Dorsey v. Daub, CIVIL ACTION NO. 09-CV-3879

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
PartiesSTEVEN DORSEY,Plaintiff, v. CYNTHIA L. DAUB, ET AL., Defendant.
Docket NumberCIVIL ACTION NO. 09-CV-3879
Decision Date02 February 2011

CYNTHIA L. DAUB, ET AL., Defendant.



Dated: February 2, 2011


Tucker, J.

Presently before this Court is the Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) ("Rule 12(b)(1)") and 12(b)(6) ("Rule 12(b)(6)") filed by Commonwealth Defendants Cynthia L. Daub, Jeffrey A. Beard, David Goode, David DiGuglielmo, Ken Cameron, Mary Camino, Sandra Gerula, Richard Hamor, and Chrisy Richers (Doc. 17) and Plaintiff's Response in Opposition thereto (Doc. 22). Additionally before the Court is the Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") filed by Defendant Gerald McCormick (Doc. 20) and Plaintiff's Response in Opposition thereto (Doc. 22). For the reasons stated below, the Court grants both Motions.


At all pertinent times, Plaintiff has been incarcerated by the Pennsylvania Department of Corrections at the State Correctional facility at Cresson and/or under the jurisdiction of the Pennsylvania Board of Probation and Parole. All of the named Defendants include employees of Pennsylvania State Correctional facilities where Plaintiff has been detained, unnamed police officers who participated in Plaintiff's arrest, and the Director of the halfway house where Plaintiff was placed.

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From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows.1 Plaintiff was originally sentenced and incarcerated in 1998. At some point, Plaintiff was released on parole, but was re-incarcerated for a technical parole violation. Plaintiff claims that those charges were dismissed on October 5, 2005 and that he should have been reparoled. Instead, however, on March 29, 2006, Plaintiff was placed in a "Pre-Release Program" at a Community Corrections Center called the Department of Corrections MinSec Halfway House.

On February 10, 2007, Plaintiff left the Center without permission. Plaintiff claims that he had to leave the Center "due to personal problems." On the same day, the director of the Center reported Plaintiff to the state police as a "declared escapee" and as a result, the Pennsylvania State Police issued a warrant for Plaintiff's arrest. On October 10, 2007, Plaintiff was arrested by a City of Philadelphia police officer pursuant to the warrant. Plaintiff was recommitted to serve the remaining term of his sentence and has remained incarcerated since his arrest. On January 27, 2008, the escape charge was dismissed for lack of prosecution. Though Plaintiff admits that he was a "technical parole violator, " he maintains that his continued incarceration subsequent to the dismissal of the escape charge is a violation of his civil rights.

On September 28, 2009, the Court granted Plaintiff's Motion for to Proceed In Forma Pauperis. On May 12, 2010, Plaintiff filed an Amended Complaint (Doc. 14) in which he alleges violations of the Fourth, Fifth, Eighth, Thirteenth and Fourteenth Amendments fo the United States Constitution; 42 U.S.C. §§ 1981, 1983, 1985, 1986; 18 U.S.C.A. § 1001; and state law

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claims for Fraud, Conspiracy to Commit Fraud, Conspiracy to Unlawfully Restrain, and False Arrest. Plaintiff seeks damages and injunctive relief.

On June 9, 2010, Pennsylvania Probation and Parole Board Secretary Cynthia L. Daub; Pennsylvania Department of Corrections Secretary Jeffrey A. Beard; former State Correctional Institution at Cresson Superintendent David Goode; State Correctional Institution at Graterford former Superintendant David DiGuglielmo; current Cresson Superintendant Ken Cameron; Hearing Officer Mary Kanino; Cresson Records Supervisor Sandra Gerula; and Cresson Counselors Rich Hamor and Christy Richers ("Commonwealth Defendants") filed a Motion to Dismiss (Doc. 17). On June 16, 2010, Defendant Minsec Broad Street Halfway House Director Gerald McCormick filed a Motion to Dismiss (Doc. 20). On July 14, 2010, Plaintiff filed a Response in Opposition to Defendants' Motions (Doc. 22). The Court now addresses these pending motions.


A. Motion to Dismiss under Rule 12(b)(1)

Under Rule 12(b)(1), a motion to dismiss for lack of subject matter jurisdiction may be raised at any time. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004). See also Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 750 (3d Cir. 1995) ("Federal courts have an ever-present obligation to satisfy themselves of their subject matter jurisdiction and to decide the issue sua sponte."). Rule 12(b)(1) challenges are either facial or factual attacks. Kestelboym v. Chertoff, 538 F. Supp. 2d 813, 815 (D.N.J. 2008). "A facial attack questions the sufficiency of the pleading, " and "[i]n reviewing a facial attack, a trial court accepts the allegations in the complaint as true." Id.. However, "when a court reviews a complaint under a

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factual attack, the allegations have no presumptive truthfulness, and the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Id. See also Carpet Group Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

In evaluating a Rule 12(b)(l) motion, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen, 549 F.2d at 891. See also Carpet Group Int'l, 227 F.3d at 69. "[T]he existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen, 549 F.2d at 891. The plaintiff has the burden of proving that jurisdiction does in fact exist. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006) (quoting Mortensen, 549 F.2d at 891). In addition, the plaintiff must demonstrate that a controversy existed when the suit was filed and that the controversy continues to exist throughout the litigation. See Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992).

Generally, trial courts should not allow "consideration of jurisdiction to spill over into a determination of the merits of the case." Kestelboym, 538 F. Supp. 2d at 815 (quoting Dugan v. Coastal Indus., Inc., 96 F. Supp. 2d 481, 483 (E.D. Pa. 2000)). However, a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) based on the legal insufficiency of a claim "is proper... when the claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or... is wholly insubstantial and frivolous.'" Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)). To be wholly insubstantial and frivolous, a claim must be "so... implausible, foreclosed

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by prior decisions of this Court, or otherwise completely devoid of merit as to not involve a federal controversy." Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666 (1974).

B. Motion to Dismiss under Rule 12(b)(6)

On a motion to dismiss under Rule 12(b)(6), the Court must determine whether the plaintiff may be entitled to relief under any reasonable reading of the pleadings. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). The question is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his or her claims. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). Where the plaintiff is pro se, the court must construe the complaint liberally. Bush, 367 F. Supp. 2d at 725. This liberal construction standard means that a pro se complaint may be dismissed for failure to state a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Haines v. Kerner, 404 U.S. 519, 520-21(1972). The complaint will be deemed to allege sufficient facts if it is adequate to "put the proper defendants on notice of the essential elements of plaintiffs' cause of action." Dist. Council 47, AFSCME v. Bradley, 795 F.2d 310, 313 (3d Cir.1986). Unlike a Rule 12(b)(1) motion to dismiss where the plaintiff always has the burden of persuasion, when the matter involves a motion to dismiss under Rule 12(b)(6), the moving party has the burden of persuasion. See Kehr Packages, Inc., 926 F.2d at 1409.


Plaintiff contends that Defendants violated his civil rights under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 18 U.S.C. § 1001 and committed fraud, conspiracy to commit fraud, conspiracy to unlawfully restrain, and false arrest when they recommitted him based on his technical parole violation. For the reasons that follow, the Court finds that all claims in Plaintiff's Complaint must

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be dismissed for either failure to state a claim or lack of subject matter jurisdiction.

A. Dismissal of Plaintiff's Federal Claims

i. Plaintiff's Section 1981 Claim

Plaintiff's Section 1981 claim can easily be disposed of as frivolous. Section 1981 primarily addresses racial discrimination in...

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