SIMS v. DISTRICT JUSTICE COURT OF THE COUNTY OF MONTGOMERY, PENN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 2/28/17. 3/1/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSEPH K. SIMS
Plaintiff – Pro se
JOHN P. GREGG, et al.
NITZA I. QUIÑONES ALEJANDRO, J.
FEBRUARY 28, 2017
Before this Court are: (a) motions to dismiss filed pursuant to Federal Rules of Civil
Procedure (“Rule”) 12(b)(1) and 12(b)(6) by Defendants Thomas C. Egan, III, Daniel Glammer,
Susan M. Markofsky, Cheryl L. Austin, Joanne Mancini, John P. Gregg, Wendy DemchickAlloy, Thomas McBride, Joseph J. Hylan, Chris Parisi, Stephen Geday and Regina B. Guerin,
[ECF 23], and Defendant Kate M. Kelly, [ECF 25], (collectively, “Moving Defendants”), and (b)
a motion for appointment of counsel filed by Plaintiff Joseph K. Sims (“Plaintiff”), acting pro se.
[ECF 38]. In their motions, Moving Defendants seek the dismissal of this action for either a lack
of subject matter jurisdiction pursuant to Rule 12(b)(1) or for a failure to state a claim on which
relief can be granted pursuant to Rule 12(b)(6), and specifically argue that Plaintiff’s claims are
barred either by the statute of limitations, the Rooker-Feldman and Heck doctrines, or absolute
immunity. The motions to dismiss and the motion for appointment of counsel are opposed. The
issues presented in these motions have been fully briefed and are ripe for disposition.
For the reasons set forth, the motion for appointment of counsel is denied, the motions to
dismiss are granted, and this matter is dismissed with prejudice.
Plaintiff, proceeding pro se, initiated this action on September 30, 2015, [ECF 1]. He
filed an amended complaint on November 11, 2015, [ECF 25], and a “Claim for Relief” on
March 17, 2016, [ECF 21], which was later construed and docketed on April 13, 2016, as a
second amended complaint. 1 [ECF 28]. Plaintiff’s 36-page second amended complaint contains
vague and incoherent rambling assertions against 28 named Defendants, 2 charging them with
violating his federal and state constitutional rights during the prosecution of five state court
criminal cases, four of which resulted in a conviction, and which were initiated against him
during the period of 1990 to 2009, in the Court of Common Pleas for Montgomery County,
Pennsylvania. 3 [ECF 28 at 1]. The second amended complaint is, however, vague and/or devoid
of any specific factual allegations against Moving Defendants. Instead, the second amended
complaint consists of conclusory assertions that Moving Defendants committed misdeeds during
the prosecution of these four Montgomery County criminal cases. By way of example, Plaintiff
On March 17, 2016, Plaintiff filed a document titled “Claim for Relief,” [ECF 21], which this
Court reviewed and by Order dated April 13, 2016, [ECF 27], construed the pleading as a second
amended complaint, and directed the Clerk to docket it as of the date of said Order.
The Defendants are judges, prosecutors, members of their staff, public defenders, private defense
counsel, and/or police officers.
The five criminal cases are: (1) Comm. v. Sims, Docket No. CR 4070-1990; (2) Comm. v. Sims,
Docket No. CR 1900-2000; (3) Comm. v. Sims, Docket No. CR 9120-2001; (4) Comm. v. Sims, Docket
No. CR 1761-2006; and (5) Comm. v. Sims, Docket No. CR 3259-2009. According to the public records
available for these cases, copies of which were attached as an exhibit to one of the motions to dismiss, the
first case was nolle prossed and the other four cases resulted in guilty pleas for, inter alia, aggravated
assault, stalking/intent to place in fear, criminal mischief-damage property, and harassment-follow in
public place, respectively. [ECF 23-2]. This Court may consider these public records. See Pension Ben.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“To decide a motion to
dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the
complaint and matters of public record.”).
Defendants Egan, III, Glammer, and Markofsky used a legal
process without probable cause against plaintiff, Thomas
Egan’s name-signature, are not on any case paper work for
[two of the criminal cases], primarily to accomplish a purpose
for which the process was not designed. [ECF 28 at 7-8]
No probable [c]ause for CR 1900-00. Only the [p]olice
criminal complaint, or, M.D.J., Francis J. Lawrence, Jr. (Id. at
In the [n]otes of [t]ranscript, Kate Kelly and Cheryl Austin,
moved, from-to, Defendant and [w]itness, referring to plaintiff.
The three of they, M.D.J., 38-1-15, F.J. Lawrence, Jr., Kate
Kelly and Cheryl Austin, misrepresented the 01/09/01, Judge
trial at the Montg. CTY. CRT. House before the JDG. Del
Ricci. (Id. at 18-19) (emphasis removed).
With CR 1900-00, Kate M. Kelly and Cheryl L. Austin,
actually represented Frank Snowden , a wooden handle knife,
so dull it wouldn’t cut butter, currently also in the Borough
Police property room. (Id. at 24).
Christopher Parisi with Frank Flick, used a legal process CR
1761-06, EXHIBIT C 25, as CR 1900-00, [there was Frank
Snowden again in plaintiff’s Mother’s house seducing her with
narcotics, 06/05/06 dates on EXHIBITS 20, 25, 26, Amended
Complaint], as, procurement, initiation and continuation of
civil proceedings, without probable cause, against plaintiff . . . .
(Id. at 26) (emphasis removed) (brackets in original).
He, Chris Parisi, committed the double jeopardy of CR 407090 and CR 4063-90, as, CR 1900-00 and Theft by
Deception . . . . (Id.).
As stated, Moving Defendants move to dismiss Plaintiff’s claims as barred by the statute
of limitations, by the Rooker-Feldman doctrine and the Heck doctrine, and/or absolute immunity.
[ECF 23 at 7-11; ECF 25 at 6-7]. Plaintiff opposes the motions to dismiss. [ECF 30].
A motion to dismiss under Rule 12(b)(1) challenges the existence of subject matter
jurisdiction. As the party invoking this Court’s jurisdiction, Plaintiff bears the burden of proving
that the requisite jurisdictional requirements are met. Dev. Fin. Corp. v. Alpha Hous. & Health
Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995); Packard v. Provident Nat’l Bank, 994 F.2d 1039,
1045 (3d Cir. 1993). “[W]hen there is a fact question about whether a court has jurisdiction, the
trial court may examine facts outside the pleadings . . . ‘[b]ecause at issue in a factual 12(b)(1)
motion is the trial court’s jurisdiction – its very power to hear the case.’” Robinson v. Dalton,
107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977)). Therefore, this Court is free to consider evidence outside the
pleadings, including publicly available records, to resolve any factual issue bearing on the
court’s jurisdiction. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997); Jiricko v.
Bennett, Bricklin & Saltzburg, LLP, 321 F. Supp. 2d 636, 640 (E.D. Pa. 2004).
When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
court “must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The court must
determine “whether the facts alleged in the complaint are sufficient to show that the plaintiff has
a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
The complaint must do more than merely allege the plaintiff’s entitlement to relief; it must
“show such an entitlement with its facts.” Id. (citations omitted). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct the complaint
has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679 (quoting Fed. R. Civ. P. 8(a)) (alterations in original). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. at 678 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Id. To survive a motion to dismiss
under Rule 12(b)(6), “a plaintiff must allege facts sufficient to ‘nudge [her] claims across the line
from conceivable to plausible.’” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 570).
Even though pleadings and other submissions by pro se litigants are subject to liberal
construction and the court is required to accept the truth of a plaintiff’s well-pleaded allegations
while drawing reasonable inferences in a plaintiff’s favor, Wallace v. Fegan, 455 F. App’x 137,
139 (3d Cir. 2011) (citing Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per
curiam)), a pro se complaint must still “contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570).
In construing the second amended complaint liberally, Plaintiff attempts to assert federal
and state constitutional and/or statutory claims premised on Moving Defendants’ alleged
wrongful conduct in the prosecution of the five Montgomery County criminal cases discussed
supra, the last of which commenced in 2009 and concluded on April 8, 2010. [ECF 28; ECF 232 at 2]. Based upon the date of this last criminal matter, Moving Defendants contend that
Plaintiff’s federal and state law claims are barred by the statute of limitations.
Defendants also contend that the alleged constitutional and statutory claims arising from the
prosecution and convictions in four of the criminal proceedings are barred under the RookerFeldman doctrine 4 and the Heck doctrine. 5
Finally, Moving Defendants argue absolute
immunity applies. On all counts, this Court agrees.
The Supreme Court laid out the principles of this doctrine in Rooker v. Fidelity Trust Co., 263
U.S. 413 (1923), and Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983).
Heck v. Humphrey, 512 U.S. 477 (1994).
Statute of Limitations 6
There is no specific federal statute of limitations for federal constitutional claims brought
under 42 U.S.C. § 1983 (“§ 1983”). “When Congress has not established a time limitation for a
federal cause of action, the settled practice has been to adopt a local time limitation as federal
law . . . .” Wilson v. Garcia, 471 U.S. 261, 266 (1985). In Wilson, the Supreme Court concluded
that § 1983 claims “should be classified as claims for personal injury for the purpose of
determining the limitations period under the applicable state law.” Kost v. Kozakiewicz, 1 F.3d
176, 190 (3d Cir. 1993) (citing Wilson, 417 U.S. at 272-76). Under this framework, § 1983
claims arising in Pennsylvania are subject to Pennsylvania’s two-year limitations period for
personal injury actions.
Id. Subsequent to Wilson, Congress enacted 28 U.S.C. § 1658 (“§
1658”), which provides that “a civil action arising under an Act of Congress enacted after the
date of the enactment of this section [December 1, 1990] may not be commenced later than 4
Generally, a district court should not entertain a statute of limitations defense in the context of a
Rule 12(b)(6) motion. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir.
1994). However, “an exception is made where the complaint facially shows noncompliance with the
limitations period and the affirmative defense clearly appears on the face of the pleading.” Id.; Brown v.
Montgomery Cty., 470 F. App’x 87, 90 (3d Cir. 2012) (“[U]nder the law of this Circuit (the so-called
‘Third–Circuit Rule’), such a [statute of limitations] defense may be asserted by motion to dismiss if the
time alleged in the statement of a claim shows that the cause of action has not been brought within the
statute of limitations.”) (internal quotations omitted); see also Jones v. Bock, 549 U.S. 199, 215 (2007)
(“A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the
plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable
statute of limitations, the complaint is subject to dismissal for failure to state a claim; that does not make
the statute of limitations any less an affirmative defense.”). Because Plaintiff’s complaint identifies the
five criminal proceedings that form the basis for the alleged wrongful conduct, and because the relevant
dates for these proceedings are part of the public record, this Court can consider Moving Defendants’
statute of limitations argument.
Pennsylvania law provides that the “following actions and proceedings must be commenced
within two years: (1) action for assault, battery, false imprisonment, false arrest, malicious prosecution or
malicious abuse of process. (2) An action to recover damages for injuries to the person or for the death of
an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.” 42
Pa. Cons. Stat. § 5524(a)-(b).
years after the cause of action accrues.” 28 U.S.C. § 1658(a). Thus, to the extent that § 1658
applies to Plaintiff’s federal claims, they are subject to a four-year statute of limitation. To the
extent, however, that § 1658 does not apply, Plaintiff’s § 1983 claims, as well as his state law
claims, would be subject to Pennsylvania’s two-year limitations period for personal injury
actions. See Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993).
Here, Plaintiff’s federal claims appear to be based on an alleged violation of the Second,
Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and are not
based on “an Act of Congress enacted after December 1, 1990.” Thus, Pennsylvania’s two-year
statute of limitations, and not the federal four-year catch-all statute, applies to Plaintiff’s claims.
Notwithstanding, even giving Plaintiff the benefit of the longer four-year statute of limitations
does not preserve his claims. All of Plaintiff’s claims relate to five criminal proceedings, the
latest of which concluded on April 8, 2010, more than five years before Plaintiff commenced this
action. 8 Thus, these claims are barred by the statute of limitations. Accordingly, the motions to
dismiss are granted on this ground. 9
Plaintiff also references an August 12, 2011 letter and an August 23, 2011 letter from the
Pennsylvania State Police sent to him in response to his Pennsylvania Instant Check System Challenge.
[ECF 28-1 at 29-30]. These letters reference several earlier convictions that Plaintiff contends to be
“clerical error[s] caused by Kate Kelly”. [ECF 28 at 25]. Reading the second amended complaint
liberally, and assuming that Plaintiff means that the convictions did not occur and were instead clerical
errors, the allegations do not suggest that Defendant Kelly caused the alleged clerical errors in August
2011. Instead, it would appear that she allegedly caused these clerical errors at some earlier point which
the Pennsylvania State Police then referenced in the two August 2011 letters. Thus, Defendant Kelly’s
alleged conduct occurred outside the statute of limitations. Further, even if Plaintiff is arguing that the
“clerical errors” constituted a violation of his constitutional rights in August 2011, Plaintiff did not
initiate this action until September 30, 2015, over four years later. Plaintiff’s claims, even if some of
them accrued in August 2011, are time barred.
In his response to the motions to dismiss, Plaintiff conclusorily asserts that this action is not timebarred, and appears to argue that the claims he asserts in his second amended complaint relate back to his
original pleading, and that his pleading should not be stricken unless it is devoid of factual basis on its
face. [ECF 30 at 5]. However, Plaintiff initiated this case on September 30, 2015, more than four years
after the final criminal case at issue concluded. Thus, these allegations, on their face, support this Court’s
Rooker-Feldman and Heck Doctrines 10
As noted supra, Plaintiff’s claims are all premised on alleged wrongful conduct in the
state prosecution of the five criminal cases, four of which resulted in guilty pleas and
convictions. [ECF 23-2]. Only Comm. v. Sims, Docket No. CR 4070-1990, did not result in a
conviction having been nolle prossed on November 8, 1990. 11 (Id.). While the allegations in the
second amended complaint are not entirely clear, to the extent Plaintiff challenges the conduct of
the Moving Defendants in relation to these four convictions, including arguments of lack of
probable cause in those cases, this Court lacks jurisdiction to consider such claims under the
Rooker-Feldman and Heck doctrines.
The Rooker-Feldman doctrine provides that federal district courts lack jurisdiction over
suits that are essentially appeals from state court judgments. Great Western Mining & Mineral
Co. v. Fox Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010). The Rooker-Feldman doctrine
specifically bars a federal claim “if the claim was ‘actually litigated’ in state court or if the claim
is ‘inextricably intertwined’ with the state adjudication.” ITT Corp. v. Intelnet Int’l Corp., 366
F.3d 205, 210 (3d Cir. 2004).
A federal claim is “inextricably intertwined” with a state
adjudication when “(1) the federal court must determine that the state court judgment was
erroneously entered in order to grant the requested relief, or (2) the federal court must take action
that would negate the state court’s judgment.” Knapper v. Bankers Trust Co., 407 F.3d 573, 581
(3d Cir. 2005). The Rooker-Feldman doctrine bars a federal claim in a district court where: “(1)
opinion that Plaintiff’s claims were brought after the expiration of the statute of limitations. Plaintiff’s
arguments to the contrary lack merit.
Plaintiff does not address Moving Defendants’ Rooker-Feldman or Heck arguments.
It is clear that any alleged misconduct related to CR 4070-1990 occurred well outside the statute
the federal plaintiff lost in state court; (2) the plaintiff ‘complain[s] of injuries caused by [the]
state court judgments’; (3) those judgments were rendered before the federal suit was filed; and
(4) the plaintiff is inviting the district court to review and reject the state judgments.” Great
Western Mining, 615 F.3d at 166 (citations omitted).
Here, when considering the allegations in Plaintiff’s second amended complaint, the four
prongs necessary to implicate the Rooker-Feldman doctrine are met and, therefore, bar this
Court’s jurisdiction over this matter. Specifically, Plaintiff appears to assert, inter alia, that the
criminal prosecutions in these matters were brought without probable cause, that he was not
permitted to confront witnesses against him during any of the proceedings, and that he was
subject to double jeopardy in violation of the Fifth Amendment. [ECF 28 at 10, 13, 16-18].
Plaintiff appears to be asserting continuing harm as a result of these criminal judgments, in part,
because his firearm was not returned to him, (id. at 14-15), monetary loss in the form of bail, (id.
at 20), denial of a concealed firearm permit, (id. at 25), and the loss of veterans benefits. (Id. at
33). All of these judgments were entered before the instant lawsuit was filed. As pleaded,
Plaintiff’s claims are “inextricably intertwined” with those state court criminal proceedings and
judgments, which would require this Court to “determine that the state court judgment[s were]
erroneously entered” or “take action that would negate the state court’s judgment[s].” Knapper,
407 F.3d at 581; see also Desi’s Pizza, Inc. v. Wilkes-Barre, 321 F.3d 411, 421 (3d Cir. 2003).
This is something this Court cannot do under the Rooker-Feldman doctrine. See Imhoff v.
Disalle, 2014 WL 3055367, at *4 (W.D. Pa. July 3, 2014) (dismissing case under RookerFeldman because the plaintiff’s constitutional claims were inextricably intertwined with the state
court criminal proceeding and judgment). Any disagreement and/or challenge is appropriately
done using the state appellate process and not by review of the state court orders in federal court.
Likewise, Plaintiff’s § 1983 claims are precluded by Heck v. Humphrey, 512 U.S. 477
(1994). As established in Heck, a plaintiff may not pursue a claim under § 1983 that directly or
implicitly calls into question the validity of his conviction unless he demonstrates 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.” Id. at 486-87; see also Gilles v. Davis, 427
F.3d 197, 209 (3d Cir. 2005); Bush v. Philadelphia Police Dept., 387 F. App’x 130, 132 (3d Cir.
2010). Here, Plaintiff’s constitutional claims all implicitly call into question the validity of his
state convictions, none of which have been reversed, expunged, or declared invalid. Thus,
Plaintiff’s § 1983 claims related to these criminal cases are barred, as a matter of law, by Heck.
Moving Defendants also argue that the eight Moving Defendants who are prosecutors or
members of the prosecution’s staff 12 are entitled to absolute immunity. It is well established that
“acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the State, are entitled to the
protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Because
Plaintiff’s claims against the prosecutors all relate to their conduct in initiating and conducting
criminal proceedings against Plaintiff, Moving Defendants Thomas C. Egan, III, Susan M.
Markofsky, Cheryl L. Austin, Joanne Mancini, Wendy Demchick-Alloy, Thomas McBride,
Moving Defendants Thomas C. Egan, III, Susan M. Markofsky, Cheryl L. Austin, Wendy
Demchick-Alloy, Thomas McBride, Chris Parisi, and Stephen Geday are all current or former
prosecutors. Moving Defendant Joanne Mancini is a secretary from the Montgomery District Attorney’s
Chris Parisi, and Stephen Geday are entitled to absolute immunity. Therefore, Plaintiff’s claims
against these Moving Defendants are dismissed on this basis. 13
In addition to the Moving Defendants, Plaintiff named the following additional
individuals as Defendants in this matter: Magisterial District Judge Francis J. Lawrence, Sr.,
Magisterial District Judge Robert A. Saraceni, Sr., Montgomery County Common Pleas Judge
Stanley Ott, Magisterial District Judge Francis J. Lawrence, Jr., Magisterial District Judge
Margaret A. Hunsicker, 14 Kevin McKeon, Joseph Byrnes, Joseph Benson, S. Stowell, A. Santo,
R. Emrich, C. Narkin, 15 Methuselah Bradley, and Frank Flick 16 (“Non-Moving Defendants”).
A review of the docket suggests that the Non-Moving Defendants have not been served
with the complaint or summons as required by Rule 4. Fed. R. Civ. P. 4(c)(1). 17 In addition, no
attorneys have entered an appearance on behalf of the Non-Moving Defendants, the Non-Moving
Defendants do not appear to be proceeding pro se, and none have filed any responsive pleading,
including a motion to dismiss. Nonetheless, for the reasons discussed regarding the Moving
In addition, Plaintiff’s § 1983 claims against Moving Defendants Daniel Glammer, John P.
Gregg, Joseph J. Hylan, and Regina B. Guerin, all public defense attorneys from the Montgomery County
Public Defender’s Office, fail because a “public defender does not act under color of state law when
performing a traditional functions as counsel to a defendant in a criminal proceeding.” Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981); see also Newton v. City of Wilmington, 2017 WL 221788, at *1 (3d
Cir. Jan. 19, 2017 (“The attorneys who represented [the defendant] in his criminal proceedings are not
state actors for the purposes of 42 U.S.C. § 1983.”) (citing Polk).
Non-Moving Defendants Magisterial District Judge Francis J. Lawrence, Sr., Magisterial District
Judge Robert A. Saraceni, Sr., Montgomery County Common Pleas Judge Stanley Ott, Magisterial
District Judge Francis J. Lawrence, Jr., Magisterial District Judge Margaret A. Hunsicker are all state
Non-Moving Defendants Kevin McKeon, Joseph Byrnes, Joseph Benson, S. Stowell, A. Santo,
R. Emrich, and C. Narkin are all police officers.
Non-Moving Defendants Methuselah Bradley and Frank Flick are private defense attorneys.
The 90 days in which service must be accomplished has passed. Fed. R. Civ. P. 4(m).
Defendants, it is undisputed that Plaintiff’s claims against the Non-Moving Defendants are also
time-barred, and that this Court lacks jurisdiction over the claims related to the four criminal
Thus, this Court will sua sponte dismiss the claims against the Non-Moving
Defendants. Coulter v. Unknown Prob. Officer, 562 F. App’x 87, 89 (3d Cir. 2014) (affirming
district court’s sua sponte dismissal of non-moving defendant where the ground raised by the
moving defendants were common to all defendants and the plaintiff had an opportunity to
respond to the moving defendants’ arguments); Fleck v. Univ. of Pennsylvania, 2013 WL
12141349, at *7 (E.D. Pa. Feb. 20, 2013) (dismissing Equal Protection claim against non-moving
defendants on the same grounds as the court dismissed the claim against the moving defendants);
see also Minnesota Lawyers Mut. Ins. Co. v. Ahrens, 432 F. App’x 143, 147–48 (3d Cir. 2011)
(“The district court may on its own initiative enter an order dismissing [an] action provided that
the complaint affords a sufficient basis for the court’s action.”).
Leave to Amend
Although the Third Circuit has directed that a district court must ordinarily provide a civil
rights plaintiff an opportunity to file an amended complaint where the original complaint is
subject to dismissal under Rule 12(b)(6), see Phillips, 515 F.3d at 245 (reiterating the rule that
leave to amend must be granted sua sponte in civil rights actions, “unless such an amendment
would be inequitable or futile.”), in this case the Plaintiff has twice amended his complaint. It is
this Court’s opinion that any further attempt to amend the complaint would be legally futile. As
discussed above, Plaintiff appears to allege wrongful conduct regarding five criminal
proceedings, the last of which concluded on April 8, 2010. The statute of limitations, as well as
the Rooker-Feldman and Heck doctrines, bar all of Plaintiff’s claims and, therefore, deprive this
Court of jurisdiction. Accordingly, this Court finds that any attempt to amend the complaint a
third time would be legally futile.
Motion for Appointment of Counsel
In his motion for appointment of counsel, Plaintiff notes that he has been unable to obtain
the assistance of counsel and requests that this Court appoint an attorney to represent him. [ECF
37 at 1-2]. Plaintiff provides no support, legal or factual, for his request. Generally, “[i]ndigent
civil litigants possess neither a constitutional nor a statutory right to appointed counsel.”
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). A district court, however, has the
discretion to appoint counsel to an indigent litigant “upon a showing of special circumstances
indicating the likelihood of substantial prejudice to him resulting, for example, from his probable
inability without such assistance to present the facts and legal issues to the court in a complex
but arguably meritorious case.”
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).
Assuming, arguendo, that Plaintiff is indigent despite being denied in forma pauperis status,
[ECF 2], 18 Plaintiff has not, and cannot, show that without the assistance of counsel he will be
unable to prosecute a meritorious case. As explained supra, Plaintiff’s claims are all barred,
inter alia, by the statute of limitations. The assistance of counsel will not render Plaintiff’s
claims timely. For this reason, Plaintiff’s motion to appoint counsel is denied.
For the reasons stated herein, Moving Defendants’ motions to dismiss are granted, and
Moving Defendants are dismissed from this action. Non-Moving Defendants are sua sponte
dismissed from this case. Consequently, Plaintiff’s second amended complaint is dismissed for
Plaintiff’s motion to proceed in forma pauperis, [ECF 1] was denied because Plaintiff has a
monthly income of $2,700.00, no dependents, and has a house valued at $40,000.00. [ECF 2].
failure to state a claim upon which relief can be granted. In addition, Plaintiff’s motion for
appointment of counsel is denied.
An Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.
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