# MOORE v. RUSSELL

> District Court, E.D. Pennsylvania · August 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10405845

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10405845

## How later opinions describe it (automated extraction)

- applying Rule 12(b)(6) standard to dismissal for failure to state claim under section 1915(e)(2)(B)

## Opinion text

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

LINDELL MOORE, :
:
Plaintiff, : CIVIL ACTION NO. 23-1900
:
v. :
:
KYLE RUSSELL, Warden; ROBERT :
MCFADDEN, Deputy Warden of Security; :
DAKOTA MARTIN, Allentown Police :
Dept; and MERVEILLE MVINDU, :
Allentown Police Dept., :
:
Defendants. :

MEMORANDUM OPINION
Smith, J. August 25, 2023
The pro se plaintiff, who is proceeding in forma pauperis, filed a complaint under 42
U.S.C. § 1983 in which he claimed that he was wrongfully incarcerated in a county jail in May
2023 for violating a Protection From Abuse order. He sued two police officers who obtained
warrants for his arrest for the violation, two counselors in the county jail who allegedly ignored
his complaints of wrongful incarceration, and the county jail’s warden and deputy warden. The
court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2), and dismissed it in its entirety
because the plaintiff failed to (1) assert a plausible claim against either counselor, (2) allege facts
showing that the arrest warrants were not supported by probable cause, and (3) allege facts showing
how the warden and deputy warden were personally involved in any possible constitutional
violation. Among the dismissals, the court dismissed without prejudice all claims against the
defendants except for the plaintiff’s claim against one of the counselors, which was dismissed with
prejudice. The court granted the plaintiff leave to amend should he be able to correct the
deficiencies the court identified regarding the claims the court dismissed without prejudice.
Currently before the court is the plaintiff’s amended complaint, and he has wholly failed
to address any of the deficiencies the court identified with his original complaint. In fact, he has
included less factual allegations in his amended complaint than he included in his original
complaint. He also added an apparent demand for declaratory relief in the nature of a request that

the court find the defendants guilty for incarcerating him without probable cause. Such a claim for
declaratory relief is improper because it only seeks to adjudicate past conduct.
Because the plaintiff’s request for declaratory relief is improper, and as he has failed to
cure any of the deficiencies the court identified with the original complaint, the court will again
dismiss the amended complaint. On this occasion, however, this dismissal will be with prejudice
as the court finds that any attempt for further amendment would be futile.
I. ALLEGATIONS AND PROCEDURAL HISTORY
The pro se plaintiff, Lindell Moore (“Moore”), commenced this action by filing an
application for leave to proceed in forma pauperis (“IFP Application”) and complaint on May 17,
2023. See Doc. Nos. 1, 2. Unfortunately, Moore did not sign the IFP Application as required by

Federal Rule of Civil Procedure 11, so the court entered an order on May 25, 2023, requiring
Moore to complete, sign, and return an affidavit in which he attests to the information in the IFP
Application within 30 days. See Doc. No. 4. Moore complied with the court’s order by completing,
signing, and returning the affidavit the following day. See Doc. No. 5. On the same date, Moore
filed 3 exhibits presumably in support of his complaint. See Doc. No. 6.
Regarding the complaint, Moore named as defendants (in their official capacities): (1) The
warden of the Lehigh County Jail (“LCJ”), Kyle Russell (“Warden Russell”); (2) LCJ’s deputy
warden, Robert McFadden (“Deputy Warden McFadden”); (3) LCJ treatment counselor, Steve
Miller (“Miller”); (4) City of Allentown police officer Merveille Mvindu (“Officer Mvindu”); (5)
an LCJ counselor, “Counselor Jose”; and (6) City of Allentown police officer, Dakota Martin
(“Officer Martin”).1 See Compl. at 1–3. Moore alleged that on January 31, 2023, Officer Mvindu
had obtained a warrant for his arrest for violating a Protection From Abuse (“PFA”) order. See id.
at 4. The following day, Officer Martin secured the same warrant. See id. Thereafter, a non-

defendant officer attempted to arrest Moore by going to 424 Tilghman Street in Allentown, but
apparently could not arrest him there. See id. Ultimately, Moore was arrested on the warrant while
he was attending a trial in the Lehigh County Courthouse on May 4, 2023. See id.
After his arrest, Moore was transported to the Lehigh County Jail and processed. See id.
On May 8, 2023, Moore sent a request to his block counselor, Counselor Jose, to inform him that
he was being held illegally and to request his immediate release. See id. and Doc. No. 6, Ex. C,
Lehigh County Department of Corrections Inmate’s Request to Staff. Later that day, Counselor
Jose responded to Moore’s request by stating that he was “being held on two counts of PFA
violations. I have attached a copy of each violation along w[ith] a copy of the Court Order. The
PFA does not expire until 8/21/23. There are two minors listed on the PFA order. Their initials are

(T.M.) & (P.M.).” Doc. No. 6, Ex. C.
Moore averred that on May 9, 2023, he sent a communication to Miller, who never
responded to him. See id. The following day, Moore’s wife delivered documents to prove Moore’s
innocence to Counselor Jose, but it “fell on deaf ears.” Id. Moore claims that on May 11, 2023, he
was released from custody following a dismissal. See id.
Based on these allegations, Moore asserted a claim under 42 U.S.C. § 1983 for a violation
of his Eighth Amendment right to be free of cruel and unusual punishment. See id. at 3. For relief,
Moore sought damages in the amount of $1,000 per day from January 31, 2023, to May 11, 2023,

1 Moore included Counselor Jose and Officer Martin in the caption of the complaint, but did not list them as defendants
in the body of the complaint. See Compl. at 1–3, Doc. No. 2.
and compensatory damages for lost wages, lost housing, harassment, and emotional distress. See
id. at 5.
After screening the complaint and IFP Application, this court entered a memorandum
opinion and order on August 7, 2023, which, inter alia, granted the IFP Application and dismissed

the complaint in part with prejudice and in part without prejudice. See Aug. 7, 2023 Mem. Op. at
6, Doc. No. 8; Aug. 7, 2023 Order at 1, Doc. No. 9. Concerning the dismissals, the court dismissed
any claim against Miller with prejudice because Moore failed to state a plausible section 1983
claim against Miller based on his alleged failure to respond to Moore’s communication. See Mem.
Op. at 4–5. As for the claims the court dismissed without prejudice, the court dismissed Moore’s
claims against (1) Warden Russell and Deputy Warden McFadden because Moore had failed to
include any factual allegations about their personal involvement in his alleged constitutional
violation, (2) Counselor Jose because Moore failed to plausibly allege a constitutional claim based
on Counselor Jose providing him with information that may have negatively affected him, (3)
Officers Mvindu and Martin because Moore failed to explain how their actions in obtaining the

warrants violated his constitutional rights. See id. at 5–6. The court provided Moore with leave for
30 days should he desire to file an amended complaint relating to those claims the court dismissed
without prejudice. See Aug. 7, 2023 Order at 2.
Moore has now timely filed an amended complaint in which he names Warden Russell,
Deputy Warden McFadden, and Officers Mvindu and Martin as defendants.2 See Am. Compl. at

2 In drafting the amended complaint, Moore once again checked the boxes on the form he used indicating that he seeks
to name the defendants in their official capacities only. See Am. Comp. at 2–3. Moore appears to not have understood
the implication of checking the official capacity boxes. Claims against municipal employees, such as the named
defendants, who are named in their official capacities, are indistinguishable from claims against the governmental
entity that employees them, here, Lehigh County and the City of Allentown. 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 v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978))).
“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Id. Because
Moore does not attempt to allege an official capacity claim, see Monell, 436 U.S. at 694 (holding that, to state claim
1, Doc. No. 10. Although Moore failed to name Counselor Jose in the caption of the amended
complaint, he did mention him in the body of the amended complaint. See id. at 4. As such, the
court will screen Moore’s allegations against Counselor Jose to determine whether he has alleged
a plausible claim for relief.

Unfortunately, Moore has included even less factual allegations in his amended complaint
than he had in his original complaint. Once again, Moore alleges that Officers Mvindu and Martin
obtained warrants for his arrest and that a non-defendant officer (this time noted to be a member
of the City of Allentown Police Department) unsuccessfully attempted to serve a warrant on him.3
See id. Moore avers that he was arrested on May 4, 2023, while he was attending a custody hearing.
See id. The following day, Moore first informed Counselor Jose about his illegal incarceration and,
thereafter, repeated his assertion of innocence daily. See id.
On May 9, 2023, Moore’s wife delivered a document to Counselor Jose that showed
Moore’s innocence. See id. However, it was not until he was in front of Lehigh County Judge
“McKinley,”4 who had issued the PFA at issue 4 years ago, that the charges against him were

dismissed apparently because his children were never parties to any PFAs. See id.
Due to his allegedly unlawful incarceration, and despite the lack of any physical injuries,
Moore asserts that he was evicted from his residence due to the police harassment, he lost his

for municipal liability, section 1983 plaintiff must allege that defendant’s policies or customs caused alleged
constitutional violation), the court will liberally construe the amended complaint to assert a claim against the
defendants in their individual capacities. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d Cir. 2020) (“To
determine whether a plaintiff sued state officials in their official capacity, we first look to the complaints and the
course of proceedings.” (quotations omitted)); Coward v. City of Philadelphia, Civ. A. No. 21-1619, 2021 WL
4169422, at *3 (E.D. Pa. Sept. 13, 2021) (permitting claim against defendant in his individual capacity to proceed
even though “[plaintiff] did not check the box indicating a desire to sue [that defendant] in his individual capacity”
where allegations clearly sought relief based on defendant’s conduct).
3 While unclear, Moore now appears to allege that either the warrants were obtained, or the attempted service of the
warrant occurred, “on or about 12/2023; approximately 11:00 a.m.” Am. Compl. at 4. Since the calendar has not yet
reached December 2023, the court has liberally construed this allegation to reference December 2022.
4 The court understands Moore to be referencing the Honorable Carol K. McGinley of the Lehigh County Court of
Common Pleas.
employment at Daybreak Community Center in Allentown, and the services he had been receiving
for his “mental disabilities” were terminated. See id. at 5. Moore asks that the court find all named
defendants guilty of illegally detaining him without probable cause insofar as there was no PFA
order with his children listed as parties. See id. at 6. In addition, he once again asks for damages

in the nature of $1,000 per day, but he has changed the applicable period from December 22, 2022,
to May 11, 2023, when Judge McGinley dismissed the PFA violation asserted against him . See
id.
II. DISCUSSION
A. Standard of Review – Screening of Amended Complaint Under 28 U.S.C. §
1915(e)(2)

Because the court already granted Moore leave to proceed in forma pauperis, the court
must engage in the second part of the two-part analysis and examine whether the amended
complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or asserts
a claim against a defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)–(iii)
(providing that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid,
the court shall dismiss the case at any time if the court determines that-- . . . (B) the action or
appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief”). An amended
complaint is frivolous under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or
fact,” Neitzke, 490 U.S. at 325, and is legally baseless if it is “based on an indisputably meritless
legal theory.” Deutsch, 67 F.3d at 1085.
As for whether an amended complaint is malicious,
[a] court that considers whether an action is malicious must, in accordance with the
definition of the term “malicious,” engage in a subjective inquiry into the litigant’s
motivations at the time of the filing of the lawsuit to determine whether the action
is an attempt to vex, injure or harass the defendant.

Id. at 1086. “[A] district court may dismiss a[n amended] complaint as malicious if it is plainly
abusive of the judicial process or merely repeats pending or previously litigated claims.” Brodzki
v. CBS Sports, Civ. No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012).
Concerning the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing an
amended complaint for failure to state a claim pursuant to this subsection is identical to the legal
standard used when ruling on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard
to dismissal for failure to state claim under section 1915(e)(2)(B)). Thus, to survive dismissal, “a[n
amended] complaint must contain 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) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation
omitted).
In addressing whether a pro se plaintiff’s amended complaint fails to state a claim, the
court must liberally construe the allegations set forth in the amended complaint. See Shorter v.
United States, 12 F.4th 366, 374 (3d Cir. 2021) (“At this early stage of the litigation, we accept
the facts alleged [in the pro se] complaint as true, draw all reasonable inferences in [the pro se

plaintiff’s] favor, and ask only whether that complaint, liberally construed, . . . contains facts
sufficient to state a plausible . . . claim.” (citation, internal quotation marks, and all original
alterations omitted)); Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (“We construe Vogt’s pro se
filings liberally. This means we remain flexible, especially ‘when dealing with imprisoned pro se
litigants’ like Vogt.” (internal citations omitted) (quoting Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 244–45 (3d Cir. 2013))); Higgs v. Att’y Gen., 655 F.3d 333, 339–40 (3d Cir. 2011)
(explaining that “when presented with a pro se litigant, we have a special obligation to construe
his complaint liberally” (citation and internal quotation marks omitted)). Yet, conclusory
allegations will not suffice. See Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” (quoting
Twombly, 550 U.S. at 555)).
Additionally, when construing a pro se plaintiff’s amended complaint, the court will
“‘apply the relevant legal principle even when the complaint has failed to name it.’” Vogt, 8 F.4th
at 185 (quoting Mala, 704 F.3d at 244). However, pro se litigants “‘cannot flout procedural rules—
they must abide by the same rules that apply to all other litigants.’” Id. (quoting Mala, 704 F.3d at
245).
B. Analysis
As with his original complaint, Moore is seeking relief in his amended complaint for
alleged constitutional violations pursuant to 42 U.S.C. § 1983. Section 1983 provides in pertinent

part as follows:
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. When attempting to establish a claim under section 1983, a plaintiff must allege
and prove that a “person” deprived the plaintiff of a constitutional right while acting under color
of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color of state
law.”). In addition, the plaintiff must allege the personal involvement of each defendant in the
alleged constitutional violation. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998);
see also Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement requires
particular ‘allegations of personal direction or of actual knowledge and acquiescence.’” (quoting

Rode, 845 F.2d at 1207)). “Although a court can infer that a defendant had contemporaneous
knowledge of wrongful conduct from the circumstances surrounding a case, the knowledge must
be actual, not constructive.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015)
(citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995); Rode, 845 F.2d at 1201 n.6).
The court will now address Moore’s claims in turn.
1. Request for Declaratory Relief
The court understands Moore to be demanding declaratory relief in the nature of the court
finding all defendants “guilty of illegally detaining [him] without probable cause” because no PFA
existed naming his children as parties.5 See Am. Compl. at 5. This type of requested declaratory
relief is unavailable to Moore because a “[d]eclaratory judgment is inappropriate solely to

adjudicate past conduct,” and is also not “meant simply to proclaim that one party is liable to
another.” Corliss v. O'Brien, 200 F. App’x 80, 84 (3d Cir. 2006) (per curiam); see also Taggart v.
Saltz, 855 F. App’x 812, 815 (3d Cir. 2021) (per curiam) (“A declaratory judgment is available to
define the legal rights of parties, not to adjudicate past conduct where there is no threat of
continuing harm.” (citing Waller v. Hanlon, 922 F.3d 590, 603 (5th Cir. 2019))). Because Moore’s
request for a declaration only seeks to adjudicate past conduct, the court will dismiss with prejudice
his request for declaratory relief.

5 To the extent that Moore’s request can be interpreted as seeking to have the defendants arrested and charged with
crimes, it is not a plausible claim for relief because “[a] private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
2. Claims Against Warden Russell and Deputy Warden McFadden
Similar to the original complaint, despite naming Warden Russell and Deputy Warden
McFadden as defendants, Moore has failed to state any factual allegations pertaining to them and
how they were personally involved in the violation of his constitutional rights in his amended

complaint. Since Moore has again failed to explain Warden Russell and Deputy Warden
McFadden’s involvement in any alleged constitutional violation, the court must dismiss his claims
against them. See Rode, 845 F.2d at 1207 (requiring defendant’s personal involvement for
plausible section 1983 claim).
3. Claims Against Counselor Jose
Moore’s allegations against Counselor Jose relate to Counselor Jose ignoring Moore’s
daily complaints about his illegal detention, and his failure to act once Moore’s wife delivered a
document to him showing that Moore was innocent. See Am. Compl. at 4. The court previously
determined that these allegations failed to state a plausible constitutional claim. See Aug. 7, 2023
Mem. Op. at 5. Specifically, these allegations are insufficient to plausibly show that Counselor

Jose was personally responsible for Moore being illegally detained at LCJ. See id. Because Moore
has failed to cure the defect in this claim that the court identified in the prior memorandum opinion,
the court must again dismiss it for the failure to state a claim.
4. Claims Against Officers Mvindu and Martin
Once again, Moore’s claims against Officers Mvindu and Martin relate to them obtaining
warrants for his arrest. See Am. Compl. at 4. In the prior memorandum opinion, the court dismissed
Moore’s claims against Officers Mvindu and Martin because Moore failed to allege any facts to
show that they lacked probable cause to believe that he had committed an offense when they
obtained the arrest warrants. See Aug. 7, 2023 Mem. Op. at 5–6 (citing Dowling v. Philadelphia,
855 F.2d 136, 141 (3d Cir. 1988) (“The proper inquiry in a section 1983 claim based on false arrest
or misuse of the criminal process is not whether the person arrested in fact committed the offense
but whether the arresting officers had probable cause to believe the person arrested had committed
the offense.”). Because Moore has also failed to cure this defect in his amended complaint, the

court will dismiss his claims against Officers Mvindu and Martin.
III. CONCLUSION
For the reasons set forth above, the court will dismiss Moore’s amended complaint. As the
court already gave Moore an opportunity to cure the defects in his claims, and he has wholly failed
to do so in his amended complaint, the curt concludes that further amendment would be futile.
Accordingly, the court will dismiss the amended complaint with prejudice. See Grayson v.
Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (stating general rule that court should grant
leave to amend unless doing so would be futile); Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (“[I]n civil rights cases district courts must
offer amendment—irrespective of whether it is requested—when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.”); see also Jones v. Unknown D.O.C.
Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (amendment by pro se litigant
would be futile when litigant “already had two chances to tell his story”).
The court will enter a separate order.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10405845. Public record. Not legal advice.