Ledcke v. PA Dept of Corrections et al

Filing 13

MEMORANDUM (Attachments: # 1 R&R)(eo, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAWN MICHAEL LEDCKE
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Civil No. 1:11-CV-2298
(Judge Jones)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION
I.

Statement of Facts and of the Case.

This is a pro se civil rights action which was first brought by Shawn Ledcke,
an inmate who was formerly housed in the Lackawanna County Prison, through the
filing a civil complaint on December 12, 2011. (Doc. 1) While this first pleading was
captioned as a complaint, Ledcke’s initial pro se pleading was, in reality, something
less than an actual civil rights complaint. Rather, it is a demand for pre-complaint
discovery from the defendants. (Id.)
In this pleading, Ledcke indicated that he had sent “FOIA/PA” requests to the
defendants for wide-ranging materials, including audio and videotapes, as well as
production of documents, but had received no response from these officials. Asserting
that he desired this information because he may at some time in the future file a civil
rights complaint, Ledcke urged this Court to compel the defendants to respond to his

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“FOIA/PA” requests. While Ledcke did not further explain what he meant by these
“FOIA/PA” requests, it appeared that Ledcke was relying upon the federal Freedom
of Information and Privacy Acts, 5 U.S.C. §§551-552a, to endeavor to compel these
local authorities to produce these materials for him prior to even filing a federal
lawsuit.
Along with this complaint, the plaintiff filed a motion for leave to proceed in
forma pauperis. (Doc. 2) On January 9, 2012, as part of our statutorily mandated
screening process for pro se in forma pauperis litigants, we granted this motion for
leave to proceed in forma pauperis, (Doc. 2), but recommended that the Court dismiss
the complaint for failure to state a claim upon which relief can be granted, without
prejudice to allowing the plaintiff to attempt to correct the deficiencies noted in this
report and recommendation by filing an amended complaint. (Doc. 8)
Upon receipt of this report and recommendation, on January 27, 2012, Ledcke
filed an amended complaint, which named the Pennsylvania Department of
Corrections, the Lackawanna County Sheriffs’s Office, the Lackawanna County
Prison, and the prison warden as defendants. (Doc. 9) This amended complaint
repeated Ledcke’s explanation that he had sent requests to the defendants for wideranging materials, including audio and videotapes, as well as production of
documents, but had received no responses from these officials. Ledcke, once again,

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explained that he was seeking this information because he may at some time in the
future wish to file a lawsuit against state officials, but his current amended complaint
contains no civil rights claims against any state officials. Instead, Ledcke’s amended
complaint further explained what he initially meant by these “FOIA/PA” requests he
had propounded on state and local officials. It appears from the amended complaint
that Ledcke is attempting to rely both upon the federal Freedom of Information and
Privacy Acts, 5 U.S.C. §§551-552a, and Pennsylvania’s Right-to-Know Law, 65
Pa.C.S. §67.101, et seq., to endeavor to compel these state and local authorities to
produce these materials for him prior to even filing a federal lawsuit.
We have now reviewed this amended complaint, and find that it, too, fails to
state a claim upon which relief can be granted. Accordingly, we recommend that the
amended complaint also be dismissed.
II.

Discussion

A.

Screening of Pro Se In forma Pauperis Complaints–Standard of
Review

This Court has an on-going statutory obligation to conduct a preliminary review
of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis
in cases which seek redress against government officials. Specifically, we are obliged
to review the complaint pursuant to 28 U.S.C. § 1915A which provides, in pertinent
part:
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(a) Screening. - The court shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for dismissal. - On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint(1) is frivolous, malicious, or fails to state a claim upon which relief may
be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
Under Section 1915A, the Court must assess whether a pro se complaint “fails
to state a claim upon which relief may be granted.” This statutory text mirrors the
language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that
a complaint should be dismissed for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6).
With respect to this benchmark standard for legal sufficiency of a complaint, the
United States Court of Appeals for the Third Circuit has aptly noted the evolving
standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court's opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our
opinion in Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008) and culminating recently with the Supreme Court's decision in
Ashcroft v. Iqbal –U.S.–, 129 S.Ct. 1937 (2009) pleading standards have
seemingly shifted from simple notice pleading to a more heightened form
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of pleading, requiring a plaintiff to plead more than the possibility of
relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may
be granted, the court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn from the complaint are to be construed in the
light most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel,
Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a
complaint’s bald assertions or legal conclusions when deciding a motion to dismiss.”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally
a court need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not
alleged.”

Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a
plaintiff must provide some factual grounds for relief which “requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of actions will
not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief
above the speculative level.” Id. In keeping with the principles of Twombly, the
Supreme Court has underscored that a trial court must assess whether a complaint
states facts upon which relief can be granted when ruling on a motion to dismiss. In
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Ashcroft v. Iqbal, __U.S. __, 129 S.Ct. 1937 (2009), the Supreme Court held that,
when considering a motion to dismiss, a court should “begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of
truth.” Id. at 1950. According to the Supreme Court, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 1949. Rather, in conducting a review of the adequacy of complaint,
the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 1950.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain
more than mere legal labels and conclusions. Rather, a complaint must recite factual
allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level of
mere speculation. As the United States Court of Appeals for the Third Circuit has
stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state
a claim, district courts should conduct a two-part analysis. First, the
factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint's well-pleaded facts as true, but
may disregard any legal conclusions. Second, a District Court must then
determine whether the facts alleged in the complaint are sufficient to
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show that the plaintiff has a “plausible claim for relief.” In other words,
a complaint must do more than allege the plaintiff's entitlement to relief.
A complaint has to “show” such an entitlement with its facts.

Fowler, 578 F.3d at 210-11.
In addition to these pleading rules, a civil complaint must comply with the
requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what
a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and
plain statement of the grounds for the court’s jurisdiction, unless the
court already has jurisdiction and the claim needs no new jurisdictional
support; (2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and (3) a demand for the relief sought, which
may include relief in the alternative or different types of relief.

Thus, a well-pleaded complaint must contain more than mere legal labels and
conclusions. Rather, a pro se plaintiff’s complaint must recite factual allegations
which are sufficient to raise the plaintiff’s claimed right to relief beyond the level of
mere speculation, set forth in a “short and plain” statement of a cause of action.
Applying these standards, we find that this complaint, in its present form, is subject
to summary dismissal.

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B.

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Ledcke’s Amended Complaint Still Fails to State a Claim Upon
Which Relief May Be Granted
1.

Ledcke May Not Rely Upon The Federal Freedom of
Information and Privacy Acts, 5 U.S.C. §§551-552a To Compel
Production of State and Local Records

At the outset, to the extent that the plaintiff, Shawn Ledcke, is endeavoring to
rely upon the federal Freedom of Information and Privacy Acts, 5 U.S.C. §§551-552a,
to endeavor to compel these state and local authorities to provide him with farreaching discovery before filing a federal civil rights complaint, this pleading
continues to fail to state a claim upon which relief can be granted for at least three
reasons.
First, Ledcke’s pleadings fundamentally distort the process of federal civil
litigation. With very few exceptions, the Federal Rules of Civil Procedure do not
permit parties to indulge in discovery prior to filing a complaint in federal court.
Rather, what a party like Ledcke must do is first state a federal claim in a well-pleaded
complaint, and then seek discovery in support of aspects of this claim. Since the
approach proposed here by Ledcke turns this orderly process of litigation on its head,
it should not be adopted by this Court, and we should decline Ledcke’s invitation to
compel wide-ranging pre-complaint discovery from the defendants.
Second, to the extent that Ledcke relies upon the federal Freedom of
Information and Privacy Acts, 5 U.S.C. §§551-552a, to endeavor to compel these state
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and local authorities to provide him with far-reaching discovery before filing a federal
civil rights complaint, he misconstrues the reach of these federal statutes. By their
terms, the Freedom of Information and Privacy Acts, 5 U.S.C. §§551-552a, only apply
to federal agencies and officials. Therefore, it has long been held that these federal
statutes do not compel state or local agencies to maintain, or produce, records. See,
e.g., Sowell’s Meats and Services, Inc. V. McSwain, 788 F.2d 226, 228, n. 2 (4th Cir.
1986); St. Michael’s Convalescent Hospital v. California, 643 F.2d 1369, 1373 (9th
Cir. 1981); Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir. 1978); Lathrop v. Juneau
& Associates, Inc., 220 F.R.D. 330, 336 (S.D. Ill. 2004); Ryans v. New Jersey
Commission of the Blind, 542 F.Supp. 841, 852 (D.N.J. 1982). As one court has aptly
noted when denying a similar federal FOIA request:
Both the FOIA and the Privacy Act are inapplicable to state agencies.
Relevant case law precludes application of the FOIA and Privacy Act to
a state agency such as the Pennsylvania Office of the Attorney General.
St. Michael's Convalescent Hospital v. California, 643 F.2d 1369, 1372
(9th Cir.1981) (refusing to apply FOIA or Privacy Act to state agencies
receiving federal funding or subject to federal regulation); Mamarella v.
County of Westchester, 898 F.Supp. 236, 237 (S.D.N.Y.1995) (holding
that FOIA and Privacy Act do not apply to states agencies or individual
officials).
Martinson v. Violent Drug Traffickers Project, No. 95-2161, 1996 WL 411590, *2
(D.D.C. July 11,1996) Accordingly, these statutes simply do not provide Ledcke with
any legal grounds for compelling state and local agencies and officials to give him
access to these records.
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Nor can Ledcke rely upon his standing as a person seeking leave to proceed in
forma pauperis to compel this unusual form of pre-complaint discovery. Indeed, as
a general matter, nothing in 28 U.S.C. § 1915 authorizes federal courts to compel free
discovery, or finance a party’s discovery expenses incurred while prosecuting a
lawsuit, even if that party has been granted leave to proceed in forma pauperis under
28 U.S.C. § 1915(a). Review of the case law reveals that numerous courts have
recognized these limitations on the power of federal courts to relieve indigent litigants
from the costs of pre-trial discovery. See, e.g., Brooks v. Quinn, 257 F.R.D. 515, 417
(D. Del. 2009) (“Although plaintiff is proceeding in forma pauperis, the court has no
authority to finance or pay for a party’s discovery expenses. . . . It is plaintiff’s
responsibility to pay for the costs associated with the taking of a deposition.”);
Augustin v. New Century TRS Holding, Inc., No. 08-326, 2008 U.S. Dist. LEXIS
96236, at *7-9 (W.D. Pa. Nov. 25, 2008) (denying plaintiff’s IFP application to cover
costs for discovery requests); Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991)
(28 U.S.C. § 1915 does not require the government to advance funds for deposition
expenses); Toliver v. Community Action Comm’n to Help the Econ., 613 F. Supp.
1070, 1072 (S.D.N.Y. 1985) (no clear statutory authority for the repayment of
discovery costs for IFP plaintiff); Sturdevant v. Deer, 69 F.R.D. 17, 19 (E.D. Wis.
1975) (concluding that 28 U.S.C. § 1915 “does not extend to the cost of taking and
transcribing a deposition.”); Ebenhart v. Power, 309 F. Supp. 660, 661 (S.D.N.Y.
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1969) (“Grave doubts exist as to whether [28 U.S.C. § 1915] authorizes this court to
order the appropriation of Government funds in civil suits to aid private litigants in
conducting pre-trial discovery.”); see also Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.
1993) (“There is no provision in [28 U.S.C. § 1915] for the payment by the
government of the costs of deposition transcripts, or any other litigation expenses, and
no other statute authorizes courts to commit federal monies for payment of the
necessary expenses in a civil suit brought by an indigent litigant.”). Thus, as a general
rule, the Court lacks the lawful authority to help finance, or relieve Plaintiff from, the
costs associated with taking discovery in anticipation of possible litigation to be filed
sometime in the future.
2.

Ledcke’s State law Claims Also Fail

In addition, Ledcke’s amended complaint attempts to articulate claims under
Pennsylvania’s Right-to-Know law, 65 Pa.C.S. §67.101, et seq. However, Ledcke’s
state law claims under Pennsylvania’s Right-to-Know law, 65 Pa.C.S. §67.101, et seq.,
fail to state a claim that we may entertain in federal court for several reasons.
“First, the Right-to-Know Act prescribes that the appropriate remedy for denial
of a request is to appeal that denial in state court. . . . . This statutory remedy is
exclusive. Proffitt v. Davis, 707 F.Supp. 182, 188 (E.D.Pa.1989)” Martinson v.
Violent Drug Traffickers Project, 1996 WL 411590, at *2. Therefore, federal courts

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generally lack subject matter jurisdiction over such Pennsylvania Right-to-Know Act
claims. Id.
Second, there are constitutional impediments to pursuing this claim in federal
court against the state, and state agencies or officials. As a matter of constitutional
law, the Eleventh Amendment to the Constitution provides that “[t]he Judicial power
of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the . . . States . . . .”, U. S. Const., amend XI.
By its terms, the Eleventh Amendment strictly limits the power of federal courts to
entertain cases brought by citizens against the state and state agencies. Moreover, a
suit brought against an individual acting in his or her official capacity constitutes a
suit against the state and therefore also is barred by the Eleventh Amendment. Will
v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Consistent with the plain
language of this constitutional amendment, federal courts have repeatedly held that the
Eleventh Amendment precludes persons from pursuing claims against state agencies
and officials under Pennsylvania’s Right-to-Know law, 65 Pa.C.S. §67.101, et seq in
federal court. As the United states Court of Appeals for the Third Circuit recently
observed when rejecting a similar state Right-to-Know law claim: “As to those
defendants who are subject to Pennsylvania's Right to Know Act, the Eleventh
Amendment barred the District Court from considering [these] claims. See Capital
Cities Media, Inc. v. Chester, 797 F.2d 1164, 1176-77 (3d Cir.1986).” N'Jai v. Floyd,
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386 F. App’x 141, 143 (3d Cir. 2010). See also Martinson v. Violent Drug Traffickers
Project, No. 95-2161, 1996 WL 411590, *2 (D.D.C. July 11,1996).
Nor can Ledcke rely upon the current diversity of citizenship between himself,
a prisoner housed in Alabama, and the defendants, state officials in Pennsylvania, to
sustain federal jurisdiction in this case. While federal “district courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the
sum or value of $75,000, exclusive of interest and costs, and is between–(1) citizens
of different States”, 28 U.S.C. § 1332(a)(1)(emphasis added), this ground of federal
jurisdiction, known as diversity jurisdiction, simply does not provide a basis for
exercising jurisdiction in this particular case since Ledcke cannot colorably claim that
the amount in controversy here exceeds $75,000, the jurisdictional threshold for
federal diversity jurisdiction. Ledcke cannot make this claim because the only
financial penalties exacted by Pennsylvania’s Right to Know Act, are court costs,
attorney fees, and a $1,500 civil penalty. Pa. C.S. §§67.1304 and 1305. Since these
sanctions fall far below the dollar threshold set by Congress for federal courts to
entertain lawsuits based upon diversity of citizenship, we lack subject matter
jurisdiction under 28 U.S.C. §1332 to entertain this case.
Finally, our conclusion that there are no grounds for asserting federal
jurisdiction here, dictates the appropriate course for the court to follow in addressing
any ancillary state law claims that Ledcke may wish to pursue against these
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defendants. In a case such as this, where there is no independent basis for asserting
jurisdiction in the federal court, it has observed that the proper course is for:
[T]he court [to] decline to exercise supplemental jurisdiction over the
plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) (“The district courts
may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if-... the district court has dismissed all claims over which
it has original jurisdiction.”); United Mine Workers v. Gibbs, 383 U.S.
715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (holding that when
federal causes of action are dismissed, federal courts should not
separately entertain pendent state claims).
Bronson v. White, No. 05-2150, 2007 WL 3033865, at *13 (M.D. Pa. Oct. 15,
2007)(dismissing ancillary malpractice claim against dentist).
This course of action, dismissing ancillary state claims when there is no other
ground of federal jurisdiction, has also been expressly endorsed by the Court of
Appeals in Ham v. Greer, 269 F. App’x 149, 151 (3d Cir. 2008). In Ham, the
appellate court approved this practice, stating in terms that are equally applicable here
that:
Because the District Court appropriately dismissed [the inmate’s] Bivens
claims, no independent basis for federal jurisdiction remains. In addition,
the District Court did not abuse its discretion in declining to address the
state law negligence claims. 28 U.S.C. § 1367(c)(3); see United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966); Tully v. Mott Supermkts., Inc., 540 F.2d 187, 196 (3d
Cir.1976).1

Because we believe that it would be inappropriate to exercise jurisdiction
over these ancillary state law claims we express no opinion on the ultimate merits
of this case as an action Pennsylvania’s Right-to-Know law, 65 Pa.C.S. §67.101,
1

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Id. at 151.
In short, without the inclusion of some further well-pleaded factual allegations,
the claims set forth in this civil rights complaint contain little more than “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
[which as a legal matter] do not suffice.” Ashcroft v. Iqbal, 127 S.Ct. at 1979.
Therefore, we are compelled to recommend dismissal of this complaint. We recognize
that pro se plaintiffs often should be afforded an opportunity to amend a complaint
before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote
Concrete Contractors, 482 F.3d 247, 253 (3d Cir. 2007), unless it is clear that granting
further leave to amend would be futile, or result in undue delay. Alston v. Parker, 363
F.3d 229, 235 (3d Cir. 2004). In this case, the plaintiff was given the opportunity to
amend his complaint, has failed to state a viable cause of action, and the factual and
legal grounds proffered here in support of the complaint make it clear that the plaintiff
has no right to relief. In such a setting, granting further leave to amend would be futile
or result in undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Therefore, this case should simply be dismissed.

et seq.
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III.

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RECOMMENDATION

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the
plaintiff’s amended complaint be DISMISSED without further leave to amend.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in 28
U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition
of a prisoner case or a habeas corpus petition within fourteen (14) days
after being served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties, written
objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the
basis for such objections. The briefing requirements set forth in Local
Rule 72.2 shall apply. A judge shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge, however, need conduct a new hearing only
in his or her discretion or where required by law, and may consider the
record developed before the magistrate judge, making his or her own
determination on the basis of that record. The judge may also receive
further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions

Submitted this 3rd day of February 2012.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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