VU v. CITY OF PHILADELPHIA et al

Filing 59

MEMORANDUM, FILED. SIGNED BY HONORABLE PETRESE B. TUCKER ON 4/10/12. 4/11/12 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NGUYEN VU,
THANH THI NGUYEN,

Plaintiffs,
v.
CITY OF PHILADELPHIA, et al.

Defendants.

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CIVIL ACTION
NO. 10-0953

MEMORANDUM

Tucker, J.

April ___, 2012

Presently before this Court are three (3) Motions to Dismiss filed on behalf of Defendant
Qadriyyah Taylor (Doc. 7.); Defendants Judge Sandy L. V. Byrd, Senior Judge Alfred J. DiBona,
Jr., Judge John T.J. Kelly, Judge Stephen J. McEwan, Jr., Judge John L. Musmanno, President
Judge Pamela Pryor Dembe, (collectively, “Judicial Defendants”) and Karen Reid Bramblett,
Esquire, Janet M. Fasy, Paul J. Killion, Esquire, Charles E. O’Connor, Jr., Esquire, Donna M.
Snyder, Esquire, and John Doe (Doc. 9.); and Defendants Philadelphia District Attorney R. Seth
Williams (“DA Williams”), former Philadelphia District Attorney Lynne Abraham (“DA
Abraham”), former Assistant District Attorney Robert Lynch (“ADA Lynch”), former Assistant
District Attorney Charlie Ehrlich (“ADA Ehrlich”), Assistant District Attorney Matthew
Connelly (“ADA Connelly”), Assistant District Attorney Erica Wilson (“ADA Wilson”),
Assistant District Attorney Christine Wechsler (“ADA Wechsler”), Assistant District Attorney

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Joan Weiner (“ADA Weiner”), and Assistant District Attorney Hugh Burns (“ADA Burns”)
(collectively, “DA Defendants”). (Doc. 10.)
Plaintiff Nguyen Vu, an inmate at the State Correctional Institute at Greene, filed this
matter, pro se, on behalf of himself and his aunt, Plaintiff Thanh Thi Nguyen, alleging civil rights
violations under 42 U.S.C. § 1983. Plaintiff Vu’s claims arise from the arrest, prosecution,
conviction, and appeal initiated against him in the Court of Common Pleas for events that
occurred on December 7, 2006. (Compl. ¶¶ 34-46.)
After being granted a number of extensions in which to file a response to Defendants’
Motions to Dismiss, Plaintiff failed to timely respond to Defendants’ motions. Under Local Rule
7.1(c), “In the absence of [a] timely response [to a motion], the motion may be granted as
uncontested . . . . .” Therefore, pursuant to Local Rule 7.1, the court may grant Defendants’
motions as unopposed. Upon careful consideration of the parties’ submissions and for the
reasons set forth below, this Court will grant all Defendants' Motions to Dismiss.
I.

BACKGROUND
Pro se Plaintiff Nguyen Vu, on behalf of himself and his aunt, Thanh Thi Nguyen, bring
the instant civil rights action, pursuant to 42 U.S.C. § 1983, alleging a conspiracy by Defendants
to deny Plaintiff Vu equal protection and due process during his criminal trial and appeal, which
he alleges resulted in substantial loss of property, financial hardship, intentional infliction of
emotional distress, and injury to his reputation through slander and libel. (Compl. ¶¶ 99, 101-103,
105.) Plaintiffs also allege that Defendants conspired to intentionally inflict emotional distress on
Plaintiff Thanh Thi Nguyen by colluding to imprison her loved one to deprive her of her “critical
supports.”

(Compl. ¶¶ 100, 104.) As such, Plaintiffs seek declaratory relief, as well as

compensatory and punitive damages and attorney’s fees. (Compl. ¶¶ 106-13.)
A.

UNDISPUTED FACTS & PROCEDURAL HISTORY
From the evidence of record, taken in the light most favorable to the Plaintiffs, the

pertinent facts are as follows. On March 6, 2007, Plaintiff Vu was arrested and charged for a

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December 7, 2006, incident involving Defendant Jason John Kegel (“Underlying Incident”), for
which Plaintiff Vu was charged with aggravated assault, recklessly endangering another person,
and possessing an instrument of crime. (Compl. ¶¶ 35, 46; Doc. 7 at 3; Doc. 10 at 8.) On March 7,
2008, Plaintiff Vu was convicted in the Court of Common Pleas for aggravated assault, criminal
mischief, possessing an instrument of crime, simple assault, recklessly endangering another
person, and reckless driving. Plaintiff Vu’s sentence was deferred so that a presentence report and
mental health evaluation could be conducted. Thereafter, the Philadelphia District Attorney’s
Office (“DA’s Office”) gave Plaintiff Vu notice that it would be seeking to impose a mandatory
minimum sentence. (Doc. 10 at 9.)
On April 24, 2008, Plaintiff Vu was sentenced to the mandatory minimum sentence, an
aggregate of ten (10) to twenty (20) years incarceration in a state correctional facility. After
Plaintiff’s Vu’s post-sentence motions were denied, on August 8, 2008, Plaintiff Vu filed a notice
of appeal from the April 24, 2008, judgment and sentence. (Doc. 10 at 9.) The trial court directed
Plaintiff Vu to file a Statement of Matters Complained of on Appeal, which Plaintiff filed on
August 21, 2008. In reviewing Plaintiff Vu’s appeal, the Court of Common Pleas and Superior
Court of Pennsylvania each affirmed the judgment of sentence against him. See Commonwealth
v. Nguyen Vu, Court of Common Pleas, Philadelphia County, Criminal Trial Division, CP-51CR-0009321-2007 (Mar. 6, 2009); Commonwealth v. Nguyen Vu, Pa. Super. Ct., 2307 EDA
2008, (Nov. 10, 2009).
B. DISPUTED FACTS
Despite the state court’s findings, Plaintiff Vu alleges the following facts of the
underlying incident. On December 7, 2006, as Plaintiff Vu was driving on Roosevelt Boulevard
in Philadelphia, Defendant Kegel was tailgating behind Plaintiff’s car with his high beams on.
(Compl. ¶¶ 36-37.) Defendant Kegel pulled his car alongside Plaintiff and began yelling racial
epitaphs at him. (Id.) At the next intersection Defendant Kegel stopped his car in the middle of
the road, partially blocking Plaintiff Vu from moving. Defendant Kegel then approached Plaintiff

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Vu brandishing a gun, which he used to smash Plaintiff’s driver-side window. (Compl. ¶ 38.) In
trying to get away from Defendant Kegel, the right side of Plaintiff’s car bumped the side of
Kegel’s car. (Id.) Plaintiff claims to have not reported the incident to the police because “as an
Asian of Vietnamese descent Plaintiff had many unpleasant encounters with racist police.”
(Compl. ¶¶ 39-40.)
In his Complaint, Plaintiff Vu alleges that Defendant Kegel filed false police reports, lied
to detectives, filed false affidavits, and testified falsely at Plaintiff’s preliminary hearing and trial
(Compl. ¶ 43.). Plaintiff also alleges that Defendant James J. Miles, an officer with the
Philadelphia Police Department, signed Plaintiff’s arrest warrant, without probable cause, based
on perjured statements by Defendant Kegel and Kegel’s foster son, Defendant Corey Anthony
Mattes. (Compl. ¶ 46.) Plaintiff further alleges that Defendant ADA Connelly, the Assistant
District Attorney working on Plaintiff’s hearings, had knowledge that Defendants Kegel and
Mattes had committed perjury, but did not correct the perjurious statements because Kegel and
Mattes are family members of Defendant ADA Lynch. (Compl. ¶ 51.)
Plaintiff argues that the alleged use of false and fabricated materials in his arrest and
criminal proceedings prevented him from having a fair and impartial trial. (Compl. ¶ 58.)
Specifically, Plaintiff Vu alleges that the trial judge, Defendant Judge Byrd, had full knowledge
that the testimony offered against Plaintiff Vu was perjurious, but found Plaintiff guilty and
denied his petitions and post-trial motions to protect family members of Defendant ADA Lynch.
(Compl. ¶¶ 58-61.) Plaintiff Vu also alleges that Defendant Judge Byrd colluded with other
Defendants to alter the Notes of Testimony to deprive Plaintiff a meaningful opportunity to
appeal and to deprive him of his rights to equal protection, due process, and fair trial as
guaranteed under the United States Constitution. (Compl. ¶¶ 64-84.) Finally, Plaintiff alleges that
Defendants Donna M. Snyder, Disciplinary Counsel, and John Doe, unidentified Disciplinary
Counsel, deprived him of his equal protection rights when they did not pursue disciplinary action

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against the DA and Judicial Defendants involved in Plaintiff Vu’s underlying criminal
prosecution. (Compl. ¶ 83.)
Contrary to Plaintiff Vu’s allegations, the trial and appellate courts reported the following
facts:
On December 6, 2007, at approximately 8:30 p.m., complainant Jason Kegel and
his son Corey Mattes were driving northbound on Roosevelt Boulevard with
[Plaintiff Vu] closely following with his high beams illuminated. At the
intersection of Roosevelt Boulevard and Ninth Street complainant exited his
vehicle, confronted [Plaintiff Vu] and told him to “turn his high beams off and
stop riding my ass.” Complainant then got back into his vehicle and continued
northbound on Roosevelt Boulevard. However, [Plaintiff Vu] continued to follow
complainant in the manner described above. Several blocks further, at the
intersection of Roosevelt Boulevard and Mascher Avenue, complainant arrived at
a red traffic light and [Plaintiff Vu] pulled up behind him and bumped his
vehicle. As complainant exited his vehicle to inspect the damage, [Plaintiff Vu]
reversed his vehicle, turned in complainant’s direction and sped directly toward
him. Complainant managed to escape, returned to his vehicle and took evasive
actions to avoid further collision with [Plaintiff Vu]. [Plaintiff Vu] passed
complainant, made a left-hand turn and drove onto the median toward
complainant. Complainant again exited his vehicle and ran toward [Plaintiff
Vu’s] vehicle, but was not struck. [Plaintiff Vu] started toward complainant again
and this time [Plaintiff Vu’s] vehicle struck complainant’s left leg. Complainant
landed next to [Plaintiff Vu’s] driver-side window, then kicked and broke
[Plaintiff Vu’s] window. [Plaintiff Vu] again directed his vehicle towards
complainant, but collided with complainant’s vehicle broadside, jamming the
front driver-side door. Complainant and his son exited the vehicle from the front
passenger side door at which point [Plaintiff Vu] drove off. Complainant
recorded [Plaintiff Vu’s] license plate number and later called the police.
Thereafter, following an investigation of the incident, [Plaintiff Vu] was arrested.

Commonwealth v. Vu, CP-51-CR-0009321-2007, at 2-3 (citations omitted); Commonwealth v.
Vu, 2307 EDA 2008, at 1-2.
II. LEGAL STANDARD
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most favorable to
the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d
Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a

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claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000). The
question is whether the claimant can prove any set of facts consistent with his or her allegations
that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer 468 U.S. 183
(1984); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).
While a court will accept well-pled allegations as true for the purposes of a motion to
dismiss, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or
sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized that “a
plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.”
Bell Atl. Corp. v. Twombly et.al., 550 U.S. 544, 555 (2007). Such allegations are "not entitled to
the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to
dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). In Twombly the Court made clear that it
would not require a “heightened fact pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face.” Id. at 570. A “pleader is required to ‘set forth sufficient
information to outline the elements of his claim or to permit inferences to be drawn that these
elements exist.’” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted).
In 2009 the United States Supreme Court revisited the requirements for surviving a
12(b)(6) motion to dismiss in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). There the Court
made clear that “threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements” will not suffice to defeat a Rule 12(b)(6) motion to dismiss. Ashcroft, 129
S. Ct. at 1949. In evaluating whether a Plaintiff has met the pleading requirements, a district court
must identify "the 'nub' of the . . . complaint — the well-pleaded, nonconclusory factual
allegation[s]." Id. “[O]nly a complaint that states a plausible claim for relief [will] survive[] a
motion to dismiss.” Id. at1950.

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In light of the decision in Iqbal, the Third Circuit set forth a two-part analysis to be
applied by district courts when presented with a 12(b)(6) motion to dismiss. First, the court must
separate the legal elements and factual allegations of the claim, with the well-pleaded facts
accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009). Second, the court must determine whether the facts alleged in the
complaint demonstrate that the plaintiff has a “plausible claim for relief.” Id. at 211. If the court
can only infer the mere possibility of misconduct, the complaint must be dismissed because it has
alleged,

but

has

failed

to

show,

that

the

pleader

is

entitled

to

relief.

Id.

III. DISCUSSION
In the matter before this Court, Plaintiff Vu fails to state a claim against upon which
relief can be granted pursuant to the Federal Rules of Civil Procedure, the applicable doctrines of
immunity, and principles of respondeat superior. Plaintiff Vu also lacks standing to bring a
Section 1983 civil rights claim on behalf of his aunt, Plaintiff Nguyen. Upon consideration of the
fully briefed Motions to Dismiss filed by Defendants, this Court concludes that the pending
Motions be granted.
A.

PLAINTIFF MAY NOT CHALLENGE THE VALIDITY OF HIS UNDERLYING
CONVICTION, WHICH HAS NOT BEEN REVERSED OR OTHERWISE
CALLED INTO QUESTION.
It is well established law that a convicted criminal defendant cannot bring a federal rights

suit for monetary relief arising out of an allegedly unlawful criminal prosecution unless the
underlying criminal conviction had been reversed or otherwise called into question. Heck v.
Humphrey, 512 U.S. 477 (1994). The Heck Court held that,
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas corpus.

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512 U.S. at 486-87. Thus, an essential element of a civil rights claim of this type is that the
underlying criminal case must have been terminated in favor of the civil rights claimant. See
Hector v. Watt, 235 F.3d 154, 156 (3d Cir. 2000) (citing Heck, 512 U.S. at 484); see also
Muhammad v. Close, 540 U.S. 749, 751 (2004); Edwards v. Balistok, 520 U.S. 641, 645-47
(1997).
In Heck, the plaintiff was convicted in Indiana state court of voluntary manslaughter.
While the appeal from his conviction was pending, that plaintiff filed a § 1983 lawsuit alleging
that the prosecutor and police “knowingly destroyed [evidence] which was exculpatory in nature
and could have proved [petitioner's] innocence.” Heck, 512 U.S. at 479 (citations omitted). In
dismissing Heck’s claim, the Court noted that a § 1983 civil tort action is not an appropriate
mechanism for challenging the validity of an outstanding criminal judgment. Id. at 486.
Similar to the plaintiff in Heck, Plaintiff Vu complains that his underlying conviction and
sentence resulted from alleged unlawful conduct by defendants during his criminal trial and
appeal. Were this Court to rule in favor of Plaintiff Vu, it would undoubtedly challenge and
undermine the validity of his underlying conviction. Because Plaintiff Vu’s conviction has been
neither reversed nor invalidated by any means identified in Heck, Plaintiffs’ § 1983 claims are
barred and must be dismissed.
B.

PLAINTIFF VU’S CLAIMS MUST BE DISMISSED PURSUANT TO THE
APPLICABLE DOCTRINES OF IMMUNITY.
1. Absolute Judicial Immunity
All state entities are entitled to immunity under the Eleventh Amendment unless that

right is waived. See Laskaris v. Thornburgh, 661 F. 2d 23, 25-26 (3rd Cir. 1981). Because
Pennsylvania has not waived its right to immunity in the instant suit, its courts, agencies, and
officers acting in official capacity are entitled to sovereign and Eleventh Amendment immunity.
As such, Plaintiffs cannot maintain any claim against Judicial Defendants acting in their official
capacity.

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Under Pennsylvania law, “the Commonwealth, and its officials and employees acting
within the scope of their duties, shall continue to enjoy sovereign and official immunity and
remain immune from suit except as the General Assembly shall specifically waive the immunity.”
1 PA. CONS. STAT. § 2310. See also 42 PA. CONS. STAT. § 8521. The term “Commonwealth
government” includes “the courts and other officers or agencies of the unified judicial system . . .
.” 42 PA. CONS. STAT. § 102. The Third Circuit Court of Appeals has held that Pennsylvania’s
Court entities are Commonwealth entities entitled to Eleventh Amendment immunity. Benn v.
First Judicial Dist., 426 F. 3d 233 (3d Cir. 2005) (Judicial District is a state entity entitled to
Eleventh Amendment immunity). Moreover, a claim brought against a state official, acting in his
official capacity, constitutes a suit against the state. Kentucky v. Graham, 473 U.S. 159, 166
(1985).
Any claims for damages against Superior Court Judges Musmanno, Kelly, McEwen and
Philadelphia Court of Common Pleas Judges DiBona and Byrd are wholly barred by the doctrine
of judicial immunity. Likewise, the Superior Court Prothonotary is an officer of the Superior
Court. See Superior Court I.O.P § 54.2; Pa. R. App. P. 3502. Thus, the court entities where the
Judicial Defendants sit and where Defendants Bramblett, O’Conner, and Fasey are employed are
immune from liability under § 1983. For the same reason, the Office of Disciplinary Counsel,
which employs Defendants Killion, Snyder, and Doe, is an arm of the State. See MCI Telecom.
Comp. v. Bell-Atlantic, 271 F. 3d 491, 503-04 (3rd Cir. 2001) (stating that “immunity extends to
state agencies and departments”). As a result, Plaintiff is barred from asserting a § 1983 claim
against the Judicial Defendants.
In addition to Eleventh Amendment immunity, a claim under Section 1983 must allege
that a “person” committed a violation. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the
United States ... to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an

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action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (2006).
A “person” under the meaning of Section 1983 does not include States or state officials
acting in their official capacities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 (1989).
When a state official is sued in his official capacity, “it is not a suit against the official but rather
is a suit against the official's office. As such it is no different from a suit against the State itself.”
Hafer v. Melo, 502 U.S. 21, 26 (1991).
The Unified Judicial System of Pennsylvania, a state entity, includes The Superior Court
of Pennsylvania, the Philadelphia County Court of Common Pleas, and the Office of Disciplinary
Counsel. See Callahan v. City of Philadelphia, et al., 207 F. 3d 668, 672 (3d. Cir. 2000). Agents
of this state entity, are not “persons” who can be sued under Section 1983. Therefore, Plaintiffs
cannot maintain their claims against the Judicial Defendants acting in their official capacity.
2. Quasi-Judicial Immunity
Judicial immunity is not limited to judges; quasi-judicial immunity is available to those
who “perform functions closely associated with the judicial process.” Cleavinger v. Saxner, 474
U.S. 193, 200 (1985). In addition, personnel who act on behalf of a judicial official are entitled to
quasi-judicial immunity for these acts. Gallas v. Supreme Court of Pennsylvania, 211 F. 3d 760,
772-73 (3d Cir. 2000). Likewise, prothonotaries, who act as an extension of the court, are entitled
to immunity. See Pawlak v. Nix, 1996 WL 560360, at * 8 (E.D.Pa. Sept. 30, 1996) (holding that
the Pennsylvania Supreme Court Prothonotary and Deputy Prothonotary are entitled to quasijudicial immunity).
Here, Plaintiffs’ allegations against Defendant Deputy Prothonotary O’Connor relate to
functions closely associated with an integral function of the judicial process. Plaintiffs argue that,
during Plaintiff Vu’s appeal, Defendant O’Connor failed to provide Plaintiff Vu with a trial

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exhibit from the lower court. (Compl. ¶¶ 80-81.) Managing the appellate record, however, is an
integral function of the judicial process that the prothonotary provides as part of his official
duties. Because Defendant O’Conner was acting within the scope of his duties as the
Pennsylvania Supreme Court Deputy Prothonotary, he is entitled to the protection of quasijudicial immunity for these acts. As such, Plaintiffs have failed to state a claim upon which relief
can be granted as to their claim against Defendant O’Connor.
Defendants Snyder and Doe are similarly entitled to absolute immunity because each of
the allegations against them is directly related to quasi-judicial functions they performed as
prosecuting attorneys for the Disciplinary Board of the Pennsylvania Supreme Court. These
Defendants’ determination of whether to initiate disciplinary action was based upon sufficient
evidence disclosed through investigation and the State’s prosecution of Plaintiff Vu. Plaintiff
Vu’s claims against Defendants Snyder and Doe are aimed at precisely the judicial role of a
prosecutor that absolute immunity is intended to protect. The functions of Defendants Snyder and
Doe constituted discretionary conduct of a quasi-judicial and prosecutorial nature for which they
have absolute immunity. Thus, Plaintiff Vu’s request for relief against Defendants Snyder and
Doe must fail as a matter of law.
3. Absolute Prosecutorial Immunity
All federal constitutional claims against the DA Defendants must be dismissed because
absolute prosecutorial immunity protects the DA Defendants from liability. The Supreme Court
has held that “in initiating prosecutions and presenting the State’s case, the prosecutor is immune
from a civil suit for damages under [Section] 1983.” Imbler v. Pachtman, 424 U.S. 409, 430-31
(1976). It is unquestionable that prosecutors are absolutely immune from Section 1983 claims for
acts “intimately associated with the judicial phase of the criminal process.” Id.; see also Van de
Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009). Once a prosecutor has decided to seek an
indictment, all actions taken by the prosecutor in anticipation of judicial proceedings or in his
advocacy role for the State, are immune from liability. Buckley v. Fitzsimmons, 509 U.S. 259,

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273 (1993). Thus, absolute immunity extends to a prosecutor’s conduct during all stages of
criminal proceedings, including appellate and post-conviction proceedings where the prosecutor
is acting as an advocate for the State.
Prosecutorial immunity applies even when the prosecutor acted willfully, maliciously, or
in bad faith. See Imbler, 424 U.S. at 428-29; see also Ernst v. Child & Youth Servs. of Chester
County, 108 F. 3d 486, 503 (3d Cir. 1997). The Eastern District of Pennsylvania recently applied
the doctrine of absolute prosecutorial immunity in dismissing allegations of prosecutorial
misconduct, racial discrimination, conspiracy, and constitutional violations brought against the
District Attorney. Locke v. Caldwell, 2008 U.S. Dist. LEXIS 39798, Civ. A. 07-2272, *5-6 (E.D.
Pa May 14, 2008); see also Byrd v. Parris, 1999 U.S. Dist. LEXIS 15957, Civ. A. No. 99-769,
*11-12 (E.D. Pa. Oct. 15, 1999) (holding that absolute prosecutorial immunity bars civil rights
claims against the District Attorney’s Office for alleged misconduct during the appellate process).
Similar to that case, Plaintiff Vu alleges prosecutorial misconduct by the DA Defendants in their
handling of his criminal trial and appeal. (Compl. ¶ 99.) Plaintiff Vu does not allege that the DA
Defendants acted outside the scope of their prosecutorial or advocacy roles. Because each of
Plaintiff Vu’s allegations against the DA Defendants is based on actions taken by them pursuant
to the performance of their prosecutorial duties, the DA Defendants are immune from any
liability for claims against them in the instant suit.
C.

PLAINTIFF VU’S SECTION 1983 ACTION CANNOT BE BASED UPON
REPONDEAT SUPERIOR.
Liability in a Section 1983 civil rights action cannot be predicated upon respondeat

superior. Monell, et al. v. Dept. of Social Servs. of the City of New York, et al., 436 U.S. 658
(1978). “A defendant in a civil rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.
3 (1981); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). Liability

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under § 1983 cannot be imposed vicariously or under traditional grounds of respondeat superior.
Ressler v. Sheipe, 505 F.Supp 155, 156 (E.D. Pa. 1981). The allegations must be sufficiently
specific to identify the particular conduct of a defendant alleged to have violated the plaintiff’s
rights. Ross v. Megan, 638 F. 2d 646, 650 (3d Cir. 1981) Furthermore, liability under § 1983
requires a causal link to, and direct responsibility for, the deprivation of rights. Rizzo v. Goode,
423 U.S. 362, 370-71, 375-77 (1976).
Plaintiff Vu does not allege any facts that Defendants DA Williams, DA Abraham, or
ADA Ehrlich had any form of personal knowledge or in any way acquiesced in any of the alleged
wrongs about which Plaintiff Vu complains. Thus, Plaintiffs’ claims against these Defendants
cannot stand.
Plaintiff Vu asserts that Defendant President Judge Dembe, as the supervisor to
Defendant Judge Byrd, knew that Judge Byrd “did not reproduce [an exhibit] . . . and did not
certify the exhibit to the Superior Court to deprive Plaintiff a chance for meaningful appeal.”
(Compl. ¶ 79.) Plaintiff has failed to allege any harm to him done by Defendant President Judge
Dembe, except in her capacity as Defendant Judge Byrd’s supervisor. Liability against Defendant
Dembe cannot be based on her supervisory capacity alone. Therefore, Plaintiff’s claim against
her must fail.
Plaintiff Vu further alleges that Defendant Killion, as the Chief Disciplinary Counsel, is
the supervisor of Defendants Snyder and Doe. (Compl. ¶ 84.) Specifically, Plaintiff Vu alleges
that Defendant Killion “failed to establish adequate training, supervision, and discipline policies
concerning employees.” (Id.) Because there is no supervisory liability under § 1983, Plaintiff has
failed to allege any harm done to him by Defendant Killion other than those based on Defendant’s
supervisory role alone. Plaintiff Vu also avers that Defendant Fasy, the supervisor of Defendant
Taylor, “failed to establish adequate training, supervision and discipline policies.” (Compl. ¶ 65.)
Similar to Defendant Killion, Plaintiff has failed to allege any individual harm done by Defendant

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Fasy upon which a claim for relief may be based. Consequently, Plaintiff Vu’s claims against
Defendants Killion and Fasy must be dismissed.
D.

PLAINTIFF VU LACKS STANDING TO BRING A DERIVTIVE SECTION 1983
CLAIM ON BEHALF OF HIS AUNT, PLAINTIFF NGUYEN.
Plaintiffs allege that Defendants conspired and colluded to deprive Plaintiff Nguyen of

her “critical supports,” which they allude are provided by her nephew, Plaintiff Vu. Plaintiff Vu
signed his Complaint: “Nguyen Vu, Pro se for himself and for Plaintiff Thanh Thi Nguyen.”
(Compl. ¶ 30.) Thus, Moving Defendants rightly note that Plaintiff Vu brought this action on
behalf of himself and as a derivative claim on his behalf of Thanh Thi Nguyen.
A person cannot use as a predicate to standing an injury for which he does not share. See
Alee v. Medrano, 416 U.S. 802, 829-30 (1970). Plaintiff Vu has failed to state a claim with regard
to his aunt’s allegations and has failed to demonstrate either the constitutional or prudential
standing requirements to establish the § 1983 claims he brings on behalf of his aunt. Therefore,
Plaintiff Vu’s derivative claims on behalf of his aunt must be dismissed for lack of standing.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are granted. An appropriate
Order follows.

BY THE COURT:
/s/ Petrese B. Tucker
__________________________________
Hon. Petrese B. Tucker, U.S.D.J.

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