Shager v. Fallon

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LUKE WAGNER SHAGER, : Civ. No. 3:23-CV-68

Plaintiff, :

V. : (JUDGE MANNION)

KATHLEEN FALLON, etal.,

Defendants. :

MEMORANDUM

Presently before the court in this pro se civil rights suit is the November

7, 2023, report and recommendation of Magistrate Judge Daryl F. Bloom,

(Doc. 44), as well as Plaintiff's motion for preliminary injunction. (Doc. 42).

Judge Bloom’s report recommends that Defendants’ motion to dismiss, (Doc.

24), be granted and Plaintiff's amended complaint, (Doc. 19), be dismissed

with prejudice. Plaintiff filed a timely objection to the report, (Doc. 45), where

he asks for leave to again amend his complaint in the event of dismissal.

However, the court agrees with Judge Bloom that Plaintiff's complaint is so

fundamentally flawed that it cannot be cured by further amendments.

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F. 3d 193, 195 (3d Circ. 2011). Although the standard of review

is de novo, the district court “may also, in the exercise of sound judicial

discretion, rely on the Magistrate Judge’s proposed findings and

recommendations.” Bynum v. Colvin, 198 F. Supp. 3d 434, 437 (E.D. Pa.

2016) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

Since the report correctly states the procedural and factual background

of this case, it will not be repeated herein. (Doc. 44 at 2-4). In short this is a

civil rights action brought against officers from the Pennsylvania State Police

and agents from the Pennsylvania Office of Attorney General (“OAG"), who

pursuant to a valid warrant searched Plaintiff's phone and found inter alia a

video of Plaintiff inappropriately touching a minor child’s genitalia. It is

alleged that Plaintiff was initially arraigned on state charges in Susquehanna

County, but those charges did not proceed. Instead, Plaintiff was indicted by

a federal grand jury and plead guilty to one count of sexual exploitation of

children. United States v. Shager, 3:22-CR-24 (Doc. 29).

Plaintiff claims in his amended complaint that both the state and federal

charges brought against him were based on “falsified” information, namely

reports made by Defendants indicating that there was “penetration” of a

minor child depicted in the video they found on his phone. This assertion is

based on Plaintiffs clear misunderstanding of the legal definition of

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“penetration,” which was explained to him in detail at his guilty plea hearing.

See Id. (Doc 35 at 29-31).

Furthermore, Plaintiff does not dispute that the video found on his

phone shows him inappropriately touching a minor child’s genitalia. Such

contact alone is enough to support a conviction for sexual exploitation of

children. Plaintiff claims that he was forced to plea to this lesser charge to

avoid a life sentence on a conviction for a crime involving penetration. But if

the video really does not show penetration, then a jury could have vindicated

Plaintiff at trial, and he would have no reason to fear conviction on a more

serious offense. Nevertheless, Plaintiff brings claims against Defendants

pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging that Defendants

conspired to deprive him of his right to a fair trial. In response Defendants

filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

arguing that Plaintiff's claims fail as a matter of law.

Rule 12(b)(6) permits the court to dismiss a complaint if it fails to state

a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In

determining whether a complaint states a claim for relief, a court must accept

the factual allegations in the complaint as true, Bell Atlantic Corp. v.

1 Plaintiff also claims damages based on the inclusion of the term

“nenetration” in his presentence report, but Plaintiff has not been sentenced

yet so that argument is not ripe.

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Twombly, 550 U.S. 544, 555 (2007), and accept “all reasonabie inferences

that can be drawn from them after construing them in the light most favorable

to the non-movant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). However, a court is not required to accept legal

conclusions or “a formulaic recitation of the elements of a cause of action.”

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals

of the elements of a cause of action, supported by mere conclusory

statements, do not suffice’).

Based on this standard Judge Bloom found and the court agrees

Plaintiff's claims are fatally flawed in several ways. First the Commonwealth

and OAG are entitled to Eleventh Amendment immunity. See Seminole Tribe

v. Florida, 517 U.S. 44, 54 (1996) (A state’s immunity exists as a matter of

law unless it is waived or abrogated by Congress.) Congress has not waived

the Commonwealth’s immunity on the claims raised here and OAG is an

agency of the Commonwealth. Plaintiff argues in his objection to Judge

Bloom’s report that the Commonwealth and OAG can at least be sued for

injunctive relief based on their officers and agents’ infractions under §1983.

But it is well established that a state and its agencies are not “persons” for

purposes of §1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

(1989). Moreover, they are “immune from suit in a federal court without

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regard to the nature of the relief sought.” C.H. v. Oliva, 226 F.3d 198, (3d

Cir.2000) (en banc) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 100-101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). Thus, all claims

against the Commonwealth and OAG fail as matter of law regardless of

whether they seek monetary or injunctive relief.

Second Plaintiff's Claims are barred by Heck v. Humphrey. It is well

established that “[n]o cause of action exists under §1983 for ‘harm caused

by actions whose unlawfulness would render a conviction or sentence

invalid’ or would ‘necessarily imply the invalidity of the conviction, unless the

conviction or sentence has been reversed, vacated, expunged, or otherwise

favorably terminated.” Ortiz v. New Jersey State Police, 747 F. App’x 73, 77

(3d Cir. 2018) (quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)).

Plaintiff argues in his objection that his case is unique because Defendants’

alleged illegal acts forced him to plead guilty. Additionally, he claims that he

is not collaterally attacking his conviction, but merely seeking an injunction

to stop Defendants from perpetrating similar misconduct against other

citizens. Nonetheless these arguments do not change the fact Plaintiff plead

guilty and is awaiting sentencing for sexual exploitation of children. Since

Plaintiff cannot show his conviction has been favorably terminated, all §1983

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claims challenging Plaintiffs conviction, regardless of the relief sought, fail

as a matter of law.

Third, even if Plaintiff's §1983 claims were not barred by Heck, Plaintiff

fails to state a claim under §1983 for malicious prosecution. To state a claim

for malicious prosecution, Plaintiff must allege facts to establish that “(1) the

defendant initiated a criminal proceeding; (2) the criminal proceeding ended

in the plaintiff's 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 a deprivation

of liberty[.]” Thomas v. City of Phila., 290 F. Supp. 3d 371, 379 (E.D. Pa.

2018) (quoting Halsey v. Pfeiffer, 750 F.3d 273, 296-97 (3d Cir. 2014)

(citations omitted)). Plaintiff, who does not dispute he possessed videos

showing him inappropriately touching a minor child’s genitalia and was

indicated by a grand jury, cannot establish that authorities lacked probable

cause to charge him with sexual exploitation of children. See Gatter v.

Zappile, 67 F. Supp. 2d 515, 519 (E.D. Pa. 1999) (citing Rose v. Bartle, 871

F.2d 331, 353 (3d Cir. 1989)). (An indictment by a grand jury “is affirmative

evidence of probable cause.”) Thus, Plaintiff's §1983 malicious prosecution

claim fails as a matter of law.

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Fourth, Plaintiff fails to state a claim for conspiracy under either §1985

or §1986. Specifically, Plaintiff fails to make any allegation that there was a

meeting of the minds among Defendants to deprive him of a constitutional

right, which is a prerequisite to a civil conspiracy claim. See Startzell v. City

of Phila., Pennsylvania, 533 F. 3d 183, 205 (3d Cir. 2008). Both in his

amended complaint and his objection to this report Plaintiff offers only

speculations and bald legal conclusions about Defendants conspiring to

place false information in their reports and withhold exculpatory information

from him. Mere allegations that the Defendants individually knew of Plaintiff's

creation of child pornography videos and his criminal investigation is not

sufficient to state a claim for conspiracy. See In re Asbestos School Litig., 46

F.3d 1284, 1292 (3d Cir. 1994) (“[Ujnder the law of Pennsylvania...

conscious parallelism is not sufficient to establish either a civil conspiracy or

a concerted action’).

Likewise, Plaintiff's complaint is devoid of any facts to suggest

Defendants harbored a discriminatory animus toward him based on race or

another protected class, which is a prerequisite for a claim under §1985(3).

See Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). Plaintiff argues in his

objection to Judge Bloom’s report that Defendants were “discriminative”

because making child pornography is a “hate crime.” Even if Plaintiff was

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charged with a hate crime, which he was not, that fact alone would not place

Plaintiff, the perpetrator of that alleged hate crime, in a protected class.

Regardless Plaintiff cannot claim that OAG agents conspired with the

Commonwealth because “a[n] [] entity cannot conspire with one who acts as

its agents.” Rife v. Borough of Dauphin, 625 F. Supp. 2d 212, 221-22 (M.D.

Pa. 2008) (citations omitted). Thus, Plaintiffs conspiracy claims fail as a

matter of law under §1985 and in turn under §1986 because the latter only

arises from a failure to prevent conspiracies under the former.

Fifth, Plaintiff fails to state a claim under the Eighth Amendment.

Plaintiff claims that Defendants subjected him to excessive bail aind in turn

cruel and unusual punishment after he was arraigned on state charges. Yet,

Defendants, who merely investigated Plaintiff, did not set his bail. See James

v. York Cnty. Police Dep’t, 160 F. App’x 126, 133 (3d Cir. 2005) (citing Pa.

R. Crim. P. 120) (“[I]n Pennsylvania, the district justice, not the police officers,

set bail.”). While the amended complaint provides no facts on which the court

could infer Plaintiff's bail was excessive, Plaintiff claims in his objection that

Defendants’ false accusation led the district justice to impose bail of

$150,000. Still, Plaintiff concedes in his objection that he’s not challenging

that amount as excessive. He only challenges Defendants’ role in setting his

bail. Either way Defendants are not vicariously liable for the bail imposed by

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the district justice. Thus, Plaintiffs Eighth Amendment claim fails as a matter

of law.

Sixth and finally, Plaintiff cannot request relief in the form a criminal

investigation and prosecution of defendants. “[F]ederal district courts .. .

cannot initiate criminal prosecutions.” Simmons v. Roxbury Police Deptt,

2017 WL 5188060, at *3 (D.N.J. Nov. 9, 2017) (citing United States v.

Santtini, 963 F. 2d 585, 595 (3d Cir. 1992)). Thus, even if Plaintiff's claims

did not all fail as a matter of law, which they all do, Plaintiff could not obtain

relief in the form of a criminal investigation or prosecution of Defendants.

Given the fundamental flaws with Plaintiff's amended complaint, Judge

Bloom found that the amended complaint cannot be cured by further

amendments and should be dismissed with prejudice. In his objection to

Judge Bloom's report, Plaintiff recognizes that he has made and learned

from mistakes in his prior pleadings. He argues he can fix these mistakes if

given leave to amend. However, the court agrees with Judge Bloom. The

aforementioned flaws in Plaintiffs complaint are so fundamental that they

cannot be cured by further amendments.

Therefore, Judge Bloom’s Report and Recommendation will

ADOPTED IN ITS ENTIRETY and Plaintiff's objections thereto will be

OVERULED. Defendants’ motion to dismiss will be GRANTED and Plaintiff's

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amended complaint will be DISMISSED with prejudice. Since Plaintiff's

amended complaint will be dismissed with prejudice, his motion for

preliminary injunction will also be DISMISSSED as moot.

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AU aN E. MANNION

United States District Judge

DATE: December 12, 2023

23-0068-01

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