Smith v. Forester et al
MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 12/9/14. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JERRY L. SMITH, SR.,
Civ. 1\'0. 11-893-LPS
PATRICK FORESTER, et aI.,
Jerry L. Smith, Sr., Frankford, Delaware, Pro Se Plaintiff.
David G. Culley, Esquire, Tybout, Redfearn & PeU, Wilmington, Delaware. Counsel for
December 9, 2014
Plaintiff Jerry L. Smith, Sr. ("Plaintiff") filed this action pursuant to 42 V.S.c. § 1983,
alleging violations of his constitutional rights and raising supplemental State claims. (D.L 1) He
proceeds pro se and has paid the filing fee. The Court has jurisdiction pursuant to 28 U.S.c.
§ 1331. Plaintiff amended the complaint (D.L 4) on January 27, 2012, and Defendants moved to
dismiss. The motion was granted in part, and Plaintiff was given leave to amend. Plaintiff filed a
second amended complaint (D.L 27) on May 9, 2013. Defendants against moved to dismiss, the
motion was granted in part, and Plaintiff was given leave to amend the 42 V.S.c. § 1985 claim.
Plaintiff fIled a third amended complaint (D.L 34) on March 11,2014. Presently before the Court is
Defendants' partial motion to dismiss Plaintiff's third amended complaint (D.L 35) and Plaintiff's
opposition (D.L 37) thereto. In addition, Plaintiff moves for leave to fIle electronically. (D.L 38)
For the reasons that follow, the Court ""TIl grant Defendants' motion and will deny without
prejudice Plaintiff's motion for leave to file electronically.
While traveling in his vehicle on October 4, 2009, l)laintiff was stopped in Millsboro,
Delaware. He was charged with violations under Delaware law for inattentive driving, must drive
on the right side of the roadway, failure to have license in possession, failure to have registration
card in possession, and failure to have insurance identifIcation in violation. See 21 DeL C. §§ 2108,
2118,2721,4114, 4176(b). Two trials took place, and Plaintiff was acquitted of all charges.
The Third Amended Complaint contains counts that were dismissed by the Court, including
Counts Three, Four, and Five as barred by the County and Municipal Tort Claims Act, 10 DeL C.
§§ 4010-12. (See D.l. 34) As set forth in the February 10, 2014 order, this case currently proceeds
on Counts One, the Count Two 42 U.S.c. § 1983 conspiracy claim, and Count Six. Amended
Count Two alleges conspiracy pursuant to 42 U.s.c. § 1983, § 1985(3), and § 1986. Defendants
move to dismiss the § 1985 claim on the grounds that it was not timely flied and fails to state a claim
for conspiracy motivated by racial or class-based discriminatory animus.
Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the
Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218,
223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec'. Litig.,
114 F.3d 1410, 1420 (3d Cir. 1997) (intemal quotation marks omitted). Thus, the Court may grant
such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as
true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio
v. Aetna, 1m'., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint are
true (even if doubtful in fact).'" Vi.'taulic Co.
Tieman, 499 F.3d 227,234 (3d Cir. 2007) (quoting Bell
Atl. Corp. v. TwomblY, 550 U.S. 544,555 (2007)). A claim is facially plausible "when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ash.roji I). Iqbal, 556 U.S. 662,678 (2009). At bottom, "[t]he
complaint must state enough facts to raise a reasonable expectation that discovery will reveal
evidence of [each] necessary element" of a plaintiff's claim. Wilkerson
Nell} Aledia Tech. Charter Sch.
Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).
The Court not obligated to accept as true "bald assertions," lvlorse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cit. 1997) (internal quotation marks omitted), "unsupported conclusions and
unwarranted inferences," Sch'9lkill Energy Res., Inc.
Penn.rylvania Power & Light Co., 113 F.3d 405,
417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami I). rauver, 82 F.3d 63, 69 (3d
Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint,
"however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by la\V1'ers." Erickson v. Pardus, 551 U.S. 89,94 (2007) (internal quotation marks omitted).
Plaintiff was given until within 21 days from February 12, 2014 to file a Third Amended
Complaint. It was not filed until March 11,2014, some seven days past that deadline. Amended
Count Two, a portion of which Defendants move to dismiss, alleges that Defendants Millsboro
Police ChiefJohn Murphy ("Murphy") and Millsboro Police Officer Patrick Forester ("Forester")
deprived Plaintiff of his "right to unaltered exculpatory evidence and equal protection of the law"
"as a result of their concerted unlawful and malicious conspiracy." (D.I. 34 at ~ 40)
Amended Count Two adds paragraphs 40.6 and 40.7. Therein, Plaintiff states that he is an
African American and that on the day of his arraignment, "a White lady's charges ... were dropped"
but he was told by the same prosecutor that the Millsboro Police did not want to drop any of the
charges against him. (Id. at ~ 40.6) The Third Amended Complaint goes on to allege, "thus the
creation of inv-idious discriminatory animus ...." (Id.) Defendants move for dismissal, arguing that
Plaintiff failed to allege facts sufficient to state a claim for conspiracy motivated by racial or class
based discriminatory animus under 42 USc. § 1985(3).
To state a claim under 42 USc. § 1985(3), a plaintiff must allege: (1) a conspiracy;
(2) that the conspiracy is motivated by a racial or class-based discriminatory animus designed to
deprive, directly or indirectly, any person or class of persons of the equal protection of the laws;
(3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation
of any right or privilege of a citizen of the United States. See L.£lke 1). Arnold, 112 F.3d 682, 685 (3d
Plaintiff fails to state a conspiracy claim under § 1985(3), even with the addition of
paragraphs 40.6 and 40.7. «[T]he plaintiff must specifically allege the events claimed to constitute
intentional discrimination as well as circumstances giving rise to a plausible inference of racially
discriminatory intent." Yu.ruj v. Va.r.rar Coi!., 35 F.3d 709, 713 (2d Cir. 1994). The allegations that
charges against Plaintiff were not dismissed, while charges against a White woman were dropped,
without more, are conclusory and do not state a claim for relief on the basis of racially discriminatory
intent. Having reviewed the allegations, the Court finds that Plaintiff has failed to state a plausible
claim for relief with regard to the § 1985(3) claim. Plaintiff was given leave to cure his pleading
defects but failed to do so. Therefore, the Court will grant Defendants' motion to dismiss the 42
U.S.c. § 1985(3) conspiracy claim.
Finally, Plaintiff fails to state a claim under § 1986. A cognizable 42 V.S.c. § 1985 claim is a
prerequisite to stating a claim under § 1986. See Robi.ron
Canterbury Vii!., Inc., 848 F.2d 424, 431
n.l0 (3d Cir. 1988); Brawer v. Horowitz, 535 F.2d 830, 841 (3d Cir. 1976). Because Plaintiff has not
properly pled a § 1985 violation under any viable legal theory, the Court will also dismiss his § 1986
Plaintiff moves for leave to file electronically "to relieve him of an additional burden and the
untimeliness often reflected in the
(OJ. 38) Pursuant to this Court's C:VVECF
administrative procedures, "apro se party may file a motion for authorization to file electronically on
a case-by-case basis. The pro se party must indicate that they have independently reviewed all of the
tutorials and related topics on the court's web site." 'see http://W\vw.ded.uscourts.gov/
registration (Oec. 8,2014).
Plaintiff has not met the requirements for electronic filing in this Court. Therefore, the
Court will deny the motion without prejudice.
For the above reasons, the Court will grant Defendants' partial motion to dismiss Plaintiff's
Third Amended Complaint (OJ. 35) and will deny without prejudice Plaintiff's motion to ftle
electronically (OJ. 38).
An appropriate Order will be entered.
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