# Brabham v. Owens

> District Court, M.D. Pennsylvania · October 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10412386

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAQUAN MARQUI BRABHAM, ) CIVIL ACTION NO. 1:22-CV-01186
Plaintiff )
)
v. )
) (ARBUCKLE, M.J.)
DAVID OWENS et al., )
Defendants )
MEMORANDUM OPINION
I. INTRODUCTION
On August 1, 2022, Jaquan Marqui Brabham (“Plaintiff”) initiated this pro se
civil rights case. In his Complaint (Doc. 1), Plaintiff names as Defendants David
Owens (the policeman who initially stopped and then arrested him) four other
Troopers and two District Attorneys.
Plaintiff brings numerous federal and state claims against these Defendants
stemming from the allegedly illegal search of the vehicle he was driving, his arrest
following that search, and the state criminal charges brought against him. The
evidence against him was suppressed and the charges dropped.
After reviewing Plaintiff’s Complaint, I conclude that for the most part it fails

to state a claim upon which relief may be granted. Although Plaintiff’s Complaint
would typically be subject to dismissal, except for his claim against Troop Owens, I
will grant Plaintiff one opportunity to cure the deficiencies noted herein before
making a recommendation of dismissal to the District Court.1

II. LEGAL STANDARD FOR SCREENING COMPLAINTS FILED IN
FORMA PAUPERIS
Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 8).
Because he is proceeding in forma pauperis, Plaintiff is subject to the mandatory
screening provisions in 28 U.S.C. § 1915(e). The screening procedures set forth
in the statute apply to in forma pauperis complaints filed by prisoners and non-

prisoners alike.2 Under this statute, the Court is required to dismiss any action that
is frivolous or malicious, fails to state a claim upon which relief can be granted, or
seeks monetary relief against a defendant who is immune from such relief.3 There

is no constitutional right to the expenditure of public funds and the valuable time of
federal courts to prosecute an action which is totally without merit.4
A complaint filed by a pro se litigant is to be liberally construed and
‘“however inartfully pleaded, must be held to less stringent standards than formal

1 28 U.S.C. § 1915(e)(2)(B)(ii)
2 See Atamian v. Burns, 236 F. App’x 753, 755 (3d Cir. 2007).
3 28 U.S.C. § 1915(e)(2)(B).
4 See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979).
pleadings drafted by lawyers.’”5 Nevertheless, “pro se litigants still must allege
sufficient facts in their complaints to support a claim.”6

III. BACKGROUND & PROCEDURAL HISTORY
This pro se, in forma pauperis action began on August 1, 2022 when Plaintiff
lodged his Complaint. (Doc. 1). As Defendants, Plaintiff names:
1. Pennsylvania State Police Trooper David Owens, (“Defendant Owens”);

2. Virginia Hobbs, York County Assistant District Attorney (“Defendant
Hobbs”);
3. Pennsylvania State Police Trooper Wilker (“Defendant Wilker”);

4. Pennsylvania State Police Trooper Busse (“Defendant Busse”);
5. Pennsylvania State Police Trooper Coulter (“Defendant Coulter”);
6. David W. Sunday, Jr., York County District Attorney (“Defendant
Sunday”); and

7. Colonel Robert Evanchick, Commissioner of the Pennsylvania State
Police (“Defendant Evanchick”).
Plaintiff’s complaint can be summarized as follows. Plaintiff alleges that he

was arrested at approximately two in the morning by Defendant Owens. This arrest
followed an illegal search and seizure of a car Plaintiff was driving with the

5 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
6 Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
permission of the car’s owner. (Doc. 1, p. 6). Defendant Owens did not have
probable cause or consent and searched the vehicle. Id. Defendant Owens initially

“conducted a traffic stop for suspicion of driving under the influence . . . .” Id.
Plaintiff was ordered out of the vehicle “for multiple roadside sobriety test [sic] and
breathalizer [sic] test” which all “produced negative results.” Id.

Defendant Owens then learned that Plaintiff’s driver’s license was suspended
at which point he permitted Plaintiff to call the owner of the vehicle to come pick it
up, which the owner agreed to do. Id. Then, “[s]pontaneously, [Defendant Owens]
smell[ed] raw marijuana emenating [sic] from the vehicle.” Id. Defendant Owens

asked Plaintiff to provide proof of a medical marijuana card which Plaintiff then did,
showing him a digital version as well as “doctor’s prescription documents.” Id.
Next, without consent, Defendant Owens began searching the vehicle and

found a “closed zipper bag approx. [sic] ½ [sic] gram(s) of medical marijuana and 3
single packets of medicinal marijuana edible gummy candies.” Id. at p. 6-7. After
finding them, Defendant Owens stopped the illegal search and asked Plaintiff
whether the marijuana and gummies were his, to which Plaintiff responded that they

were and that they were “within compliance to the Pennsylvania Medical Marijuana
Act . . . .” Id. at p. 7. Defendant Owens then arrested Plaintiff for possession of the
small amount of marijuana and secured Plaintiff in the back of his police vehicle. Id.
Defendant Owens then returned to the car and “proceeded to unlawfully
search the vehicle without consent or probable cause.” Id. After “concluding the

sweeping unlawful search of the vehicle including the trunk compartment
[Defendant Owens] returned to me in the rear of patrol vehicle and asked about the
locked glove box and the key for it.” Id. Plaintiff did not give Defendant Owens a

key and told him to speak with the vehicle’s owner who was on the way. Id. The key
Plaintiff had been using to operate the vehicle did not open the glove box. Id.
Plaintiff alleges that “during the initial search” two other Troopers arrived on
the scene. Id. When Plaintiff would not produce a key to the glove box, Plaintiff

alleges Defendant Owens and the two other Troopers “proceeded to break into the
locked glove box.” Id. Defendant Owens and the Troopers apparently spent “4-6
minutes vandalizing the glove box and gained entry” where they “allegedly”

discovered a firearm. Id.
Plaintiff was then taken and “booked on possession of a firearm charge,”
however all charges were eventually “dropped without prosecution.” Id.
Plaintiff details thirteen (13) injuries he has suffered as a result of these events.

Id. at p. 8-9. For relief, Plaintiff requests the Court issue an injunction ordering the
police to obey Pennsylvania’s Medical Marijuana Act and cease “using a liberty
protected interest to further criminal prosecution as a tool to convict.” Id. Plaintiff

requests monetary damages for lost wages, legal fees, “the money spent to support
oneself through confinement, [and] the debt accumulated from utility bills and rent
of housing.” Id. Plaintiff also requests “punitive compensation for intentionally

inflicting mental and emotion [sic] distress, disregarding ones liberty, freedoms, and
governing laws of protections.” Id.
To his Complaint Plaintiff attaches a copy of a Suppression Order issued in

the criminal case against him arising from these events, (Doc. 1-1, pp. 1-28) and the
Order dismissing the charges against him (Doc. 1-2, p.1). Plaintiff also attaches three
news articles that discuss the Supreme Court case Thompson v. Clark. (Doc. 1-3,
pp.1-3).

IV. ANALYSIS
We begin by outlining the claims Plaintiff makes.
a. Plaintiff’s Complaint contains numerous claims generally against the seven
listed Defendants. However, Plaintiff does not mention Defendants Hobbs,

Wilker, Busse, Coulter, Sunday or Evanchick anywhere in his Complaint
beyond the caption and the section listing the Defendants’ mailing addresses.
b. Plaintiff is unable to bring 42 U.S.C. § 1983 claims for rights arising under

the Constitution of Pennsylvania or Pennsylvania law.
c. Plaintiff does not properly state § 1983 claims that relate to his attempted
Fourth Amendment malicious prosecution, Eighth Amendment cruel and
unusual punishment, or Fifth Amendment due process claims.
d. Plaintiff does state a sufficient Fourth Amendment § 1983 unreasonable
search and seizure claim against Defendant Owens.

e. Plaintiff cannot sufficiently plead any State Constitutional claims.
f. Pennsylvania law authorizes the use of marijuana. Federal law prohibits any
marijuana use. The state law protects marijuana users who follow state

guidelines. Federal law does not. Plaintiff comes to federal court seeking to
use Pennsylvania law to sue law enforcement personnel who he claims did not
follow the state law that that protects his marijuana use. This Court will
decline to exercise jurisdiction over any state law claim Plaintiff may have

arising under 35 P.S. § 10231.2103(a).
g. Lastly Plaintiff’s request for injunctive relief cannot be granted.
The Court will explain each of these conclusions in turn.

A. PLAINTIFF DOES NOT STATE ANY CLAIMS AGAINST DEFENDANTS
HOBBS, WILKER, BUSSE, COULTER, SUNDAY AND EVANCHICK

Plaintiff does not state any claims against Defendants Hobbs, Wilker, Busse,
Coulter, Sunday or Evanchick. Plaintiff names these six Defendants in the caption
but pleads zero facts about how they are related to this case. The Complaint does not
mention any of them by name outside of the caption and the section listing the
Defendant’s mailing addresses. That is insufficient. If Plaintiff wishes to prosecute
claims he might have against any of these six Defendants, he must comply with
Federal Rule of Civil Procedure 8 and plead sufficient facts as to each Defendant for
each claim against that Defendant.7 As written, Plaintiff’s Complaint does not state
any viable claims against any of these six named Defendants.

B. PLAINTIFF’S ATTEMPTED 42 U.S.C. § 1983 CLAIMS ARISING UNDER THE
CONSTITUTION AND LAW OF PENNSYLVANIA FAIL

Plaintiff attempts to bring numerous 42 U.S.C. § 1983 claims against
Defendants. However, as explained above, he only discusses the actions of
Defendant Owens in his Complaint. He does not mention any of the other
Defendants.
Generally, there are two fundamental requirements for every § 1983 claim.
“Section 1983 imposes civil liability upon any person who, acting under the color of
state law, deprives another individual of any rights, privileges, or immunities secured

by the Constitution or laws of the United States.”8 “It is well settled that § 1983 does

7 While a pro se plaintiff is entitled to a liberal construction of their pleading,
they are not “excused from complying with the rules of procedural and substantive
law.” Hayden v. Allegheny Health Network, No. 2:21-cv-525, 2022 WL 783430, at
*5 (W.D. Pa. Mar. 15, 2022); see McNeil v. U.S., 508 U.S. 106, 113 (1980). Federal
Rule of Civil Procedure 8(a) and (a)(2) states “a pleading that states a claim for relief
must contain: . . . a short and plain statement of the claim showing that the pleader
is entitled to relief.” To state a claim Plaintiff must plead ““enough facts to raise a
reasonable expectation that discovery will reveal evidence of” the necessary
element[s].” Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The idea is that Rule 8
requires a complaint to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957); e.g.,
Twombly, 550 U.S. at 545)). This allows the defendant to “respond on the merits.”
Garrett v. Wexford Health, 938 F.3d at 69, 94 (3d Cir. 2019).
8 Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).
not confer any substantive rights, but merely provides a method for vindicating
federal rights elsewhere conferred.”9 To bring a claim under Section 1983, a plaintiff

must allege facts that show: 1) a deprivation of a federally protected right, and 2)
that this deprivation was committed by a person acting under color of state law.10
Additionally, for a § 1983 claim a plaintiff “must plead that each Government-

official defendant, through his own individual actions, has violated the
Constitution.”11
As a general matter, a plaintiff must plead “enough facts to raise a reasonable
expectation that discovery will reveal evidence of” the necessary element[s].”12

Plaintiff has not stated sufficient facts to include any of the other Defendants
individually in a §1983 claim.
Plaintiff attempts to bring 42 U.S.C. § 1983 claims against all Defendants for

rights arising under the Constitution of Pennsylvania and Pennsylvania law. These
claims must fail. I will discuss each in turn.

9 Williams v. Pa. Human Relations Comm’n, 870 F.3d 294, 297 (3d Cir. 2017)
(quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014) (internal
citations omitted)).
10 Woloszyn v. Cty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
11 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
12 Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
i. PLAINTIFF’S § 1983 CLAIMS FOR RIGHTS ARISING UNDER THE
CONSTITUTION OF PENNSYLVANIA

To the extent Plaintiff attempts to bring § 1983 claims for violations of rights
conferred by the Constitution of Pennsylvania, these claims fail. One requirement of
any § 1983 claim is that a plaintiff must show a deprivation of a federally protected
right.13 Any civil rights conferred by the Constitution of Pennsylvania are state
rights, not federal rights. If Plaintiff is in fact trying to bring § 1983 claims for
violations of rights conferred by the Constitution of Pennsylvania those claims fail.

ii. PLAINTIFF’S § 1983 CLAIM FOR RIGHTS ARISING UNDER 35 P.S. §
10231.2103 FAILS

Although unclear, Plaintiff appears to try and bring some sort of claim(s)
arising under Pennsylvania’s Medical Marijuana Act, 35 P.S. § 10231.2103. The
section Plaintiff cites is under “Protections for patients and caregivers” and provides
that “patients” shall not be “subject to arrest, prosecution or penalty in any manner .
. . solely for lawful use of medical marijuana or manufacture or sale or dispensing
of medical marijuana . . . .” 35 P.S. § 10231.2103(a). To the extent Plaintiff tries to
bring a § 1983 claim to vindicate any rights Pennsylvania’s Medical Marijuana Act

may provide him, Plaintiff is unable to do so. Again, to bring a claim under § 1983
a plaintiff must allege facts showing the deprivation of a federally protected right.14

13 Woloszyn, 396 F.3d at 319.
14 Id.
Any rights conferred to Plaintiff under Pennsylvania’s Medical Marijuana Act would
be state rights, not federal rights. Therefore, any § 1983 claims for violations of any

rights conferred by Pennsylvania’s Medical Marijuana Act fail.
C. PLAINTIFF FAILS TO STATE 42 U.S.C. § 1983 CLAIMS UNDER THE
FOURTH AMENDMENT (MALICIOUS PROSECUTION), EIGHTH
AMENDMENT (CRUEL AND UNUSUAL PUNISHMENT), AND FIFTH
AMENDMENT (DUE PROCESS)

Plaintiff attempts to bring 42 U.S.C. § 1983 claims under the Fourth
Amendment for malicious prosecution, the Eighth Amendment for cruel and unusual
punishment, and the Fifth Amendment for due process violations. Plaintiff fails to
adequately plead these claims. I will discuss each claim in turn.
i. PLAINTIFF DOES NOT STATE A FOURTH AMENDMENT § 1983 MALICIOUS
PROSECUTION CLAIM

Plaintiff’s Complaint does not state a Fourth Amendment § 1983 malicious
prosecution claim. “To prove malicious prosecution under section 1983 when the
claim is under the Fourth Amendment, a plaintiff must show that: (1) the defendant
initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3)
the defendant initiated the proceeding without probable cause; (4) the defendant
acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.”15 Plaintiff has not adequately pleaded all of
these elements.

As to the first element, Plaintiff has not pleaded that Defendant Owens is the
one who initiated the criminal proceedings against him. He describes the stop, the
search of the car, his arrest, the further search of the car, the arrival of two other

unnamed troopers on the scene and then ends by saying once the firearm was
discovered in the glove box, he “was transported and booked on possession of a
firearm charge.” (Doc. 1, p. 7). It is unclear from this if Defendant Owens initiated
criminal proceedings as the affiant against Plaintiff.16 This means in turn that

Plaintiff has not plead enough for the Court to evaluate the third or fourth elements.
As to the fifth element, “the alleged seizure must occur as a result of the malicious
prosecution, and thus, it must occur chronologically after the pressing of charges.”17

Plaintiff’s Complaint states that he was arrested on the scene before the firearm he
was ultimately charged with possessing was found. It is unclear whether and for how
long Plaintiff was incarcerated once he was formally charged as his Complaint does

15 Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (citation omitted).
16 “Although prosecutors rather than police officers are generally responsible
for initiating criminal proceedings, [a]n officer may, however, be considered to have
initiated a criminal proceeding if he or she knowingly provided false information to
the prosecutor or otherwise interfered with the prosecutor's informed discretion.”
Brockington v. City of Phila., 354 F. Supp. 2d 563, 569 (E.D. Pa. 2005) (internal
citations and quotations omitted).
17 Basile v. Twp. of Smith, 752 F. Supp. 2d. 643, 659 (W.D. Pa. 2010).
not detail anything beyond his being “booked on possession of a firearm charge.”
(Doc. 1, p. 7).

As to element two, Plaintiff directs the Court’s attention to Thompson v.
Clark, 142 S. Ct. 1332, 1340 (2022) to show that he need not prove “the criminal
prosecution ended with some affirmative indication of innocence.” The Court of

course agrees. Plaintiff did adequately plead element two. However, Plaintiff still
must fix his Complaint’s deficiencies as to the other four required elements for the
malicious prosecution claim to go forward.
If Plaintiff chooses to amend his Complaint and assert any Fourth Amendment

malicious prosecution claim(s) against any Defendants, including Defendant Owens,
he must include “a short and plain statement of the claim showing that [he] is entitled
to relief,” Fed. R. Civ. P. 8, with sufficient factual allegations to give the Court
reason to believe he could meet all the required elements,18 and to put the Defendants

on notice of what the claim against each of them is.19
ii. PLAINTIFF CANNOT STATE AN EIGHTH AMENDMENT § 1983 CRUEL AND
UNUSUAL PUNISHMENT CLAIM

Plaintiff’s Eighth Amendment § 1983 cruel and unusual punishment claim
fails. The Court is unable to determine what the Plaintiff is claiming was cruel and
unusual punishment. At best the Complaint could tenuously be interpreted as

18 Phillips, 515 F.3d at 234; Twombly, 550 U.S. at 556.
19 Conley, 355 U.S. at 47; e.g., Twombly, 550 U.S. at 545.
Plaintiff asserting an Eighth Amendment § 1983 cruel and unusual punishment claim
for the fact that he was arrested. (Doc. 1). However, the Eighth Amendment does

not apply until there is a “formal adjudication of guilt . . . .”20 Before such an
adjudication “pre-trial detainees . . . are protected by the Due Process Clause of the
Fourteenth Amendment.”21 Plaintiff has made it clear that he was never found guilty,

and the charges were dropped. (Doc. 1, p. 7; Doc. 1-2). Therefore, Plaintiff has no
Eighth Amendment § 1983 cruel and unusual punishment claim against any
Defendant. Plaintiff does attempt to bring a due process claim which is analyzed in
the next section.

iii. PLAINTIFF DOES NOT STATE A FIFTH OR FOURTEENTH AMENDMENT §
1983 DUE PROCESS CLAIM

Plaintiff fails to adequately plead a Fifth or Fourteenth Amendment § 1983
due process claim. In the legal claims section of his Complaint, Plaintiff alleges a
violation of the Fifth Amendment “right to a fair due process.” (Doc. 1, p. 8). “The
provisions of the Fifth Amendment only concern, however, federal action, not state
or private action.”22 Given that pro se complaints are to be liberally construed, the
Court will interpret Plaintiff’s attempted Fifth Amendment claim as a Fourteenth

20 Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977); See Tri Thanh Nguyen
v. Franklin Cty. Sheriffs Dep’t., 512 F. App’x 188, 190 (3d Cir. 2013).
21 Tri Thanh Nguyen, 512 F. App’x at 190.
22 Walker v. Brittain, No. 1:22-cv-00965, 2022 WL 4454525, at *3 (M.D. Pa.
Sept. 23, 2022).
Amendment claim, which does concern state action.23 Even doing so, the Court
cannot find anything to support a Fourteenth Amendment due process claim in

Plaintiff’s Complaint.24 Plaintiff states his claim is for “the right to a fair due
process” but never clearly states when he believes he was denied either procedural
or substantive due process.

The Court guesses Plaintiff may be referencing the fact of the allegedly
unreasonable search and seizure, but that claim is properly brought through the
Fourth Amendment as made applicable to the states by the Fourteenth Amendment.25
Plaintiff attempts to assert an Eighth Amendment cruel and unusual

punishment claim; however he was never convicted and therefore the Court will
liberally construe Plaintiff’s Complaint as attempting to assert a Fourteenth

23 The standards to evaluate the two claims are essentially the same.
24 In the legal claims section of his Complaint, after Plaintiff writes “United
States 5th Amendment . . . the right to a fair due process,” he lists “violation(s) of
law” which include cites to the Pennsylvania Medical Marijuana Act as well as
numerous cases on topics such as unreasonable searches and seizures and malicious
prosecution claims. (Doc. 1, p. 8-9). It is unclear if Plaintiff is somehow trying to
suggest these are due process violations. Nothing ties the two together aside from
their proximity in the Complaint.
25 “The Supreme Court has held that when government behavior is governed
by a specific constitutional amendment, due process analysis is inappropriate. . .
[T]he constitutionality of arrests by state officials is governed by the Fourth
Amendment rather than due process analysis.” Berg v. Cty. of Allegheny, 219 F.3d
261, 269-69 (3d Cir. 2000) (citing Cty. of Sacramento, et al. v. Lewis, 523 U.S. 833,
842-43 (1998)). See also Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d
Cir. 2010).
Amendment claim.26 But it is still unclear what exactly Plaintiff is trying to claim
was a violation of his Fourteenth Amendment rights. In the injury section of his

Complaint Plaintiff states that he “regressed mentally due to unwarranted
confinement . . . [and] suffer[s] from the consequencial [sic] occurrence of
institutionalization.” (Doc. 1, p. 8-9). These are conclusions that are unsupported or
unenhanced by any facts. A Complaint “requires more than labels and conclusion.”27

Moreover, Plaintiff does not allege what, if any, personal involvement
Defendant Owens had in Plaintiff’s apparent pre-trial incarceration other than his
transporting Plaintiff to be “booked.”28 (Doc. 1, p. 7). A showing of personal

involvement is a requirement of a § 1983 claim.29
Again, if Plaintiff chooses to amend his Complaint and assert any Fourteenth
Amendment claim(s) against any Defendants he must meet the pleading requirement

of Federal Rule of Civil Procedure 8 as explained above in Section IV(C)(i) of this
Order.

26 Ingraham, 430 U.S. at 671, n.40.
27 Twombly, 550 U.S. at 555.
28 Plaintiff does not state whether Defendant Owens was actually the one who
transported Plaintiff or that he had anything to do with “book[ing]” Plaintiff,
however the Court assumes he was involved given that Plaintiff was in the back of
his patrol vehicle. (Doc. 1, p. 7).
29 Iqbal, 556 U.S. at 663.
D. PLAINTIFF STATES A FOURTH AMENDMENT 42 U.S.C. § 1983
UNREASONABLE SEARCH AND SEIZURE CLAIM

Plaintiff states a Fourth Amendment § 1983 unreasonable search and seizure
claim against Defendant Owens. In addition to requiring the deprivation of a
federally protected right by a state actor,30 a Fourth Amendment § 1983 unreasonable
search and seizure claim requires a plaintiff to allege facts that show the “defendants’
actions (1) constituted a “search” or “seizure” within the meaning of the Fourth
Amendment, and (2) were “unreasonable” considering the surrounding

circumstances.”31 Plaintiff describes more than enough to suggest Defendant Owens
conducted a search of the vehicle and seized the Plaintiff by arresting him. (Doc. 1,
p. 6-7). In the Suppression Order that Plaintiff attaches to his Complaint the Court

of Common Pleas of York County Pennsylvania found the vehicle search
unreasonable and suppressed the evidence that was found in the vehicle during
Defendant Owens’ search. (Doc. 1-1). Plaintiff states in his Complaint that he was
arrested after Defendant Owens began his search of the vehicle when Defendant

found the medical marijuana and edible gummy candies. (Doc. 1, p. 6-7). If the
search was found to be unreasonable and that evidence was suppressed (Doc. 1-1),
it is a reasonable inference that Plaintiff’s arrest was also unreasonable. At this stage

30 Woloszyn, 396 F.3d at 319.
31 Open Inns. Ltd. v. Chester Cty. Sheriff’s Dep’t., 24 F. Supp. 2d 410, 424
(E.D. Pa. 1998) (citing Brower v. Cty. of Inyo, 489 U.S. 953, 595-600 (1989)).
Plaintiff has adequately plead a Fourth Amendment § 1983 unreasonable search and
seizure claim against Owens.32

E. PLAINTIFF’S STATE CONSTITUTIONAL CLAIMS FAIL
In addition to bringing federal civil rights claims under 42 U.S.C. § 1983,
Plaintiff brings three claims alleging violations of rights protected by the

Constitution of Pennsylvania. Under the legal claims section of his Complaint,
Plaintiff lists “Pennsylvania Article 1 – Section 8 . . . Pennsylvania Article 1 –
Section 13 . . . [and] Pennsylvania Article 1 – Section 9 . . . .” (Doc. 1, p. 8). The
problem is that Plaintiff fails to point to any cause of action that would afford him

damages or any other type of relief under the Pennsylvania Constitution. It is unclear
to the Court whether any such private right of action exists.33 Federal Rule of Civil
Procedure 8(a)(2) requires Plaintiff to show that he “is entitled to relief . . . .” In not

identifying a cause of action entitling him to relief Plaintiff has not met the
requirement of Rule 8(a)(2). Plaintiff must establish that Pennsylvania law creates a

32 The Complaint does not address, nor must we decide at this juncture, if the
doctrine of qualified immunity protects Defendant Owens from suit. However,
Plaintiff may want to consider whether Defendant Owens would be entitled to
qualified immunity and thus be immune from some or all of Plaintiff’s 42 U.S.C. §
1983 claims against him.
33 See Mbagwu v. PPA Taxi & Limousine Division, Civ. A. No. 2:21-cv-
01470-MMB, 2021 WL 4818965, at *4 n.5 (E.D. Pa. October 15, 2021); Bane v.
City of Phila., Civ. A. No. 09-2798, 2009 WL 6614992, at *6 n.5 (E.D. Pa. June 18,
2010); and Mintz v. Upper Mount Bethel Twp., Civ. A. No. 12-6719, 2013 WL
3090720, at *5 (E.D. Pa. June 20, 2013).
private cause of action for violations of the State Constitution. If Plaintiff chooses
to amend his Complaint and wishes to prosecute any of his three state constitutional

claims against any Defendant, he must comply with the pleading requirements of
Rule 8, elaborated upon above in Section IV(C)(i), including identifying a cause of
action to show he “is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2).

F. THIS COURT WILL NOT EXERCISE SUPPLEMENTAL JURISDICTION OVER
PLAINTIFF’S STATE LAW CLAIM ARISING UNDER 35 P.S. § 10231.2103

Plaintiff appears to attempt some sort of state law claim under Pennsylvania’s
Medical Marijuana Act, 35 P.S. § 10231.2103. Plaintiff fails to state a claim as he
does not identify a cause of action that would afford him relief. 28 U.S.C. § 1367
governs the exercise of supplemental jurisdiction by federal courts and § 1367(c)
details when a federal court may decline to exercise supplemental jurisdiction. A
court may decline the exercise of supplemental jurisdiction “if (1) the claim raises a
novel or complex issue of State law . . . or (4) in exceptional circumstances, there
are other compelling reasons for declining jurisdiction.”

Here, it is unclear if there is a private right of action for Plaintiff to bring. In
his Complaint Plaintiff cites to Palmiter v. Commonwealth Health Sys., Inc., 260
A.3d 967 (Pa. Super. Ct. 2021) suggesting that it confirms a private right of action

for him. In that case, the Pennsylvania Superior Court found that the Pennsylvania
Medical Marijuana Act contained an implied private right of action. However, that
case dealt with the Medical Marijuana Act in the context of employment
discrimination. Id. While it is true that the section of the Medical Marijuana Act at
issue in Palmiter (35 P.S. § 10231.2103(b)(1)) and the section at issue here (35 P.S.

§ 10231.2103(a)) both are under 35 P.S. § 10231.2103 “protections for patients and
caregivers” this Court is unwilling to expand the private right of action found in
Palmiter without further guidance from a state or federal appellate court. Whether

or not there is an implied private of action against state officials for violation of 35
P.S. § 10231.2103(a) appears to be a “novel . . . issue of State law.” This Court
cannot find such a private right of action, nor does Plaintiff cite to any case law or
statute creating one for his specific claim. 28 U.S.C. § 1367(c)(1).

Even if there were a private right of action this Court would still decline to
exercise supplemental jurisdiction. A district court can decline to exercise
supplemental jurisdiction if, “in exceptional circumstances, there are other

compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c)(4). In this case,
Pennsylvania’s Medical Marijuana Act is in conflict with federal law as any use of
marijuana remains federally illegal. 21 U.S.C. §§ 841-863. The fact that adjudicating
the state law would require the Court to enforce a state law directly at odds with

federal law is a “compelling reason[] for declining jurisdiction.” 28 U.S.C. §
1376(c)(4).
G. PART OF PLAINTIFF’S REQUESTED RELIEF CANNOT BE GRANTED
Plaintiff requests relief that this Court is unable to award. In his Complaint,

Plaintiff requests the Court “issue an injunction ordering the various Police
Municipalities governed by Pennsylvania law to adhere to the law thereof in regards
[sic] to Pennsylvania Medical Marijuana Act and the Conditions therein, [and] to

stop infringing upon the legal rights of Medical Marijuana card holder(s) . . . .” (Doc.
1, p. 8-9). Plaintiff also would like the injunction to order the cessation of “using a
liberty protected interest to further prosecution as a tool to convict.” Id. at 9.
This Court is unable to issue such an injunction. This Court does not have a

general supervisory role over proper enforcement of state law. Plaintiff does not
bring a class action, nor does he have standing to do so. There are no current state
proceedings against Brabham that the Court is aware of.

H. PLAINTIFF’S MOTION TO SUPPLEMENT COMPLAINT IS DENIED
On September 12, 2022, Plaintiff filed a Motion to Supplement Complaint.
(Doc. 7). Plaintiff is being given leave to amend his Complaint. If Plaintiff chooses
to amend his Complaint, he may, and should, include his supplemental materials

there.
An appropriate Order will follow.

Date: October 20, 2022 BY THE COURT
s/William I. Arbuckle
William I. Arbuckle
U.S. Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412386. Public record. Not legal advice.