IX and Moving Defendants’ motions to dismiss are granted. An

appropriate Order follows.