Dutkevitch et al v. Wilkes Barre Area Vocational Technology School et al

Filing 22

ORDER granting 16 Motion to Dismiss; granting 17 Motion to Dismiss. Plaintiffs' Complaint is dismissed, and Plaintiffs will not be permitted to file their proposed Amended Complaint. 18 Motion for Extension of Time to File Response/Reply terminated as moot.Signed by Honorable Alan N. Bloch on 1/12/2012 (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VINCENT DUTKEVITCH and SHARON
DUTKEVITCH,
Plaintiffs,
vs.

3:09-cv-I041

WILKES BARRE AREA VOCATIONAL
TECHNOLOGY SCHOOL and PITTSTON
AREA SCHOOL DISTRICT,
Defendants.

o R D E R
AND NOW,

this 12th day of January,

2012,

IT IS HEREBY

ORDERED that the stay of the proceedings in the above captioned
matter imposed by Judge Thomas I. Vanaskie of the District Court for
the Middle District of Pennsylvania by Order dated November 30,
2009, is VACATED.
AND, further, upon consideration of Defendants' "Motion to
Dismiss"
matter

(Document Nos.
on

October

11,

16 and 17),
2011,

and

filed in the above-captioned
in

further

consideration

of

Plaintiffs' response thereto (Document No. 21), filed on November 9,
2011, as well as Plaintiffs' proposed Amended Complaint (Document
No. 14),
IT

IS

HEREBY

ORDERED

that

said

Motion

is

GRANTED.

Plaintiffs' Complaint in this case is DISMISSED and judgment will be
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entered in favor of the Defendants.

Moreover, Plaintiffs will not

be permitted to file their proposed Amended Complaint.
Plaintiffs filed their Complaint in this case on June 3,
2009, shortly after their Third Amended Complaint raising
essentially the same claims at CA 07-1672 was dismissed pursuant
to Magistrate Judge Thomas M. Blewitt's April 8, 2009 order in the
United States District Court for the Middle District of
Pennsylvania.

On June II, 2009, Magistrate Judge Blewitt, upon

screening the Complaint pursuant to 28 U.S.C. §1915(e), issued a
Report and Recommendation (Document No.4), recommending that
Plaintiffs' case here be dismissed on grounds of res judicata or,
in the alternative, that the case be stayed pending resolution of
the appeal of the dismissal at CA 07-1672.

District Court Judge

Thomas I. Vanaskie adopted the Report and Recommendation in part,
staying the case until the appeal was resolved.

This case was

later assigned to this Court.
On September IS, 2011, the mandate was issued in CA 07-1672,
affirming the Middle District's order dismissing Plaintiffs'
claims in their entirety.

The Defendants in this case now seek

dismissal of the claims brought here, which raise the same issues
and are based on the same operative facts as the dismissed case at
CA 07-1672, relying primarily on Magistrate Judge Blewitt's
recommendation that the case be dismissed based on res judicata.
The Court agrees with Defendants.

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Magistrate Judge Blewitt's Report and Recommendation
comprehensively explains the reasons why this case should be
dismissed on grounds of res judicata.

The Court agrees with the

rationale set forth therein and adopts it as its own.

The claims

in this case are essentially the same as those already dismissed
at CA 07-1672.

The Third Circuit affirmed the dismissal of those

claims pursuant to its July 21, 2011 opinion.
Plaintiffs' response has been to file an Amended Complaint
which they contend raises new claims not set forth in the first
case.

Specifically, the Amended Complaint appears to allege that

Defendants retaliated against Plaintiffs and abused the legal
process by misrepresenting facts to the district and appellate
courts while defending the lawsuit brought by Plaintiffs at CA 07­
1672. 1

Plaintiffs purport to bring their retaliation claims

pursuant to the Rehabilitation Act of 1973, 29 U.S.C.
the Americans with Disabilities Act ("ADA"), 42 U.S.C.

794, and

§
§

The basis for the abuse of process claim is not clear. 2

12203(a).
In any

To the extent that Plaintiffs are attempting to raise
retaliation claims based on actions taken by the Defendants prior
to the filing of the Third Amended Complaint at CA 07-1672, these
claims are barred by res judicata for the reasons set forth in
Magistrate Judge Blewitt's Report and Recommendation, as such
claims could have been litigated in the prior case.
Plaintiffs also purport to bring due process and equal
protection claims, but these seem to be encompassed by their
retaliation and abuse of process claims.

2

3

event, Plaintiffs state no valid claim.
To establish a retaliation claim under either the
Rehabilitation Act or the ADA, Plaintiffs must establish:
that they were engaged in protected activity;

(1)

(2) that Defendants

took action adverse to them after or contemporaneous with the
protected activitYi and (3) that there is a causal connection
between the protected activity and the adverse action.

See Kondas

v. Potter, 328 Fed. Appx. 116, 120 (3d Cir. 2009) i Lauren W. ex
reI. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007);
Krouse v. American Sterili
------------------------------------- ,
1997).

126 F.3d 494, 500 (3d Cir.

Even assuming that Plaintiffs properly allege the first

element, they do not properly allege the final two.

First, under

no reasonable interpretation of the Rehabilitation Act or the ADA
can defending against claims brought against a defendant by the
party claiming retaliation be considered to be an actionable
adverse action.

Moreover, to allege that Defendants' actions in

defending against a lawsuit brought by Plaintiffs were caused, not
by the desire to defend themselves from the claims against them,
but by a retaliatory animus caused by protected activity, is
patently frivolous.
Further, statements made in the course of judicial
proceedings are generally protected from civil rights suits by
judicial immunity.

Statements made by Defendants or their

attorneys at the March 11, 2009 hearing before Magistrate Judge

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Blewitt and the June 12, 2011 hearing before the Third Circuit
Court of Appeals are entitled to absolute immunity and are not
actionable.

See Hughs v. Long, 242 F.3d 121 (3d Cir. 2001);

General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297,
312 (3d Cir. 2003)
Pennsylvania law).

(discussing similar immunity provisions under
Plaintiffs' proposed Amended Complaint,

therefore, raises no new actionable retaliation claim.
As to Plaintiffs' abuse of process claim, under Pennsylvania
law, to bring a claim for wrongful use of process, Plaintiffs must
establish, among other things, that the relevant proceedings, here
CA 07-1672, were terminated in their favor.

See 42 Pa. C.S.

§§

8351(a) (2) and 8354; Mi-Lor, Inc. v. DiPentino, 654 A.2d 1156,
1157-58 (Pa. Super. Ct. 1995).
in most jurisdictions.

In fact,

this is the law generally

Here, Plaintiffs clearly cannot establish

that the proceedings alleged to be improper were terminated in
their favor and, accordingly, they cannot raise a valid abuse of
process claim.
Pennsylvania courts have emphasized that actions for wrongful
use of process should not be used to punish a defendant merely for
defending itself against claims brought by another.

See Mi-Lor,

654 A.2d at 1158; City of Coatesville v. Jarvis and Wilson, 902
A.2d 1249, 1252 (Pa. Super. Ct. 2006).

That is exactly what

Plaintiffs are trying to do in their purported Amended Complaint.
Their actions in doing so run far closer to abuse of process than

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anything Defendants are alleged to have done.
Because the proposed Amended Complaint raises no valid new
claims not covered by res judicata, amendment would be futile.
See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(3d Cir. 1997).

Accordingly, Plaintiffs' claims in this case are

dismissed in their entirety, and judgment will be entered in favor
of the Defendants.
N. Bloch
States District Judge
ecf:

Counsel of record

cc:

Sharon Dutkevitch
Vincent Dutkevitch
114 South Main Street, Rear
Pittston, PA 18640
(forwarded regular and certified mail)

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