Opinion
Civil Action 3:21-CV-2119
02-17-2022
BEVERLY ANN WOLFE, Plaintiff v. CATHOLIC CHARITIES ALLENTOWN, PA, et al., Defendants
BRANN, C.J.
REPORT & RECOMMENDATION
WILLIAM I. ARBUCKLE U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Beverly Ann Wolfe (“Plaintiff”) initiated this pro se civil action against Catholic Charities in Allentown, Pennsylvania-which services individual who live in Carbon and Schuylkill Counties-and one of its employees after the employee refused to issue a hotel voucher for Plaintiff to use in Luzerne County. Plaintiff asserts a single claim, under federal criminal statute 18 U.S.C. § 242.
Plaintiff has been granted leave to proceed in forma pauperis. Because she is proceeding in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). See Atamian v. Burns, 236 Fed.Appx. 753, 755 (3d Cir. 2007) (“the screening procedures set forth in 28 U.S.C. § 1915(e) 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. 28 U.S.C. § 1915(e)(2)(B). See Collins v. Cundy, 603 F.2d 825, 828 (10th Cir. 1979) (“[T]here 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.”).
After reviewing Plaintiff's complaint, I find that the only claim asserted is based on frivolous legal theory. Accordingly, it is RECOMMENDED that:
(1) Plaintiff's complaint should be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) without affording leave to amend;
(2) The Clerk of Court should be DIRECTED to close this case.
II. BACKGROUND & PROCEDURAL HISTORY
Plaintiff alleges that she has a section 8 voucher from Carbon County, Pennsylvania. (Doc. 1, p. 4). Plaintiff alleges that she has been living in a hotel, beginning May 2021, for one year, and spent $20,365.48.
In a second case filed by Plaintiff, she alleges that she resided in a Wilkes-Barre Hotel from May 2, 2021 through December 12, 2021 and spent $20,365.48 on her lodging. See Wolfe v. Carbon County Housing Authority, No. 3:21-CV-2118 (M.D. Pa.).
In May 2021, Plaintiff contacted Catholic Charities and left approximately 20 voicemails. (Doc. 1, p. 3). Eventually, Plaintiff spoke to Defendant Nicoletta. Id. Defendant Nicolella advised Plaintiff that he handled hotel vouchers for use in Carbon County and Schuylkill County. Id. He advised Plaintiff that, because she was staying at a hotel in Luzerne County, he could not help her. Id.
Plaintiff alleges that she cannot stay in a hotel in Carbon County or Schuylkill County because no hotel in either county will allow her cat. (Doc. 1, p. 4). She also argues that hotels in Luzerne County are less expensive. Id.
Plaintiff alleges that she also contacted Luzerne County Catholic Charities and they slammed the phone in Plaintiff's ear. (Doc. 1, p. 4).
On December 20, 2021, Plaintiff lodged a complaint in this Court. (Doc. 1). Plaintiff alleges that the following Defendants violated 18 U.S.C. § 242: Catholic Charities; and Rob Nicolella. As relief, Plaintiff requests that Defendant Nicolella “makes good for the hotel voucher” and “suffers consequences from Section 242 title 18 of civil statute law.” (Doc. 1, p. 2).
III. LEGAL STANDARD
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.” Fed.R.Civ.P. 12(b)(6). The United States Court of Appeals for the Third Circuit has observed the evolving standards governing pleading practice in the federal courts, stating that “pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.” Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009). “[A] complaint must do more than allege the plaintiff's entitlement to relief.” Id. at 211. It also “has to ‘show' such an entitlement with its facts.” Id.
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 Tp., 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.'” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013). Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, 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, set forth in a “short and plain” statement of a cause of action.
IV. ANALYSIS
A. Plaintiff Cannot Pursue A Civil Claim Under 18 U.S.C. § 242
Section 242 of Title 18 of the United States Code provides that:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or
both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
This is a criminal statute. It is well-established that there is no private civil cause of action for damages under § 242. Pavalone v. Preservation Management, Inc., No. 3:18-CV-191, 2019 WL 1117931 at *3 (M.D. Pa. Jan. 8, 2019) (citing Shahin v. Darling, 606 F.Supp.2d 525, 538 (D..Del. 2009). Furthermore, there is “no federal right to require the government to initiate criminal proceedings.” Rodriguez v. Salus, Fed.Appx. 588, 590 (3d Cir. 2015); see also Colon-Montanez v. Pennsylvania Healthcare Serv. Staffs, 530 Fed.Appx. 115, 118 (3d Cir. 2013) (concluding that 18 U.S.C. § 242 “provide[s] no private right of action for use by a litigant such as Colon-Montanez”).
B. Leave to Amend Should be Denied
If a complaint is subject to dismissal for failure to state a claim, “a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Dismissals of frivolous claims, however, do not require leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 112-113 (3d Cir. 2002).
Courts have found that civil claims by pro se litigants asserted under 18 U.S.C. § 242 are legally frivolous because such claims are based on an undisputedly meritless legal theory. See Pavalone, 2019 WL 1117931 at *3 (citing Fake v. Philadelphia Ct. of Common Pleas, 2016 WL 6071365 at * 4 (E.D. Pa. Oct. 17, 2016); see also Jorge v. Torres, No. 18-14674, 2019 WL 2385942 at 3 (D.N.J. June 6, 2019). However, this dismissal should be without prejudice to Plaintiff's ability to initiate a new lawsuit in an appropriate forum asserting civil claims arising out of these facts.
V. RECOMMENDATION
It is RECOMMENDED that:
(1) Plaintiff's complaint should be DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) without affording leave to amend;
(2) The Clerk of Court should be DIRECTED to close this case.
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.