Shaffer v. Bloom

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| UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

Justin Eric Shaffer,

Plaintiff CIVIL ACTION NO. 1:23-cv-676

V. (JUDGE MANNION)

Daryl Bloom, Carlo Marchioli,

John C. Gurganus, Amber Porter :

Wilson, Adam Ives, John L.

Richards, Aaron Meyer, and Paul :

Downey,

Defendants, □

MEMORANDUM

Magistrate Judge Joseph Saporito, Jr., has issued a Report and

Recommendation, (Doc. 43), recommending that Defendants’ motions to

dismiss, (Doc. 20; Doc. 28), be granted and Plaintiffs Amended Complaint,

(Doc. 8), dismissed. Plaintiff has filed a timely objection to the Report. (Doc.

44).

The first of these motions to dismiss was filed by Defendant John L.

Richards, (Dac. 20), and the second by Defendants Diaryl Bloom, Carlo

Marchioli, John Gurganus, Adam Ives, Amber Porter Wilson, Paul Downey,

and Aaron Meyer (the “Federal Defendants”). (Doc. 28). Defendant Richards

is an officer of the Pennsylvania Game Commission. Defendant Bloom, now

a United States Magistrate Judge, was an Assistant United States Attorney

at the time of the alleged events. Defendant Marchioli is an Assistant United

States Attorney. Defendant Gurganus is First Assistant United States

Attorney. The Complaint alleges that Defendants Wilson and Ives are FBI

agents and that Defendants Meyer and Downey are officers of the

Department of Defense.

I. BACKGROUND

Plaintiff filed his original compliant in April 2023. (Doc. 1). He filed an

Amended complaint that June. (Doc. 8). He then filed a motion to further

amend his complaint, (Doc. 11), which was denied because it sought a

piecemeal amendment. (Doc. 13). The court granted Plaintiff leave to file a

complete second amended complaint and advised that if he did not do so,

his first amended complaint, (Doc. 8), would be treated as the operative

complaint. (Doc. 13). Plaintiff has not filed a second amended complaint, so

his first amended complaint must be treated as the operative complaint. “In

general, an amended pleading supersedes the original pleading and renders

the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82

(3d Cir. 2019).

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The Amended Complaint alleges:

Under USC 18, section 242, Deprivation of Rights and Due

Process were committed by DCNR, John L. Richards and Paul

Downey and Aaron Meyer, the Management of Department of

Defense (e.g. NSA Police Mechanicsburg, PA). During Illicit

conduct and interview/interrogation scheduled on 9/13/2021,

“Kalkines Warning” was Not provided and invasion of privacy

was committed by DCNR, PA State Police liason Paul Downey,

and FBI, Amber Porter Wilson. Lack of cooperation with unlawful

fishing expedition led me to believe my legit police officer position

and my continued federal law enforcement work at federal level

could be put at stake. Otherwise, shall this unlawful interview

been encountered off work environment/place, my 4, 5, 6,

24 and the amendments, would have been put in place

immediately, with Esquire, from Public Defenders and my known

Bill of Rights would've been in place immediately as the recorded

tape of 9/13/2021 will indicate/stipulate.

(Doc. 8 at 1-2).

The Complaint brings claims under Bivens v. Six Unknown Named

Federal Narcotics Agents, 403 U.S. 388 (1971) and 18 U.S.C. §242. (Doc. 8

at 2). Because it appears to charge a state official with violating Plaintiff's

constitutional rights, we construe the complaint as bringing claims under 42

U.S.C. §1983 as well.

His prayer for relief also charges Defendants with “providing false

materials made knowingly or by reckless disregard for the truth (100%

accurate info,” executing a “false misleading affidavit,” and conducting an

“unlawful FBI investigation.” (Doc. 8 at 2). It further mentions “assault and

battery committed by CSO’s of Middle [District] of PA Marshal's Office that

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were ordered by Daryl Bloom to force me out of public facility, of Federal

Courthouse, due to his unwillingness to cooperate with my evidence

gathering.” (Id.).

From what the court can gather, based on Plaintiff's other filings, (Doc.

1; Doc. 44) the central facts are these. In June 2021, Plaintiff was at a

shooting range on Pennsylvania state game lands. Defendant Richards, a

game warden, approached him and asked for his permit. Plaintiff told

Richards that he did not have one, and Richards asked for his identification.

Plaintiff, then an employee of the Federal Bureau of Prisons at the United

States Penitentiary at Allenwood, showed Richards his BOP card and

driver's license. Richards permitted him to stay.

But having mistaken Plaintiff's BOP card for a Federal Bureau of

Investigation card, Richards checked Plaintiffs affiliation with the FBI.

Finding none, Richards reported the encounter to federal officials, and an

investigation was initiated. The FBI conducted an interview of Plaintiff at his

place of employment. This interview led to the disclosure of certain disability-

related health information with Plaintiff's employer, and these events then

led to Plaintiff's termination.‘

‘In his original complaint, Plaintiff claimed that he was “terminated for

disability discrimination.” (Doc. 1 at 9).

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| ll. LEGAL STANDARD

| When objections are made 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 Cir. 2011).

Pro se filings such as Plaintiffs must be construed liberally. Vogt v.

Weitzel, 8 F.4th 182, 185 (3d Cir. 2021). That means the court should “remain

flexible,” and “apply the relevant legal principle even when the complaint has

failed to name it.” /d. It does not mean, however, that pro se litigants may

“flout procedural rules—they must abide by the same rules that apply to all

other litigants.” /d. So “pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marvna, Inc., 704 F.3d

239, 245 (3d Cir. 2013).

Rule 8 of the Federal Rules of Civil Procedure requires that a claim for

relief contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule does not require

“detailed factual allegations,” but “labels and conclusions” or “naked

assertions” without “further factual enhancement” are not enough. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). Instead, “to survive a mation to dismiss,

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a complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” /qba/, 556 U.S. at 678.

ili. DISCUSSION

a. Report and Recommendation

The Report explains that 18 U.S.C. 242, a criminal statute, does not

afford a private civil cause of action. It next notes that although Plaintiff

alleges that Defendants Downey and Wilson did not provide him with a

Kalkines? warning, he does not allege that he was compelled to make

incriminating statements, that he was terminated for refusing to do so, or that

any statements were used against him in a later criminal prosecution.

As to his Fifth and Fourteenth Amendment Due Process claims, the

Report explains that Plaintiff does not allege facts suggesting that he was

deprived of a protected liberty or property interest. If further notes, with

respect to Plaintiffs constitutional claims against federal officials, that federal

courts are hesitant to extend the implied cause of action recognized in Bivens

to new contexts. See Ziglar v. Abbasi, 582 U.S. 120, 133 (2017).

2 This would be a warning that his answers during an administrative

investigatory proceeding could not be used against him in later criminal

prosecution. See Kalkines v. United States, 473 F.2d 1391, 1393 (U.S. Ct.

Cl. 1973); Garrity v. New Jersey, 385 U.S. 493 (1967).

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Construing the Complaint to assert a claim of malicious prosecution,

the Report observes that Plaintiff has not alleged that any criminal

prosecution was initiated against him, as required for such a claim. See

Johnson v. Knorr, 477 F,3d 75, 81-81 (3d Cir. 2007). And regarding his

Fourth Amendment claims more generally, it observes that Plaintiff does not

allege facts suggesting that he was subjected to a search or seizure.

Because the Complaint refers to the Second, Sixth, and Eighth

Amendments also, the Report notes that the Complaint lacks factual

allegations suggesting infringement of these rights. The Second Amendment

protects individuals’ self-defense right to “keep and bear Arms.” U.S. Const.

amend. Il; McDonald v. City of Chicago, 561 U.S. 742, 749. But Plaintiff has

not alleged that any government official interfered with this right. The Sixth

and Eighth Amendments protect rights in the context of criminal prosecution

and punishment, respectively, U.S. Const. amends. VI, VIII, but there is no

allegation of criminal proceedings here.

And as the Complaint mentions the elements of a defamation claim,

the Report explains that Defendants enjoy immunity from state-law tort

claims. Osborn v. Haley, 549 U.S. 225, 229 (2007); 1 Pa. Cons. Stat. §2310;

Boone v. Pennsylvania Office of Vocational Rehabilitation, 373 F. Supp. 2d

484, 494-95 (M.D. Pa. 2005).

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Finally, the Report concludes that, based on the allegations in

Plaintiffs Complaint and his other submissions, any further amendment

would be futile. It therefore recommends that Plaintiff's claims be dismissed

without leave to amend.

b. Plaintiff's Objections

The Federal Rules of Civil Procedure instruct that objections to a

magistrate judge’s report and recommendation must be “specific.” Fed. R.

Civ. P. 72(b)(2). Filing a written objection triggers de novo review, but only

of “those portions of the report or specified proposed findings or

recommendations to which objections are made.” 28 U.S.C. §636(b)(1).

Plaintiff has submitted a timely, thirty-three-page document entitled

“Objections to Report and Recommendation.” (Doc. 44). The court has

reviewed this filing carefully but has struggled to find argument specifically

responding to the grounds for the Report’s conclusions.

Plaintiffs Objections largely neglect the Report. He does question the

judiciary’s intentions and competency, (Doc. 44 at 3, 9-10, 19, 24), but does

not explain how he thinks the Report erred in its legal analysis. His filing

instead consists of a diffuse and wandering stream of legal precepts tied

loosely to vague factual averments. He makes passing reference to

numerous transgressions: for example, Plaintiff seems to assert that he was

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subjected to an unlawful detainment, (id. at 2, 5, 8), invasions of privacy, (id.

5,10, 14), defamation, (id. 5, 7, 10-12, 14, 17, 19, 23-24, 30), discrimination,

(id. 6-7, 9, 11-13, 17-18, 23, 25-26, 27-28), an “illicit and harassing

investigation,” (id. 7-8, 16, 20, 22, 25, 26, 28), extortion, (id. 7, 24),

unreasonable searches and seizures, (id. 8-10, 12, 22-23, 26-27, 31),

retaliation, (id. 17, 20, 25-26), a hostile work environment, (id. 18, 25),

Miranda violations, (id. 7, 24), and other constitutional violations. He further

seems to allege that officials acted both under color of law and outside the

scope of their duties, (id. 9, 11-12, 13, 16, 19), fabricated evidence, (id. 9,

11, 14), and engaged in a “fishing scheme” and unlawful investigation. (id. 6,

17, 26).

But Plaintiff's Amended Complaint does not allege factual matter

sufficient to state a plausible claim under any of these theories.

Plaintiff takes repeated issue with the treatment of his requests for the

issuance of subpoenas. (Doc. 44 at 2, 6-8, 10, 18). Over the course of this

litigation, he has filed multiple subpoena forms, (Doc. 5; Doc. 17-1; Doc. 33-

1; Doc. 34-1; Doc. 35-1; Doc. 36-1; Doc. 44-1), seeking to compel discovery

from the FBI, the Department of Justice, the BOP, the Department of the

Navy, the Pennsylvania Game Commission, and the Pennsylvania State

Police. Magistrate Judge Saporito denied Plaintiff's motions for the issuance

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of subpoenas. (Doc. 37; Doc. 40; Doc. 42). A district judge may only

reconsider these pretrial orders if “it has been shown that the magistrate

judge’s order is clearly erroneous or contrary to law.” 28 U.S.C.

§636(b)(1)(A). It has not been shown here that Judge Saporito’s orders are

clearly erroneous or contrary to law.

Plaintiff also suggests that Defendants’ immunity defenses have been

“voided.” (Doc. 44 at 2-3, 9, 11, 14, 16, 29). He contends that Defendant

Richards’s immunity is voided by “malfeasance criminal

harassment/defamation/omission statements”; (id. at 2), his “providing an

expired inaccurate report, that Invaded my Privacy Rights, Defamed my

character, and lead to an unlawful Search (4'" Amendment Violation) and

then a continuous omission of fabricated cover story to attempt scapegoating

cover-up of his illicit and unlawful abuse of power and his duty (i.e., Outside

his Scope of Practice),” (id. at 9); “illicit POLICE Harassment,” (id. at 11); and

“Unlawful Police Misconduct.” (Id. at 14). The Report only based its

recommendation on immunity with regard to Plaintiffs defamation claim.

(Doc. 43 at 11).

Plaintiff makes no argument as to why any Federal Defendant’s

immunity is void. As to Defendant Richards, the Amended Complaint makes

no specific allegations against him. He is mentioned only in the caption and

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in the first sentence of Plaintiff's Statement of Claim, which avers that

“lujnder U.S.C. 18, section 242, Deprivation and Due Process were

committed by ... John L. Richards.” (Doc. 8 at 2). This conclusory assertion

is insufficient to state a claim against Defendant Richards.

Plaintiff does not appear to specifically object to the Report's other

grounds for dismissal. And as the Report explains, except for his allegation

that Defendants Downey and Wilson conducted an “interview/interrogation’”

and that Defendant Bloom ordered court security officers to eject him from a

federal courthouse, the Amended Complaint “contains no factual allegations

whatsoever regarding any conduct by any of the named defendants.” (Doc.

43 at 6).

“[I]n the event a complaint fails to state a claim, unless amendment

would be futile, the District Court must give a plaintiff the opportunity to

amend [his] complaint.” Phillips v. County of Allegheny, 515 F.3d 224, 228

(3d Cir. 2008). The court agrees with the Report and concludes, based on

the allegations of the Amended Complaint and Plaintiff's other filings, that

any further amendment would be futile.

Specifically, no filings contain specific factual allegations against

Defendants Marchioli, Meyer, or lves. The original complaint alleged that

Defendant Gurganus “delegated the investigation to” Marchioli and Bloom.

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(Doc. 1 at 7). Plaintiff also alleges that on an unspecified date, Defendant

Bloom ordered him ejected from the courthouse. (Doc. 8 at 2). Further

amendment of these allegations would be futile, because these federal

officials acting in their official capacities would be immune from state-law tort

claims, Osborn, 549 U.S. at 229 and an implied cause of action against a

federal official for constitutional violations is recognized only in strictly limited

contexts. See Egbert v. Boule, 596 U.S. 482, 490-93 (2022).

The Amended Complaint alleges that Defendants Downey and Wilson

conducted an “interview/interrogation” of him on behalf of the FBI, (Doc. 8 at

2), and Plaintiff repeatedly contends that they thereby violated his rights

under the Fourth and Fifth Amendments. But again, as Defendants Downey

and Wilson are federal officials, who were allegedly acting in that capacity,

no implied cause of action would lie against them for alleged constitutional

violations. See Egbert, 496 U.S. at 490-93.

Finally, amendment of Plaintiffs claims against Defendant Richairds

would also be futile. State officials “acting within the scope of their duties”

enjoy immunity from suit “except as the General Assembly shaall specifically

waive the immunity.” 1 Pa. Cons. Stat. §2310. The General Assembly has

waived immunity for claims of damages caused by (1) Vehicle liability; (2)

Medial-professional liability; (3) Care, custody, or control of personal

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property, (4) dangerous conditions on Commonwealth real-estate; (5)

Potholes and other dangerous conditions; (6) Care, custody, or control of

animals; (7) Liquor store sales; (8) National Guard activities; and (9) Toxoids

and vaccines. 42 Pa. Cons. Stat. §8522(b). Plaintiff's defamation claim does

not fall in one of these categories.

Plaintiff asserts that Defendant Richards was acting outside the scope

of his duties, (Doc. 44 at 9, 11-13), because Pennsylvania Game

Commission officers “are to stay in the woods.” (Id. at 11). “[A]n employee’s

conduct falls within the scope of their employment if: (a) it is of the kind he is

employed to perform; (b) it occurs substantially within authorized time and

space limits; (c) it is actuated, at least in part, by a purpose to serve the

master; and (qd) if force is intentionally used by the servant against another,

the use of force is not unexpected by the master.” McGuire v. City of

Pittsburgh, 25 A.3d 887, 892 (Pa. 2022) (quoting Restatement (Second) of

Agency §228). “[C]onduct of a servant is not within the scope of employment

if it is different in kind from that authorized, far beyond the authorized time or

space limits, or too little actuated by a purpose to serve the master.” /d.

(quoting §2228(2)). But “the mere existence of a personal motivation” does

not remove an act from the scope of employment, and “even unauthorized

acts may be within the scope of employment ‘if they are clearly incidental to

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the master’s business.” Brumfield v. Sanders, 232 F.3d 376, 380-81 (3d Cir.

2000) (first citing Eisenberg v. Gagnon, 766 F.2d 770, 783 (3d Cir. 1985),

and then citing Shuman Estate v. Weber, 419 A.2d 169 (Pa. Super. Ct.

1980)).

Enforcement officers of the Pennsylvania Game Commission have the

duty to “[c]onduct administrative inspections of persons, licenses and

permits.” 34 Pa. Cons. Stat. §901(a)(8). They also have the duty, when

acting within the scope of their employment, to “pursue, apprehend or arrest

any individual suspected of violating any provision of Title 18 (relating to

crimes and offenses) or any other offense classified as a misdemeanor or

felony.” §901(a)(17). It is a misdemeanor to “furnish[] law enforcement

authorities with false information about [one’s] identify after being informed

by a law enforcement officer who is in uniform or who has identified himself

as a law enforcement officer that the person is the subject of an official

investigation of a violation of law.” 18 Pa. Cons. Stat. §4914/(a).

As_ alleged in Plaintiffs original complaint, Defendant Richards

_approached him on statte game lands to inspect his permit. Because Plaintiff

had no permit, Defendant asked for his identification. Believing that Plaintiff

had presented an FBI card, and having confirmed that Plaintiff was not

affiliated with the FBI, Defendant pursued investigation of this suspected

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offense by notifying federal officials. These actions, even if mistaken, would

have been within the scope of his duties. Defendant Richards would

therefore be immune from Plaintiff's defamation or other tort claims. And,

contrary to Plaintiffs contentions, Defendant’s immunity is not “voided”

merely because he is alleged to have acted wrongfully. Immunity shields

state officials from exactly that: civil claims that they acted wrongfully in

executing their official duties.

IV. CONCLUSION

The court has reviewed the Report and Recommendation of Magistrate

Judge Saporito and agrees with its conclusions. It will therefore adopt the

Report as the decision of the court. Plaintiff's Objections to the Report will be

overruled. Defendants’ motions to dismiss will be granted, and Plaintiff's

Amended Complaint will be dismissed without leave to amend. Plaintiffs

motion to issue a subpoena, (Doc. 45), will be dismissed as moot. An

appropriate order will issue.

United‘States District Judge

DATE: March 1, 2024

23-676-01

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