DONAHUE v. PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 10/14/15. 10/15/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SEAN M. DONAHUE
PENNSYLVANIA DEPARTMENT OF
LABOR AND INDUSTRY
OCTOBER 14, 2015
Plaintiff Sean M. Donahue, a prisoner incarcerated at the Dauphin County Prison again
sues the Pennsylvania Department of Labor and Industry under 42 U.S.C. § 1983.
accompanying Order, we grant Plaintiff leave to proceed in forma pauperis but dismiss his
Complaint as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff alleges the Pennsylvania Department of Labor and Industry initiated an
administrative action against him because he sent allegedly inappropriate emails to government
officials, attempted to file criminal charges against government employees, and sued government
officials and entities. The Pennsylvania Department of Labor and Industry also made a criminal
complaint against Plaintiff because of the emails he sent to government officials and, according
to Plaintiff, because he applied and qualified for a job at the Department of Labor and Industry.
Public dockets reflect the police criminally charged Plaintiff in the Dauphin County Court of
Common Pleas with terroristic threats and harassment. See Commonwealth v. Donahue, Docket
The facts are plead in the Complaint and publicly available dockets for the proceedings underlying
Plaintiff claims the Pennsylvania Department of Labor and Industry retaliated against
him for exercising his right to his freedom of speech under the First Amendment by initiating the
proceedings against him and interfering with his ability to obtain employment. Plaintiff would
like to remove the administrative action from the Commonwealth Court, see Donahue v State
Civil Service Commission, 621 CD 2015, to this Court. He also seeks damages, an injunction
prohibiting the Department of Labor and Industry from proceeding against him in the
administrative and/or criminal case, and a court-appointed attorney.
Plaintiff may proceed in forma pauperis.
We grant Plaintiffs motion to proceed in forma pauperis as it appears he is not capable
of paying the fees necessary to commence this civil action.2
Under 28 U.S.C. § 1915(g), a prisoner, who on three (3) or more earlier occasions while
incarcerated has filed an action or appeal in federal court dismissed as frivolous, malicious, or
for failure to state a claim upon which relief may be granted, must be denied in forma pauperis
status unless in imminent danger of serious physical injury at the time he filed the complaint.
Abdul-Akbar v. McKelvie, 239 F.3d 307, 310-11 (3d Cir. 2001) (en bane). "[A] strike under §
1915(g) will accrue only if the entire action or appeal is (1) dismissed explicitly because it is
'frivolous,' 'malicious,' or 'fails to state a claim' or (2) dismissed pursuant to a statutory
provision or rule that is limited solely to dismissals for such reasons, including (but not
necessarily limited to) 28 U.S.C. §§ 1915A(b)(l), 1915(e)(2)(B)(i), 1915(e)(2)(B)(ii), or Rule
l 2(b)( 6) of the Federal Rules of Civil Procedure." Byrd v. Shannon, 715 F .3d 117, 126 (3d Cir.
2013). "[D]ismissal based on the immunity of the defendant, whether absolute or qualified, does
not constitute a PLRA strike, including a strike based on frivolousness, unless a court explicitly
and correctly concludes that the complaint reveals the immunity defense on its face and
dismisses the ... complaint under Rule 12(b)(6) or expressly states that the ground for the
dismissal is frivolousness." Ball v. Famiglio, 726 F.3d 448, 463 (3d Cir. 2013).
Plaintiff has longstanding issues with certain employment programs run by the
Pennsylvania Department of Labor and Industry and expressed his dissatisfaction by sending
numerous emails to government employees. In 2013, he filed over twenty (20) pro se cases in
the Middle District of Pennsylvania in the wake of a 2012 arrest and prosecution which appears
similar to the prosecution underlying the instant case. Despite the dismissal of those cases, it
appears Plaintiff only has one "strike" for purposes of§ 1915(g). See Donahue v. Olexa, M.D.
Pa. Civ. A. No. 13-1071 (explicitly dismissing amended complaint for failure to state a claim).
Defendant's Complaint is dismissed.
We dismiss the complaint if frivolous under Under 28 U.S.C. § 1915(e)(2)(B)(i). A
complaint is frivolous if it "lacks an arguable basis either in law or in fact," Neitzke v. Williams,
490 U.S. 319, 325 (1989). The Complaint is legally baseless if "based on an indisputably
meritless legal theory." Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). As
Plaintiff is proceeding pro se, the Court liberally construes his allegations. Higgs v. Att '.Y Gen.,
655 F.3d 333, 339 (3d Cir. 2011).
"Section 1983 provides a federal forum to remedy many deprivations of civil liberties,
but it does not provide a federal forum for litigants who seek a remedy against a State for alleged
deprivations of civil liberties" because the Eleventh Amendment entitles states to immunity from
suit in federal court. Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989).
The majority of the opinions dismissing Plaintiff's cases filed in 2013 invoke 28 U.S.C. §
1915(e)(2)(B)(i)-(iii), recite the standard for dismissal for failure to state a claim, and provide
varied reasons for dismissal-including immunity-without explicitly stating the complaint was
frivolous, malicious, or failed to state a claim. See Donahue v. Commonwealth, M.D. Pa. Civ. A.
No. 13-1328; Donahue v. Ristowski, M.D. Pa., Civ. A. No. 13-1327; Donahue v. Luzerne Cnty.
Corr. Facility, M.D. Pa., Civ. A. No. 13-1326; Donahue v. FBI Scranton Office, M.D. Pa., Civ.
A. No. 13-1286; Donahue v. Hazleton Career Link, M.D. Pa., Civ. A. No. 13-1285; Donahue v.
Hazleton City Police Dep 't, M.D. Pa., Civ. A. No. 13-1284; Donahue v. Zola, M.D. Pa., Civ. A.
No. 13-1283; Donahue v. Commonwealth, M.D. Pa., Civ. A. No. 13-1282; Donahue v. Luzerne
Cnty. Corr. Facility, M.D. Pa., Civ. A. No. 13-1281; Donahue v. Hearthway, M.D. Pa., Civ. A.
No. 13-1280; Donahue v. Luzerne Cnty. Corr. Facility, M.D. Pa., Civ. A. No. 13-1277; Donahue
v. Stoffa, M.D. Pa., Civ. A. No. 13-1276; Donahue v. Luzerne Cnty. Corr. Facility, M.D. Pa.,
Civ. A. No. 13-1275; Donahue v. Commonwealth, M.D. Pa., Civ. A. No. 13-1274; Donahue v.
Hazleton Police Dep 't, M.D. Pa., Civ. A. No. 13-1273; Donahue v. Luzerne County Corr.
Facility, M.D. Pa., Civ. A. No. 13-1272; Donahue v. Luzerne Cnty. Corr. Facility, M.D. Pa.,
Civ. A. No. 13-1271. Those "unclear" dismissals cannot count as strikes for purposes of §
1915(g). See Ball, 726 F.3d at 463. Likewise, dismissals without prejudice for failure to exhaust
do not count as strikes. Id. at 460 n.17; see Donahue v. Luzerne Cnty. Corr. Facility Kitchen
Staff, M.D. Pa., Civ. A. No. 13-1279; Donahue v. Pugh, M.D. Pa., Civ. A. No. 13-1278. Further,
it is not clear whether a dismissal for failure to prosecute due to plaintiff having failed to file an
amended complaint in the wake of an initial dismissal for failure to state a claim counts as a
"strike." See Donahue v. Pierantoni, M.D. Pa., Civ. A. No. 13-1109. Accordingly, we discern
only one clear "strike" under § 1915(g).
administrative department of the Commonwealth, the Pennsylvania Department of Labor and
Industry is entitled to Eleventh Amendment immunity.
See 71 Pa. Cons. Stat. § 61.
Accordingly, Plaintiffs § 1983 lawsuit against the Pennsylvania Department of Labor and
Industry is legally frivolous. 3 There is no legal basis for removing an administrative appeal from
the Pennsylvania Commonwealth Court to this Court. As Plaintiff cannot cure the deficiencies
in his Complaint, we decline leave to file an amended complaint.
We dismiss Plaintiffs Complaint as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
As there is no legal basis for Plaintiffs complaint, his request for an appointment of attorney is
Our finding is consistent with prior dismissals of Plaintiffs similar claims in other courts. See
Donahue v. Hazleton Career Link, M.D. Pa., Civ. A. No. 13-1285; Donahue v. Hearthway, M.D.
Pa., Civ. A. No. 13-1280; Donahue v. Stolfa, M.D. Pa., Civ. A. No. 13-1276; Donahue v.
Commonwealth, M.D. Pa., Civ. A. No. 13-1274.
Plaintiff has access to counsel as he is currently represented by counsel in an ongoing case he
filed in the Middle District of Pennsylvania based on his 2012 arrest and prosecution. See
Donahue v. City of Hazleton, M.D. Pa., Civ. A. No. 14-1351.
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