Opinion
Civil Action 3:22-CV-1516
02-02-2023
JADEN MONCHE, Plaintiff v. JERRY GRILL et al., Defendants
MARIANI, D.J.
REPORT AND RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
I. INTRODUCTION
On September 29, 2022, Jaden Monche (“Plaintiff”) initiated this pro se civil rights case. (Doc. 1). In his Complaint, Plaintiff names a host of Defendants involved in his pending criminal proceeding in Pennsylvania state court. Id. Plaintiff attempts to bring numerous 42 U.S.C. § 1983 claims, claims under Pennsylvania regulations, and claims under federal statutes, against all Defendants. Plaintiff is currently incarcerated at Lackawanna County Prison while he awaits trial.
Plaintiff has been granted leave to proceed in forma pauperis. Because he is proceeding in forma pauperis, Plaintiff is subject to the 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. 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. 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.
See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007).
See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979).
After reviewing Plaintiff's Complaint and granting him leave to amend, I conclude that it fails to state a claim upon which relief may be granted and seeks monetary relief against Defendants who are immune from such relief. Accordingly it will be recommended that Plaintiff's Complaint (Doc. 1) be DISMISSED.
II. LEGAL STANDARDS
A. Screening Complaints Filed In Forma Pauperis
This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by litigants given leave to proceed in forma pauperis. Specifically, the Court is obliged to review the complaint in accordance with 28 U.S.C. § 1915(e)(2), which provides, in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal--
(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.
In performing this mandatory screening function, the Court applies the same standard that is used to evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” To test the sufficiency of the complaint under Rule 12(b)(6), the court must conduct the following three-step inquiry:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
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 pleadings drafted by lawyers.'” Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Even a pro se complaint must recite factual allegations that are enough to raise the Plaintiff's claimed right to relief beyond the level of mere speculation. It must set forth in a “short and plain” statement of a cause of action.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
B. Federal Rule of Civil Procedure 8
Federal Rule of Civil Procedure 8(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.” Federal Rule of Civil Procedure 8(d)(1) further requires “each allegation must be simple, concise, and direct.”
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.” The complaint should allow a defendant to “meaningfully answer or plead to it ” To state a claim, a Plaintiff must plead “‘enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element[s]” and Plaintiff's Complaint does not do so. The Court will examine these deficiencies in greater detail in the following sections.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted).
Binsack v. Lackawanna Cnty. Prison, 438 Fed.Appx. 158, 160 (3d Cir. 2011).
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (quoting Twombly, 550 U.S. at 556).
C. 42 U.S.C. § 1983 Claims (Violation of Civil Rights)
Generally, there are two fundamental requirements for every § 1983 claim. To bring a claim under § 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.
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005)(citing Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997)).
A plaintiff must plead personal involvement of each individual defendant as “individual liability can be imposed only if the state actor played an ‘affirmative part' in the alleged misconduct, either through personal direction of or actual knowledge and acquiescence in the deprivation.” It is not enough to state “a mere hypothesis that an individual defendant had personal knowledge of or involvement in depriving the plaintiff of his rights,” as that “is insufficient to establish personal involvement.” Many § 1983 claims, for example a Fourth Amendment false arrest claim, have their own unique elements that must be sufficiently pleaded. The Court will discuss these elements as relevant in the sections below.
Gannaway v. PrimeCare Med., Inc., 150 F.Supp.3d 511, 526 (E.D. Pa. 2015), aff'd sub nom, Gannaway v. PrimeCare Med., Inc, 652 Fed.Appx. 91 (3d Cir. 2016) (citing Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986)).
Id. at 526-27.
III. BACKGROUND & PROCEDURAL HISTORY
This pro se, in forma pauperis action began on September 29, 2022, when Plaintiff lodged this Complaint. (Doc. 1). Plaintiff filed an Application to Proceed in forma pauperis on September 29, 2022, (Doc. 2), which was granted on October 12, 2022 (Doc. 7). The Court screened Plaintiff's Complaint on October 27, 2022 and issued a Memorandum Opinion and Order explaining its deficiencies and giving Plaintiff until November 28, 2022 to file an amended complaint. (Docs. 8 & 9). On November 23, 2022, Plaintiff filed a Motion for Extension of Time to File an Amended Complaint, (Doc. 10), and a Motion to Appoint Counsel, (Doc. 11). On December 7, 2022, the Court granted Plaintiff Motion for Extension of Time, (Doc. 12), and denied Plaintiff's Motion to Appoint Counsel, (Doc. 13). Plaintiff's amended complaint was due on or before January 6, 2023. No amended complaint has been filed, nor has Plaintiff filed another motion for extension of time.
Plaintiff's original Complaint (Doc. 1) lists seven Defendants in this action:
1. Assistant District Attorney of Lackawanna County Jerry Grill (“Defendant Grill”);
2. Officer James A. Giehl (“Defendant Giehl”);
3. The Commonwealth of Pennsylvania (“the Commonwealth”);
4. Lackawanna County Courthouse (“Defendant Courthouse”);
5. Court of Common Pleas of Lackawanna County (“Defendant Court of Common Pleas”);
6. Moosic Police Department (“Defendant Police Department”); and
7. Judge Michael J. Barrasse (“Judge Barrasse”).
Plaintiff's Complaint begins with a page he labels “Introduction” and marks as “Exhibit 0.” (Doc. 1, p. 6). This “Introduction” details how Plaintiff came to be arrested on November 19, 2020. Id. On November 19, 2020, Plaintiff's mother called an ambulance for Plaintiff. Id. Both EMS and Hanover police officers arrived. Id. The Hanover officers ran an NCIC search on Plaintiff and informed him he “was wanted out of the Borough of Moosic,” though Plaintiff did not know why. Id. Moosic police officers arrived, one of whom was Defendant Giehl, and took Plaintiff into custody. Id. Plaintiff alleges he was “never officially arrested” as he was never handcuffed or Mirandized.
At his arraignment the following day Plaintiff learned he was being charged with: “Felony 1 Aggravated Assault - attempt to cause SBI or extreme indifference, Felony 2 Aggravated Assault - attempt to cause SBI with a deadly weapon, Felony 3 possession of a firearm by a prohibited person, Misdemeanor 2 Reckless Endangerment of another person, and Misdemeanor 2 Simple Assault, Misdemeanor 3 Disorderly Conduct.” (Doc. 1, p. 6).
Plaintiff's Complaint lists nine days on which the events giving rise to his claim occurred. (Doc. 1, p. 7). Plaintiff begins his factual allegations by saying that his “liberty is being taken from me, my due process rights are not being properly granted and are being violated all NAMED DEFENDANTS has [sic] and still are violating multiple of my right(s) and Amendment(s).” Id. (emphasis in original). Plaintiff then alleges he is being falsely imprisoned and held against his will, that he is not getting the “equal or proper protection of law,” that he has not been brought to trial in a timely manner, and that discovery was not given to him promptly which has resulted in delays. (Doc. 1, pp. 7-8).
Those dates are: November 19, 2020, December 23, 2020, February 5, 2021, April 19, 2021, August 23, 2021, January 4, 2022, June 16, 2022, June 27, 2022, and July 11, 2022. (Doc. 1, pp. 7-8).
On December 23, 2020, Plaintiff had a preliminary hearing over video. (Doc. 1, p. 9). Plaintiff alleges that at this hearing the Commonwealth and Defendant Grill did not establish a prima facie case and allowed the victim to commit perjury. Id. Plaintiff alleges that the victim testified he did not know who Plaintiff was and showed the police Plaintiff's Facebook page because “a 3rd [sic] party” who was not at the scene of the crime sent the victim a photo of Plaintiff's Facebook page, and that the victim continues to this day to state he does not know Plaintiff. (Doc. 1, pp. 9-10). Plaintiff believes he should be allowed to confront this third party since they are his real accuser. Id. Plaintiff believes he is “falsely imprisoned” because of “biased wild false accusations.” Id.
On February 5, 2021, a Pre-Trial Conference was held via video. (Doc. 1, p. 10). Plaintiff alleges Judge Barrasse and Defendant Grill did not comply with procedural rules, that Defendant Grill could not show any evidence of a crime and thus could not provide Plaintiff with discovery, and that Judge Barrasse did not note objections or agreements on the record. (Doc. 1, pp. 10-11).
A trial was scheduled to take place on April 19, 2021, but did not. (Doc. 1, p. 11). Plaintiff alleges the Commonwealth, Defendant Grill, and Judge Barrasse did not explain why the trial did not take place. Id.
On August 23, 2021, Plaintiff's Public Defender Jillian Kochis filed an Omnibus Pre-trial Motion on his behalf. (Doc. 1, p. 11). That Motion sought a writ of habeas corpus, the appointment of an investigator, and suppression of evidence. (Doc. 1-1, p. 26).
On June 16, 2022, Plaintiff states he received discovery which he alleges provided no evidence he committed a crime. (Doc. 1, pp. 11-12).
On June 27, 2022, Plaintiff was scheduled to have his second final pre-trial conference but it never took place. (Doc. 1, p. 12). Trial was scheduled to begin on July 11, 2022, but did not. Id.
Plaintiff writes June 27, 2020, but this appears to be an error. The Court construes this date as June 27, 2022, in keeping with the timeline of events.
Plaintiff states that he currently does not know what is going on with his case while his rights continue to be violated. (Doc. 1, p. 12). Plaintiff alleges that “none of my motions, court date(s) or pretrial and trial dates are being made public as its suppose [sic] to,” and that his family cannot find out any information about his criminal case. Id. Plaintiff alleges he asked the correctional officers to look in their computer to “see what alleged charges it says” and was told “it doesn't say anything about this matter at all.” Id. Plaintiff again alleges that all seven of the named Defendants “know and have some type of dealing in this illegal matter that is being done to [him].” Id.
Plaintiff attaches several documents to his Complaint. In particular, Plaintiff directs the Court's attention to the Omnibus Pre-trial Motion and Brief in Support and the transcript of his preliminary hearing multiple times throughout his Complaint, for example by saying “see omnibus pretrial motion.” (Doc. 1). Plaintiff does not cite to specific sections in any document he instructs the Court to “see.”
These include his Omnibus Pre-trial Motion, (Doc. 1-1, pp. 1-9), his Brief in Support of his Omnibus Pre-trial Motion, (Doc. 1-1, pp. 10-26), a copy of the transcript of his preliminary hearing, (Doc. 1-1, pp. 27-69), a copy of the photo lineup used to identify him, (Doc. 1-1, pp. 70-73), an email between Defendant Grill and Plaintiff's public defender Jillian Kochis forwarding an email exchange between Defendant Grill and Defendant Giehl, (Doc. 1-1, p. 74), a copy of what appears to be a Pre-trial Scheduling Order, (Doc. 1-1, p. 75), and an Order indicating the final Pre-trial and trial commencement dates, (Doc. 1-1, p. 76). A letter from Plaintiff to the Clerk of Court is attached as Document 1-2.
Plaintiff brings numerous 42 U.S.C. § 1983 claims and claims under the Pennsylvania Code and federal statutes. Id. at pp. 13-15. These include claims under the Fifth (Fourteenth), Sixth, Eighth, Ninth, Tenth, and Fourth Amendment. Id. Plaintiff states that all the Defendants know and have participated in what is happening to him, thus the Court construes Plaintiff's Complaint as attempting to bring each of his claims against all Defendants. (Doc. 1, pp. 7, 12).
Plaintiff states multiple injuries including exacerbation of mental illnesses, new mental health struggles and illnesses requiring him to be put on medication, believes law enforcement officials and the government are out to get him. (Doc. 1, p. 16). Plaintiff states he fears for his life. Id.
Plaintiff seeks several forms of relief. Plaintiff wants “the Court to order all Defendant(s) to from here on out handle all matters in good faith and clean hands.” (Doc. 1 at p. 17). Plaintiff requests a restraining order against all named Defendants. Id. Plaintiff wants his immediate release from Lackawanna County Prison and to have all charges against him dropped. Id. Plaintiff seeks monetary damages for the time he has spent in prison, the violations of his rights, his injuries and for being robbed of two years of his life. Id.
IV. ANALYSIS
I begin by analyzing Plaintiff's claims in outline form:
a. Plaintiff cannot state a 42 U.S.C. § 1983 claim against Defendant Courthouse.
b. The Eleventh Amendment bars Plaintiff's 42 U.S.C. § 1983 claims against the Commonwealth.
c. The Eleventh Amendment bars Plaintiff's 42 U.S.C. § 1983 claims against Defendant Court of Common Pleas.
d. The Eleventh Amendment and prosecutorial immunity bar Plaintiff's 42 U.S.C. § 1983 claims against Defendant Grill in his official and individual capacities.
e. Judicial immunity bars Plaintiff's 42 U.S.C. § 1983 claims against Judge Barrasse in his official and individual capacities.
f. Plaintiff cannot state a Sixth Amendment 42 U.S.C. § 1983 confrontation clause claim.
g. Plaintiff cannot state a Sixth Amendment 42 U.S.C. §1983 public trial claim.
h. Plaintiff cannot state a Sixth Amendment 42 U.S.C. § 1983 speedy trial claim.
i. Plaintiff cannot state an Eighth Amendment 42 U.S.C. §1983 cruel and unusual punishment claim.
j. Plaintiff cannot state a Ninth or Tenth Amendment 42 U.S.C. §1983 claim.
k. Plaintiff fails to state any 42 U.S.C. § 1983 claim against Defendant Police Department.
l. Plaintiff fails to state any 42 U.S.C. § 1983 claim against Defendant Giehl in his official capacity.
m. Plaintiff fails to state a Fourth Amendment 42 U.S.C. § 1983 false arrest claim.
n. Plaintiff fails to state a Fourth Amendment 42 U.S.C. § 1983 false imprisonment claim.
o. Plaintiff fails to state a Fifth or Fourteenth Amendment 42 U.S.C. § 1983 due process claim.
p. Plaintiff fails to state a claim under the Pennsylvania Code.
q. Plaintiff fails to state a claim under the United States Code.
The Court will explain each of these conclusions in turn.
A. Plaintiff Cannot State a 42 U.S.C. § 1983 Claim against Defendant Courthouse
One requirement of any § 1983 claim is that Plaintiff must allege facts that show the deprivation of his federally protected right was committed by a person acting under color of state law. A courthouse, “as a state entity, is not a ‘person' under § 1983, and therefore may not be sued thereunder.” “Federal civil rights claims against a courthouse are not cognizable under § 1983.” Thus Plaintiff cannot state a § 1983 claim against Defendant Courthouse.
Woloszyn, 396 F.3d at 319.
Devenshire v. Kwidis, No. 2:15-1026, 2016 WL 4032881, at *3 (W.D. Pa. June 28, 2016), report and recommendation adopted, 2016 WL 4010977 (W.D. Pa. July 27, 2016); see also Elansari v. United States, No. 3:15-CV-1461, 2016 WL 4415012, at *5 n.9 (M.D. Pa. July 11, 2016).
William-Whitfield v. Commonwealth Lehigh Cnty. Prison, No. 21-4544, 2022 WL 657072, at *8 (E.D. Pa. March 4, 2022).
B. The Eleventh Amendment Bars Plaintiff's Claims Against the Commonwealth
Plaintiff attempts to bring numerous claims against the Commonwealth, however they are barred by the immunity conferred by the Eleventh Amendment.
The Eleventh Amendment to the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the . . . States ” By its terms, the Eleventh Amendment strictly limits the power of federal courts to entertain cases brought by citizens against the state.
Eleventh Amendment protection, however, is not absolute. A state or state agency's sovereign immunity under the Eleventh Amendment may be relinquished through (1) waiver by a state's consent to suit against it in federal court and (2) the abrogation of such immunity by an act of Congress. However, neither of these exceptions are applicable.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).
The Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity by consenting to suit in federal court.
42 Pa. C.S. § 8521(b) (“Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.”); 1 Pa. C.S. § 2310 (“the Commonwealth . . . shall continue to enjoy sovereign immunity and remain immune from suit. . . .”); see also Slavish v. City of Wilkes-Barre, No. 3:17-CV-1468, 2018 WL 5289500 at *9-10 (M.D. Pa. June 14, 2018) (“Although the Commonwealth has expressly waived its sovereign immunity from suit in state court in nine specific areas, it has not waived its immunity from being sued in federal court for any reason.”).
Plaintiff attempts to bring claims in federal court against the Commonwealth. Congress has not abrogated States' immunity under 42 U.S.C. § 1983 and the Commonwealth has not otherwise waived its immunity. Plaintiff does not suggest that the Commonwealth's immunity from suit in federal court as to his other attempted claims has been waived by the Commonwealth or abrogated by Congress. Therefore, Plaintiff's claims against the Commonwealth are barred by the Eleventh Amendment and should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(iii).
Phillips v. James, No. 13-1196, 2014 WL 1652914, at *8 (W.D. Pa. Apr. 23, 2014) (“Congress has not expressly abrogated Pennsylvania's Eleventh Amendment immunity from civil rights suits for damages . . . .”).
C. The Eleventh Amendment Bars Plaintiff's 42 U.S.C. § 1983 Claims Against Defendant Court of Common Pleas
The Court of Common Pleas of Lackawanna County is a part of the unified judicial system of Pennsylvania. “All courts in the unified judicial system are a part of the Commonwealth and are entitled to Eleventh Amendment immunity.”Therefore Plaintiff's § 1983 claims against Defendant Court of Common Pleas are barred by Eleventh Amendment immunity and should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
42 Pa. C.S. § 301 (West, 2005).
Green v. Domestic Relations Section Ct. Com. Pl. Compliance Unit Montgomery Cnty., 649 Fed.Appx. 178, 180 (3d Cir. 2016).
D. The Eleventh Amendment and Prosecutorial Immunity Bar Plaintiff's 42 U.S.C. § 1983 Claims Against Defendant Grill in His Official and Individual Capacities
Plaintiff attempts to bring § 1983 claims against Defendant Grill in his official capacity. “Official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Defendant Grill is an Assistant District Attorney for Lackawanna County. In Pennsylvania, “county prosecutors can have a ‘dual or hybrid status,'” and “may be State officials when they prosecute crimes or otherwise carry out policies established by the State, but serve as local policy makers when they manage or administer their own offices.”
Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. Dep't of Soc. Servs. Of City of New York, 436 U.S. 658, 690 n.55 (1978)) (internal quotation marks omitted)).
Carter v. City of Phila., 181 F.3d 339, 352-53 (3d Cir. 1999) (quoting Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir.1996)).
Plaintiff alleges Defendant Grill has failed to bring him to trial timely, failed to provide him with discovery, failed to establish a prima facie case at his preliminary hearing, and failed to go by the “Pretrial Conference Proceedings Rule 421.” (Doc. 1, p. 13). Plaintiff cites to “Title 207, part IV, Article II, chpt 4 Rule 421,” however, this section of the Pennsylvania Code applies to proceedings under the Court of Judicial Discipline and not to Plaintiff's case.
207 Pa. Code § 421 (2023).
Plaintiff's claims against Defendant Grill concern actions Defendant Grill has taken as a prosecutor in the course of prosecuting Plaintiff. To the extent it is true that Defendant Grill failed to provide discovery to Plaintiff in violation of Brady, that is “a prosecutorial act.” Defendant Grill's actions presenting the Commonwealth's case at Plaintiff's preliminary hearing and choosing when to bring Plaintiff to trial are prosecutorial acts related to “initiating and conducting judicial proceedings.”
Laughman v. Com. of Pa., No. 1:05-CV-1033, 2006 WL 709222, at *5 (M.D. Pa. Mar. 17, 2006).
Odd v. Malone, 538 F.3d 202, 208 (3d Cir. 2008).
Because Defendant Grill's actions were taken during prosecution, Defendant Grill is considered a state official. Again, a lawsuit “against state officials in their official capacity [] should be treated as [a] suit[] against the State.” As discussed above in Section IV(B), the Eleventh Amendment confers immunity from suit in federal court on the Commonwealth. Thus, the Eleventh Amendment bars Plaintiff's § 1983 claims against Defendant Grill in his official capacity and those claims against him should be dismissed under 28 U.S.C. § 1915(e)(2)(B)(iii).
Carter v. City of Phila., 181 F.3d at 352.
Hafer, 502 U.S. at 25 (citing Graham, 473 U.S. at 166).
Plaintiff has alleged no facts suggesting Defendant Grill was acting in a managerial or administrative role, if he has any such role. Even if Plaintiff had these would be construed as Monell claims against Lackawanna County. Plaintiff has not plead any facts suggesting Lackawanna County has a policy or custom that caused him constitutional injury or that Lackawanna County's failure to train caused him constitutional injury.
Defendant Grill would be entitled to absolute prosecutorial immunity in his individual capacity from Plaintiff's § 1983 claims against him. “[P]rosecutors are absolutely immune from liability under § 1983 for their conduct in “initiating a prosecution and in presenting the State's case, insofar as that conduct is intimately associated with the judicial phase of the criminal process.” Defendant Grill's actions in prosecuting Plaintiff during his preliminary hearing and deciding when to bring Plaintiff to trial are prosecutorial acts that take place during a “judicial phase of the criminal process.” Withholding discovery in violation of Brady “is a prosecutorial act” that is entitled “to absolute immunity.” Thus, absolute immunity attaches to Defendant Grill's actions and Plaintiff's § 1983 claims against him in his individual capacity should be dismissed on immunity grounds pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (internal quotation marks and citations omitted)).
Odd, 538 F.3d at 208.
Laughman v. Com. of Pa., 2006 WL 709222, at *5.
E. Judicial Immunity Bars Plaintiff's 42 U.S.C. § 1983 Claims Against Judge Barrasse in His Individual and Official Capacities
“As a general rule, judges acting in their judicial capacity are absolutely immune (in both their individual and official capacities) from suit for monetary damages under the doctrine of judicial immunity.” “Further, [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.” Judicial immunity, however, can be overcome when a judge takes action “in the complete absence of all jurisdiction,” and when a judge takes action not “in the judge's judicial capacity,” in other words, a judge is not immune from nonjudicial actions.
Ingram v. Twp. of Deptford, 858 F.Supp.2d 386, 390 (D.N.J. 2012).
Talker v. Monmouth Cnty., NJ, No. 3:12-CV-02019, 2012 WL 2951857, at *4 (D.N.J. July 17, 2012) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)).
Mireles v. Waco, 502 U.S. 9, 11-12 (1991).
Viewing the allegations of the Complaint in the light most favorable to Plaintiff, his claims concern Judge Barrasse's judicial actions and do not suggest a “complete absence of all jurisdiction.” Plaintiff complains that Judge Barrasse has failed to timely bring him to trial, did not follow “Pretrial Conference Proceedings Rule 421,” and failed “to state on record an order stating any agreements and objections.” (Doc. 1, pp. 8-13). Taken as true, these are judicial actions made in the context of a state court criminal case that Judge Barrasse has jurisdiction over. Therefore, Plaintiff's § 1983 claims against Judge Barrasse in his official and individual capacities should be dismissed on immunity grounds pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).
Id.
F. Plaintiff Cannot State a Sixth Amendment 42 U.S.C. § 1983 Confrontation Clause Claim
Plaintiff attempts to bring a Sixth Amendment § 1983 Confrontation Clause claim alleging that he was unable to confront the individual who was actually his real accuser. (Doc. 1, p. 9-10). There is no “federal constitutional right to confront witnesses at a preliminary hearing.” With no constitutional injury, Plaintiff cannot state a § 1983 confrontation clause claim.
Plaintiff states that the “only reason” the alleged victim in his case showed the cops his Facebook page was because “a 3rd party who was not at the alleged crime scene sent him a picture of my Facebook.” (Doc. 1, pp. 9-10). Plaintiff believes that this third party is his real accuser.
Kitcherman v. Lamas, Civ. A. No. 13-6625, 2015 WL 3814539, at *5 (E.D. Pa. June 18, 2015); see McCray v. State of Ill., 386 U.S. 300, 313-14 (1967) (concluding Petitioner's allegation “the State violated the Sixth Amendment by not producing the informer to testify against the petitioner” at a probable cause hearing was “absolutely devoid of merit.”).
G. Plaintiff Cannot State a Sixth Amendment 42 U.S.C. § 1983 Public Trial Claim
Plaintiff attempts to bring a Sixth Amendment § 1983 public trial claim. Plaintiff alleges his “motions, court date(s), or pretrial and trial dates,” are not being made public but does not explain how this is a violation of his right to a public trial. (Doc. 1, p. 12). The Supreme Court has instructed that “[t]he requirement of a public trial is satisfied by the opportunity of members of the public and press to attend the trial and to report what they have observed.” Plaintiff has not had a trial yet. Thus, Plaintiff has not yet suffered a deprivation of his right to a public trial and cannot state a Sixth Amendment § 1983 public trial claim.
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 610 (1978); see United States v. Lnu, 575 F.3d 298, 306 (3d Cir. 2009).
H. Plaintiff Cannot State a Sixth Amendment 42 U.S.C. § 1983 Speedy Trial Claim
Plaintiff attempts to state a Sixth Amendment 42 U.S.C. § 1983 claim against Defendants, arguing that he has not been timely brought to trial. (Doc. 1, pp. 7-12). Plaintiff seeks monetary damages against Defendants for this alleged violation. However, monetary damages are not an available remedy for such a claim “as the only remedy for such a violation is dismissal of any criminal charges.” Thus, Plaintiff cannot bring a Sixth Amendment § 1983 speedy trial claim for monetary damages against any Defendant.
Batch v. Lauricia, No. 2:19-CV-01046-CRE, 2021 WL 4086130, at *9 (W.D. Pa. Aug. 16, 2021), report and recommendation adopted, No. 2:19-CV-01046-CCW, 2021 WL 4078655 (W.D. Pa. Sept. 8, 2021), aff'd, No. 2:19-CV-01046-CCW, 2021 WL 4236741 (W.D. Pa. Sept. 17, 2021) (citing United States v. MacDonald, 435 U.S. 850, 861 n.7 (1978)).
Plaintiff does additionally seek relief in the form of his state criminal charges being dropped as well as his immediate release from state prison. (Doc. 1, p. 17). This Court cannot grant him this relief as “to the extent that [Plaintiff] is seeking dismissal of the charges against him as a result of constitutional violations, he is essentially asking for relief only available through habeas corpus.” This civil Complaint is not the appropriate vehicle for Plaintiff to seek habeas corpus relief. Thus, Plaintiff cannot state a Sixth Amendment § 1983 speedy trial claim against any Defendant.
Duran v. Weeks, 399 Fed.Appx. 756, 759 (3d Cir. 2010).
I. Plaintiff Cannot State an Eighth Amendment 42 U.S.C. § 1983 Cruel and Unusual Punishment Claim
Plaintiff attempts to bring an Eighth Amendment § 1983 cruel and unusual punishment claim. The Court is unable to determine what it is exactly that Plaintiff is claiming is cruel and unusual punishment other than the fact that he is incarcerated. Regardless of what Plaintiff may be trying to claim is cruel and unusual punishment, the Eighth Amendment does not apply until there is a “formal adjudication of guilt.” Before such an adjudication “pre-trial detainees . . . are protected by the Due Process Clause of the Fourteenth Amendment.” Plaintiff has made it clear that he has not been brought to trial, nor has there been a guilty plea. (Doc. 1, p. 11-12). Therefore, Plaintiff cannot state an Eighth Amendment § 1983 cruel and unusual punishment claim.
Ingraham v. Wright, 430 U.S. 651, 671 n.40 (1977); See Tri Thanh Nguyen v. Franklin Cnty. Sheriffs Dep't., 512 Fed.Appx. 188, 190 (3d Cir. 2013).
Tri Thanh Nguyen, 512 Fed.Appx. at 190.
Plaintiff does attempt to bring a due process claim which is analyzed below in Section IV(O).
J. Plaintiff Cannot State A Ninth or Tenth Amendment 42 U.S.C. § 1983 Claim
Plaintiff seeks to bring Ninth and Tenth Amendment § 1983 claims, however he cannot do so. The Ninth Amendment does not “secure[]” any constitutional rights, and “by itself does not confer substantive rights for purposes of §1983.”
Charles v. Brown, 495 F.Supp. 862, 864 (N.D. Ala. 1980); see Soder v. Chenot, No. 4:CV-06-1522, 2007 WL 4556670, at *4 (M.D. Pa. Dec. 20, 2007).
Soder, 2007 WL 4556670, at *4; see also Bervinchak v. E. Hempfield Twp., No. 5:20-CV-05421, 2021 WL 2525561, at *3 (E.D. Pa. June 21, 2021).
Likewise, the Tenth Amendment “has never been recognized as independently securing any substantive constitutional rights cognizable in a § 1983 cause of action.” Therefore Plaintiff cannot state a Ninth or Tenth Amendment §1983 claim.
Soder, 2007 WL 4556670, at *4 (citing Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9th Cir. 1986)); see also Bervinchak, 2021 WL 2525561, at *3.
K. Plaintiff Fails to State Any 42 U.S.C. § 1983 Claims Against Defendant Police Department
It appears that Plaintiff attempts to bring all his remaining § 1983 claims against Defendant Police Department. (Doc. 1). “Although local governmental units may constitute “persons” against whom suit may be lodged under § 1983, a city police department is a governmental sub-unit that is not distinct from the municipality of which it is a part.” “[A] municipality and its police department [are] [] a single entity for purposes of section 1983 liability.” Thus, a suit against the Moosic Police Department is a suit against the Borough of Moosic. As pro se plaintiffs are entitled to a liberal construction of their complaint, the Court will construe Plaintiff's § 1983 claims against the Moosic Police Department as claims against the Borough of Moosic. The Court construes these claims as municipal liability claims under Monell. If a plaintiff wishes to recover under § 1983 from a municipality they must:
Plaintiff's remaining § 1983 claims are a Fourth Amendment false arrest claim, a Fourth Amendment false imprisonment claim, and a Fifth (Fourteenth) Amendment due process claim.
Mikhaeil v. Santos, 646 Fed.Appx. 158, 163 (3d Cir. 2016).
Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997).
Erickson, 551 U.S. at 94.
(1) identify a policy or custom that deprived [them] of a federally protected right;
(2) demonstrate that the municipality, by its deliberate conduct, acted as the “moving force” behind the alleged deprivation; and
(3) establish a direct causal link between the policy or custom and the plaintiff's injury.
Blasi v. Borough of Pen Argyl, No. 14-1354, 2015 WL 4486717, at *5 (E.D. Pa. July 23, 2015) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)).
A policy “is a statement, ordinance, regulation, or decision officially adopted and promulgated by a government body's officers.” A custom need not be formally adopted by the municipality but may impose liability where “the relevant practice is so widespread as to have the force of law.” A plaintiff is also able to bring a municipal liability Monell claim “under certain circumstances” where constitutional violations result from a municipality's failure to train municipal employees.
Id. (citing Monell, 436 U.S. at 690).
Bd. of Cty. Comm'rs of Bryan Cnty., Okla., 520 U.S. at 404 (citing Monell, 436 U.S. at 690-91).
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).
In this case Plaintiff has pleaded none of these required elements of a Monell claim. Plaintiff makes no reference to a policy or custom that works to deprive him of any of his constitutional rights, nor does Plaintiff allege any failure to train.Plaintiff fails to state any § 1983 Monell claims against the Borough of Moosic, thus failing to state any § 1983 Monell claims against Defendant Police Department.
In his Complaint, Plaintiff directs the Courts attention to the Omnibus Pretrial Motion that was filed on his behalf, stating the Motion and Brief in Support “shows and tells how Moosic Police Department violated my Due Process Rights.” (Doc. 1, p. 11). This Court (and Defendants) should not have to search through Plaintiff's Omnibus Pre-trial Motion and Brief in Support to find Plaintiff's claim and/or facts he seeks to use to support any of his claims. They should be clearly stated in his Complaint, which Plaintiff was told when he was given leave to amend. (Doc. 8).
L. Plaintiff Fails to State Any 42 U.S.C. § 1983 Claims Against Defendant Giehl in His Official Capacity
Plaintiff attempts to bring his remaining § 1983 claims against Defendant Giehl in Defendant Giehl's official capacity. Again, “official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Defendant Giehl is a Moosic Police Officer, meaning he is an agent of the Moosic Police Department. (Doc. 1, p. 6). As explained above in Section IV(K), “a city police department is a governmental sub-unit that is not distinct from the municipality of which it is a part.” Suing Defendant Giehl in his official capacity is therefore treated as a suit against the Borough of Moosic. In Section IV(K) the Court explained that Plaintiff does not state any § 1983 Monell claims against the Borough of Moosic. Plaintiff thus necessarily fails to state any § 1983 claims against Defendant Giehl in his official capacity.
Hafer, 502 U.S. at 25 (quoting Graham, 473 U.S. at 165, (quoting Monell, 436 U.S. at 690 n.55)) (internal quotation marks omitted)).
Mikhaeil, 646 Fed.Appx. at 163.
M. Plaintiff Fails to State a Fourth Amendment 42 U.S.C. § 1983 False Arrest Claim Against Defendant Giehl in His Individual Capacity
Plaintiff attempts to bring a Fourth Amendment § 1983 false arrest claim. In addition to the two general § 1983 claim requirements, “[t]o state a claim for false arrest under the Fourth Amendment, a plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause.” Plaintiff does not allege sufficient facts against remaining Defendant Giehl in his individual capacity to plead a Fourth Amendment § 1983 false arrest claim.
Again, a plaintiff must allege facts showing 1) a deprivation of a federally protected right, 2) by a personally involved state official acting under the color of law. Woloszyn, 396 F.3d at 319; Gannaway, 150 F.Supp.3d at 526-27 (citing Chinchello, 805 F.2d at 133).
James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
Plaintiff alleges that on November 19, 2020, he was “transferred on the street to the custody of 2 Moosic officers one would be Officer James Giehl.” (Doc. 1, p. 6). Plaintiff alleges he was never handcuffed or Mirandized but was taken and “thrown right into Lackawanna County Jail.” Id. Plaintiff explicitly states, “I was never officially arrested.” Id. A necessary element of a Fourth Amendment § 1983 false arrest claim is that there was an arrest, but Plaintiff pleads there was never an arrest. (Doc. 1, p. 6). Taking that fact as true, Plaintiff cannot state a Fourth Amendment § 1983 false arrest claim.
James, 700 F.3d at 680.
Even proceeding as if Plaintiff was arrested based on the factual descriptions in his Complaint, Plaintiff still fails to state this claim. Plaintiff never alleges that Defendant Giehl did not have probable cause to arrest him. Plaintiff states that after Hanover police officers ran “an NCIC” on him he was told he “was wanted out of the Borough of Moosic,” and then was “transferred on the street to the custody of” Defendant Giehl (Doc. 1, p. 6). Taking all of these facts as true, none suggest Defendant Giehl lacked probable cause to arrest Plaintiff. Instead, both the Hanover police officers and Defendant Giehl were acting on information from an NCIC search reporting Plaintiff “was wanted,” indicating that a warrant was on file. (Doc. 1, p. 6). Therefore Plaintiff fails to state a Fourth Amendment § 1983 false arrest claim against Defendant Giehl in his individual capacity.
N. Plaintiff Fails to State a Fourth Amendment 42 U.S.C. § 1983 False Imprisonment Claim Against Defendant Giehl in His Individual Capacity
Plaintiff attempts to bring a Fourth Amendment § 1983 false imprisonment claim. To make out a claim for false imprisonment, Plaintiff must plead the two § 1983 requirements, and “must establish (1) that [he] was detained; and (2) that the detention was unlawful.”
See supra, n.59.
James, 700 F.3d at 682-83.
Again, to the extent Plaintiff seeks the dismissal of his charges and his immediate release for his alleged false imprisonment, he is seeking relief that is only available to him via a habeas corpus petition.
Duran, 399 Fed.Appx. at 759.
To the extent Plaintiff seeks other relief, and assuming arguendo such relief is available to him, Plaintiff does not allege the §1983 requirement of Defendants' personal involvement. Plaintiff states generally that all the named Defendants “has [sic] and are still violating multiple of my right(s) and amendment(s),” Id. at p. 7, and “know and have some type of dealing in this illegal matter thats [sic] being done to me,” Id. at p. 12. These are conclusory statements. The Court divines from Plaintiff's Complaint that Plaintiff believes because he was responsible for Plaintiff's arrest, Defendant Giehl is responsible for Plaintiff's continued false imprisonment. Again, pleading “a mere hypothesis that an individual defendant had personal knowledge of or involvement in depriving the plaintiff of his rights,” will not suffice and “is insufficient to establish personal involvement.” When Plaintiff makes a specific allegation about false imprisonment in his Complaint, he states he is being “Falsely Imprisoned by The Government [sic],” but never makes a specific allegation about Defendant Giehl's personal involvement in Plaintiff's alleged continuing false imprisonment. (Doc. 1, p. 10). Thus Plaintiff does not state a Fourth Amendment § 1983 false imprisonment claim against Defendant Giehl in his individual capacity.
Gannaway, 150 F.Supp.3d at 526-27 (citing Chinchello, 805 F.2d at 133).
As discussed above in Section IV(B), Plaintiff's claims against the Commonwealth are barred by Eleventh Amendment Immunity.
O. Plaintiff Fails to State a Fifth or Fourteenth Amendment 42 U.S.C. § 1983 Due Process Claim Against Defendant Giehl in His Individual Capacity
Plaintiff attempts to state a Fifth Amendment § 1983 due process claim. “[T]he Due Process Clause of the Fifth Amendment only applies to federal officials.” Plaintiff does not bring suit against any federal officials making the Fifth Amendment inapplicable to his case. However, given this Court's duty to liberally construe Plaintiff's Complaint, the Court liberally construes his claim as being brought under the Fourteenth Amendment, which applies to state action.
Bergdoll v. City of York, 515 Fed.Appx. 165, 170 (3d Cir. 2013).
The standards to evaluate the two claims are essentially the same.
Even doing so, the Court cannot find any allegations that support a Fourteenth Amendment due process claim. In the legal claims section of his Complaint Plaintiff writes “5th Amendment - due process of law.” (Doc. 1, p. 13). It is unclear how and when Plaintiff believes he was denied either procedural or substantive due process outside of the specific Amendment claims he brings (e.g., Fourth Amendment false arrest, etc.). “The Supreme Court has held that when government behavior is governed by a specific constitutional amendment, due process analysis is inappropriate ”
Berg v. Cnty. of Allegheny, 219 F.3d 261, 268-69 (3d Cir. 2000). See also Cnty. of Sacramento, et al. v. Lewis, 523 U.S. 833, 842-43 (1998); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 261 (3d Cir. 2010).
Plaintiff's attempted Eighth Amendment §1983 cruel and unusual punishment claim would be properly asserted as a due process claim. However the Court cannot tell what exactly Plaintiff is complaining of in this regard, other than the fact that he is currently, in his view unlawfully, incarcerated. He appears to try and address this illegal detention via his Fourth Amendment false imprisonment claim. To the extent Plaintiff wishes to challenge the legality of his incarceration for any constitutional violation, he would need to do so in a habeas corpus petition. As the Court cannot identify any due process violations in his Complaint, Plaintiff fails to state a Fifth or Fourteenth Amendment § 1983 due process claim against Defendant Giehl in his individual capacity.
Tri Thanh Nguyen, 512 Fed.Appx. at 190.
Duran, 399 Fed.Appx. at 759. See also Herrara v. Pa. Bd. of Prob. & Parole, No. CV 3:22-1530, 2022 WL 17640205, at *2 (M.D. Pa. Dec. 13, 2022).
P. Plaintiff Fails To State a Claim Under the Pennsylvania Code
Plaintiff attempts to bring claims under four sections of the Pennsylvania Code: 52 Pa. Code §5.331, 234 Pa. Code § 543, 207 Pa. Code § 421, and 234 Pa. Code § 570. It is not clear what claims Plaintiff is in fact trying to bring. If Plaintiff is attempting to bring state law claims under these sections, he fails to point to any cause of action established by these sections that would allow him to bring a civil claim under them, thus not showing how he is entitled to relief. To the extent Plaintiff would like to use these sections of the Pennsylvania Code to challenge the lawfulness of his incarceration, he would need to do so in a state court habeas corpus petition. To the extent Plaintiff attempts to bring a § 1983 claim under these sections he cannot do so as § 1983 requires Plaintiff to show the deprivation of a federally protected right. Any rights these sections give Plaintiff would be state rights, not federal rights. Plaintiff thus fails to state a claim under the Pennsylvania Code.
The Court notes that in Plaintiff's Omnibus Pre-Trial Motion in state court, Plaintiff, through his public defender, moved for a Writ of Habeas Corpus. (Doc. 11, pp. 1-9).
Woloszyn, 396 F.3d at 319.
Q. Plaintiff Fails to State a Claim Under The United States Code
Plaintiff appears to attempt to bring claims against all Defendants under seven sections of federal statutes. After citing to these sections in his Complaint he states that the Defendants “are in violation” of the United States Code. (Doc. 1, p. 15). However, Plaintiff does not show how he is entitled to relief under any of the sections he cites.
Plaintiff indicates in the legal claims section of his Complaint that he is bringing claims under 28 U.S.C. §§ 1495-2513, 18 U.S.C. § 241, 18 U.S.C. § 242, 18 U.S.C. §§ 1501-1521, 18 U.S.C. § 1621, 18 U.S.C. §§ 3161-3174, and 18 U.S.C. §§ 1201-1204.
18 U.S.C. §§ 3161-3174 instruct on speedy trials in federal court. Plaintiff is being prosecuted in state court. Plaintiff fails to explain how these sections apply to procedural requirements in his state criminal case or how they provide a private right of action entitling him to relief. Therefore, Plaintiff does not state a claim under these sections of the United States Code.
18 U.S.C. §§ 3161-3174 fall under Part II - Criminal Procedure of Title 18. Chapter 201, §3001, General Provisions instructs to see Federal Rule of Criminal Procedure Rule 1 for the scope. Federal Rule of Criminal Procedure 1(a)(1) states “these rules govern the procedure in all criminal proceedings in the United States district courts, the United States court of appeals, and the Supreme Court of the United States.”
Plaintiff cites to multiple sections of Title 18 of The United States Code, Part I, the federal criminal code. Plaintiff cannot bring federal criminal charges. The non-prosecution of individuals who could potentially be prosecuted for federal crimes (even crimes committed against Plaintiff) does not violate Plaintiff's rights. Plaintiff does not identify a private right of action conferred by these sections and show how he is entitled to relief. Thus Plaintiff does not state a claim under these sections of the United States Code.
Mikhail v. Kahn, 991 F.Supp.2d 596, 633-39 (E.D. Pa. 2014), aff'd, 572 Fed.Appx. 68 (3d Cir. 2014).
Plaintiff brings claims under 28 U.S.C. § 1495-2513. (Doc. 1, p. 14). These sections provide the United States Court of Federal Claims with jurisdiction to render judgment on claims for damages by a person “unjustly” convicted of an offense against the United States and imprisoned and lay out the required elements.This Court is not the United States Court of Federal Claims. Moreover, 28 U.S.C. § 1495 requires a conviction of an offense against the United States. Plaintiff has not been convicted, much less convicted of an offense against the United States. Plaintiff is facing state criminal charges. Therefore, Plaintiff cannot state a claim under these sections. Plaintiff thus does not state any claims under any of the sections the United States Code he lists in his Complaint.
V. FUTILITY OF AMENDMENT
“Under Federal Rule of Civil Procedure 15(a), leave to amend shall be freely given, in the absence of circumstances such as undue delay, bad faith or dilatory motive, undue prejudice to the opposing party or futility of amendment.” This Court screened Plaintiff's Complaint and issued a Memorandum Opinion and Order on October 27, 2022 explaining its deficiencies and giving Plaintiff leave to amend to cure those deficiencies on or before November 28, 2022. (Docs. 8 & 9). Plaintiff then filed a Motion for an Extension of Time to Amend, (Doc. 10), which the Court granted, (Doc. 12), giving Plaintiff until on or before January 6, 2023. Plaintiff has had over seventy (70) days to amend his Complaint and has failed to do so. Granting Plaintiff further leave to amend would thus be futile.
Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
V. CONCLUSION
As written, Plaintiff's Complaint fails to state a claim upon which relief may be granted and seeks monetary relief against Defendants immune from such relief. Accordingly, pursuant to 28 U.S.C. § 1915(e)(2), it is RECOMMENDED that:
(1) Plaintiff's Complaint, (Doc. 1), be DISMISSED without leave to amend and the Clerk of Court be directed to mark this case CLOSED.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.