GARRICK v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LEGROME D. DAVIS ON 9/5/17. 9/6/17 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF.(rf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KERIUM ALLEN GARRICK, SR.
CITY OF PHILADELPHIA, et al.
Plaintiff Kerium Allen Garrick, Sr. brings this civil action against the City of
Philadelphia and two of its attorneys based on allegations that he was deprived of his right to a
twelve-person jury in his civil trial in state court. Plaintiff seeks leave to proceed in forma
pauperis. The Court will grant plaintiff leave to proceed in forma pauperis and dismiss his
Plaintiff initiated a civil rights lawsuit in state court challenging his arrest, detention, and
the conditions of his confinement during a prior incarceration. According to the Judge who
presided over the case in state court, a twelve-person jury was selected on Friday, July 7, 2017,
but when one juror was unavailable for trial the following Tuesday, the parties agreed to
continue with a panel of eleven jurors. The eleven-person jury returned with a verdict in favor of
Plaintiff alleges that the attorneys for the City and the Judge who presided over his case
erred by allowing the trial to proceed with only eleven jurors. Based on that allegation, plaintiff
initiated this lawsuit against the City and its attorneys claiming violations of his state and federal
The following facts are taken from the complaint and documents attached to the complaint.
rights, and seeking millions of dollars in damages. Attachments to the complaint reflect that less
than a month before he initiated the instant civil action, plaintiff filed a civil action in state court
against the same defendants based on essentially the same subject matter.
STANDARD OF REVIEW
Plaintiff’s motion to proceed in forma pauperis is granted because it appears he is not
capable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(i) and (ii) require the Court to dismiss the complaint if it is frivolous, malicious, or
fails to state a claim. 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), and is legally baseless if it is “based on an
indisputably meritless legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir.
1995). “[A] complaint is malicious where it is abusive of the judicial process and merely repeats
pending or previously litigated claims.” Day v. Toner, 530 F. App’x 118, 121 (3d Cir. 2013)
To survive dismissal for failure to state a claim, the complaint must contain “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). “[M]ere conclusory statements do not
suffice.” Id. The Court may also consider exhibits attached to the complaint. Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). As plaintiff is proceeding pro se, the Court
construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
Furthermore, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
Pursuant to the Rooker-Feldman doctrine, “federal district courts lack jurisdiction over suits
that are essentially appeals from state-court judgments.” Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 165 (3d Cir. 2010). Based on that principle, the Rooker-Feldman
doctrine deprives a federal district court of jurisdiction over “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.” Id.
at 166 (quotations omitted). To the extent plaintiff is claiming that his loss in state court or the
state court’s rulings violated his rights, and asks this Court to review and reject the state court’s
judgment, his claims fall within the Rooker-Feldman doctrine and must be dismissed for lack of
subject matter jurisdiction.
To the extent plaintiff’s claims are not barred by the Rooker-Feldman doctrine, the Court
cannot discern a plausible basis for a claim against the defendants. If plaintiff is claiming that
the defendants violated his federal constitutional rights by agreeing to an eleven-person jury in
his civil case, he is incorrect because the Seventh Amendment, which provides for a trial by jury
in suits at common law, “governs proceedings in federal court, but not in state court.” 2
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 418 (1996). Nor is there any other basis for
concluding that the City or its attorneys somehow violated plaintiff’s constitutional rights by
agreeing to an eleven-person jury. Even assuming the state court committed legal error in
Although the Pennsylvania Constitution provides for a right to a twelve-person jury in a civil
trial, that right may be waived. See Ottavio v. Fibreboard Corp., 617 A.2d 1296, 1299 (Pa.
Super. Ct. 1992) (“[A] litigant is entitled to a verdict from a full twelve person jury in a civil
proceeding only where the right has not been waived expressly or by implication.”). Plaintiff
does not contest that he agreed to an eleven-person jury in his civil case. In any event, if he did
not waive the issue, he may challenge any legal error in his appeal in the state courts.
proceeding as it did, that error does not translate into a cause of action against the City and its
Furthermore, even if plaintiff could articulate a plausible basis for a claim, the Court
concludes that this case should be dismissed as malicious. It is apparent from attachments to the
complaint that plaintiff initiated an essentially identical lawsuit against the same defendants in
state court less than a month before he filed this case. 3 Plaintiff should not be permitted to
maintain duplicative lawsuits against the same defendants at the same time.
For the foregoing reasons, the Court will dismiss plaintiff’s complaint. Plaintiff will not
be given leave to amend because amendment would be futile. An appropriate order follows,
which shall be docketed separately.
Documents attached to the complaint also reflect that plaintiff attempted to assert the claims in
other civil actions pending in this Court.
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