EL-BAY v. ALLENTOWN POLICE DEPARTMENT et al

Filing 6

MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 5/22/23. 5/22/23 ENTERED AND COPIES E-MAILED.(mas)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WADADUYA EL-BEY,
Plaintiff,
v.
ALLENTOWN POLICE DEPARTMENT;
OFFICER BENNER, BADGE #1;
OFFICER FINN, BADGE #260; OFFICER
SINTON, BADGE #49; CITY OF
ALLENTOWN MAYOR, MATTHEW
TUERK; CITY OF ALLENTOWN
SOLICITOR, MATTHEW J. KLOIBER;
and CITY OF ALLENTOWN CHIEF OF
POLICE, CHARLES ROCA,
Defendants.

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CIVIL ACTION NO. 23-652

MEMORANDUM OPINION
Smith, J.

May 22, 2023

The pro se plaintiff has sought leave to proceed in forma pauperis in this civil action against
a city’s police department, its chief of police, the city’s solicitor, the city’s mayor, and three city
police officers, arising out of the officers’ alleged unlawful search and seizure and their other
interactions with him after responding to a harassment complaint seeking to have him removed
from his residence. For his causes of action, the plaintiff asserts claims under 42 U.S.C. § 1983 for
(1) illegal search and seizure in violation of the Fourth Amendment, (2) false arrest in violation of
the Fourth Amendment, (3) denial of his rights to equal protection and due process in violation of
the Fourteenth Amendment, and (4) supervisory liability against the chief of police, city solicitor,
and mayor. The plaintiff also asserts a violation of a federal criminal statute, 18 U.S.C. § 242, and
a state-law assault tort claim. His requests for relief include a claim for monetary damages and

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demands that the court terminate the officers’ employment with the city, arrest them, and direct
that they surrender their pensions and any other public funding they receive.
After reviewing the in forma pauperis application and screening the complaint under 28
U.S.C. § 1915(e)(2), the court will grant the plaintiff leave to proceed in forma pauperis, dismiss
all claims asserted in the complaint, and strike with prejudice his demands for injunctive relief
concerning the officers. Concerning these demands for injunctive relief, the court is striking them
because the court has no authority to direct the city to fire the officers, arrest them, or order the
forfeiture of their pensions as relief in this civil case. In addition, the plaintiff lacks a cognizable
right to compel the criminal prosecution of another. Regarding the dismissed claims, the court will
(1) dismiss with prejudice the plaintiff’s claim under 18 U.S.C. § 242 because there is no civil
remedy for a violation of this federal criminal statute; (2) dismiss with prejudice the plaintiff’s
claims against the police department because it is not a proper defendant under 42 U.S.C. § 1983;
(3) dismiss all other claims in the complaint without prejudice to the plaintiff filing an amended
complaint should he be able to remedy the defects in those claims identified in this memorandum
opinion; and (4) dismiss the state-law assault claim because there are no viable federal claims at
this time, the court declines to exercise supplemental jurisdiction over this claim, and the court
otherwise lacks subject-matter jurisdiction over the claim because the parties are not completely
diverse for purposes of diversity jurisdiction under 28 U.S.C. § 1332(a).
I.

ALLEGATIONS AND PROCEDURAL HISTORY

On February 16, 2023, the pro se plaintiff, Wadaduya El-Bey (“El-Bey”), commenced this
action by filing an application for leave to proceed in forma pauperis (“IFP Application”) and a
complaint. See Doc. Nos. 1, 2. In the complaint, El-Bey asserts claims under 42 U.S.C. § 1983 for
alleged constitutional violations by the Allentown Police Department (“APD”) and three APD

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Officers: David Benner, Marissa Finn, and Adam Sinton.1 See Compl. at ECF pp. 2, 3, Doc. No.
2.
El-Bey alleges that on September 30, 2022, between 8:30 and 10:30 p.m., the Officers
responded to a “‘Harassment by Annoyance’ complaint” against him, where the complainant
wanted him removed from the property where he was residing at the time. See id. at ECF p. 3.
When they arrived, the officers surrounded El-Bey, shined a bright light in his face while he was
sitting on the patio, treated him “as a criminal,” “plac[ed] him under threat[, and] intimidate[ed]
[him].” Id. Based on these allegations, El-Bey expressly asserts that the Officers and the APD (1)
deprived him of his equal protection and due process rights under the Fourteenth Amendment and
(2) subjected him to an illegal search and seizure in violation of the Fourth Amendment. See id. at
ECF pp. 2, 4. He also alleges a claim for a violation of 18 U.S.C. § 242 and a state-law assault tort
claim against the Officers. See id. at ECF p. 2. He states that he suffered emotional distress from
the defendants’ actions. See id. at ECF p. 5. For relief, he seeks (1) $1.4 million in damages, (2)
an order terminating the employment of the Officers and requiring them to surrender their pensions
or any other public money they receive, (3) an order requiring the APD to train its officers, so they
cease violating federal, state, and local laws, and (4) the imposition of a $10,000 fine against each
of the Officers. See id. at ECF p. 4.
On February 21, 2023, El-Bey filed a copy of a letter that he appears to have sent to the
Allentown City Solicitor, Matthew J. Kloiber (“Solicitor Kloiber”), where he requested to meet
with him so they could discuss El-Bey’s “grievance with the [APD].” Feb. 21, 2023 Ltr. at ECF p.
1, Doc. No. 3. Two days later, El-Bey filed another letter titled, “Notice of Civil Action
Adjustment” (the “Notice”), where he “inform[ed] the APD and municipal corporation of

1

Hereinafter, the court will collectively refer to Officers Benner, Finn, and Sinton as the “Officers.”

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Allentown, PA, of [his] intent to file [a] motion to adjust the defendants on [sic] my case.” Feb.
23, 2023 Ltr. at ECF p. 1, Doc. No. 5. Regarding these additional defendants, El-Bey claims that
he intends to sue Solicitor Kloiber, Matthew Tuerk, the Mayor of Allentown (“Mayor Tuerk”),
and Charles Roca, the Chief of the APD (“Chief Roca”), in their supervisory capacities. See id.
El-Bey also includes additional claims in this letter. He avers that he “will be pursuing the
maximum sentence available under [18 U.S.C. § 242],” and “additional sentencing of life in
prison” for the Officers. Id. El-Bey then asserts that he is looking for an officer who enforced an
“unlawful [Protection from Abuse order]” against him 2 and, once he obtains the name of that
officer, he will be increasing his request for compensatory damages from $1.4 million to $4.5
million. Id. El-Bey also states that he “will be investigating the city code/laws which violate the
supreme law and will add them to [his] case increasing [his] claim by [$1 million] per violation,
[i]ncluding, but not limited to, your infringement upon the right to bare [sic] arms.” Id.
II.
A.

DISCUSSION
The IFP Application

Regarding applications to proceed in forma pauperis,
any court of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.
28 U.S.C. § 1915(a)(1). This statute
“is designed to ensure that indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989). Specifically, Congress enacted the statute to ensure that administrative
court costs and filing fees, both of which must be paid by everyone else who files
a lawsuit, would not prevent indigent persons from pursuing meaningful litigation.
El-Bey appears to acknowledge that he is/was known as Eric S. Baker, Jr. See Feb. 23, 2023 order at ECF p. 1; see
also Doc. No. 2-1 (attaching “Appellation and Nationality Affidavit” stating his name was Eric Scott Baker, Jr. and
indicating that he is now member of Mu’urish nation).
2

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Deutsch[ v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995)]. Toward this end, §
1915(a) allows a litigant to commence a civil or criminal action in federal court in
[sic] forma pauperis by filing in good faith an affidavit stating, among other things,
that he is unable to pay the costs of the lawsuit. Neitzke, 490 U.S. at 324, 109 S.Ct.
1827.
Douris v. Middletown Twp., 293 F. App’x 130, 131–32 (3d Cir. 2008) (per curiam) (footnote
omitted).
The litigant seeking to proceed in forma pauperis must establish that the litigant is unable
to pay the costs of suit. See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir.
1989) (“Section 1915 provides that, in order for a court to grant in forma pauperis status, the
litigant seeking such status must establish that he is unable to pay the costs of his suit.”). “In this
Circuit, leave to proceed in forma pauperis is based on a showing of indigence. [The court must]
review the affiant’s financial statement, and, if convinced that he or she is unable to pay the court
costs and filing fees, the court will grant leave to proceed in forma pauperis.” Deutsch, 67 F.3d at
1084 n.5 (internal citations omitted).
Here, after reviewing the IFP Application, it appears that El-Bey is unable to prepay the
fees to commence this civil action. Therefore, the court will grant him leave to proceed in forma
pauperis.
B.

Standard of Review for Screening Complaints Under 28 U.S.C. § 1915 and Sua
Sponte Review for Subject-Matter Jurisdiction
Because the court has granted El-Bey leave to proceed in forma pauperis, the court must

engage in the second part of the two-part analysis and examine whether the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or asserts a claim against a
defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)–(iii) (providing that
“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that-- . . . (B) the action or appeal—(i) is
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frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief”). A complaint is frivolous
under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or fact,” Neitzke, 490
U.S. at 325, and is legally baseless if it is “based on an indisputably meritless legal theory.”
Deutsch, 67 F.3d at 1085. As for whether a complaint is malicious,
[a] court that considers whether an action is malicious must, in accordance with the
definition of the term “malicious,” engage in a subjective inquiry into the litigant’s
motivations at the time of the filing of the lawsuit to determine whether the action
is an attempt to vex, injure or harass the defendant.
Id. at 1086. “[A] district court may dismiss a complaint as malicious if it is plainly abusive of the
judicial process or merely repeats pending or previously litigated claims.” Brodzki v. CBS Sports,
Civ. No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012).
Concerning the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing a
complaint for failure to state a claim pursuant to this subsection is identical to the legal standard
used when ruling on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See
Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard to
dismissal for failure to state claim under section 1915(e)(2)(B)). Thus, to survive dismissal, “a
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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation omitted).
In addressing whether a pro se plaintiff’s complaint fails to state a claim, the court must
liberally construe the allegations set forth in the complaint. See Shorter v. United States, 12 F.4th
366, 374 (3d Cir. 2021) (“At this early stage of the litigation, we accept the facts alleged [in the
pro se] complaint as true, draw all reasonable inferences in [the pro se plaintiff’s] favor, and ask
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only whether that complaint, liberally construed, . . . contains facts sufficient to state a plausible .
. . claim.” (citation, internal quotation marks, and all original alterations omitted)); Vogt v. Wetzel,
8 F.4th 182, 185 (3d Cir. 2021) (“We construe Vogt’s pro se filings liberally. This means we
remain flexible, especially ‘when dealing with imprisoned pro se litigants’ like Vogt.” (internal
citations omitted) (quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (3d Cir.
2013))); Higgs v. Att’y Gen., 655 F.3d 333, 339–40 (3d Cir. 2011) (explaining that “when
presented with a pro se litigant, we have a special obligation to construe his complaint liberally”
(citation and internal quotation marks omitted)). Yet, conclusory allegations will not suffice. See
Iqbal, 556 U.S. at 678 (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’” (quoting Twombly, 550 U.S. at 555)).
Additionally, when construing a pro se plaintiff’s complaint, the court will “‘apply the
relevant legal principle even when the complaint has failed to name it.’” Vogt, 8 F.4th at 185
(quoting Mala, 704 F.3d at 244). However, pro se litigants “‘cannot flout procedural rules—they
must abide by the same rules that apply to all other litigants.’” Id. (quoting Mala, 704 F.3d at 245).
The court also has the authority to examine subject-matter jurisdiction sua sponte. See Fed.
R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,
the court must dismiss the action.”); Group Against Smog and Pollution, Inc. v. Shenango, Inc.,
810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject matter jurisdiction
may be raised at any time [and] a court may raise jurisdictional issues sua sponte”). The party
commencing the action in federal court bears the burden of establishing federal jurisdiction. See
Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (“The burden of
establishing federal jurisdiction rests with the party asserting its existence.” (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))).

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C.

Analysis

In addressing El-Bey’s claims at this screening stage, the court will first address the Notice
and its relationship to the complaint. The court will then analyze and address the merits of ElBey’s claims.
1.

The Notice

As indicated above, El-Bey indicates in the Notice that he will seek to add supervisory
liability claims against three defendants, Mayor Tuerk, Solicitor Kloiber, and Chief Roca, to his
complaint. See Feb. 23, 2023 Ltr. at ECF p. 1. El-Bey also included additional requests for relief
in the Notice. See id. Combined, the intent to add additional defendants and additional claims for
relief could be construed as El-Bey’s attempt to amend his complaint.
In general, an amended complaint, once submitted to the court, serves as the governing
pleading in the case because an amended complaint supersedes the prior complaint. See Shahid v.
Borough of Darby, 666 F. App’x 221, 223 n.2 (3d Cir. 2016) (per curiam) (“Shahid’s amended
complaint . . . superseded his initial complaint.” (citing W. Run Student Hous. Assocs., LLC v.
Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013))); see Garrett v. Wexford Health, 938
F.3d 69, 82 (3d Cir. 2019) (“In general, an amended pleading supersedes the original pleading and
renders the original pleading a nullity. Thus, the most recently filed amended complaint becomes
the operative pleading.” (internal citations omitted)), cert. denied, 140 S. Ct. 1611 (2020); see also
Argentina v. Gillette, 778 F. App’x 173, 175 n.3 (3d Cir. 2019) (per curiam) (explaining that
“liberal construction of a pro se amended complaint does not mean accumulating allegations from
superseded pleadings”).
Moreover, the Federal Rules of Civil Procedure do not contemplate piecemeal pleadings
or the amalgamation of pleadings, even in the context of a pro se litigant. See Bryant v. Raddad,

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Civ. A. No. 21-CV-1116, 2021 WL 2577061, at *2 (E.D. Pa. June 22, 2021) (“Allowing a plaintiff
to file partial amendments or fragmented supplements to the operative pleading, ‘presents an undue
risk of piecemeal litigation that precludes orderly resolution of cognizable claims.’” (quoting Uribe
v. Taylor, Civ. A. No. 10-2615, 2011 WL 1670233, at *1 (E.D. Cal. May 2, 2011))); BrooksNgwenya v. Bart Peterson’s The Mind Trust, No. 16-cv-193, 2017 WL 65310, at *1 (N.D. Ill. Jan.
6, 2017) (“Piecemeal pleadings cause confusion and unnecessarily complicate interpretation of a
movant’s allegations and intent . . . .”).
Here, the Notice includes few facts, and merely advances legal assertions and requests for
relief. As such, if the court were to deem it as an amended complaint, the court would be compelled
to dismiss it. See Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of
a complaint, they must be supported by factual allegations.”); Papasan v. Allain, 478 U.S. 265,
286 (1986) (explaining that courts “are not bound to accept as true a legal conclusion couched as
a factual allegation”). Further, it is unlikely that El-Bey understood the consequences of seeking
to amend his complaint in this matter. Therefore, in the interest of judicial economy, the court will
construe the Notice as a supplement rather than as an amended complaint, and the court will screen
both the complaint and the Notice together.
2.

Attempt to Assert a Civil Cause of Action for a Violation of 18 U.S.C. § 242
In the complaint and the Notice, El-Bey purports to assert a civil claim against the

defendants under 18 U.S.C. § 242. This is a federal criminal statute which, along with 18 U.S.C.
§§ 241, 245, establish criminal liability for certain deprivations of civil rights and conspiring to
deprive civil rights. El-Bey may not assert a claim for a violation of section 242 in this civil case
because there is no private right of action under the federal criminal statutes. See Davis v. Warden
Lewisburg USP, 594 F. App’x 60, 61 n.3 (3d Cir. 2015) (per curiam) (explaining that plaintiff’s

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claim for alleged violation of his civil rights under 18 U.S.C. § 242 was “meritless because § 242
is a criminal statute, through which no private cause of action is created”); Molina v. City of
Lancaster, 159 F. Supp. 2d 813, 818 (E.D. Pa. 2001) (“[T]he Court deems the Plaintiff’s claim for
relief pursuant to 18 U.S.C. §§ 241-242 unmeritorious because those statutes do not create a civil
cause of action enforceable by the Plaintiff.” (citation omitted)); see also Stern v. Halligan, 158
F.3d 729, 731 n.1 (3d Cir. 1998) (pointing out that the district court correctly “granted summary
judgment on the 18 U.S.C. § 241 claim because there is no private cause of action under the
criminal statute” (citing Newcomb v. Ingle, 827 F.2d 675, 677 n.1 (10th Cir. 1987))). Accordingly,
the court will dismiss with prejudice El-Bey’s claim for a violation of 18 U.S.C. § 242.
3.

Request for an Order Terminating the Officers’ Employment

In the complaint, El-Bey requests that the court order the termination of the Officers’
employment with the APD. This court is not empowered to order termination of these officers as
a remedy under section 1983. See Buskirk v. Pa. Bd. of Prob. and Parole, Civ. A. No. 22-1826,
2022 WL 4542094, at *2 n.4 (E.D. Pa. Sept. 28, 2022) (pointing out that “the Court has no
authority to terminate the employment of a state employee” (citation omitted)); Teal v. Moody,
No. 15-1402, 2019 WL 6702405, at *1 (M.D. Fla. July 10, 2019) (“[T]o the extent Teal suggests
that this Court reprimand the Defendants and/or terminate their employment, this Court does not
have the authority to reprimand state employees and/or terminate their employment.”); Theriot v.
Woods, No. 09-199, 2010 WL 623684, at *4-5 (W.D. Mich. Feb. 18, 2010) (holding that requesting
injunctive relief in form of ordering firing of defendants is “frivolous,” “entirely improper,” and
“not available under 42 U.S.C. § 1983” and that court “has no authority under 42 U.S.C. § 1983

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to . . . terminate the employment of [the defendants]”). Therefore, the court will strike with
prejudice El-Bey’s request that the court enter an order terminating the officers’ employment. 3
4.

Request that the Court Imprison the Officers

In the Notice, El-Bey indicates that he will seek to have the Officers imprisoned for life
because of what they allegedly did to him. See Feb. 23, 2023 Ltr. at ECF p. 1. This form of relief
is unavailable in this civil action, as “[a] private citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(reinforcing prior decisions “hold[ing] that a citizen lacks standing to contest the policies of the
prosecuting authority when he himself is neither prosecuted nor threatened with prosecution” and
explaining that “a private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another” (citations omitted)); Lewis v. Jindal, 368 F. App’x 613, 614 (5th Cir.
2010) (per curiam) (“It is well-settled that the decision whether to file criminal charges against an
individual lies within the prosecutor’s discretion, and private citizens do not have a constitutional
right to compel criminal prosecution.” (citations omitted)); Smith v. Friel, No. 19-CV-943, 2019
WL 3025239, at *4 (M.D. Pa. June 4, 2019) (collecting cases and pointing out that “courts have
long held that a civil rights plaintiff may not seek relief in civil litigation in the form of an order
directing the criminal prosecution of some third parties, finding that civil plaintiffs lack standing
to make such claims and concluding that such relief simply is unavailable in a civil lawsuit”),
report and recommendation adopted, 2019 WL 2003380 (M.D. Pa. July 10, 2019). Accordingly,
the court will strike with prejudice El-Bey’s request for relief to have the court imprison the
Officers for life.

For the same reason, the court will strike with prejudice El-Bey’s request that the court direct the Officers to surrender
their pensions or other public funding they received.

3

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5.

Claims Against the APD

El-Bey has asserted a claim for money damages against the APD based on the Officers’
allegedly unconstitutional interactions with him on September 30, 2022. The vehicle for El-Bey to
seek relief against the APD (and the Officers) in this case is 42 U.S.C. § 1983. This statute provides
in pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress[.]
42 U.S.C. § 1983. When attempting to establish a claim under section 1983, a plaintiff must allege
and prove that a “person” deprived the plaintiff of a constitutional right while acting under color
of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“To state a claim under § 1983, a plaintiff
must allege the violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under color of state
law.”).
Here, El-Bey’s section 1983 claim against the APD is implausible. The APD is not a
“person” that can be sued under section 1983. See Mikhaeil v. Santos, 646 F. App’x 158, 163 (3d
Cir. 2016) (per curiam) (concluding that district court “correctly determined that the Jersey City
Police Department was not a proper party to this action” and explaining that “[a]lthough local
governmental units may constitute ‘persons’ against whom suit may be lodged under § 1983, a
city police department is a governmental sub-unit that is not distinct from the municipality of
which it is a part”). Instead, the proper defendant for a claim against the APD is the municipality
itself, namely, the City of Allentown. See, e.g., Cohen v. Chester Cnty. Dep’t of Mental
Health/Intellectual Disability Servs., Civ. A. No. 15-5285, 2016 WL 3031719, at *4 (E.D. Pa. May
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24, 2016) (explaining that as municipal agencies are not proper defendants under section 1983,
“the municipality is the proper defendant [in] § 1983 claims arising from the agency’s actions”).
Since El-Bey may not proceed on his section 1983 claim against the APD insofar as it is not a
proper defendant for such a claim, the court will dismiss with prejudice his section 1983 claim
against the APD. 4

Even if the court were to construe El-Bey’s claim as one against the City of Allentown, he has failed to state a claim
against the City because nothing in the complaint suggests that any violation of his constitutional rights stemmed from
a municipal policy or custom. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978) (“[A] local
government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under §
1983.”). To state a plausible section 1983 municipal liability claim, El-Bey “must identify [the] custom or policy, and
specify what exactly that custom or policy was” to satisfy the applicable pleading standard. McTernan v. City of York,
PA, 564 F.3d 636, 658 (3d Cir. 2009) (citation omitted). A “policy” arises when a decision-maker possessing final
authority issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
“‘Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically
endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.’” Estate of Roman v.
City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
For a custom to be the proximate cause of an injury, a plaintiff must establish that the defendant “had knowledge of
similar unlawful conduct in the past, failed to take precautions against future violations, and that its failure, at least in
part, led to [the plaintiff’s] injury.” Id. (internal quotation marks and alterations omitted). Regardless of whether a
plaintiff is seeking to impose Monell liability for a policy or a custom, “it is incumbent upon a plaintiff to show that a
policymaker is responsible either for the policy or, through acquiescence, for the custom.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990); see also Bielevicz, 915 F.2d at 850 (explaining that in both methods
to obtain liability under Monell, “a plaintiff must show that an official who has the power to make policy is responsible
for either the affirmative proclamation of a policy or acquiescence in a well-settled custom”).
In addition,
4

[t]here are three situations where acts of a government employee may be deemed to be the result of
a policy or custom of the governmental entity for whom the employee works, thereby rendering the
entity liable under § 1983. The first is where “the appropriate officer or entity promulgates a
generally applicable statement of policy and the subsequent act complained of is simply an
implementation of that policy.” Bryan County, 520 U.S. at 417, 117 S.Ct. 1382 (Souter, J.,
dissenting). The second occurs where “no rule has been announced as policy but federal law has
been violated by an act of the policymaker itself.” Id. Finally, a policy or custom may also exist
where “the policymaker has failed to act affirmatively at all, [though] the need to take some action
to control the agents of the government ‘is so obvious, and the inadequacy of existing practice is
likely to result in the violation of constitutional rights, that the policymaker can reasonably be said
to have been deliberately indifferent to the need.’” Id. at 417–18, 117 S.Ct. 1382 (quoting City of
Canton, Ohio v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)); see also Berg,
219 F.3d at 276 (holding that plaintiff must “demonstrat[e] that the municipal action was taken with
‘deliberate indifference’ to its known or obvious consequences”).
Natale, 318 F.3d at 584 (alterations in original) (internal footnote omitted).

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6.

Possible Claims Against Solicitor Kloiber

In the Notice, El-Bey indicates an intent to assert a possible claim against Solicitor Kloiber,
seemingly because he is allegedly responsible for the Officers. See Feb. 23, 2023 Ltr. at ECF p. 1.
Despite this apparent intent, El-Bey does not include any factual allegations describing Solicitor
Kloiber’s participation in the events giving rise to his claim. Due to this failure, El-Bey has not
asserted a plausible section 1983 claim against Solicitor Kloiber because “[a] defendant in a civil
rights action must have personal involvement in the alleged wrongs” to be liable. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see Iqbal, 556 U.S. at 676 (explaining that
“[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution”); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (“Personal involvement
requires particular ‘allegations of personal direction or of actual knowledge and acquiescence.’”
(quoting Rode, 845 F.2d at 1207)).
Additionally, El-Bey’s conclusory and undeveloped allegations against Solicitor Kloiber
do not state a plausible claim because they do not explain why Solicitor Kloiber should be treated
as a state actor in this case. An attorney does not act under color of state law simply by virtue of
acting as an attorney or solicitor on behalf of a municipal entity. See, e.g., Angelico v. Lehigh
Valley Hosp., 184 F.3d 268, 277 (3d Cir. 1999) (“Attorneys performing their traditional functions
will not be considered state actors solely on the basis of their position as officers of the court.”
(citations omitted)); Anderson v. Perhacs, C.A. No. 11-289, 2013 WL 1336124, at *4 (W.D. Pa.
Mar. 29, 2013) (“It is well-settled that an attorney does not act under color of state law simply by
virtue of representing a state actor as a client or by acting as solicitor on behalf of a municipality
or public school board.” (citations omitted)); Spradlin v. Borough of Danville, No. 4:CV 02 2237,

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2005 WL 3320788, at *3 (M.D. Pa. Dec. 7, 2005) (explaining that section 1983 “requires that [the
plaintiff] show that the Solicitor Defendants acted under the color of state law and denied him a
federally protected constitutional or statutory right” (citations omitted)). Nevertheless, an attorney
may become a state actor in “three exceptional circumstances”: “(1) by acting as a state official,
(2) by conspiring with a state official to deprive a person of his or her constitutional rights, or (3)
by engaging in some action that is by its nature, chargeable to the state.” Willis v. Carroll Twp.,
Civ. A. No. 07-949, 2008 WL 644762, at *5 (M.D. Pa. Mar. 5, 2008) (internal citations and
quotation marks omitted). In contrast, where the attorney is engaging in the rendering of advice
to a municipal client, drafting legal documents, or otherwise engages in litigation or equivalent
legal activities, he or she will generally not be subject to liability as a state actor. See Angelico,
184 F.3d at 277–78 (explaining circumstances in which attorney performing services is not deemed
to be state actor); Willis, 2008 WL 644762, at *5–6 (determining that allegations did not state
plausible claim that attorney acting as municipal solicitor was state actor when attorney’s work
was performed solely for benefit of municipal client). In short, “[w]hen a municipality’s attorney
goes beyond the traditional attorney-client relationship, [the attorney] may become a state actor.”
Belkowski v. Kruczek, No. 09-cv-1549, 2010 WL 1433099, at *3 (W.D. Pa. Apr. 7, 2010) (citing
Frompovicz v. Twp. of S. Mannheim, No. 06cv2120, 2007 WL 2908292, at *8 (M.D. Pa. Oct. 4,
2007) (concluding that plaintiff stated viable section 1983 claim against attorney who went beyond
making recommendations and decided official government policies); see also Willis, 2008 WL
644762, at *6 (characterizing Frompovicz as “holding that a township solicitor acted under color
of state law when he exercised policy-making authority”).
Here, El-Bey has not provided any factual allegations describing any conduct by Solicitor
Kloiber that is related to the Officers’ interactions with him. Without these allegations, or any

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allegations explaining why Solicitor Kloiber should be treated as a state actor in this matter, ElBey’s claims against him are implausible and must be dismissed. However, the court will dismiss
them without prejudice to El-Bey filing an amended complaint if he can assert the necessary
allegations to state a plausible claim against Solicitor Kloiber.
7.

Supervisory Liability Claims Against Mayor Tuerk, Solicitor Kloiber, and Chief
Roca
El-Bey attempts to assert claims against Mayor Tuerk, Solicitor Kloiber, and Chief Roca

because they are allegedly responsible for the acts of the Officers. However, he may not assert
such claims based merely on allegations that these individuals supervised the Officers because
liability under section 1983 cannot be predicated on a respondeat superior basis. See Chavarriaga
v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 2015) (“[Plaintiff] cannot predicate liability on
her § 1983 claims on a respondeat superior basis.” (citing Rode, 845 F.2d at 1207)); Robinson v.
Delbalso, No. 22-2378, 2022 WL 17248100, at *2 (3d Cir. Nov. 28, 2022) (“We agree with the
District Court that Robinson’s second amended complaint did not state a plausible claim for relief.
First, he failed to allege the defendants’ personal involvement, and he cannot predicate liability on
his § 1983 claims on a respondeat superior basis.” (internal citations omitted)). Instead, if a section
1983 plaintiff seeks to hold a supervisor liable for the unconstitutional acts by subordinates, the
plaintiff’s allegations must satisfy one of these two theories of supervisory liability: (1) “Individual
defendants who are policymakers may be liable under § 1983 if it is shown that such defendants,
with deliberate indifference to the consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm[;]” and (2) “[A] supervisor may be
personally liable under § 1983 if he or she participated in violating the plaintiff’s rights, directed
others to violate them, or, as the person in charge, had knowledge of and acquiesced in his
subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586
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(3d Cir. 2004) (citation omitted); see Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014) (explaining requirements for supervisory liability in section 1983 claim), rev’d on other
grounds sub nom. Taylor v. Barkes, 575 U.S. 822 (2015). Generalized allegations that a
supervisory defendant is “in charge of” or “responsible for” an office or facility are insufficient to
allege personal involvement in an underlying constitutional violation. See Saisi v. Murray, 822 F.
App’x 47, 48 (3d Cir. 2020) (per curiam) (“Saisi asserted that some defendants were in charge of
agencies that allowed this to happen, and that liability stemmed merely from defendants’ ‘belief’
that their conduct would be ‘tolerated.’ However, a director cannot be held liable ‘simply because
of his position as the head of the [agency].’” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d
Cir. 2005))).
Here, El-Bey fails to assert any factual allegations which would satisfy either method of
attempting to establish supervisory liability. He does not allege that Mayor Tuerk, Solicitor
Kloiber, or Chief Roca participated in violating his rights, directed the Officers to violate them, or
had knowledge and acquiesced in the Officers’ alleged violations. El-Bey also did not include
factual allegations that would indicate that Mayor Tuerk, Solicitor Kloiber, or Chief Roca, with
deliberate indifference to the consequences, established or maintained a practice, policy, or custom
which violated his constitutional rights. As already mentioned, at best, El-Bey merely includes
conclusory allegations that Mayor Tuerk, Solicitor Kloiber, and Chief Roca are liable because they
supervised the Officers. This type of conclusory allegation of supervisory liability is insufficient
to state a plausible claim for supervisory liability against Mayor Tuerk, Solicitor Kloiber, and
Chief Roca. Accordingly, El-Bey has failed to state a plausible claim for supervisory liability under

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section 1983 against Mayor Tuerk, Solicitor Kloiber, and Chief Roca, 5 and the court will dismiss
this claim without prejudice to him attempting to reassert such a claim in an amended complaint. 6
8.

Fourth Amendment Unlawful Search and Seizure Claims Against the Officers
El-Bey asserts a section 1983 claim against the Officers for unlawful search and seizure in

violation of his Fourth Amendment rights. See Compl. at ECF p. 3. The Fourth Amendment
provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and

The court recognizes that “[u]nder section 1983, a supervisor may be liable for [their] failure to train or supervise
employees where ‘the failure amounts to “deliberate indifference” to the rights of persons with whom those employees
will come into contact.’” Whitfield v. City of Phila., 587 F. Supp. 2d 657, 666 (E.D. Pa. 2008) (quoting Carter v. City
of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). A claim for liability based on a failure to train requires a plaintiff to plead
and prove four elements: (1) an existing policy that created an unreasonable risk of constitutional injury; (2) the
supervisor was aware of this unreasonable risk; (3) the supervisor was indifferent to that risk; and (4) the injury resulted
from the policy or practice. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989) (identifying elements of claim).
Ultimately, where a need for “more or different training . . . is so obvious, and the inadequacy so likely to result in
constitutional violations, that the failure to train . . . can fairly be said to represent official policy,” and that failure to
train “actually causes injury,” a supervisor may be held liable. City of Canton v. Ohio, 489 U.S. 378, 390 (1989).
In addition,
5

[i]n resolving the issue of [supervisory] liability, the focus must be on adequacy of the training
program in relation to the tasks the particular officers must perform. That a particular officer may
be unsatisfactorily trained will not alone suffice to fasten liability on the [supervisor], for the
officer’s shortcomings may have resulted from factors other than a faulty training program. . . .
Neither will it suffice to prove that an injury or accident could have been avoided if an officer had
had better or more training . . . . Moreover, for liability to attach . . . the identified deficiency in [the]
training program must be closely related to the ultimate injury.
Id. at 390–91 (internal citations omitted).
Like his non-failure-to-train supervisory liability claims, any failure-to-train claim fails because El-Bey has
failed to allege that Mayor Tuerk, Solicitor Kloiber, or Chief Roca established a policy, practice, or custom that
resulted in the Officers violating his constitutional rights. In addition, although El-Bey requests as relief that the APD
be required to properly train its officers, see Compl. at ECF p. 5, other than broadly alleging that he believes officers
are trained to treat complainants as innocent and “defendants” as guilty, id., he does not allege that Mayor Tuerk,
Solicitor Kloiber, or Chief Roca were aware of and indifferent to an existing policy that (1) created an unreasonable
risk of constitutional injury and (2) resulted in injuries to him. Accordingly, El-Bey has also failed to plausibly allege
a section 1983 claim for failure to train against Mayor Tuerk, Solicitor Kloiber, and Chief Roca.
6
See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (concluding that PLRA “did not alter our
preexisting rule that in forma pauperis plaintiffs who file complaints subject to dismissal under Rule 12(b)(6) should
receive leave to amend unless amendment would be inequitable or futile”); Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (explaining that “in civil rights cases district courts must offer
amendment—irrespective of whether it is requested—when dismissing a case for failure to state a claim unless doing
so would be inequitable or futile”).

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particularly describing the place to be searched, and the persons or things to be
seized.
U.S. Const. amend. IV. As indicated by this language, “the underlying command of the Fourth
Amendment is always that searches and seizures be reasonable.” New Jersey v. T.L.O., 469 U.S.
325, 337 (1985). Nevertheless, “what is reasonable depends on the context within which a search
takes place.” Id.
When a search occurs without a warrant, it is “presumptively unreasonable under the
Fourth Amendment.” Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (citations omitted). On
the other hand, where a search is made pursuant to a warrant, the Fourth Amendment requires that
the warrant shall not issue unless it is based on probable cause, is supported by a sworn affidavit,
and particularly describes both the place to be searched and the items to be seized. See Groh v.
Ramirez, 540 U.S. 551, 557 (2004) (describing Fourth Amendment’s requirements for issuance of
search warrant); see also United States v. Rankin, 442 F. Supp. 2d 225, 229 (E.D. Pa. 2006)
(“Pursuant to the Fourth Amendment, a valid warrant must describe the place to be searched and
the items to be seized with particularity. A warrant is impermissibly overbroad if it authorizes ‘a
general, exploratory rummaging in a person’s belongings.’” (quoting Coolidge v. New Hampshire,
403 U.S. 443, 467 (1971))). Also, “the breadth of items to be searched depends upon the particular
factual context of each case and also the information available to the investigating agent that could
limit the search at the time the warrant application is given to the magistrate.” United States v.
Yusuf, 461 F.3d 374, 395 (3d Cir. 2006).
Here, El-Bey has limited the court’s ability to review his illegal search and seizure claim
because he has not included sufficient factual allegations surrounding the alleged illegal search
and seizure. See Medina v. Aprile, Civ. A. No. 23-1057, 2023 WL 3440236, at *9 (E.D. Pa. May
12, 2023) (“To properly analyze a claim asserting an illegal search and seizure under the Fourth
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Amendment, [the plaintiff] must plead the circumstances under which the search arose.” (citation
omitted)). For instance, El-Bey includes no allegations regarding whether the Officers searched
him pursuant to a search warrant or conducted a warrantless search. Instead, he merely alleges that
the Officers responded to a complaint lodged against him and, while investigating that complaint,
surrounded him on the patio of his residence and shined bright lights in his face. See Compl. at
ECF p. 4. There are no allegations that he was arrested or otherwise told that he was not free to
leave. See Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 147 (3d Cir. 2005)
(“A seizure occurs for Fourth Amendment purposes when ‘a reasonable person would have
believed that he was not free to leave.’” (quoting Michigan v. Chesternut, 486 U.S. 567, 573
(1988))); see also United States v. De Castro, 905 F.3d 676, 678–80 (3d Cir. 2018) (“An
investigative stop may constitute (or ripen into) a de facto arrest where the circumstances . . .
amount to a show of official authority such that a reasonable person would have believed he was
not free to leave.” (citation and internal quotation marks omitted)). He does not describe how long
the encounter with the Officers lasted, allege that the officers searched the premises or his person,
or aver that the Officers seized any items from him or the premises. Absent these allegations, ElBey has not pleaded a plausible Fourth Amendment claim for an unlawful search and seizure.
Therefore, the court will dismiss this claim, but will do so without prejudice to El-Bey amending
this claim if he can do so.
9.

Fourteenth Amendment Due Process Claim Against the Officers

El-Bey asserts that the Officers violated his due process rights under the Fourteenth
Amendment. See Compl. at ECF p. 3. Pursuant to the Fourteenth Amendment’s Due Process
Clause, “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. Under this clause, there are three “kinds of § 1983 claims that

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may be brought against the State.” Zinermon v. Burch, 494 U.S. 113, 125 (1990). First, a “plaintiff
may bring suit under § 1983 for state officials’ violation of [their] rights [as guaranteed by the Bill
of Rights], e.g., freedom of speech or freedom from unreasonable searches and seizures.” Id.
Second, “[a] § 1983 action may be brought for a violation of procedural due process,” i.e., “the
deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property,’ . . .
without due process of law.” Id. Third, a plaintiff may assert a claim under the “substantive
component” of the Due Process Clause, which “bars certain arbitrary, wrongful government
actions ‘regardless of the fairness of the procedures used to implement them.’” Id. (quoting Daniels
v. Williams, 474 U.S. 327, 331 (1986)).
The procedural component of the Due Process Clause “imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v.
Eldridge, 424 U.S. 319, 332 (1976). “To state a claim under § 1983 for deprivation of procedural
due process rights, a plaintiff must allege that (1) [the plaintiff] was deprived of an individual
interest that is encompassed within the Fourteenth Amendment’s protection of ‘life, liberty, or
property,’ and (2) the procedures available to [the plaintiff] did not provide ‘due process of law.’”
Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227
F.3d 107, 116 (3d Cir. 2000)). As to the available procedures, due process “is a flexible concept
that varies with the particular situation.” Zinermon, 494 U.S. at 127; see Morrissey v. Brewer, 408
U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such procedural protections as the
particular situation demands.”).
In this case, El-Bey avers only that the Officers responded to a complaint, surrounded him
on his patio, and shined bright lights in his face. He does not identify any protected liberty or
property interest of which he was deprived, and he does not allege that he was deprived of any

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interest without adequate procedural protections. 7 His undeveloped and unsupported assertion of
a due process violation does not state any kind of plausible claim; as such, the court will dismiss
it without prejudice to El-Bey to potentially amend this claim.
10.

Fourteenth Amendment Equal Protection Claim Against the Officers

El-Bey also maintains that the Officers deprived him of his rights under the Equal
Protection Clause of the Fourteenth Amendment. See Compl. at ECF p. 3. The Equal Protection
Clause provides that “no State shall ‘deny to any person within its jurisdiction the equal protection
of the laws,’ which is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe,
457 U.S. 202, 216 (1982)). To state a plausible equal protection claim under section 1983, a
plaintiff must allege “that he was treated differently than other similarly situated [individuals], and
that this different treatment was the result of intentional discrimination based on his membership
in a protected class.” Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016) (citing
Hassan v. City of N.Y., 804 F.3d 277, 294, 298 (3d Cir. 2015)). “Persons are similarly situated
under the Equal Protection Clause when they are alike ‘in all relevant aspects.’” Startzell v. City
of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).
Here, El-Bey has not pleaded a plausible equal protection claim because he has not alleged
that he is a member of a protected class or that he was treated differently from others similarly
situated. 8 Accordingly, the court will dismiss this claim without prejudice to El-Bey attempting to
replead it in an amended complaint.
Although the court has referenced the possibility of a substantive due process claim, the court cannot liberally
construe the complaint as containing any such claim.
8
It is unclear from the complaint if El-Bey is attempting to assert a race-based equal protection claim. If he is, he had
to allege that the Officers were motivated by racial animus. See Phelps v. Wichita Eagle–Beacon, 886 F.2d 1262, 1269
(10th Cir. 1989) (explaining that, to plead race-based equal protection claim, “[a] plaintiff must sufficiently allege that
defendants were motivated by racial animus”). El-Bey has not alleged that the Officers acted out of racial animus.
Thus, he has not plausibly pleaded a race-based equal protection claim.
7

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11.

Possible Cause of Action for False Arrest Against the Officers

Although unclear, it is possible that El-Bey seeks to assert a section 1983 claim for false
arrest against the Officers. To state a plausible section 1983 claim for false arrest, El-Bey must
allege “(1) that there was an arrest; and (2) that the arrest was made without probable cause.”
James v. City of Wilkes Barre, 700 F.3d 675, 680 (3d Cir. 2012) (citation omitted). 9 Here, El-Bey
has failed to state a plausible false arrest claim because he does not allege that the Officers arrested
him. 10 The court will dismiss this claim and will provide El-Bey with leave to amend if he seeks
to assert such a claim.
12.

State-Law Assault Claim Against the Officers

El-Bey also posits a state-law assault claim against the Officers. Because the court has
dismissed his federal claims, the court will not exercise supplemental jurisdiction over his statelaw claim. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental
“[P]robable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are
sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by
the person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (citation omitted). The court
uses a totality-of-the-circumstances approach to assess the reasonableness of the officer’s conduct, and the court
considers the officer’s perspective at the time he or she acted. Carswell v. Borough of Homestead, 381 F.3d 235, 246
(3d Cir. 2004). The standard is “not whether the person arrested in fact committed the offense but whether the arresting
officers had probable cause to believe the person arrested had committed the offense.” Dowling v. City of Phila., 855
F.2d 136, 141 (3d Cir. 1988). Probable cause exists if “at the moment the arrest was made . . . the facts and
circumstances within [the defendant’s] knowledge and of which [he or she] had reasonably trustworthy information
were sufficient to warrant a prudent man in believing” that the plaintiff had violated the law. Hunter v. Bryant, 502
U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)).
10
The court reviewed the publicly available criminal docket records in attempting to determine whether criminal
charges arose from El-Bey’s interaction with the Officers. See Castro-Mota v. Smithson, Civ. A. No. 20-CV-940, 2020
WL 3104775, at *1 n.3 (E.D. Pa. June 11, 2020) (explaining that district court may consider matters of public record,
such as publicly available criminal dockets, “when . . . screening . . . a pro se complaint under [28 U.S.C.] § 1915”
(citing Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006))); Wesley v. Varano, Civ. A. No. 1:12-CV1131, 2012 WL 2813827, at *1 (M.D. Pa. July 10, 2012) (“In disposing of a 12(b)(6) motion, in addition to the
complaint, courts may consider matters of public record, orders, exhibits attached to the complaint, and items
appearing in the record of the case; hence, a court also may consider these items in screening a complaint under the
provisions of 28 U.S.C. § 1915.” (citations omitted)); Donahue v. Dauphin Cnty., Civ. A. No. 1:17-cv-1084, 2017
WL 3405112, at *1 n.1 (M.D. Pa. June 27, 2017) (“This publicly available state criminal docket, available online . . .,
is a public record of which the Court may take judicial notice in considering dismissal for failure to state a claim.”
(citations omitted)); Pearson v. Krasley, Civ. A. No. 16-66, 2017 WL 2021061, at *1 (E.D. Pa. May 11, 2017) (“A
court may also consider public records such as criminal dockets” when analyzing whether complaint fails to state
claim for relief under Rule 12(b)(6)). The court could not locate any criminal case relating to the incident described
in the complaint.
9

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jurisdiction over a claim ... if-- ... (3) the district court has dismissed all claims over which it has
original jurisdiction....”). As the Supreme Court instructs:
Needless decisions of state law should be avoided both as a matter of comity and
to promote justice between the parties, by procuring for them a surer-footed reading
of applicable law. Certainly, if the federal claims are dismissed before trial, even
though not insubstantial in a jurisdictional sense, the state claims should be
dismissed as well. Similarly, if it appears that the state issues substantially
predominate, whether in terms of proof, of the scope of the issues raised, or of the
comprehensiveness of the remedy sought, the state claims may be dismissed
without prejudice and left for resolution to state tribunals.
United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726–27 (1966). Here, the court finds no basis
to retain supplemental jurisdiction over the remaining state-law claim.
Additionally, there is no independent basis for subject-matter jurisdiction over any statelaw claims. The only possible basis is under the diversity jurisdiction statute, 28 U.S.C. § 1332,
which grants a district court subject-matter jurisdiction over a case in which “the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
... citizens of different States.” 28 U.S.C. § 1332(a). Section 1332(a) requires “‘complete diversity
between all plaintiffs and all defendants,’ even though only minimal diversity is constitutionally
required. This means that, unless there is some other basis for jurisdiction, ‘no plaintiff [may] be
a citizen of the same state as any defendant.’” Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d
99, 104 (3d Cir. 2015) (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) and Zambelli
Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (internal footnotes omitted)). “The
burden of establishing federal jurisdiction rests with the party asserting its existence.” Id. at 105
(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006)).
For purposes of determining whether parties are completely diverse, an individual is a
citizen of the state where the individual is domiciled, meaning the state where the individual is
physically present and intends to remain. See Washington v. Hovensa LLC, 652 F.3d 340, 344 (3d
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Cir. 2011) (“[D]omicile is established by an objective physical presence in the state or territory
coupled with a subjective intention to remain there indefinitely.” (citation omitted)). El-Bey attests
that he is homeless and provides the court with a Pennsylvania mailing address. See Appl. to
Proceed in Dist. Ct. Without Prepaying Fees or Costs at 5, Doc. No. 1 (“I am currently homeless,
unemployed. . . . Occassionally [sic], I stay at my mother’s domicile.”); id. (providing mailing
address of 1748 S. Idaho St., Apt. 4, Allentown, PA 18103); Compl. at ECF p. 2 (listing same
address as one provided with IFP Application). He does not identify the location of his domicile.
He also does not allege the citizenship of the individual defendants; instead, he provides only
business addresses for the individual officers. As such, he has not satisfied his burden to
sufficiently allege that the parties are diverse for purposes of establishing the court’s diversity
jurisdiction over his state-law assault claim or any other possible state-law claim he intends to
pursue. Accordingly, the court will dismiss without prejudice his state-law claims. If El-Bey can
plausibly allege diversity of citizenship or a federal claim that would allow this court to exercise
supplemental jurisdiction over any state-law claims, he may do so in an amended complaint,
should he choose to file one.
III.

CONCLUSION

For the reasons stated above, the court will grant the IFP Application, dismiss the
complaint, and strike with prejudice El-Bey’s claims for injunctive relief against the Officers. For
the claims the court will dismiss, the court will dismiss with prejudice El-Bey’s claims under 18
U.S.C. § 242 and his section 1983 claim against the APD. The court will dismiss the remainder of
El-Bey’s claims without prejudice to him filing an amended complaint should he desire to reassert
such claims.

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Case 5:23-cv-00652-EGS Document 6 Filed 05/22/23 Page 26 of 26

The court will enter a separate order. 11
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

11

This order will provide additional instruction for filing an amended complaint.

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