SAALIH v. PITTSBURGH POLICE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ABDUL HAKEEM SAALIH, )

)

Plaintiff, ) Civil Action No. 2:24-626

v. ) Judge Cathy Bissoon

)

PITTSBURGH POLICE, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

I. MEMORANDUM

For the reasons that follow, the Motions to Dismiss Plaintiff’s pro se Complaint filed by

Defendants L’Asilo Daycare and Katherine Smith (“Daycare Defendants”) (Doc. 20); Allegheny

County District Attorney’s Office and Chris Avetta (“DA Defendants”)1 (Doc. 28); and

Pittsburgh Police (Doc. 30), will be granted. Additionally, all remaining claims against

Defendants Pittsburgh Police Review Board, Citizens Police Review Board, L’Asilo Daycare

Employees and Carmela Puca, will be dismissed with prejudice pursuant to 28 U.S.C.

§ 1915(e)(2)(B). The designation of the document Plaintiff filed at Doc. 43 as a “Motion” will

be stricken.

A. Background

Viewing the allegations in the Complaint as true, and taking into consideration Plaintiff’s

1 Plaintiff’s Complaint identifies Defendant Chris Avetta as a daycare employee. Defendant

L’Asilo, however, has stated it has no record of an employee with this or any similar name. The

District Attorney’s Office, on the other hand, has identified Defendant Avetta as a former Deputy

District Attorney who was a county prosecutor at the time relevant to Plaintiff’s Complaint. See

Br. Supp. DA Defs.’ Motion (Doc. 29) at 1; Daycare Defs.’ Motion (Doc. 20) at 2, n.3. Counsel

for the DA’s Office represents Defendant Avetta and has filed a joint motion to dismiss on behalf

of them. See Doc. 28. Consistent with these representations, the Court will treat Mr. Avetta as a

DA Defendant. To the extent Plaintiff persists in identifying Mr. Avetta as a daycare employee,

the claims against him fail for the additional reasons set forth in Section I.B.1, infra.

pro se status, this case asserts Section 1983 civil rights violations against Defendants arising out

of an incident that occurred outside Defendant L’Asilo Daycare. Specifically, Plaintiff alleges

that, on or about April 14, 2023, employees of the Daycare asked him to “keep moving” from the

sidewalk in front of their premises and then called 911 when he refused. See Doc. 1

(Complaint). Subsequently, the police assigned to respond to the call “added the false charges to

violate [Plaintiff’s] rights to freedom of access to public property and freedom of assembly.” Id.

Section III.A. Plaintiff claims that the false charges included open lewdness and disorderly

conduct, which the common pleas court judge ultimately dismissed. See id. Plaintiff’s Section

1983 claim asserts discrimination, racial profiling, defamation of character, violation of religious

liberty and peaceful assembly, Islamophobia and malicious prosecution against Defendants. See

id. Section II.B.2 The Complaint seeks damages for pain and suffering and emotional distress.

Id. Sections IV, V.

B. Pending Motions to Dismiss

1. Daycare Defendants’ Motion to Dismiss (Doc. 20)

The Complaint must be dismissed against the Daycare Defendants because Plaintiff’s

allegations, taken as true, fail to establish that the Daycare Defendants were state actors within

the meaning of Section 1983. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). The sum total of Plaintiff’s allegations against the Daycare Defendants are that: a daycare

employee called 911; the criminal affidavit against him falsely indicated that the daycare

employees saw him committing the charged crimes; and, when the employees saw Plaintiff

2 Although the Complaint also indicates that Plaintiff is bringing a Bivens claim against federal

officials, no federal officials are named as defendants or referenced in the body of the Complaint.

See Complaint, Section II.A. Accordingly, a Bivens claim cannot proceed as a matter of law.

See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The purpose of Bivens is to deter

individual federal officers from committing constitutional violations.”).

again, they “ran inside with the children” because their names had been used to falsely charge

him. Complaint Section III. There is no allegation that the Daycare is a public entity, and public

records indicate that it is a private organization. See Daycare Defs.’ Mot. to Dismiss (Doc. 20),

Ex. A.

Typically, non-governmental parties are not state actors subject to Section 1983 claims.

See Mateen v. Am. Pres. Lines, No. CIV.A. 12-6849 CCC, 2013 WL 3964808, at *3 (D.N.J. July

13, 2013). Although a narrow exception exists where the conduct of a private party may be

“fairly attributable to the state, . . . [s]uch circumstances are rare,” and the plaintiff bears the

burden of proving this exception. Id. (citations omitted). An action taken by a private party is

“not converted into one under color of state law merely by some tenuous connection to state

action.” Groman v. Twp. of Manalapan, 47 F.3d 628, 639 (3d Cir. 1995). That is, “the issue is

not whether the state was involved in some way in the relevant events, but whether the action

taken can be fairly attributable to the state itself.” Id.

Here, the Complaint asserts no facts whatsoever, let alone sufficient facts, to indicate that

the Daycare Defendants’ alleged actions are “fairly attributable to the state” or otherwise

constitute state action. Even accepting Plaintiff’s allegations as true, it is well-established that

private individuals do not become state actors under Section 1983 simply by accusing someone

of a crime, even if those accusations are knowingly false and/or lead to the initiation of criminal

proceedings. See Daycare Defs.’ Br. Supp. (Doc. 21) at 5-6 and cases cited therein.3 Because

Plaintiff has not, and cannot, plausibly allege that the Daycare Defendants were state actors

within the meaning of the law, amendment would be futile, and the Daycare Defendants’ Motion

3 It likewise is immaterial to the state action analysis whether the daycare holds any state-issued

licenses or is subject to state-promulgated regulations. See Mateen, 2013 WL 3964808, at *4.

to Dismiss Plaintiff’s claims against them will be granted, with prejudice.4

2. DA Defendants’ Motion to Dismiss (Doc. 28)

As an initial matter, Plaintiff’s Complaint against the DA Defendants must be dismissed

because it contains insufficient allegations against them. The Complaint’s only averment even

remotely pertinent to the DA’s Office is its assertion that the office “pushed through” charges

that a “corrupt police officer” filed against Plaintiff without asking “a few basic questions,” and

that the charges ultimately were dismissed by the judge. Compl. Section II.D. Additionally, as

previously discussed, the Complaint fails to allege any facts specific to Defendant Avetta in his

capacity as a former Deputy District Attorney. See id. Such bare-bones allegations simply

cannot survive a 12(b)(6) motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (“[T]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”).

To the extent Plaintiff takes issue with DDA Avetta’s conduct, or the conduct of any

other individual prosecutor, in connection with the pursuit of the criminal charges at issue, the

doctrine of prosecutorial immunity bars his claims in any event. As the DA Defendants explain,

“[t]he decision to initiate a prosecution is at the core of a prosecutor’s judicial role,” and, thus,

“[a] prosecutor is absolutely immune when making this decision, even where he acts without a

good faith belief that any wrongdoing has occurred.” DA Defs.’ Br. Supp. (Doc. 29) at 6-7

(quoting Kulwicki v. Dawson, 969 F.2d 1454, 1465 (3d Cir. 1992)); see also Buckley v.

4 The Daycare Defendants correctly note in their Reply (Doc. 32) that Plaintiff’s Opposition

Brief (Doc. 23) impermissibly relies on numerous facts not alleged in his Complaint. “It is

axiomatic, however, ‘that the comp[laint] may not be amended by the briefs in opposition to a

motion to dismiss.’” Barosh v. Ramirez, No. 1:19-CV-322, 2020 WL 416844, at *5 (M.D. Pa.

Jan. 27, 2020) (quoting Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d

Cir. 1988)). Even if the allegations set forth in Plaintiff's opposition papers were properly before

the Court, they are insufficient to plausibly suggest state action or otherwise overcome the

Daycare Defendants’ grounds for dismissal. See id.

Fitzsimmons, 509 U.S. 259, 273 (1993) (immunity extends to all “acts undertaken by a

prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in

the course of his role as an advocate for the State”). Absolute prosecutorial immunity applies to

protected conduct even where the prosecutor brings groundless charges, utilizes false witness

testimony or acts in concert with others. See, e.g., Burns v. Reed, 500 U.S. 478, 490 (1991);

Ireland v. McDaniel, 10-cv-387, 2011 WL 860390, at **9-10 (W.D. Pa. Jan. 27), report and

recommendation adopted, 2011 WL 860346 (W.D. Pa. Mar. 9, 2011); see also Ernst v. Child and

Youth Servs. of Chester Cnty., 108 F.3d 486, 502 (3d Cir. 1997) (prosecutor’s subjective state of

mind is irrelevant).

Because the Complaint’s allegations against the individual prosecutor(s) in Plaintiff’s

case concern the decision to prosecute him and the handling of his case once that decision was

made, the prosecution is immune from liability for those actions. Accordingly, the motion to

dismiss such claims will be granted.

Plaintiff also has failed to state a plausible Monell claim against the District Attorney’s

Office. As set forth above, the Complaint’s allegations against the DA’s Office are threadbare at

best. Moreover, it is clear from Plaintiff’s opposition brief that he conflates the DA’s Office

with the behavior of its employees. See Doc. 33. It is well-established, however, that “a

municipality cannot be held liable under § 1983 on a respondeat superior theory.” Monell v.

Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978); see also Connick v.

Thompson, 563 U.S. 51, 60 (2011). Instead, a Plaintiff seeking to impose liability on a

municipality under Section 1983 must “identify a municipal ‘policy’ or ‘custom’ that caused the

plaintiff's injury.” Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403

(1997). Here, the pleading fails to identify a DA’s Office policy or custom that allegedly caused

Plaintiff’s alleged injuries and likewise is devoid of facts suggesting that those injuries were

caused by a training failure or inadequacy. For these additional reasons, Plaintiff's claims

against the District Attorney’s Office will be dismissed.

3. Pittsburgh Police Motion to Dismiss (Doc. 30)

The Motion to Dismiss filed by Defendant Pittsburgh Police will be granted, with

prejudice, because the department is not a proper party subject to suit under Section 1983. As

courts within this circuit have explained, “a police department is a sub-unit of the local

government and, as such, is merely a vehicle through which the municipality fulfills its policing

functions. Thus, while a municipality may be liable under § 1983, a police department, as a

mere sub-unit of the municipality, may not.” Smierciak v. City of Pittsburgh Police Dep't, No.

2:18-CV-00734-MJH, 2018 WL 6790312, at *5 (W.D. Pa. Dec. 26, 2018) (citation omitted)

(collecting cases); see also, e.g., Johnson v. City of Erie, Pa., 834 F. Supp. 873, 878-79 (W.D.

Pa. 1993); Mikhaeil v. Santos, 646 F. App'x 158, 163 (3d Cir. 2016). Even if liberally construed

as a claim against the municipality itself, the Complaint contains zero allegations that the City

filed false charges against Plaintiff pursuant to a municipal custom or policy sufficient to trigger

Monell liability.

C. Plaintiff’s Underlying Theories of Liability

Due to the Complaint’s numerous threshold deficiencies discussed above, the Court need

not address the adequacy of Plaintiff’s underlying theories of liability. The Court notes,

however, that, to the extent Plaintiff relies on a “malicious prosecution” theory, his claims fail

because he has not alleged, and – based on the factual scenario set forth in the Complaint and

Plaintiff’s responses in opposition – cannot establish, the fifth element of a malicious prosecution

cause of action, i.e., that he “suffered a deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding.” DiBella v. Borough of Beachwood, 407 F.3d

599, 601 (3d Cir. 2005). As the Court of Appeals clarified in DiBella, a party’s compelled

attendance at a trial or hearing – the only “deprivation” alleged in the instant Complaint – does

not satisfy this requirement. See id. at 603; see also id. (“The type of constitutional injury the

Fourth Amendment is intended to redress is the deprivation of liberty accompanying prosecution,

not prosecution itself.”); Basile v. Twp. of Smith, 752 F. Supp. 2d 643, 659 (W.D. Pa. 2010).

For the reasons set forth in the DA Defendant’s Brief in Support (Doc. 29), which the

Court adopts as sound, Plaintiff’s remaining theories of liability likewise are either inadequately

pleaded or are not recognized causes of action. See DA Defs.’ Br. Supp. (Doc. 29) at 9-11

(noting, inter alia, that the Complaint fails to identify Plaintiff’s race or any similarly-situated

individuals of a different race who were treated differently; that Section 1983 liability does not

include claims for defamation or slander; and that the Complaint makes only passing and

conclusory reference to other affronts such as interference with peaceful assembly, violations of

religious liberty and “Islamophobia”).

D. The Complaint Against All Remaining Defendants Must Be Dismissed Under

Section 1915(e).

Having been granted leave to proceed in forma pauperis (“IFP”), Plaintiff is subject to

the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 F. App’x 753, 755

(3d Cir. 2007) (“[T]he screening procedures set forth in [Section] 1915(e) apply to [IFP]

complaints filed by prisoners and non-prisoners alike.”) (citations omitted). Among other things,

the screening provisions require a court to dismiss an action that is frivolous or malicious or fails

to state a claim on which relief may be granted. El-Bey v. U.S., 619 F. App’x 53, 54 (3d Cir.

Oct. 13, 2015).

In this case, the sum total of Plaintiff’s substantive allegations against the remaining

Defendants – Carmella Puca, “L’Asilo Daycare Employees,” Pittsburgh Police Review Board

and Citizens Police Review Board – suffer many of the same, if not all, defects as the claims

against the Moving Defendants discussed above. First, Plaintiff has failed to state a plausible

claim against Defendant Puca because she was a private daycare employee and not a state actor

subject to Section 1983 liability. The generic catch-all “L’Asilo Daycare Employees,” in

addition to being impermissibly vague, suffers the same infirmity. Second, the Complaint fails

to levy any actionable allegations against the Police Review Board,5 and the Court can conceive

of none that would subject the Review Board to liability under any plausible construction of the

facts of this case. Accordingly, Plaintiff’s claims against these Defendants are dismissed with

prejudice.

E. Plaintiff’s Miscellaneous “Motion” (Doc. 43)

Plaintiff filed a document at ECF No. 43, that the Clerk’s Office captioned as a

“Renewed Motion to Enforce Judgment.” Upon closer examination, the document is more akin

to an opposition and/or reply brief in which Plaintiff appears to reiterate that his state criminal

proceeding and the instant civil rights lawsuit are two separate proceedings. He also he restates

his intent to assert herein a Section 1983 malicious prosecution claim related to that prior state

proceeding. See Doc. 43. Because this document is not in the nature of a motion, the Clerk’s

motion designation is stricken. The Court, however, has considered the contents of the

document in resolving the pending motions to dismiss.

5 Although the docket lists “Pittsburgh Police Review Board” and “Citizens Police Review

Board” as two separate parties, public records indicate that they are one in the same, and

properly identified as the City of Pittsburgh “Independent Citizen Police Review Board.” See

https://cprbpgh.org/; 6 Pittsburgh Code § 662.01. The only grievance the Complaint asserts

against the Review Board is that they “did not find that the Police did anything wrong.”

Complaint Section V.

II. ORDER

Consistent with the foregoing, the Motion to Dismiss (Doc. 20) filed by the Daycare

Defendants is GRANTED and the Complaint against the Daycare Defendants is DISMISSED

WITH PREJUDICE for the reasons stated in the Memorandum Opinion.

The Motions to Dismiss (Docs. 28, 30) filed by the DA Defendants and Defendant

Pittsburgh Police, respectively, are GRANTED WITHOUT PREJUDICE. Should Plaintiff

wish to attempt curative amendments, limited to these Defendants, his deadline for doing so is

March 31, 2025. Should Plaintiff amend, he must make last, best efforts to state viable claims,

because further opportunity for amendment will not be afforded. If Plaintiff elects not to amend,

he may file a notice on the docket, so indicating, to avoid additional delay. Defendants’ deadline

to answer or otherwise respond, if the pleadings are amended, is 14 days after the filing of the

amended complaint.

It is FURTHER ORDERED that any and all remaining claims against Defendants

Carmella Puca, L’Asilo Daycare Employees, Pittsburgh Police Review Board and Citizens

Police Review Board are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C.

§ 1915(e)(2)(B).

The designation of the document at ECF No. 43 as a motion is stricken as more fully

stated in the Memorandum Opinion.

IT IS SO ORDERED.

March 18, 2025 s/Cathy Bissoon

Cathy Bissoon

United States District Judge

cc (via ECF email notification):

Abdul Hakeem Saalih

All Counsel of Record