Miller v. Cuneo
| Decision Date | 01 February 2012 |
| Docket Number | C.A. No. 11-124 Erie |
| Parties | DAVID E. MILLER, Plaintiff v. OFFICER DAVID CUNEO, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
OPINION AND ORDER1
I. INTRODUCTION
On June 14, 2011, Plaintiff David E. Miller, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against: David Cuneo, a police officer with the Johnsonburg Police Department ("Cuneo"); the Johnsonburg Police Department ("JPD"); and Elk County Commissioner ("Elk County"). Plaintiff alleges that Defendants violated his rights under the fourth, fifth, and sixth amendments to the United States Constitution, as well as his rights under 18 U.S.C. § 1621, 18 U.S.C. § 242, and 42 U.S.C. § 1986.
On October 28, 2011, Defendants Cuneo and JPD filed a partial motion to dismiss [ECF No. 20], arguing, inter alia, that (i) no private right of action exists under 18 U.S.C. §§ 1621 and 242; (ii) Plaintiff's § 1986 claim must be dismissed because he has failed to allege a conspiracy under 42 U.S.C. § 1985; (iii) Plaintiff has failed to state a claim upon which relief may be granted under either the Fifth or Sixth Amendment; (iv) Plaintiff has failed to state a municipalliability claim upon which relief may be granted against JPD; (v) Plaintiff's official capacity claim against Defendant Cuneo must be dismissed; and (vi) a portion of Plaintiff's claim against Defendant Cuneo is barred by the applicable statute of limitations.
Defendant Elk County filed its own motion to dismiss on November 1, 2011 [ECF No. 21], arguing, inter alia, that Plaintiff has failed to state a claim against it upon which relief may be granted. Plaintiff was ordered to file a response to each motion by January 13, 2012; however, he has failed to do so. This matter is now ripe for consideration.
Plaintiff alleges that from approximately February 2008 to July 30, 2010, Defendant Cuneo abused his authority by taking several actions against Plaintiff that allegedly violated Plaintiff's rights. In particular, Plaintiff alleges that sometime prior to July 1, 2009, Defendant Cuneo issued two different "summons" against him that were eventually dismissed by Magisterial District Judge George A. King. (ECF No. 5, Complaint, at pp. 2-4 and 3-4). Then on July 1, 2009, Defendant Cuneo charged Plaintiff with Aggravated Assault and Simple Assault, stemming from an incident in which Plaintiff alleges he was defending himself against an attacker. These charges were dismissed by the Honorable Richard Masson of the Elk County Court of Common Pleas. (ECF No. 5, Complaint, at p. 3-4).
Subsequently, Plaintiff claims that, while "constructing a case" against Plaintiff, Defendant Cuneo harassed Plaintiff's mother and brother and forced his brother to "perjure himself with a false statement while being threatened with imprisonment and loss of custody of his minor child." (Id.). On the basis of Plaintiff's brother's allegedly false statement, Defendant Cuneo charged Plaintiff with Persons not to Possess Firearms Prohibited and Receiving Stolen Property, which charges were ultimately dismissed by Judge Masson. (Id.). Plaintiff alleges that, while he was incarcerated on the charges prior to their dismissal, Plaintiff learned that DefendantCuneo was having an affair with Plaintiff's wife, who allegedly remains Defendant Cuneo's "live-in girlfriend." (Id.).
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)( the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, __ U.S. __, __, 129 S.Ct. 1937 (May 18, 2009) ().
The Court need not accept inferences drawn by 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). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3dCir. 2008). "This 'does not impose a probability requirement at the pleading stage,' but instead ' simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
The Third Circuit subsequently expounded on the Twombly/Iqbal/Phillips line of cases, as follows:
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)(emphasis added)(citations omitted).
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, itshould do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)("petition prepared by a prisoner... may be inartfully drawn and should be read 'with a measure of tolerance'"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)(overruled on other grounds). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
Plaintiff claims that Defendants violated his rights under two sections of the federal criminal code - 18 U.S.C. § 1621, which provides a criminal penalty for perjury, and 18 U.S.C. § 242, which provides a criminal penalty for deprivation of rights under color of law. However, neither of these statutes provides a private right of action under which Plaintiff may sue for monetary damages. See, e.g., Winston v. Daniels, 2011 WL 2680282 at *5 n. 4 (W.D.Pa. July 8, 2011); Walthour v. Herron, 2010 WL 1877704 at *3 (no private right of action exists under 18 U.S.C. §§ 241, 242, 245, 247, 371, or 1951); Estate of Moser v. Exeter Twp. Boro. Council Members, 1998 WL 575109 at *1 n. 1 (E.D.Pa. Sept. 8, 1998)( no private right of action under18 U.S.C. § 1621 in Section 1983 action). Thus, Plaintiff cannot proceed with a civil action to recover damages for violation of either 18 U.S.C. § 1621 or 18 U.S.C. § 242, and such claims will be dismissed for failure to state a claim upon which reliefmay be granted.
Plaintiff generally claims that Defendants' alleged actions violated 42 U.S.C. § 1986. (ECF No. 5, Complaint, at Section III). "To state a claim under Section 1986, Plaintiff must have stated a valid claim under 42 U.S.C. § 1985." Walthour at *5, citing Bieros v. Nicola, 839 F.Supp. 332, 336 (E.D.Pa. 1993). See also Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994)("transgressions of § 1986 by definition depend on a preexisting violation of § 1985")....
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