# Barosh v. Shapiro

> District Court, M.D. Pennsylvania · January 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10408196

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 27, 2020
- **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/10408196

## How later opinions describe it (automated extraction)

- concluding that absolute prosecutorial immunity barred inmate’s § 1983 claim arising from 15 prosecutor’s negative recommendation letter to the parole board
- 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”
- 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

## Opinion text

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

2
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

3
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

4
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

5
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.
6
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,

7
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
8
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

9
(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

10
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
11
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.
12
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

13
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.

14
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

15
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

16
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

17
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

18
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408196. Public record. Not legal advice.