Barosh v. Shapiro

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER A. BAROSH, :

Plaintiff, :

: No. 1:19-cv-322

v. :

: (Judge Rambo)

NADINE RAMIREZ, et al., :

Defendants :

MEMORANDUM

This matter is before the Court pursuant to the motions to dismiss pro se

Plaintiff Christopher A. Barosh (“Plaintiff”)’s amended complaint (Doc. No. 19)

filed by Defendants Jeffrey Cohen (“Cohen”) (Doc. No. 34) and Defendants Dawn

Farrell (“Farrell”) and the Philadelphia District Attorney’s Office (“DAO”) (Doc.

No. 49). After receiving extensions of time until December 15, 2019 to respond

(Doc. Nos. 44, 46, 62, 63), Plaintiff has filed only a response to Defendant Cohen’s

motion to dismiss and has not sought leave for an additional extension to respond to

the motion to dismiss filed by Defendants Farrell and the DAO. (Doc. Nos. 70, 71.)

Defendant Cohen has filed neither a reply brief nor a motion seeking an extension

of time to do so. Accordingly, both motions to dismiss are ripe for disposition. For

the reasons set forth below, the Court will grant both motions to dismiss.

I. BACKGROUND

Plaintiff initiated the above-captioned suit while incarcerated at the State

Correctional Institution Benner Township in Bellefonte, Pennsylvania to serve

“consecutive sentences of “6 ½ to 19 years incarceration for the crime of arson, and

. . . 6 to 36 months incarceration for the crime of insurance fraud.” Pennsylvania v.

Barosh, No. 100008461, 2013 WL 9685917, at *1 (Phila. C.C.P. Nov. 12, 2013).

Plaintiff was convicted and sentenced for these crimes after “set[ting] fire to a home

owned by his girlfriend just before an insurance policy taken out for the property

was about to be cancelled.” Commonwealth v. Barosh, No. 1103 EDA 2013, 2014

WL 10790208, at *1 (Pa. Super. Ct. Oct. 7, 2014).

Starting in 2014, Plaintiff began filing numerous requests under

Pennsylvania’s Right-to-Know Law, as well as several lawsuits. (Doc. No. 19

¶¶ 22-23), see also City of Philadelphia v. Barosh, Nos. 767 C.D. 2017, 768 C.D.

2017, 769 C.D. 2017, 770 C.D. 2017, 2018 WL 2124245, at *2 (Pa. Commw. Ct.

May 9, 2018). In December 2014, Plaintiff filed suit against David Tarmin, who

had been a witness at his criminal trial, and other individuals. See generally Barosh

v. Tarmin, No. 14120790 (Phila. C.C.P.). As part of that litigation, Plaintiff sought

to issue a subpoena to the City of Philadelphia, which filed a motion to quash and

for a protective order. (Doc. No. 34-4.) As part of its motion, the City included an

affidavit from Defendant Cohen, who was then an Assistant City Solicitor who

provided representation to City departments for processing Right-to-Know requests,

explaining the burden that Plaintiff’s Right-to-Know requests had placed on the

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City’s Law Department. (Doc. No. 34-5.) On November 24, 2015, the presiding

judge granted the City’s request for a protective order, noting that Plaintiff had

engaged “in a pattern of unreasonable annoyance, embarrassment, oppression,

burden and/or expense in the service of repeated requests for information from the

City of Philadelphia.” See Barosh, 2018 WL 2124245, at *2.

Plaintiff initiated the above-captioned case on February 25, 2019 by filing a

complaint against the Pennsylvania Attorney General and the Philadelphia District

Attorney, seeking a writ of mandamus to prevent them from using the November

2015 protective order against him. (Doc. No. 1.) On February 27, 2019, Magistrate

Judge Carlson recommended that Plaintiff’s complaint be dismissed without

prejudice. (Doc. No. 5.) In an Order dated April 16, 2019, the Court adopted

Magistrate Judge Carlson’s Report and Recommendation, dismissed Plaintiff’s

complaint, and granted him leave to file an amended complaint within sixty (60)

days. (Doc. No. 18.) The Court received Plaintiff’s amended complaint on June 18,

2019. (Doc. No. 19.)

In his amended complaint, Plaintiff alleges that DOC officials have interfered

with his mail, legal materials, and access to the prison law library. (Id. ¶¶ 39-40, 42,

44, 46, 48-49.) For example, he alleges that in July of 2016, Defendant Ramirez

fired him from his job at the law library “without cause.” (Id. ¶ 40.) From 2018

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through June 10, 2019, DOC officials destroyed Plaintiff’s legal work, issued several

write-ups, ordered searches of his cell, and marked numerous pieces of his incoming

legal mail as “refused” without providing him notice. (Id. ¶ 42.) In May of 2019,

Defendant Ramirez banned Plaintiff from the law library for life. (Id. ¶ 44.) Plaintiff

alleges that DOC counsel subsequently informed Defendant Ramirez that a lifetime

ban was unconstitutional. (Id. ¶ 45.) On June 4, 2019, Defendant Ramirez informed

Plaintiff that she was banning him from using the general library for life, banning

him from the law library every Saturday, Sunday, Monday, Tuesday, and

Wednesday evenings, and banning him from using the law library’s word processing

computers. (Id. ¶ 47.) Plaintiff alleges that Defendant Ramirez posted his name and

inmate number in the library and directed other inmates to “prevent and punish

Plaintiff for any infraction of her lifetime ban and sanction.” (Id. ¶ 49.)

With respect to Defendant Cohen, Plaintiff’s only allegation is that he did not

provide information in response to requests and subpoenas Plaintiff submitted from

the fall of 2017 through 2018. (Id. ¶ 34.) With respect to Defendants Farrell and

the DAO, Plaintiff alleges that in December of 2015, Defendant Farrell “was found

to have entered upon the duties of office without authorization by failing to file [a]

statement of financial interests as required.” (Id. ¶ 28.) He further claims that in

March of 2016, his ethics complaint against Defendant Farrell “was deemed founded

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and [she] was sanctioned.” (Id. ¶ 31.) Plaintiff maintains that Defendants Farrell

and the DAO have used the protective order mentioned above to threaten, harass,

and intimidate him. (Id. ¶¶ 41, 51, 62.) He alleges further that Defendants entered

a conspiracy to thwart his attempts to be granted parole. (Id. ¶¶ 68-70.) In support

of this allegation, Plaintiff cites a letter Defendant Farrell sent to Judge Wogan,

Plaintiff’s sentencing judge, on March 7, 2014, informing him that Plaintiff had filed

suit against two (2) of his victims and stating: “I have contacted an attorney at the

[DOC] as well as SCI Benner Township where Mr. Barosh is currently being housed.

I wanted to bring this to your attention as well. Needless to say I will be retaining

copies of everything in anticipation of future parole petitions.” (Id. ¶¶ 69-70 & Ex.

A.)

Based on these allegations, Plaintiff asserts that Defendants conspired to

retaliate again him for his use of the DOC’s grievance system as well as his

submission of various Right-to-Know requests and lawsuits. (Id. ¶¶ 86-95.) Plaintiff

also suggests that Defendants conspired to deny him access to the courts, due

process, and equal protection, and to violate his Eighth Amendment rights to be free

from cruel and unusual punishment by banning him from: (1) the law library, (2)

attending Jewish services, (3) receiving legal mail, and (4) engaging in rehabilitative

activities, as well as by using the protective order “outside the context of the closed

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case.” (Doc. No. ¶ 96-102.) Plaintiff seeks declaratory and injunctive relief, as well

as damages.1

II. STANDARD OF REVIEW

A. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must

accept as true all factual allegations in the complaint and all reasonable inferences

that can be drawn from them, viewed in the light most favorable to the plaintiff. See

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s

inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,

pleading requirements have shifted to a “more heightened form of pleading.” See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,

all civil complaints must set out “sufficient factual matter” to show that the claim is

facially plausible. Id. The plausibility standard requires more than a mere possibility

that the defendant is liable for the alleged misconduct. As the Supreme Court

instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer

1 Plaintiff also suggests that Defendants’ actions have violated his rights under Article I of the

Pennsylvania Constitution. Pennsylvania, however, “does not have a statutory equivalent to

§ 1983 and does not recognize a private right of action for damages stemming from alleged

violation of the state constitution.” Miles v. Zech, --- F. App’x ----, No. 18-2605, 2019 WL

4942258, at *2 (3d Cir. Oct. 8, 2019). Accordingly, Plaintiff’s claims for damages brought

pursuant to the Pennsylvania Constitution are subject to dismissal.

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more than the mere possibility of misconduct, the complaint has alleged – but it has

not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing

Fed. R. Civ. P. 8(a)(2)).

Accordingly, to determine the sufficiency of a complaint under Twombly and

Iqbal, the United States Court of Appeals for the Third Circuit has identified the

following steps a district court must take when determining the sufficiency of a

complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint “not

entitled” to the assumption of truth; and (3) determine whether any “well-pleaded

factual allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(citation and quotation marks omitted).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a

court must consider only the complaint, exhibits attached to the complaint, matters

of public record, as well as undisputedly authentic documents if the complainant’s

claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d

Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters

incorporated by reference or integral to the claim, items subject to judicial notice,

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matters of public record, orders, [and] items appearing in the record of the case.’”

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.

2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002) (noting that when considering a motion to dismiss, courts may consider

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading”).

In the context of pro se prisoner litigation specifically, the court must be

mindful that a document filed pro se is “to be liberally construed.” Estelle v.

Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,”

must be held to “less stringent standards than formal pleadings drafted by lawyers”

and can only be dismissed for failure to state a claim if it appears beyond a doubt

that the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Civil Rights Statute, 42 U.S.C. § 1983

Section 1983 is the vehicle by which private citizens may seek redress for

violations of federal constitutional rights committed by state officials. See 42 U.S.C.

§ 1983. The statute states, in pertinent part:

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

custom, or usage, of any State or Territory or the District of

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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.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state actors.”

See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting

Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action

under Section 1983, a plaintiff must allege that: (1) the conduct complained of was

committed by persons acting under color of state law; and (2) the conduct violated a

right, privilege, or immunity secured by the Constitution or laws of the United States.

See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting

West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

A. Official Capacity Claims Against Defendants Cohen and Farrell

Plaintiff indicates that he has sued Defendants Cohen and Farrell in both their

individual and official capacities. (Doc. No. 19 at 1-2.) Suits against municipal

employees in their official capacities are, “in all respects other than name, to be

treated as a suit against the [municipal] entity.” Kentucky v. Graham, 473 U.S. 159,

166 (1985). A plaintiff may pursue a § 1983 claim against a municipality under two

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(2) theories. See Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). First, a plaintiff

may allege “that an unconstitutional policy or custom of the municipality led to . . .

[his] injuries.” Id. Under this theory, the plaintiff must identify a particular

“unconstitutional municipal policy or custom.” Id. A policy is an official

proclamation, policy, or edict issued by a municipal employee with “final authority”

over policymaking. Id. A custom, by contrast, is “a given course of conduct,

although not specifically endorsed or authorized by law, [that] is so well-settled and

permanent as virtually to constitute law.” Estate of Roman v. City of Newark, 914

F.3d 789, 798 (3d Cir. 2019). Referencing an allegedly unconstitutional policy or

custom is not enough, however. “A plaintiff must also allege that the policy or

custom was the ‘proximate cause’ of his injuries.” Id.

Under the second theory, a plaintiff must demonstrate that his injuries “were

caused by a failure or inadequacy by the municipality that ‘reflects a deliberate or

conscious choice.’” Forrest, 930 F.3d at 105 (quoting Estate of Roman, 914 F.3d at

798). To state a claim under this theory, a plaintiff must allege “deliberate

indifference on the part of the municipality.” Id. at 106. Deliberate indifference

consists of the following three (3) components: that “(1) municipal policymakers

know that employees will confront a particular situation; (2) the situation involves a

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difficult choice or a history of employees mishandling; and (3) the wrong choice by

an employee will frequently cause deprivation of constitutional rights.” Id.

The same analysis for a claim against the municipality “applies to the

individual officials, as sued in their official capacities.” Barna v. Bd. of Sch. Dirs.

of Panther Valley Sch. Dist., 877 F.3d 136, 150 n.11 (3d Cir. 2017). Plaintiff,

however, fails to state a claim under either theory set forth above. Plaintiff’s

amended complaint identifies no unconstitutional municipal policy or custom that

allegedly caused his injuries. Moreover, Plaintiff’s amended complaint is devoid of

facts suggesting that his injuries were caused by a failure or inadequacy by the

municipality. Accordingly, Plaintiff’s official capacity claims against Defendants

Cohen and Farrell are subject to dismissal.

B. Individual Capacity Claims Against Defendant Cohen

The Court’s liberal reading of Plaintiff’s amended complaint suggests that

Plaintiff is raising a First Amendment retaliation claim against Defendant Cohen

based upon Defendant Cohen’s failure to respond to Plaintiff’s subpoenas and

requests for information. (Doc. No. 19 ¶¶ 34, 86-95.)2 To plead a retaliation claim

2 Plaintiff also vaguely suggests that Defendants conspired to deny him access to the courts, due

process, and equal protection, and to violate his Eighth Amendment rights to be free from cruel

and unusual punishment by banning him from: (1) the law library, (2) attending Jewish services,

(3) receiving legal mail, and (4) engaging in rehabilitative activities, as well as by using the

protective order “outside the context of the closed case.” (Doc. No. ¶ 96-102.) As discussed

below, however, Plaintiff’s amended complaint fails to set forth a plausible claim of civil

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under the First Amendment, a plaintiff must allege facts in support of the following

elements: (1) constitutionally protected conduct, (2) adverse action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights, and (3)

a causal link between the constitutionally protected conduct and the adverse action.

See Thomas v Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn,

318 F.3d 523, 530 (3d Cir. 2003)). To establish the necessary causal link, a plaintiff

must show: “(1) an unusually suggestive time proximity between the protected

activity and the allegedly retaliatory action; or (2) a pattern of antagonism coupled

with timing to establish a causal link.” Carroll v. Clifford Twp., No. 3:12-cv-553,

2012 WL 3288084, at *4 (M.D. Pa. Aug. 10, 2012) (citing DeFranco v. Wolfe, 387

F. App’x 147, 155 (3d Cir. 2010)).

Plaintiff engaged in constitutionally protected conduct by pursuing subpoenas

and Right-to-Know Requests. See Downs v. Borough of Jenkintown, No. 18-4529,

2019 WL 1383802, at *4 (E.D. Pa. Mar. 26, 2019) (concluding that plaintiffs

engaged in constitutionally protected conduct when they, inter alia, “made Right to

Know requests”). Plaintiff’s amended complaint, however, is devoid of any

conspiracy against Defendants. Moreover, nothing in the amended complaint plausibly suggests

that Defendant Cohen was involved in any of the decisions regarding the denial of certain

conditions while Plaintiff was incarcerated. Finally, Plaintiff does not allege, and the Court does

not discern, how his Eighth Amendment rights were violated by use of the protective order in order

to not respond to Plaintiff’s subpoenas and information requests.

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allegations suggesting that Defendant Cohen took any adverse action against him for

attempting to pursue subpoenas and Right-to-Know requests. In his response to

Defendant Cohen’s motion to dismiss, Plaintiff suggests, for the first time, that

Defendant Cohen “admits to . . . directing others to interfere and stop Plaintiff from

exercising [his] constitutional rights” and that Defendant Cohen “present[ed] known

false documents to multiple agencies regarding Plaintiff such as fabricated assets to

[affect] Plaintiff’s in forma pauperis status.” (Doc. No. 71 at 7.) It is axiomatic,

however, “that the company may not be amended by the briefs in opposition to a

motion to dismiss.” Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d

173, 181 (3d Cir. 1988). Even if the allegations contained in Plaintiff’s brief in

opposition were properly before the Court, they are insufficient to plausibly suggest

that Defendant Cohen engaged in adverse action against Plaintiff. Moreover, as

discussed below, Plaintiff’s amended complaint fails to establish the existence of a

plausible conspiracy among Defendant Cohen and the other named Defendants to

violate Plaintiff’s constitutional rights. Accordingly, the Court will dismiss

Plaintiff’s retaliation claim against Defendant Cohen.

C. Individual Capacity Claims Against Defendants Farrell

Plaintiff vaguely suggests that Defendant Farrell violated his constitutional

rights in various ways. However, the amended complaint only contains the

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following factual assertions against Defendant Farrell: (1) in December of 2015,

Plaintiff learned that Defendant Farrell had “entered upon the duties of office

without authorization by failing to file [a] statement of financial interests as

required” (Doc. No. 19 ¶ 28); (2) in March of 2016, Plaintiff’s ethics complaint

against Defendant Farrell “was deemed founded and [she] was sanctioned” (id.

¶ 31); and (3) Defendant Farrell wrote a letter to Judge Wogan informing him that

Plaintiff had filed suit against two (2) of his victims (id. ¶¶ 69-70 & Ex. A).

As an initial matter, the documents of public record attached to Defendant

Farrell’s brief refute Plaintiff’s claims regarding the statement of financial interest

and the ethics complaint. Those documents indicate that on December 8, 2015, in

response to Plaintiff’s request seeking her statement of financial interest, Defendant

Farrell averred that she was not in possession of a copy of such document. (Doc.

No. 51 at 41.) Moreover, the Pennsylvania’s Disciplinary Board website does not

contain a record of any sanction being imposed against Defendant Farrell in March

of 2016. (Id. at 43-56.) In any event, Plaintiff does not explain, and the Court does

not discern, how Defendant Farrell’s alleged failure to file a statement of financial

interests and the fact that she was allegedly sanctioned for an ethics complaint

violated Plaintiff’s constitutional rights.

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With respect to Plaintiff’s allegation concerning the letter to Judge Wogan,

Defendant Farrell argues that she is entitled to absolute immunity for this claim.

(Doc. No. 51 at 8-9.) “[A] state prosecuting attorney who act[s] within the scope of

his [or her] duties in initiating and pursuing a criminal prosecution” is not amenable

to suit under § 1983. Imbler v. Pachtman, 424 U.S. 409, 410 (1976). The Third

Circuit has concluded that “absolute immunity applies to the adversarial acts of

prosecutors during post-conviction proceedings . . . where the prosecutor is

personally involved . . . and continues his [or her] role as an advocate.” Yarris v.

Cty. of Delaware, 465 F.3d 129, 137 (3d Cir. 2006); see also Higgs v. Prezioso, No.

06-5815 (RMB), 2007 WL 1521118, at *9 (D.N.J. May 18, 2007) (noting that

absolute prosecutorial immunity extends to parole proceedings).

Here, Plaintiff suggests that Defendant Farrell’s actions in notifying Judge

Wogan and DOC officials about Plaintiff’s lawsuit against two (2) of his victims, as

well as her statement that she would be retaining copies of his lawsuits “in

anticipation of future parole petitions,” impeded Plaintiff’s previous attempts to be

granted parole. (Doc. No. 19 ¶¶ 68-70.) By doing so, however, Defendant Farrell

was continuing in her role as an advocate for the Commonwealth of Pennsylvania.

See, e.g., Johnson v. Kegans, 870 F.2d 992, 995-98 (5th Cir. 1989) (concluding that

absolute prosecutorial immunity barred inmate’s § 1983 claim arising from

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prosecutor’s negative recommendation letter to the parole board); Daloia v. Rose,

849 F.2d 74, 75 (2d Cir. 1988) (concluding that prosecutor’s act of transmitting

records related to inmate’s criminal conduct to parole authorities was “intimately

associated with the judicial phase of the criminal process” and therefore entitled to

absolute immunity); Higgs, 2007 WL 1521118, at *9 (concluding that absolute

prosecutorial immunity applied to inmate’s claim that prosecutor made misleading

statements to the parole board, causing inmate’s incarceration to be prolonged); cf.

Phillips v. Miller, No. 3:09-cv-555, 2010 WL 771793, at *5-6 (M.D. Pa. Feb. 26,

2010) (concluding that staff attorney was entitled to absolute prosecutorial immunity

from plaintiff’s claim that she used false statements and used records from his past

incarceration to present his child support case, preventing him from being released

early). Accordingly, the Court will dismiss Plaintiff’s claims against Defendant

Farrell as barred by absolute prosecutorial immunity.

D. Claims Against the DAO

Defendant DAO seeks dismissal of Plaintiff’s claims against it on the basis

that it is not an entity capable of being sued under § 1983. (Doc. No. 51 at 5-6.) The

weight of authority suggests that this is true. See, e.g., Fullman v. City of

Philadelphia, No. 17-2673, 2017 WL 3293544, at *2 (E.D. Pa. July 31, 2017);

Ekwunife v. City of Philadelphia, 245 F. Supp. 3d 660, 667 (E.D. Pa. 2017); Estate

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of Tyler ex rel. Floyd v. Grossman, 108 F. Supp. 3d 279, 288 (E.D. Pa. 2015); see

also Reitz v. Cty. of Bucks, 125 F.3d 139, 148 (3d Cir. 1997) (concluding that the

Bucks County District Attorney’s Office was “not an entity for purposes of § 1983

liability”). Two courts within the Eastern District of Pennsylvania, however, have

concluded that the DAO is an entity that may be sued under § 1983. See Quintana

v. City of Philadelphia, No. 17-996, 2017 WL 3116265, at *3-4 (E.D. Pa. July 21,

2017); Sourovelis v. City of Philadelphia, 103 F. Supp. 3d 694, 711-12 (E.D. Pa.

2015). The Court need not decide whether the DAO is a proper entity under § 1983

at this time because, even assuming that Plaintiff can proceed against the DAO, he

has failed to set forth a municipal liability claim against that entity. See Harper v.

City of Philadelphia, No. 18-cv-365, 2018 WL 5784549, at *2 (E.D. Pa. Nov. 2,

2018) (noting that claims against the DAO must allege that “a DAO policy or custom

caused the violations of rights . . . allege[d]”). As discussed supra, Plaintiff’s

amended complaint identifies no unconstitutional DAO policy or custom that

allegedly caused his injuries. Moreover, Plaintiff’s amended complaint is devoid of

facts suggesting that his injuries were caused by a failure or inadequacy by the DAO.

Accordingly, Plaintiff’s claims against Defendant DAO will be dismissed.

E. Civil Conspiracy Claims

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As noted above, Plaintiff also alleges that Defendants Cohen, Farrell, and the

DAO conspired with the DOC Defendants to violate his constitutional rights. In

order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that

individuals “acting under color of state law conspired to deprive him of a federally

protected right.” Watson v. Sec’y Pa. Dep’t of Corr., 436 F. App’x 131, 137 (3d Cir.

2011). A plaintiff must plead an actual agreement amongst the parties. Id. Because

the “linchpin for conspiracy is agreement, concerted action without more cannot

suffice to state a conspiracy claim.” Id. A plaintiff must provide “specific

allegations of combination, agreement, or understanding among all or between any

of the defendants to plot, plan or conspire to carry out the challenged conduct.”

Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000); see also Wood v.

Williams, 568 F. App’x 100, 107 (3d Cir. 2014). “A conspiracy cannot be found

from allegations of judicial error, ex parte communications (the manner of

occurrence and substance of which are not alleged) or adverse rulings absent specific

facts demonstrating an agreement to commit the alleged improper actions.”

Capogrosso v. Supreme Ct. of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009) (quoting

Crabtree v. Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990)). Rather, a plaintiff

must allege in specific “terms the approximate time when the agreement was made,

the specific parties to the agreement . . ., the period of the conspiracy, or the object

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of the conspiracy.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615

F.3d 159, 179 (3d Cir. 2010).

The Court agrees with Defendants Cohen, Farrell, and the DAO that

Plaintiff’s allegations are insufficient to maintain a plausible civil conspiracy claim

under § 1983. Rather, Plaintiff’s conspiracy claims appear to be based “upon his

own suspicion and speculation.” Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir.

1991). Plaintiff’s amended complaint is devoid of any specific allegations regarding

any communications or agreements between the named Defendants. Moreover,

Plaintiff’s citation to Defendant Farrell’s letter to Judge Wogan is insufficient to

establish the existence of a civil conspiracy. Nothing in the letter could plausibly be

construed as an agreement to deprive Plaintiff of his constitutional rights. Indeed,

to the extent Plaintiff alleges that Defendants conspired to thwart his attempts to be

granted parole, there is no constitutional right to be released on parole. See

Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979).

Overall, Plaintiff bases his conspiracy claims on general allegations and,

perhaps, assumptions that his losses in state court, as well as his inability to obtain

responses to his various requests and subpoenas, stemmed from something

nefarious. However, “merely . . . being on the winning side of a lawsuit does not

make a party a co-conspirator or a joint actor.” Dennis v. Sparks, 449 US. 24, 28

19

(1980). Accordingly, because Plaintiff’s amended complaint does not provide facts

supporting a vast, plausible conspiracy among Defendants, the Court will dismiss

his conspiracy claims.3

F. Leave to Amend

The Third Circuit has instructed that if a complaint is vulnerable to dismissal

for failure to state a claim, the district court must permit a curative amendment,

unless an amendment would be inequitable or futile. Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se

plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d

Cir. 2004). “A district court has ‘substantial leeway in deciding whether to grant

leave to amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564

3 As noted supra, Plaintiff has named a John Doe individual as a Defendant in this matter. Plaintiff

states that John Doe “is a private actor, who acted under the color of state law, with or at the

direction of named Defendants.” (Doc. No. 19 ¶ 16.) As an initial matter, Plaintiff’s amended

complaint is devoid of any factual allegations related to John Doe. For that reason alone, his claims

against John Doe are subject to dismissal. See Robinson v. Wheary, No. 1:16-cv-2222, 2017 WL

2152365, at *1-2 (M.D. Pa. May 17, 2017) (dismissing complaint pursuant to screening provisions

of 28 U.S.C. § 1915(e)(2) where “the caption of the complaint names numerous individual

defendants, [but] contains no well-pleaded factual averments relating to these specific defendants

in the body of the complaint”). Moreover, given the absence of factual allegations supporting the

existence of a conspiracy, there is also no basis for concluding that John Doe could be a state actor

who would be subject to liability under § 1983. See Kach v. Hose, 589 F.3d 626, 646 (3d Cir.

2009) (“[W]e have explained that the principal question at stake [in determining whether a private

actor can be considered to have acted under color of state law] is 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.”)). Accordingly, the Court will dismiss Plaintiff’s claims against

Defendant John Doe. See 28 U.S.C. § 1915(e)(2)(B)(ii) ((“[T]he [C]ourt shall dismiss the case at

any time if the [C]ourt determines that . . . the action or appeal . . . is frivolous or malicious [or]

fails to state a claim on which relief may be granted . . . .”).

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F. App’x 672 (3d Cir. 2014) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.

2000)).

The Court finds that it would be futile to allow Plaintiff to amend his claims

against Defendant Farrell because his claims against her are barred by absolute

prosecutorial immunity. Likewise, it would be futile to permit Plaintiff leave to

amend his claims for damages under the Pennsylvania Constitution. However, with

respect to Plaintiff’s § 1983 claims for against Defendants Cohen, the DAO, and

John Doe, it is neither clear that amendment would be futile nor is there any basis to

believe it would be inequitable. Accordingly, Plaintiff will be granted leave to file

a second amended complaint as to his claims against these Defendants.

IV. CONCLUSION

For the foregoing reasons, the motions to dismiss filed by Defendant Cohen

(Doc. No. 34) and Defendants Farrell and the DAO (Doc. No. 49) will be granted.

The Court will also dismiss Plaintiff’s claims against Defendant John Doe pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii) and dismiss his claims for damages pursuant to the

Pennsylvania Constitution. The Court will grant Plaintiff leave to file a second

amended complaint regarding his § 1983 claims for damages against Defendants

Cohen, the DAO, and John Doe. Plaintiff will not be permitted to amend his claims

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against Defendant Farrell and his claims seeking damages under the Pennsylvania

Constitution. An appropriate Order follows.

s/Sylvia H. Rambo

Sylvia H. Rambo

United States District Judge

January 27, 2020

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