EDMONDS

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT A. EDMONDS, )

) Civil Action No. 22 – 653

Plaintiff, )

)

v. ) District Judge William S. Stickman

) Magistrate Judge Lisa Pupo Lenihan

ROSE A. SEMPLE and JOHN F. )

DISALLE, )

)

Defendants. )

REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the following reasons, it is respectfully recommended that Plaintiff’s Amended

Complaint (ECF No. 15) be dismissed with prejudice pursuant to 28 U.S.C. § 1915 (e)(2)(B)(iii)

with respect to his claims for damages against Defendant John F. DiSalle and § 1915(e)(2)(B)(ii)

with respect to Plaintiff’s request for injunctive relief against Defendant DiSalle. It is also

recommended that Plaintiff’s Amended Complaint be dismissed with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) with respect to his claims against Defendant Rose A. Semple. It is

further recommended that Plaintiff’s Motion for Temporary Restraining Order (ECF No. 6) be

denied as moot.

II. REPORT

Plaintiff Scott A. Edmonds (“Plaintiff”) is a pretrial detainee currently in custody at the

Washington County Correctional Facility in Washington, Pennsylvania.1 He initiated this action

by the filing of a Motion for Leave to Proceed in forma pauperis (ECF No. 1), which was

1 Plaintiff is awaiting trial for criminal homicide and tampering with evidence charges in case

CP-63-CR-0000833-2014 in the Court of Common Pleas of Washington County, Pennsylvania.

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granted on May 4, 2022, (ECF No. 4). Plaintiff has sued John F. DiSalle (“Judge DiSalle”), the

President Judge for the Washington County Court of Common Pleas and the judge presiding

over Plaintiff’s criminal case, and Rose A. Semple (“Attorney Semple”), his current court

appointed attorney from the Office of Conflict Counsel. He alleges that Defendants have denied

him a fair and unbiased trial, including conspiring to deny him his constitutional rights, and he

requests that the Court order Judge DiSalle to reinstate Plaintiff’s right to self-representation and

to stay Plaintiff’s criminal trial until this case has been fully adjudicated. See, generally, ECF

No. 15. For the following reasons, the undersigned recommends that Plaintiff’s Amended

Complaint be dismissed with prejudice.

A. Standard of Review

When a plaintiff has requested leave to proceed in forma pauperis, district courts must

review his allegations in accordance with 28 U.S.C. § 1915(e). Section 1915(e)(2) requires

federal courts to review complaints filed in forma pauperis and to dismiss, at any time, any

action that: “(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B).2

When determining whether an action has failed to state a claim for purposes of §

1915(e)(2)(B)(ii), the Court applies the same standard applied to motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6). D’Agostino v. CECOM RDEC, 436 F. App’x 70, 72

(3d Cir. 2011). That means that the Court must dismiss a complaint if it does not allege “enough

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

2 Dismissal under § 1915(e)(2) is “often made sua sponte prior to the issuance of process, so as to

spare prospective defendants the inconvenience and expense of answering such complaints.”

Neitzke v. Williams, 490 U.S. 319, 324 (1989).

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554, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In reviewing a plaintiff’s complaint, the court must accept all factual allegations in the

complaint as true and take them in the light most favorable to the plaintiff. Twombly, 550 U.S.

at 555-56; see also Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008).

“Factual allegations must be enough to raise a right to relief above a speculative level[.]” Id. at

555. The court need not accept inferences drawn by the plaintiff if they are unsupported by the

facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906

(3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations.

Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Additionally, a

civil rights claim “must contain specific allegations of fact which indicate a deprivation of

constitutional rights; allegations which are nothing more than broad, simple and conclusory

statements are insufficient to state a claim under § 1983.” Alfaro Motors, Inc. v. Ward, 814 F.2d

883, 887 (2d Cir. 1987).

Finally, a court must employ less stringent standards when considering pro se pleadings

than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972).

When presented with a pro se complaint, the court should construe the complaint liberally and

draw fair inferences from what is not alleged as well as from what is alleged. See Dluhos v.

Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a section 1983 action, the court must “apply the

applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v.

Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran Affairs, 165 F.3d

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244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this

is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently

alleges deprivation of any right secured by the Constitution.”) (citing Holder v. City of

Allentown, 987 F.2d 188, 194 (3d Cir. 1993)). Notwithstanding this liberality, pro se litigants

are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim.

See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v.

Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).

B. Discussion

1. Judge DiSalle

The Eleventh Amendment bars suit against Judge DiSalle to the extent he is being sued in

his official capacity as a judge for the Court of Common Pleas of Washington County,

Pennsylvania. In this regard, “a suit against a state official in his or her official capacity is not a

suit against the official but rather is a suit against the official’s office. As such, it is no different

from a suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)

(internal citation omitted). Here, a claim against Judge DiSalle in his official capacity is really a

claim against the court over which he presides; an entity of the Commonwealth of Pennsylvania

that is entitled to Eleventh Amendment immunity. See PA. CONST. Art. V, §§ 1, 7; 42 Pa. C.S. §

1511. See also Haybarger v. Lawrence County Adult Probation and Parole, 551 F.3d 193, 198

(3d Cir. 2008); Benn v. First Judicial Dist. of Pa., 426 F.3d 233 (3d Cir. 2005) (Holding that

Pennsylvania’s First Judicial District was “state entity” entitled to Eleventh Amendment

immunity); Callahan v. City of Philadelphia, 207 F.3d 668, 672 (3d Cir. 2000) (“All courts and

agencies of the unified judicial system . . . are part of ‘Commonwealth government’ and thus are

state rather than local agencies.”).

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Eleventh Amendment immunity may be lost only in one of two ways: (1) if the

Commonwealth waives its immunity; or (2) if Congress abrogates the States’ immunity pursuant

to a valid exercise of its power. See College Sav. Bank v. Florida Prepaid Postsecondary Ed.

Expense Bd., 527 U.S. 666, 670 (1999); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 240-4

(1985). By statute, the Commonwealth of Pennsylvania has specifically withheld its consent to

be sued. See 42 Pa. C.S.A. § 8521(b); 1 Pa. C.S.A. § 2310; see also Lavia v. Pennsylvania,

Dept. of Corrections, 224 F.3d 190, 195 (3d Cir. 2000); Laskaris v. Thornburgh, 661 F.2d 23, 25

(3d Cir. 1981). Additionally, Congress has not expressly abrogated Pennsylvania’s Eleventh

Amendment immunity from civil rights suits for damages. See, e.g., Will, 491 U.S. at 66

(“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it

does not provide a federal forum for litigants who seek a remedy against a State for alleged

deprivations of civil liberties.”); Quern v. Jordan, 440 U.S. 332, 341 (1979); Boykin v.

Bloomsburg Univ. of Pa., 893 F. Supp. 378 (M.D. Pa. 1995) (holding that States’ immunity has

not been abrogated for actions brought under §§ 1981, 1983, 1985, and 1986), aff'd, 91 F.3d 122

(3d Cir. 1996). As such, Eleventh Amendment immunity bars any claim he may have against

Judge DiSalle in his official capacity.

To the extent Plaintiff has sued Judge DiSalle in his individual capacity, it is a well-

established principle of law that judges are absolutely immune from suit for damages for conduct

performed in the course of their official duties. The doctrine of absolute judicial immunity

grants judges absolute immunity “from liability for damages for acts committed within their

judicial jurisdiction . . . .” Pierson v. Ray, 386 U.S. 547, 553-54 (1967). “A judge will not be

deprived of immunity because the action he took was in error, was done maliciously, or was in

excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear

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absence of all jurisdiction.’” Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (internal citation

and quotation omitted). Judicial immunity will not apply only if the judge acts with “clearly no

jurisdiction over the subject-matter,” id. at 356 n.6 (quoting Bradley v. Fisher, 80 U.S. 335, 351-

52 (1871)), or where the challenged conduct is not a judicial act, Mireles v. Waco, 502 U.S. 9, 11

(1991). Whether an act is a judicial one is determined by whether the action is typically one

performed by a judge and whether the parties thought they were dealing with a judge acting in

his or her judicial capacity. Stump, 435 U.S. at 362.

Plaintiff alleges that Judge DiSalle “acted in an administrative capacity when he . . .

scheduled himself as judge” with an “ulterior agenda or motive in mind” after Plaintiff sent him

“threatening letters” regarding Conflict Counsel Attorney Kimberly Furmanek, which Plaintiff

claims lead to Attorney Furmanek’s termination and a headache for Judge DiSalle who, as “the

immediate supervisor for attorneys in the Office of Conflict Counsel” had to “spend massive

amounts of time and money . . . to procure paid private counsel for Attorney Furmanek’s clients

(inmates) left without counsel.” (ECF No. 15, pp.3-4.) Essentially, Plaintiff infers that Judge

DiSalle is biased against him for what he did, and, as a result, Judge DiSalle appointed himself as

judge to Plaintiff’s criminal case and then wrongfully terminated Plaintiff’s pro se status and

appointed an attorney from the Washington County’s Office of Conflict Counsel, Attorney

Semple, whom Plaintiff states should not have been appointed because of his ongoing conflict

with Washington County and because Judge DiSalle is the immediate supervisor of the attorneys

in said Office. Plaintiff alleges that Judge DiSalle and Attorney Semple have conspired to deny

Plaintiff his right to self-representation and a fair and unbiased trial. Plaintiff also alleges that

Judge DiSalle has improperly ruled on motions alleging “obstruction and malfeasance” in his

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criminal case by Judge DiSalle’s long-time friend, Washington County District Attorney Gene

Vittone.

Plaintiff argues that his claims against Judge DiSalle are not barred by judicial immunity

because Judge DiSalle’s actions were not judicial in nature, but rather “administrative.” See

Forrester v. White, 484 U.S. 219, 228 (1988) (“Administrative decisions, even though they may

be essential to the very functioning of the courts, have not similarly been regarded as judicial

acts[]” to which judicial immunity would apply.) However, no matter how Plaintiff frames

them, the actions by Judge DiSalle of which Plaintiff complains were judicial actions taken by

Judge DiSalle in the course of Plaintiff’s criminal proceedings. This includes Judge DiSalle’s

reassignment of Plaintiff’s criminal case, which is his primary complaint. See e.g., Gochin v.

Haaz, 16-5359, 2017 WL 4475973, at *6 (E.D. Pa. May 10, 2017) (plaintiff’s allegation that

defendant president judge improperly reassigned his case to another judge is barred by judicial

immunity because it was an action taken within the president judge’s judicial capacity), aff’d,

724 F. App’x 155 (3d Cir. Feb. 7, 2018); see also In re Picozzi, 18-CV-2201, et al., 2018 WL

3393279, at *9 (E.D. Pa. July 12, 2018) (claims against chief judge based on reassignment of

plaintiff’s cases barred by judicial immunity); Chaplin v. Manfredi, 87-6781, 1988 WL 7844, at

*1 (Feb. 2, 1988) (judicial immunity applied to plaintiff’s claim that defendant judge reassigned

plaintiff’s criminal action to another judge and appointed a new attorney to represent him as

stand-by counsel because by doing so defendant judge was acting in his judicial capacity as

Major Felony Calendar Judge); 42 Pa. C.S. § 325(e) (setting out the powers and duties of

president judges in Pennsylvania, including making “all judicial assignments”). This also

includes Plaintiff’s allegations that Judge DiSalle’s actions and rulings were motivated by malice

against Plaintiff for his conduct involving Attorney Furmanek or Judge DiSalle’s long time

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friendship with District Attorney Vittone. See Mireles, 502 U.S. at 11 (“[J]udicial immunity is

not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be

resolved without engaging in discovery and eventual trial.”); Pierson v. Ray, 386 U.S. 547, 554

(1967) (“[I]mmunity applies even when the judge is accused of acting maliciously and

corruptly[.]”); Holloway v. Walker, 765 F.2d 517, 522 (5th Cir. 1985) (“It is a well established

rule that where a judge’s absolute immunity would protect him from liability for the performance

of particular acts, mere allegations that he performed those acts pursuant to a bribe or conspiracy

will not be sufficient to avoid the immunity.”) Accordingly, Plaintiff’s claims for damages

against Judge DiSalle are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii). See,

e.g., Ball v. Butts, 445 F. App’x 457 (3d Cir. Sept. 21, 2011).

Additionally, while Plaintiff is also seeking injunctive relief against Judge DiSalle, such

relief is not available because Congress enacted § 309(c) of the Federal Courts Improvement Act

(“FCIA”) in 1996, which amended § 1983 to provide that, “in any action brought against a

judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or declaratory relief was

unavailable.” Pub.L. No. 104-317, § 309(c); 110 Stat. 3847 (1996); 41 U.S.C. § 1983. Plaintiff

does not allege that a declaratory decree was violated, or that declaratory relief was unavailable

to him. Because Plaintiff’s request for injunctive relief against Judge DiSalle is not available, it

is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). See e.g., L.B. v. Town of Chester,

232 F.Supp.2d 227, 238 (S.D.N.Y. 2002); Kampfer v. Scullin, 989 F.Supp. 194, 201-202

(N.D.N.Y. 1997); see also Jung v. Pennsylvania, 3:18-CV-01248, 2018 WL 3717213, at *4

(M.D. Pa. June 27, 2018); Steinberg v. Supreme Court of Pennsylvania, 09-86, 2009 WL

1684663, at *22 (W.D. Pa. June 10, 2009); see also Ball v. Butts, 445 F. App’x 457 (3d Cir.

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Sept. 21, 2011) (stating that the plaintiff’s request for injunctive relief against the defendant

judge was subject to dismissal under § 1915(e)(2)(B)(ii)).

2. Attorney Semple

Plaintiff’s claims against Attorney Semple are subject to dismissal for failure to state a

claim because the Supreme Court has held that a public defender does not act “under color of

state law” for purposes of 42 U.S.C. § 1983 when performing a lawyer’s traditional function as

counsel to an indigent defendant in a state criminal proceeding. Polk County v. Dodson, 454

U.S. 312, 325 (1981). And, this principle extends to court appoint attorneys, like those through

conflict counsel. See T.R. v. Havens, 612 F. App’x 83, 89 (3d Cir. 2015). While court

appointed attorneys “may” act under color of state law for section 1983 purposes “while

performing certain administrative and possibly investigative functions,” Polk, 454 U.S. at 325,

Plaintiff fails to allege any plausible “administrative action” exception to the general rule. Thus,

to the extent Plaintiff complains about any specific conduct by Attorney Semple, it appears to be

based entirely on her actions as counsel to Plaintiff in his criminal proceedings.3 Accordingly,

Attorney Semple is not a state actor for section 1983 purposes and Plaintiff’s claims against her

are subject to dismissal for failure to state a claim. See, e.g., Tchirkow v. Powanda, 2:19-CV-

00984, 2020 WL 2425795, at *4 (W.D. Pa. Apr. 20, 2020).

In his Amended Complaint, Plaintiff appears to allege that Attorney Semple conspired

with Judge DiSalle to deny Plaintiff his federally protected rights, including his right to self-

3 Apart from allegations that she conspired with Judge DiSalle to deny Plaintiff his rights, which

will be addressed next, the undersigned cannot actually make out any action by Attorney Semple

about which Plaintiff is complaining, only that she is employed by the Office of Conflict Counsel

and is paid by Washington County. According to Plaintiff, no attorney from the Office of

Conflict Counsel should be appointed to his case because of an apparent conflict that he has with

that office due to the actions of another attorney and because those attorneys are paid by

Washington County against whom Plaintiff alleges wrongdoing.

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representation. In Dennis v. Sparks, 449 U.S. 24 (1989), the Supreme Court held that a private

person engaged with state officials in prohibited conduct is acting under color of state law for

purposes of § 1983 liability. Id. at 27. Although § 1983 liability will not generally lie against a

private party, liability may attach where the private party “is a willful participant in joint action

with the State or its agents.” Id. Hence, a private action may be converted into state action if a

state actor conspires with a private individual to deprive a plaintiff of his constitutional rights.

Id. at 27-29. The requisite state action may be found even if the state actor with whom the

private individual allegedly conspired is himself immune from suit. Id. (action against private

parties accused of conspiring with judge found to be state action under § 1983). However, the

allegations of a complaint must state a claim for conspiracy.

In order to make out a claim for conspiracy pursuant to 42 U.S.C. § 1983, a plaintiff must

allege conspiracy with particularity even though a heightened pleading standard generally does

not apply to civil rights actions against individual defendants. Bieros v. Nicola, 860 F.Supp.

223, 225 (E.D. Pa. 1994) (citing Leatherman v. Tarrant County Narcotics Intelligent &

Coordination Unit, 507 U.S. 163, 168 (1993)). “To plead conspiracy adequately, a plaintiff must

set forth allegations that address the period of the conspiracy, the object of the conspiracy, and

the certain actions of the alleged conspirators taken to achieve that purpose.” Shearin v. E.F.

Hutton Group, Inc., 885 F.2d 1162, 1166 (3d Cir. 1989), abrogated on other grounds by Beck v.

Prupis, 529 U.S. 494 (2000). Further, in light of Twombly and its progeny, there must be

“‘enough factual matter (taken as true) to suggest that an agreement was made,’ in other words,

‘plausible grounds to infer an agreement.’” Great Western Mining & Mineral Co. v. Fox

Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting Twombly, 550 U.S. at 556).

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Here, Plaintiff has failed to allege a plausible conspiracy claim pursuant to the

requirements of Twombly and its progeny. There are no facts that plausibly suggest a meeting of

the minds between Attorney Semple and Judge DiSalle to deprive Plaintiff of his constitutional

rights, including his right to self-representation. Plaintiff only alleges that Attorney Semple has

“the power to correct Plaintiff’s loss of liberty,” and “under normal circumstances an attorney

would adhere to their client’s wishes, and would certainly object when a federally protected right

is violated,” but she “has never at any time objected to said loss” and so “reasonable minds”

would conclude that she engaged in a conspiracy with Judge DiSalle to deprive Plaintiff of his

constitutional rights, including his right to self-representation. (ECF No. 15, pp.7-8.) However,

Plaintiff’s bald allegations of conspiracy fail to set forth “plausible grounds to infer an

agreement.” Mincy v. Klem, 1:08-CV-0066, 2009 WL 331432, at *5 (M.D. Pa Feb. 9, 2009) (In

alleging conspiracy “[a] plaintiff cannot rely on subjective suspicions and unsupported

speculation.”) Plaintiff’s Amended Complaint does not contain enough facts “to raise a

reasonable expectation that discovery will reveal evidence of illegal agreement.” See Twombly,

550 U.S. at 556. Accordingly, Plaintiff may not convert Attorney Semple’s purely private action

into state action by including her in an alleged conspiracy with Judge DiSalle. Therefore,

Plaintiff’s claim of conspiracy, to the extent he brings it pursuant to § 1983, should be dismissed

for failure to state a claim.

Unlike § 1983, state action is not required to support a claim pursuant to § 1985(3),

which Plaintiff appears to invoke. See Griffin v. Breckenridge, 403 U.S. 88 (1971). In order to

state a claim under § 1985(3), the plaintiff must allege four elements: (1) a conspiracy; (2) for the

purpose of depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; (3) an act in

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furtherance of the conspiracy; and (4) injury to a person or property or deprivation of any right or

privilege of a citizen of the United States. United Brotherhood of Carpenters & Joiners Local

610 v. Scott, 463 U.S. 825, 828-29 (1983) (citing Griffin, 403 U.S. at 102-03). Again, Plaintiff

must set forth specific factual allegations that demonstrate collusion or concerted action among

the alleged conspirators. Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir.

1993) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970)), abrogated on other

grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392, 400

(3d Cir. 2003); Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991), later proceeding,

Young v. Quinlan, 960 F.2d 351 (3d Cir. 1992), superseded by statute, Prison Litigation Reform

Act of 1996, Pub.L. No. 104–134, 110 Stat. 1321, as discussed in Nyhuis v. Reno, 204 F.3d 65

(3d Cir. 2000). Even though the Supreme Court held in Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), that the allegations in a § 1983

complaint cannot be held to a standard of heightened specificity, a plaintiff must allege

conspiracy with some particularity. Bieros, 860 F.Supp. 223, 225 (E.D. Pa.1994) (citing

Leatherman, 507 U.S. at 168).

As discussed above, Plaintiff has failed to allege any facts that indicate Attorney Semple

and Judge DiSalle entered into any agreement or plan to deprive Plaintiff of his constitutional

rights, nor has Plaintiff averred any facts to show an act in furtherance of the agreement.

“[M]ere conclusory allegations of deprivations of constitutional rights are insufficient to state a §

1985(3) claim.” D.R. by L.R. v. Middle Bucks Area Vocations Technical Sch., 972 F.2d 1364,

1377 (3d Cir. 1992) (internal citation and quotation omitted). Accordingly, he has failed to state

a claim upon which relief may be granted under 42 U.S.C. § 1985(3).

3. Younger Abstention

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Lastly, to the extent Plaintiff seeks any form of injunctive relief for alleged present and

continuing constitutional deprivations regarding his representation or the on-going criminal

proceedings against him, Plaintiff seeks relief that a federal court should not provide. In

Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court “established a principle of abstention

when federal adjudication would disrupt an ongoing state criminal proceeding.” Yang v. Tsui,

416 F.3d 199, 201 (3d Cir. 2005) (discussing Younger). Younger abstention “is premised on the

notion of comity, a principle of deference and ‘proper respect’ for state governmental functions

in our federal system.” Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227,

1234 (3d Cir. 1992) (quoting Younger, 401 U.S. at 44). Comity concerns are especially

heightened when the ongoing state governmental function is a criminal proceeding. Id.

However, “[a]bstention under Younger is appropriate only if (1) there are ongoing state

proceedings that are judicial in nature; (2) the state proceedings implicate important state

interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims.”

Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989).

The Younger requirements are clearly met in this case. First, Plaintiff’s criminal

proceedings are still pending. Second, the state proceedings implicate the important interest of

enforcing the Commonwealth’s criminal laws. Third, the state appeals process affords Plaintiff

an adequate opportunity to argue that the actions of Judge DiSalle and Attorney Semple deprived

him of a fair and impartial trial. Accordingly, even if Plaintiff’s claims were not subject to

dismissal for the reasons previously stated, it would be appropriate to abstain out of deference to

the state judicial process.4

4 Exceptions to the Younger doctrine exist where irreparable injury is “both great and

immediate,” where the state law is “flagrantly and patently violative of express constitutional

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C. Amendment

Before dismissing a complaint for failure to state a claim upon which relief may be

granted, a court must grant the plaintiff leave to amend his complaint, unless amendment would

be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir.

2002). Here, all of Plaintiff’s claims are barred by settled law and cannot be resurrected via an

amendment. Based on his current allegations, the undersigned can imagine no additional facts

Plaintiff could plead that would overcome the deficiencies in his Amended Complaint. The

undersigned also notes that it issued a similar Report and Recommendation on May 12, 2022

(ECF No. 9) and Plaintiff was granted leave to file this Amended Complaint, which also did not

overcome the deficiencies in his original Complaint. Accordingly, the undersigned does not

recommend granting Plaintiff leave to amend.

III. CONCLUSION

For the aforementioned reasons, it is respectfully recommended that Plaintiff’s Amended

Complaint (ECF No. 15) be dismissed with prejudice pursuant to 28 U.S.C. § 1915 (e)(2)(B)(iii)

with respect to his claims for damages against Defendant John F. DiSalle and § 1915(e)(2)(B)(ii)

with respect to Plaintiff’s request for injunctive relief against Defendant DiSalle. It is also

recommended that Plaintiff’s Amended Complaint be dismissed with prejudice pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) with respect to his claims against Defendant Rose A. Semple. It is

prohibitions,” or where there is a showing of “bad faith, harassment, or any other unusual

circumstance that would call for equitable relief.” Younger, 401 U.S. at 46, 53-54. The

exceptions are narrowly construed. See, e.g., Hall v. Pennsylvania, Civ. A. No. 12-2373, 2012

WL 5987142, *2 (M.D. Pa. 2012); Loftus v. Twp. of Lawrence Park, 764 F. Supp. 354, 357

(W.D. Pa. 1991). There is nothing in the Amended Complaint to indicate that Plaintiff falls

within any of the narrow exceptions to the Younger doctrine.

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further recommended that Plaintiffs Motion for Temporary Restraining Order (ECF No. 6) be

denied as moot.

In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. §

636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen

(14) days from the date of the service of this report and recommendation to file written

objections thereto. Plaintiff’s failure to file timely objections will constitute a waiver of his

appellate rights.

Dated: July 22, 2022.

FOorn

Lisa Pupo Lenihan

United States Magistrate Judge

Ce: Scott A. Edmonds

20140007250

Washington County Correctional Facility

100 West Cherry Avenue

Washington, PA 15401

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