Lokuta v. Sallemi et al

Filing 29

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 10/9/13. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANN H. LOKUTA,
CIVIL ACTION NO. 3:CV-13-0288

Plaintiff,

(JUDGE CAPUTO)

v.
ANGELA SALLEMI, JOSEPH A. MASSA,
JR., FRANCIS J. PUSKAS, II, MICHAEL
T. CONAHAN, MARK CIAVARELLA,
WILLIAM T. SHARKEY, SR., and JILL
MORAN,
Defendants.

MEMORANDUM
Presently before the Court are motions to dismiss Plaintiff Ann H. Lokuta’s Complaint
filed by Defendants William T. Sharkey, Sr. (Doc. 17), Joseph A. Massa, Jr. and Francis J.
Puskas, II (Doc. 14), and Angela Sallemi and Jill Moran (Doc. 10). Plaintiff Lokuta, a former
Luzerne County Court of Common Pleas judge, asserts claims pursuant to 42 U.S.C. §
1983 for civil conspiracy and violations of her First, Fifth, Sixth, and Fourteenth Amendment
rights. Moving Defendants argue that the Complaint fails to state a claim upon which relief
can be granted, that the claims are barred by the applicable statute of limitations, that the
claims and requests for relief are barred by the Rooker-Feldman doctrine, and/or that
preclusion law prevents Lokuta from re-litigating the claims and issues in this action.
Additionally, Defendants Massa and Puskas contend that they are entitled to prosecutorial
and quasi-judicial immunities. Because Lokuta seeks relief that is barred by the RookerFeldman doctrine; preclusion law prevents her from re-litigating issues decided in the statecourt judicial discipline proceeding; prosecutorial immunity bars many of Lokuta’s claims
against Defendants Massa and Puskas; the Complaint fails to state a claim upon which
relief can be granted; and since many of the claims are barred by the statute of limitations;

the motions to dismiss will be granted.
I. Background
Plaintiff Ann H. Lokuta (“Lokuta”) was elected as a judge to the Court of Common
Pleas of Luzerne County, Pennsylvania in 1991. (Compl., ¶ 12.) Lokuta was retained for
a second ten-year term in 2001. (Id.) In 2006, the Pennsylvania Judicial Conduct Board
(“JCB”) filed disciplinary charges against Lokuta. See In re Ann H. Lokuta, 11 A.3d 427, 431
(Pa. 2011) (hereinafter Lokuta IV). On January 14, 2011, the Pennsylvania Supreme Court
affirmed the Court of Judicial Discipline’s sanction that Lokuta be removed from office. See
id. at 449-50.1
Defendants in this action are Angela Sallemi (“Sallemi”), Joseph A. Massa, Jr.
(“Massa”), Francis J. Puskas, II (“Puskas”), Michael T. Conahan (“Conahan”), Mark
Ciavarella (“Ciavarella”), William T. Sharkey, Sr. (“Sharkey”), and Jill Moran (“Moran”).
(Compl., ¶¶ 5-11.) Sallemi was a court reporter for Luzerne County, and shortly after
Lokuta was removed from office, Sallemi was promoted to Chief Court Reporter by
Ciavarella. (Id. at ¶ 5.) Massa was Chief Counsel of the JCB. (Id. at ¶ 6.) Puskas was the
prosecuting attorney for the JCB for the judicial discipline charges brought against Lokuta.
(Id. at ¶ 7.) Conahan is a former Court of Common Pleas judge, and for several years he
was the President Judge of the Court of Common Pleas of Luzerne County. (Id. at ¶ 8.)
Ciavarella is also a former Court of Common Pleas judge, and he also served several years
as President Judge. (Id. at ¶ 9.) Conahan and Ciavarella are both currently serving federal
prison sentences. (Id. at ¶¶ 8-9.) Sharkey was the Court Administrator for Luzerne County.

1

On a motion to dismiss, a court may consider a prior judicial opinion, but only “to
establish the existence of the opinion, and not for the truth of the facts asserted in
the opinion.” M & M Stone Co. v. Pennsylvania, 388 F. App’x 156, 162 (3d Cir.
2010); McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (“a court may
take judicial notice of a prior judicial opinion.”).
2

(Id. at ¶ 10.) Moran was the Luzerne County Prothonotary. (Id. at ¶ 11.)
The facts as set forth in the Complaint are as follows:
During Lokuta’s tenure as a judge on the Luzerne County Court of Common Pleas,
both Conahan and Ciavarella served terms as President Judge responsible for the
administration of the Court. (Id. at ¶ 12.) Lokuta was subject to relentless intimidation and
retaliation by Conahan and Ciavarella during this time. (Id. at ¶ 13.)
Prior to the public exposure of Conahan and Ciavarella’s influence over the Luzerne
County Court of Common Pleas, Lokuta attempted to develop a record detailing Conahan
and Ciavarella’s misconduct. (Id. at ¶ 16.) Lokuta brought information about Conahan and
Ciavarella to the attention of federal authorities; she met with the FBI; she filed an
Emergency Application with the Pennsylvania Supreme Court to address Conahan’s corrupt
influence; and she notified the Administrative Office of the Pennsylvania Courts of
Conahan’s conduct. (Id. at ¶¶ 17-26.)
Conahan became aware of Lokuta’s discussions with federal authorities and
orchestrated a scheme to discredit her and have her removed from the bench. (Id. at ¶ 28.)
Conahan’s knowledge of Lokuta’s discussions with the FBI were verified by a JCB
Complaint that was sealed from public view based on acts of Massa and Puskas. (Id. at ¶
29.)
Conahan relied on a number of individuals to orchestrate his scheme to discredit
Lokuta. (Id. at ¶¶ 30-44.) Susan Weber, Lokuta’s former secretary, filed a JCB complaint
against Lokuta in April 2004. (Id. at ¶ 31.) After submitting the complaint, Weber was
immediately appointed by Conahan as court reporter/secretary, despite her lack of training
as a court reporter. (Id. at ¶ 32.) And, the JCB, through Massa and/or Puskas, first
interviewed Conahan, not Weber, about the complaint at a meeting attended by Sharkey.
(Id. at ¶ 33.) Sharkey then leaked the investigation of Lokuta to the press, but he was never

3

sanctioned for such conduct by the JCB. (Id.) A second complaint against Lokuta was
prepared by Conahan and filed through Massa. (Id. at ¶ 34.) During this time, Conahan
passed out between fifty and one-hundred of Massa’s business cards to anyone who would
consider complaining about Lokuta. (Id. at ¶ 36.) Moreover, during their interviews with the
JCB, Moran, Sharkey, Sallemi, and other court reporters alleged that Lokuta was mentally
ill. (Id. at ¶ 39.) Lokuta disproved these claims. (Id. at ¶¶ 40-41.)
Once the JCB could no longer establish that Lokuta suffered from a mental illness
or condition of dependency, Puskas began prosecuting her based on pattern evidence
relating to past dismissed complaints and non-verified information. (Id. at ¶ 42.) Massa and
Puskas repeatedly denied that Conahan orchestrated the conspiracy against her, as the
three painted her as a recalcitrant and ineffective jurist. (Id.)
Many Defendants in this action shared a close relationship with each other. Sallemi
and Conahan had a history of working together to accomplish mutually beneficial results.
(Id. at ¶ 43.) Sharkey and Moran had a history of working closely with Conahan and/or
Ciavarella, and Moran, Conahan, and Ciavarella shared a business interest. (Id. at ¶ 44.)
During Ciavarella’s federal criminal trial, Sallemi testified that she received money from
Conahan. (Id. at ¶ 47.) Sallemi and Conahan also worked together to provide an attorney
to represent the Luzerne County court reporters in a salary dispute, and Sallemi visited
Conahan’s condominium in Florida. (Id. at ¶¶ 48-50.)

Moran also testified during

Ciavarella’s criminal trial that she delivered bags of cash to Conahan’s chambers. (Id. at ¶
52.) Conahan, though, denied the existence of relationships with courthouse staff. (Id. at
¶¶ 45, 53.) And Massa and Puskas prevented Lokuta from exploring these relationships
during the judicial conduct proceeding. (Id. at ¶ 54.)
Ciavarella’s criminal trial in February 2011 brought to light what had previously been
withheld from the public, proving what Lokuta unsuccessfully alleged for years in her judicial

4

conduct proceeding. (Id. at ¶ 55.) This included Sallemi’s receipt of money from Conahan,
Moran’s delivery of cash to Conahan’s chambers, and testimony that a bookkeeper for
Conahan’s business interests made false accounting entries to hide payments, including
the payments to Sallemi. (Id. at ¶¶ 47, 52, 56.)
Massa and Puskas became obsessed with prosecuting Lokuta and refused to pursue
a complaint filed against Conahan during the course of her judicial conduct proceeding. (Id.
at ¶ 61.) Massa and Puskas also continued to harass Lokuta following her removal as
judge by processing three stale complaints against her. (Id. at ¶ 62.)
Based on these factual allegations, Lokuta filed the Complaint in this action on
February 5, 2013. Lokuta alleges claims under 42 U.S.C. § 1983 against Defendants for
civil conspiracy and violations of her First, Fifth, Sixth, and Fourteenth Amendment rights.
Lokuta requests the following relief:
a.

That this Honorable Court reinstate Lokuta to the Court of Common
Pleas;

b.

That this Honorable Court reinstate her pension, health benefits, and
insurances;

c.

That this Honorable Court award actual and compensatory damages;

d.

That this Honorable Court award reasonable attorney’s fees in pursuit
of this Action;

e.

That this Honorable Court allow Lokuta to run for future judicial office;
and

f.

That this Honorable Court award such other relief as is just and
equitable.

(Id. at Wherefore Clauses.) Lokuta also seeks punitive damages. (Id. at ¶¶ 83, 88, 92.)
On March 22, 2013, Defendants Moran and Sallemi (collectively, “County
Defendants”) filed a motion to dismiss the Complaint. (Doc. 10.) On March 26, 2013,
Defendants Massa and Puskas (collectively, “JCB Defendants”) moved to dismiss the
Complaint. (Doc. 14.) And, on March 28, 2013, Sharkey filed his motion to dismiss Lokuta’s

5

Complaint. (Doc. 17.)2 The motions to dismiss3 have now been fully briefed and are ripe
for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.
Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are
not required. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can

2

Ciavarella filed an Answer and Affirmative Defenses to the Complaint on March
26, 2013. (Doc. 15.) Conahan has not answered the Complaint or filed a motion
to dismiss. The docket does not reflect whether Conahan has been served.

3

Where appropriate, Defendants Sallemi, Moran, Massa, Puskas, and Sharkey will
be referred to collectively as “Moving Defendants.”
6

provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009). As such,
“[t]he touchstone of the pleading standard is plausability.” Bistrian v. Levi, 696 F.3d 352,
365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, 127 S. Ct. 1955, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S. Ct. 1937. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff's claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998 F.2d

7

at 1196. The Court need not assume the plaintiff can prove facts that were not alleged in
the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d
Cir. 1998), or credit a complaint's “‘bald assertions’” or “‘legal conclusions.’” Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
III. Discussion
In their motions to dismiss, County Defendants and Sharkey argue that the
Complaint should be dismissed pursuant to the Rooker-Feldman doctrine, because Lokuta
fails to state a claim, and because the claims are barred by the applicable two-year statute
of limitations.

Additionally, County Defendants and Sharkey maintain that collateral

estoppel precludes the issues raised in the Complaint. JCB Defendants contend that they
are entitled to absolute prosecutorial and quasi-judicial immunities, that Lokuta is precluded
from pursing the issues in this action, that Rooker-Feldman prevents her from obtaining
certain requested relief, that Lokuta fails to state a claim, and that the claims are barred by
the statute of limitations. As Moving Defendants’ arguments in support of dismissal
frequently overlap, these arguments will be addressed collectively. And, for the reasons
that follow, the motions to dismiss will be granted.
A.

Rooker-Feldman
First, the Court lacks subject matter jurisdiction over Lokuta’s claims seeking

reinstatement to the Court of Common Pleas and permission to run for judicial office in the
future. Thus, these requests for relief will be dismissed.
Under the Rooker-Feldman doctrine, “a district court is precluded from entertaining
an action, that is, the federal court lacks subject matter jurisdiction, if the relief requested
effectively would reverse a state court decision or void its ruling.” Taliaferro v. Darby Twp.
Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006) (internal citations omitted); see also Exxon

8

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S. Ct. 1517, 161 L. Ed. 2d
454 (2005).4 Therefore, a federal court may not consider a claim that would require either
determining that the state court judgment was erroneously entered or reversing the state
court judgment. In re Madera, 586 F.3d 228, 232 (3d Cir. 2009) (citing In re Knapper, 407
F.3d 573, 581 (3d Cir. 2005)). The doctrine applies not only to decisions of a state’s highest
court, but to all final decisions of lower state courts. FOCUS v. Allegheny Cnty. Ct. Com. Pl.,
75 F.3d 834, 840 (3d Cir. 1996).
The Supreme Court refined the Rooker-Feldman doctrine in Exxon Mobil:
The Rooker–Feldman doctrine, we hold today, is confined to cases of
the kind from which the doctrine acquired its name: cases brought by
state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments. Rooker–Feldman does not
otherwise override or supplant preclusion doctrine or augment the
circumscribed doctrines that allow federal courts to stay or dismiss
proceedings in deference to state-court actions.
Exxon Mobil, 544 U.S. at 284, 125 S. Ct. 1517. Analyzing the holding in Exxon Mobil, the
Third Circuit concluded that a four-part test must be satisfied for the Rooker-Feldman
doctrine to apply: “(1) the federal plaintiff lost in state court; (2) the plaintiff complains of
injuries caused by the state-court judgments; (3) those judgments were rendered before the
federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the
state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166
(3d Cir. 2010) (internal quotations and brackets omitted), cert. denied, - - - U.S. - - -, 131
S. Ct. 1798, 179 L. Ed. 2d 655 (2011). The second and fourth factors are critical in
determining whether a federal suit presents an independent, non-barred claim. Great W.
Mining, 615 F.3d at 166.
With respect to Lokuta’s requests to be reinstated to the Court of Common Pleas and
4

The Rooker-Feldman doctrine originated from two Supreme Court opinions,
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303,
75 L. Ed. 2d 206 (1983) and Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct.
149, 68 L. Ed. 362 (1923).
9

to be permitted to run for judicial office in the future, all four requirements are satisfied.
Lokuta lost in state court. Lokuta was removed from office and prohibited from holding any
judicial office in the Commonwealth by order of the Court of Judicial Discipline, see In re
Ann H. Lokuta, 964 A.2d 988, 1136 (Pa. C.J.D. 2008) (hereinafter Lokuta I), and the Court
of Judicial Discipline’s sanction was affirmed by the Pennsylvania Supreme Court, Lokuta
IV, 11 A.3d at 450 (affirming sanction). These injuries were thus caused by the state-court
judgment. Moreover, these issues were resolved in state court two years before the
commencement of this action. Finally, the requested relief to be reinstated as judge and
allowed to seek judicial office in the future invites the Court to review and reject the statecourt judgments. See, e.g., Muhammad v. Cappellini, No. 10-CV-2374, 2011 WL 3034393,
at *3 (M.D. Pa. July 25, 2011) (the court lacked jurisdiction to grant some of the relief sought
by the plaintiff because it would have required reversal of the state-court judgment).
Because Lokuta complains of injuries produced by a state-court judgment, and she seeks
relief that requires a predicate finding that the state court’s judgment was wrongfully
entered, these requests for relief are barred by the Rooker-Feldman doctrine.
B.

Preclusion
Because the Rooker-Feldman doctrine only serves as a jurisdictional bar to Lokuta’s

requests to be reinstated to the Court of Common Pleas and to be permitted to run for
judicial office in the future, further analysis is necessary. “As a final step, should the
Rooker-Feldman doctrine not apply such that the district court has jurisdiction, ‘[d]isposition
of the federal action, once the state-court adjudication is complete, would be governed by
preclusion law.’” Great W. Mining, 615 F.3d at 170 (quoting Exxon Mobil, 544 U.S. at 293,
125 S. Ct. 1517). Federal courts must “give the same preclusive effect to a state-court
judgment as another court of that State would give.” Exxon Mobil, 544 U.S. at 293, 125 S.
Ct. 1517. “Congress has directed federal courts to look principally to state law in deciding

10

what effect to give state-court judgments.” See Lance v. Dennis, 546 U.S. 459, 465, 126 S.
Ct. 1198, 1202, 163 L. Ed. 2d 1059 (2006).
Issue preclusion forecloses only a matter actually litigated and essential to the
decision. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988) (citing Duquesne Light Co. v.
Pittsburgh Rys., 194 A.2d 319, 321 (Pa. 1963)). Otherwise known as collateral estoppel,
issue preclusion applies under Pennsylvania law when the following elements are met: (1)
the issue decided in the previous action is identical to one presented in the later action; (2)
the previous action resulted in a final judgment on the merits; (3) the party against whom
collateral estoppel is asserted was a party to the previous action, or is in privity with a party
to the previous action; and (4) the party against whom collateral estoppel is asserted had
a full and fair opportunity to litigate the issue in the previous action. Jones v. UPS, 214 F.3d
402, 405-06 (3d Cir. 2000) (citing Rue v. K–Mart Corp., 713 A.2d 82, 84 (Pa. 1998)).
Under Pennsylvania law, “collateral estoppel may apply ‘to all relevant issues of fact
that were actually raised in the prior litigation,’ even ‘where the cause of action in a pending
suit is not identical with that previously litigated.’” Logan v. Salem Baptist Church of
Jenkintown, No. 10-cv-0144, 2013 WL 4501209, at *16 n.39 (E.D. Pa. Aug. 23, 2013) (citing
McCandless Twp. v. McCarthy, 300 A.2d 815, 821 (Pa. Cmwlth. Ct. 1973)). Restated, even
where there is not a precise identity of the claims asserted, this is “of no legal consequence:
there is no such requirement for the application of issue preclusion. Only the issues need
be the same.” Witkowski v. Welch, 173 F.3d 192, 203 (3d Cir. 1999).
A number of issues identical to those presented in this action were decided in
Lokuta’s judicial conduct proceeding. Among others, the following identical issues were
litigated and decided in the state-court proceeding: the Court of Judicial Discipline
improperly admitted untimely “pattern evidence” of misconduct, Lokuta IV, 11 A.3d at 44143; Lokuta was denied access to exculpatory information, including the anonymous

11

complaint filed against Conahan in 2006, id. at 442-43; she was selectively prosecuted, id.
at 446; the JCB engaged in prosecutorial misconduct by overlooking Conahan’s corruption
and shielding him from investigation because it was pursuing a case against her, id. at 447;
and the Court of Judicial Discipline improperly limited her cross-examination about
Conahan’s purported influence over her case, id. at 444-45. Moreover, the Court of Judicial
Discipline, the Pennsylvania Supreme Court, or both ruled on these issues. And, Lokuta
was a party to the judicial conduct proceeding.
Nevertheless, Lokuta argues that collateral estoppel does not apply here because
she was not provided a full and fair opportunity to litigate these issues in the course of her
judicial conduct proceeding. Specifically, Lokuta contends that since she was not afforded
full discovery despite her requests, she did not receive a realistic opportunity to explore her
allegations of collusion among Defendants. However, lack of discovery “is an insufficient
basis to reject the prior judgment’s preclusive effect. Other proceedings lacking discovery,
such as motions to dismiss and motions for judgment on the pleadings, are preclusive.” Am.
Music Theater Festival, Inc. v. TD Bank, N.A., No. 10-cv-638, 2012 WL 72706, at *6 n.14
(E.D. Pa. Jan. 10, 2012). In any event, Lokuta was afforded discovery rights pursuant to
the Court of Judicial Discipline Rules of Procedure. See Pa. C.J.D.R.P. No. 401. Moreover,
as noted by Defendants, Lokuta was represented by counsel in the judicial conduct
proceeding. At that trial which was conducted over multiple days, Lokuta testified for five
days. See Lokuta I, 964 A.2d at 1001 n.4. Lokuta was also able to appeal the decision of
the Court of Judicial Discipline, have the case remanded for further proceedings by the
Pennsylvania Supreme Court, appeal the subsequent decision of the Court of Judicial
Discipline, and file a petition for writ of certiorari to the United States Supreme Court.
During the course of these proceedings, Lokuta was able to present evidence and advance
legal arguments. Lokuta thus had a full and fair opportunity to litigate the above-identified

12

issues. Accordingly, as the requirements for issue preclusion are satisfied, collateral
estoppel prevents Lokuta from re-litigating these issues in this case.
C.

Immunity
In addition to asserting that Lokuta’s claims are barred by Rooker-Feldman and

preclusion law, JCB Defendants argue that they are entitled to prosecutorial and quasijudicial immunities.
Prosecutors are subject to varying levels of official immunity. Kulwicki v. Dawson,
969 F.2d 1454, 1463 (3d Cir. 1992). Absolute immunity attaches to all actions performed
in a “quasi judicial’ role, which “includes activity taken while in court, such as the
presentation of evidence or legal argument, as well as selected out-of-court behavior
‘intimately associated with the judicial phases’ of litigation.” Id. (citing Imbler v. Pachtman,
424 U.S. 409, 430, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976)). Conversely, a prosecutor
acting in an investigative or administrative capacity is protected only by qualified immunity.
Id. (citing Imbler, 424 U.S. at 430-31, 96 S. Ct. 984; Burns v. Reed, 500 U.S. 478, 111 S.
Ct. 1934, 114 L. Ed. 2d 547 (1991)). These immunities apply in disciplinary proceedings.
See, e.g., Kwasnik v. LeBlon, 228 F. App’x 238, 244 (3d Cir. 2007); Frankel v. Disciplinary
Bd. of the Supreme Court of Pennsylvania, No. 05-CV-1450, 2006 WL 1118050 (E.D. Pa.
Apr. 27, 2006).
“A prosecutor bears the ‘heavy burden’ of establishing entitlement to absolute
immunity.” Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (citations omitted). The Third
Circuit instructs the court to start with the presumption that qualified, not absolute, immunity
is appropriate. See id. at 207-08.
The court must focus upon the nature of the function performed by the prosecutor,
not the identity of the actor. See Kalina v. Fletcher, 522 U.S. 118, 127, 118 S. Ct. 502, 139
L. Ed. 2d 471 (1997). A prosecutor is entitled to absolute immunity when he is functioning

13

as the state’s advocate in performing the questioned actions. Yarris v. County of Delaware,
465 F.3d 129, 136 (3d Cir. 2006). Restated, prosecutors are absolutely immune for actions
performed in a judicial or quasi-judicial role. Odd, 538 F.3d at 208; Yarris, 465 F.3d at 135;
Imbler, 424 U.S. at 430-31, 96 S.Ct. 984.

Prosecutorial immunity extends to “acts

undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his role as an advocate for the State.” Buckley v.
Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993); see also
Haagensen v. Supreme Court of Pennsylvania, 651 F. Supp. 2d 422, 434 (W.D. Pa. 2009)
(allegations against the defendants arose “out of their actions as prosecutors for the state
before the Disciplinary Board; thus they are no different from those alleged in Imbler. . . .
[The defendants] are entitled to absolute prosecutorial immunity from actions they took in
the disciplinary proceedings.”).
Quasi-judicial immunity, on the other hand, attaches to public officials whose roles
are “‘functionally comparable’ to that of a judge.” Hamilton v. Leavy, 322 F.3d 776, 785 (3d
Cir. 2003) (quoting Butz v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894, 57 L. Ed. 2d 895
(1978)). “[I]n evaluating whether quasi-judicial immunity grants immunity to a particular
official, a court inquires into ‘the official’s job function, as opposed to the particular act of
which the plaintiff complains.’” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d
89, 95 (3d Cir. 2011) (quoting Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006)).
Courts have recognized that a “disciplinary proceeding is judicial in nature.” Haagensen,
651 F. Supp. 2d at 433 (quoting Middlesex Cnty. Ethics Comm. V. Garden State Bar Ass’n,
457 U.S. 423, 433, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982)).
JCB Defendants are entitled to absolute prosecutorial immunity for the majority of
the conduct about which Lokuta complains. Reviewing Lokuta’s allegations, her complaints
against the JCB Defendants include the following: (1) the timing with which certain

14

witnesses were interviewed, (Compl., ¶¶ 33, 39); (2) pursuing a prosecution based on
pattern evidence, (Id. at ¶ 41); (3) refusing to investigate allegations against Conahan and
otherwise ignoring or secreting relevant information, (Id. at ¶ 46); (4) opposing repeated
attempts to discover Conahan’s relationships during the judicial conduct proceeding, (Id.
at ¶ 54); (5) relentlessly pursuing charges in bad faith while withholding evidence, (Id. at ¶¶
59, 64(b)); and (6) processing three stale complaints against her after she was removed
from the Bench. (Id. at ¶ 62.)
JCB Defendants have immunity for these claims. First, according to the Third Circuit,
“[i]t is well settled that prosecutors are entitled to absolute immunity from claims based on
their failure to disclose exculpatory evidence, so long as they did so while functioning in their
prosecutorial capacity.” Yarris, 465 F.3d at 137. As such, JCB Defendants are entitled to
immunity on Lokuta’s claims that they withheld evidence or improperly secreted evidence
against Conahan while functioning as prosecutors in order to preserve his credibility.
However, to the extent that the Complaint can be read to state that exculpatory evidence
was intentionally destroyed in the course of the judicial conduct proceeding based on
Lokuta’s averment that witness interview notes were destroyed, (Compl., ¶ 65), absolute
immunity would not apply. See Yaris, 465 F.3d at 137. Notably, though, Lokuta does not
allege the circumstances under which the interview notes were destroyed, that the notes
were exculpatory, or that JCB Defendants were involved in the claimed destruction of such
evidence. Additionally, JCB Defendants are entitled to absolute immunity for Lokuta’s claim
that they knowingly offered perjured testimony because the Supreme Court and the Third
Circuit have “held that absolute immunity applies to a prosecutor’s knowing use of perjured
testimony in a judicial proceeding.” Schrob v. Catterson, 948 F.2d 1402, 1417 (3d Cir. 1991)
(citations omitted); see also Yarris, 465 F.3d at 139 (use of false testimony in connection
with a prosecution is absolutely protected).

15

Absolute immunity can also apply to actions preliminary to the initiation of
prosecution and actions apart from the courtroom, as immunity “extends to the preparation
necessary to present a case, and this includes the obtaining, reviewing, and evaluation of
evidence.” Kulwicki, 969 F.2d at 1465 (citations and quotations omitted). And “even
interviews generating evidence to be presented to a grand jury are absolutely protected.”
Id. Here, JCB Defendants are entitled to absolute immunity regarding which witnesses were
interviewed (and the timing of these interviews) because this involved “an investigation
undertaken to determine whether to initiate a . . . prosecution.” Galiardi v. Lee, 154 F. App’x
317, 319 (3d Cir. 2005) (citing Forsyth v. Kleindienst, 599 F. 2d 1203, 1215-16 (3d Cir.
1979)); see also Odd, 538 F.3d at 208 (“immunity attaches to actions ‘intimately associated
with the judicial phases of litigation,’ but not to administrative or investigatory actions
unrelated to initiating and conducting judicial proceedings.”).
Lokuta’s claims against JCB Defendants regarding the processing of stale complaints
and pursuing a case against her based on pattern evidence fail because JCB Defendants
enjoy “absolute immunity for their conduct in ‘initiating a prosecution and in presenting the
State’s case.’” Clark v. Vernon, 228 F. App’x 128, 131 (3d Cir. 2007) (quoting Imbler, 424
U.S. at 431, 96 S. Ct. 984). Lastly, JCB Defendants are entitled to absolute immunity for
their alleged failure to investigate or prosecute Conahan because “prosecutors enjoy
absolute immunity for the failure to adequately investigate a case and for the decision to
initiate, or decline to initiate, a prosecution.” Sanders v. Downs, 420 F. App’x 175, 180 (3d
Cir. 2011) (citing Kulwicki, 969 F.2d at 1463-64).
Lokuta disputes the applicability of absolute prosecutorial immunity to this case.
First, Lokuta argues that JCB Defendants violated Pennsylvania’s judicial conduct rules.
However, the alleged violations of ethics rules do not eliminate JCB Defendants’ entitlement
to

prosecutorial immunity or give rise to federal constitutional claims, because in

16

Pennsylvania, “a breach of the Rules of Professional Conduct standing alone cannot be the
basis for civil liability.” Home Ins. Co. v. Powell, No. 95-6305, 1997 WL 370109, at *5 n.8
(E.D. Pa. June 13, 1997) (citing In re Estate of Pedrick, 482 A.2d 215, 217 (Pa. 1984); In
re Bloch, 625 A.2d 57, 63 (Pa. Super. Ct. 1993)); see also United States v. Laville, 480 F.3d
187, 1921 (3d Cir. 2007) (It is well understood, however, that “[m]ere violation of a state
statute does not infringe the federal Constitution,” and that “[s]tate rather than federal courts
are the appropriate institutions to enforce state rules.”); Berry v. Village of Millbrook, 815 F.
Sup. 2d 711, 721 n.7 (S.D.N.Y. 2011) (“While, of course, attorneys in the Dutchess DAO
must comply with the state's rules of professional conduct, any purported failure to do so
does not give rise by itself to liability under § 1983 for which an individual may recover civil
damages, as the rules of professional conduct do not confer either federal constitutional or
statutory rights.”).
Second, Lokuta maintains that there were no judicial safeguards on JCB Defendants’
actions. Judicial safeguards on JCB Defendants in Lokuta’s case included “codes of
professional responsibility,” Kulwicki, 969 F.2d at 1464, “criminal law and professional
discipline,” Burns, 500 U.S. at 486, 111 S. Ct. 1934 (citing Imbler, 424 U.S. at 429, 96 S.
Ct. 984), and appeals, Mitchell v. Forsyth, 472 U.S. 511, 522, 105 S. Ct. 2806, 86 L. Ed. 2d
411 (1985).
Based on the foregoing, JCB Defendants are entitled to immunity for their
prosecutorial actions related to the discipline proceeding. Specifically, JCB Defendants are
afforded immunity with respect to Lokuta’s claims relating to who they interviewed, the
evidence they relied on in prosecuting her, the decision not to pursue an action against
Conahan, their relentless pursuit of charges against her by processing stale complaints, and

17

their withholding of material evidence while functioning in a prosecutorial capacity.5 As a
result, Lokuta’s claims against JCB Defendants based on these actions will be dismissed.
D.

Failure to State a Claim
In addition to the arguments previously addressed relating to Rooker-Feldman, issue

preclusion, and immunity, Moving Defendants contend that the Complaint fails to state a
claim upon which relief can be granted. Additionally, Moving Defendants argue that the
claims are all barred by the applicable statute of limitations.
Lokuta’s claims are asserted pursuant to 42 U.S.C. § 1983. Section 1983 provides
that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage
. . . subjects, or causes to be subjected, any citizen . . . or other person . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured, . . .” 42 U.S.C. § 1983. “To establish liability under 42
U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of law, violated
the plaintiff's federal constitutional or statutory rights, and thereby caused the complained
of injury.” Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citing Sameric Corp. of Del.,
Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998)). “[A] state official sued under § 1983

5

Lokuta also argues in her brief that Massa acted upon information given to him by
Conahan and “adopted this information as his own. Massa was the actual affiant
on the 2nd Complaint filed and litigated against Lokuta.” (Doc. 27, 4.) Thus,
Lokuta concludes that “[w]hen Massa adopted Conahan’s complaint as his own,
he moved from the position of prosecutor to witness and was no longer entitled to
immunity.” (Id. (citing Kalina v. Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L.
Ed. 2d 471 (1997)). To the extent that Massa was the “actual affiant” of the
second complaint, this would only impact Massa’s right to immunity when acting
as a complaining witness. It would not impact his right to immunity when he was
performing the traditional functions of an advocate. See Kalina, 522 U.S. at 129,
131, 118 S. Ct. 502. Moreover, the Complaint does not allege that Massa was the
complaining witness for the second complaint. Rather, Lokuta avers that the
second complaint was “put together by Conahan, handed to the JCB, and
thereafter filed through Massa under Massa’s auspices.” (Compl., ¶ 34.)
18

may be held personally liable only ‘for his or her own misconduct.’” Mitchell v. Miller, 884
F. Supp. 2d 334, 358 (W.D. Pa. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 677 129 S.
Ct. 1937, 173 L. Ed. 2d 868 (2009)).
1.

Fourteenth Amendment

Lokuta alleges that Moving Defendants violated her due process rights under the
Fourteenth Amendment to the United States Constitution. The Due Process Clause of the
Fourteenth Amendment prohibits states from depriving “any person of life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1. Due process under the
Fourteenth Amendment has both “substantive and procedural components.” Evans v. Sec'y
Pa. Dep't of Corr., 645 F.3d 650, 658 (3d Cir. 2011).
To state a procedural due process claim, “a plaintiff must allege that: (1) he was
deprived of an individual interest that is encompassed within the Fourteenth Amendment's
protection of ‘life, liberty, and property’; and (2) the procedures available to him did not
provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.
2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Thus, “for a procedural due
process violation, courts must determine (1) whether the individual had a protected interest
making available the due process protections, and if so, (2) whether the individual was
afforded appropriate process.” Brace v. Cnty. of Luzerne, 873 F. Supp. 2d 616, 627 (M.D.
Pa. 2012). Although the Complaint is not entirely clear as to the nature of her due process
claim, Lokuta’s brief indicates that she is advancing a procedural due process claim for the
loss of her vested pension, medical benefits, and insurance, as well a liberty interest in
occupation claim. (Doc. 19, 9-11.)
Lokuta’s procedural due process claim relating to the termination of her pension,
medical benefits, and insurance will be dismissed because exclusive authority over these
benefits rests with the State Employees’ Retirement System (“SERS”), and SERS is not a

19

defendant in this action. As set forth recently by the Pennsylvania Commonwealth Court,
while the Court of Judicial Discipline determines the level of discipline to be imposed in
accordance with established misconduct, “it cannot make any decisions directly relating to
retirement benefits. SERS has exclusive authority over these benefits.” Berkhimer v. State
Employees’ Retirement Board, 60 A.3d 873, 879 (Pa. Cmwlth. Ct. 2013) (citing Sections
5901–5956 of the State Employees' Retirement Code (Retirement Code), 71 Pa. C.S. §§
5901– 5956). The Berkhimer court further explained that “[t]he constitutional and statutory
provisions do not provide for a forfeiture of benefits based upon a finding of disrepute.
Rather, these provisions mandate a forfeiture where a violation of Article V, section 18 [of
the Pennsylvania Constitution] has occurred and suspension or removal has been ordered
by the Court of Judicial Discipline.” Id. at 879-80. Because SERS has exclusive authority
regarding decisions involving Lokuta’s retirement benefits, Moving Defendants were not
personally involved in any deprivation of her alleged property rights and they cannot be
liable with respect to the termination of Lokuta’s retirement benefits. Cf. Hofnagle v. Pine
Grove Borough, No. 12-2468, 2013 WL 2435363, at *5 (M.D. Pa. June 4, 2013) (since the
defendants did not possess statutory authority to terminate the plaintiff’s employment, they
did not owe him any procedural due process rights); Kohn v. Sch. Dist. of City of Harrisburg,
817 F. Supp. 2d 487, 508 n.16 (M.D. Pa. 2011) (“we agree with the Elected School Board
members that they cannot be liable on this claim based on the termination of the
agreements, as the members of the Board of Control engaged in that conduct.”).
Lokuta also suggests in her brief that she had a “‘liberty interest’ to engage in the
occupation of her choice.’” (Doc. 19, 10.)
[T]he Constitution only protects this liberty from state actions that threaten to
deprive persons of the right to pursue their chosen occupation; state actions
that exclude a person from one particular job are not actionable in due process
claims. Thus, it is the liberty interest to pursue a calling or occupation, not the
right to a specific job, that is secured by the Fourteenth Amendment.
Therefore, Plaintiffs must allege an inability to obtain employment within the
20

field, not just a particular job or at a specific location or facility.
Culinary Serv. of Del. Valley, Inc. v. Borough of Yardley, 385 F. App’x 135 (3d Cir. 2010)
(citation omitted) (emphasis added); see also Piecknick v. Pennsylvania, 36 F.3d 1250,
1259 (3d Cir. 1994) (“‘It is the liberty to pursue a calling or occupation, and not the right to
a specific job, that is secured by the Fourteenth Amendment.’ ”). Here, Lokuta’s allegations
seem to be only that she is prevented from holding judicial office, as opposed to being
deprived of her ability to purse a calling in the legal field generally. However, even if Lokuta
adequately alleges a liberty interest in her occupation, she was afforded all process due
prior to the termination of this interest. That is, Lokuta was provided notice of the judicial
discipline charges, and she was afforded an opportunity to be heard regarding these
charges both at trial before the Court of Judicial Conduct and on her appeals to the
Pennsylvania Supreme Court.

These procedures satisfied the requirements of due

process. Lokuta’s Fourteenth Amendment claim will be dismissed.
2.

Fifth Amendment

Lokuta’s claim against Moving Defendants for violation of the Fifth Amendment to the
United States Constitution will be dismissed.

The Due Process Clause of the Fifth

Amendment applies to actions of the federal government. See U.S. Const. amend. V; see
also B & G Const. Co., Inc. v. Dir., Office of Workers' Comp. Programs, 662 F.3d 233, 246
n.14 (3d Cir. 2011). Because Lokuta does not allege any actions on the part of the federal
government, she fails to state a claim under the Fifth Amendment and it will be dismissed.
3.

Sixth Amendment

Among other protections, the Sixth Amendment to the United States Constitution
provides that the accused shall be “confronted with the witnesses against him.” U.S. Const.
amend VI. “Judicial conduct proceedings are considered quasi-criminal in nature, and,
therefore, the defendant is afforded the same constitutional rights as are criminal

21

defendants.” In re Merlo, 58 A.3d 1, 8 (Pa. 2012) (citing In re Berkhimer, 903 A.2d 1255,
1258 (Pa. 2007)). Here, Lokuta argues that Sallemi, Moran, and Sharkey deprived her of
her right to cross examine the witnesses against her in violation of her constitutional rights.
With respect to Sharkey, Lokuta claims she was “denied her right to effectively cross
examine and confront Sharkey as to his nefarious ties and associations with Conahan and
Ciavarella, especially their fabrication as to purported court statistics regarding Plaintiff’s
work.” (Doc. 22, 12.) As to County Defendants, Lokuta contends:
With the concealment of Moran’s ties to Conahan and Ciavarella, and
Sallemi’s ties with Conahan, Plaintiff was denied her right to effectively cross
examine and confront Moran and Sallemi as to their nefarious ties and
associations with Conahan and Ciavarella as to Moran, and Conahan as to
Sallemi. Had it been revealed that Sallemi received monies from Conahan,
Plaintiff would have been afforded her 14th Amendment right to explore bias
and credibility of Sallemi when she gave her interview to the JCB and gave her
testimony before the Court of Judicial Discipline. Had the fact that Moran was
involved in the Kids for Cash Scheme of Conahan and Ciavarella been known,
Plaintiff would have been able to show bias and challenge her credibility as
well.
(Doc. 19, 13.)
Lokuta’s Sixth Amendment claim will be dismissed. First, JCB Defendants are
entitled to prosecutorial immunity for their alleged conduct during the course of the trial
before the Court of Judicial Discipline. Second, Lokuta has already raised, and fully
litigated, the issues involving her inability to challenge the bias and credibility of witnesses,
after-acquired evidence, and denial of her right to cross examine witnesses before both the
Court of Judicial Discipline and the Pennsylvania Supreme Court. The Court of Judicial
Discipline noted:
It must be remembered that the findings and conclusions that this Court made
after the trial were based on the testimony of 30 witnesses who testified about
events having no relation whatsoever to the events taking place in the criminal
world of Conahan, Ciavarella and Sharkey described in the Informations. It
must be remembered that Petitioner's defense at her trial was that the
witnesses who testified for the Conduct Board were all liars, perjurers,
intimidated by and/or beholden to Conahan. We found these witnesses to be
credible; and, in contrast to that finding, we found that the Petitioner's
testimony on the subject (covering hundreds of pages in the trial record) to be
“often tortured and always attenuated.”
22

In re Ann H. Lokuta, 989 A.2d 942, 951 (Pa. C.J.D. 2010) (hereinafter Lokuta III). In
affirming the decision of the Court of Judicial Discipline, the Pennsylvania Supreme Court
emphasized:
The Judicial Conduct Board is responsible for investigating and bringing
charges, and at trial, the board must prove the charges by clear and
convincing evidence. In considering whether the evidence presented is clear
and convincing, the court must find the witnesses to be credible, and the facts
and details to be distinctly remembered. The witnesses' testimony must be
sufficiently clear, direct, weighty, and convincing. In re Berkhimer, [903 A.2d]
at 1258 (citations omitted). “‘[Q]uestions of credibility and conflicts in the
evidence presented are for the trial court to resolve, not our appellate courts.’”
Commonwealth v. Myers, 554 Pa. 569, 722 A.2d 649, 651-52 (1998) (quoting
Commonwealth, Department of Transportation, Bureau of Traffic Safety v.
O'Connell, 521 Pa. 242, 555 A.2d 873, 875 (1989)). “‘As long as sufficient
evidence exists in the record which is adequate to support the [credibility]
finding . . . we are precluded from overturning that finding.’” Id. (quoting
O'Connell, [555 A.2d] at 875).
Here, appellant cannot show the court's credibility findings are not
supported by sufficient evidence. While four of the witnesses have now been
exposed as criminals, appellant overstates their importance. Conahan was
only called to refute claims appellant made during her testimony. Ciavarella's
testimony mainly concerned her chambers and assignments, and he was not
even discussed by the court in Lokuta I. Moran's testimony was corroborated
by another witness and a court transcript. As for the remaining 26 witnesses,
all appellant offers is speculation that they were manipulated into testifying
against her. Such speculation as to the coercion of multiple witnesses does
not prove there is insufficient record evidence supporting the court's credibility
determinations. Thus, appellant cannot overcome the deference owed to the
Court of Judicial Discipline as the trial court and establish that court's credibility
findings were clearly erroneous.
Lokuta IV, 11 A.3d at 445-46. Because the issues raised by Lokuta’s Sixth Amendment
claim are identical to the issues already litigated in the judicial conduct proceeding, the Sixth
Amendment claim will be dismissed.6
4.

First Amendment

The First Amendment to the United States Constitution provides that “Congress shall
6

Additionally, cases involving a Sixth Amendment Confrontation Clause claim are
typically “raised against the court that rendered a decision that led to a plaintiff’s
Sixth Amendment Confrontation Clause violation claim.” Amos v. NMS Labs, No.
12-2145, 2013 WL 504179, at *11 (M.D. Pa. Jan. 22, 2013); cf. Kulwicki v.
Dawson, 969 F.2d 1454, 1467 n.16 (3d Cir. 1992) (a witness who testifies falsely
at trial is absolutely immune from a § 1983 action for damages).
23

make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, . . .” U.S. Const. amend. I.
“To state a First Amendment retaliation claim, a public employee plaintiff must allege
that his activity is protected by the First Amendment, and that the protected activity was a
substantial factor in the alleged retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184
(3d Cir. 2009).
“[P]ublic employees do not surrender all their First Amendment rights by reason of
their employment. Rather, the First Amendment protects a public employee’s right, in
certain circumstances, to speak as a citizen addressing matters of public concern.” See
Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006) (citing,
inter alia, Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391
U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), Connick v. Myers, 461 U.S. 138,
103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) and Rankin v. McPherson, 483 U.S. 378, 384, 107
S. Ct. 2891, 97 L. Ed. 2d 315 (1987)). The Supreme Court has identified two inquiries to
guide interpretation of the constitutional protections afforded to public employee speech.
Id. at 418, 126 S. Ct. 1951. “The first requires determining whether the employee spoke as
a citizen on a matter of public concern. If the answer is no, the employee has no First
Amendment cause of action based on her or her employer’s reaction to the speech.” Id.
(citing Connick, 461 U.S. at 147, 103 S. Ct. 1684). But, “if the answer is yes, then the
possibility of a First Amendment claim arises. The question becomes whether the relevant
government entity had an adequate justification for treating the employee differently from
any other member of the general public.” Id.
Lokuta argues that Moving Defendants retaliated against her in violation of the First
Amendment. Lokuta alleges that Defendants criticized her for using her courtroom “to voice

24

concerns over what she believed to be irregularities existing within the administration of the
Luzerne County court system, and in fact used her speaking out as a basis for the some of
the charges against her.” (Compl., ¶ 94.) Similarly, she asserts that “[i]n pursing Lokuta for
speaking out against what was ultimately proven to be serious misconduct and illegalities
concerning, inter alia, case assignments and court procedures,” Defendants violated her
First Amendment rights. (Id. at ¶ 95.)
a.

JCB and County Defendants

Lokuta fails to state viable First Amendment retaliation claims against JCB
Defendants and County Defendants. As for the retaliation claim against JCB Defendants,
they are entitled to immunity for their conduct in initiating the prosecution and in presenting
the judicial discipline charges against Lokuta for the reasons discussed above. See Tindell
v. Pennsylvania, 398 F. App’x 696, 698 (3d Cir. 2010) (citing Imbler, 424 U.S. at 431, 96 S.
Ct. 984). Thus, the claim will be dismissed.
Lokuta also fails to allege that County Defendants violated her First Amendment
rights. “In order to hold an individual defendant liable under § 1983, [Lokuta] must establish
that he or she was personally involved in the violation of her First Amendment rights.”
Mitchell, 884 F. Supp. 2d at 358-59 (citing Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir.
2005)). Lokuta contends that some of the judicial discipline charges against her related to
her criticisms of the administration of the Luzerne County court system. But, with respect
to County Defendants’ personal involvement in the alleged retaliation, Lokuta simply argues
that “Moran and Sallemi criticized Plaintiff for making such commentary, gave interviews to
the JCB about the same, and Sallemi provided transcripts.” (Doc. 19, 15.)

These

allegations fail to sufficiently state a claim that County Defendants retaliated against Lokuta

25

in violation of the First Amendment.7
b.

Statute of Limitations

The First Amendment retaliation claims are also subject to dismissal as to all Moving
Defendants because Lokuta failed to file the claims within the applicable limitations period.8
“Claims under 42 U.S.C. § 1983 are governed by the state’s statute of limitations for
personal injury claims.” Mills v. City of Philadelphia, 479 F. App’x 414, 415 (3d Cir. 2012)
(citing Pratt v. Thornburgh, 807 F.2d 355 (3d Cir. 1986)). The parties agree that the statute
of limitations applicable to Lokuta’s § 1983 claims in this case is two years. See id. (citing
42 Pa. Cons. Stat. § 5524).
State law also generally governs tolling principles. See Dique v. N.J. State Police,

7

On the other hand, Lokuta sufficiently alleges that Sharkey was directly involved
in retaliating against her for statements made regarding the administration of the
Luzerne County Court of Common Pleas. Specifically, Lokuta alleges that
Sharkey was personally involved in the claimed First Amendment retaliation by
sharing her in-court statements with the JCB, providing documents and letters to
the JCB which identified Lokuta as a public complainant, serving as a conduit
between the JCB and Conahan, and leaking to the media that Lokuta was under
investigation by the JCB. These allegations adequately state a First Amendment
claim against Sharkey. However, as explained in detail in Part III(D)(4)(b)(i)-(iv),
the retaliation claim against Sharkey is subject to dismissal because it is barred by
the statute of limitations.

8

Generally, under the Federal Rules of Civil Procedure, affirmative defenses, such
as a statute of limitations defense, should be raised by way of answer to the
complaint. See Fed. R. Civ. P. 8(c); see also Robinson v. Johnson, 313 F.3d 128,
134 (3d Cir. 2002) (“a limitations defense must be raised in the answer, since
Rule 12(b) does not permit it to be raised by motion”). Nevertheless, the law of
this Circuit “permits a limitations defense to be raised by a motion under Rule
12(b)(6), but only ‘if the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of limitations.’” Id.
(quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir.
1975)). The bar, however, must be apparent on the face of the complaint,
otherwise the statute of limitations may not afford the basis for dismissal of a
complaint under Rule 12(b)(6). See id. (citing Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 (3d Cir. 1978)).
26

603 F.3d 181, 185 (3d Cir. 2010). In Pennsylvania, the statute of limitations may be tolled
by the discovery rule or the fraudulent concealment doctrine. See Mest v. Cabot Corp., 449
F.3d 502, 510, 516 (3d Cir. 2006). The discovery rule tolls the statute of limitations when
an injury or its cause was not known or reasonably knowable “despite the exercise of due
diligence.” Id. at 510 (quoting Pocono Int'l Raceway v. Pocono Produce, Inc., 468 A.2d 468,
471 (1983)). The fraudulent concealment doctrine tolls the statute of limitations when
“through fraud or concealment the defendant causes the plaintiff to relax vigilance or
deviate from the right of inquiry.” Mest, 449 F.3d at 516 (quoting Ciccarelli v. Carey
Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)). And, the continuing violations
doctrine is an equitable exception to the timely filing requirement. See Cowell v. Palmer
Twp., 263 F.3d 286, 292 (3d Cir. 2001). As such, “‘when a defendant's conduct is part of
a continuing practice, an action is timely so long as the last act evidencing the continuing
practice falls within the limitations period; in such an instance, the court will grant relief for
the earlier related acts that would otherwise be time barred.’” Id. (quoting Brenner v. Local
514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091,
166 L. Ed. 2d 973 (2007). “Under federal law, a cause of action accrues, and the statute
of limitations begins to run, when the plaintiff knew or should have known of the injury upon
which its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (quoting Sameric
Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998)).
Moving Defendants argue that as the Complaint was filed on February 5, 2013, any
acts that occurred prior to February 5, 2011 cannot serve as the foundation for Lokuta’s
claims. In opposition, Lokuta maintains that key facts supporting her claims were not
revealed until February 2011 at Ciavarella’s trial. Citing the discovery rule, the fraudulent

27

concealment doctrine, the continuing violations doctrine, and equitable tolling, she asserts
that the statute of limitations was tolled until February 2011. And, because the Complaint
was filed within two years of the testimony at Ciavarella’s trial, Lokuta reasons that the
action was timely filed.
i.

Discovery Rule

Under the discovery rule, “even if a plaintiff suffers an injury, the statute of limitations
does not begin to run until ‘the plaintiff knows, or reasonably should know, (1) that he has
been injured, and (2) that his injury has been caused by another party's conduct.’” Mest,
449 F.3d at 510 (quoting Debiec v. Cabot Corp., 352 F.3d 117, 129 (3d Cir. 2003)).
Restated, the limitations period commences upon the plaintiff’s “actual or constructive
knowledge of at least some form of significant harm and of a factual cause linked to
another’s conduct, without the necessity of notice of the full extent of the injury, the fact of
actual negligence, or precise cause.” Gleason v. Borough of Moosic, 15 A.3d 479, 484 (Pa.
2011). Thus, “the discovery rule focuses not on ‘the plaintiff’s actual knowledge, but rather
on ‘whether the knowledge was known, or through the exercise of diligence, knowable to’
the plaintiff.” Mest, 449 F.3d at 511 (quoting Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir.
1991)).
Based on the facts set forth in the Complaint, the filings in the judicial conduct
proceeding, and her submissions in opposition to the instant motions to dismiss, it is
apparent that Lokuta discovered her alleged injuries were caused by Moving Defendants
long before February 2011. As set forth in the Complaint, Lokuta “always contended” that
powerful individuals targeted her for removal and had used the JCB to discredit her and
remove her from office. (Compl., ¶ 37.) She further alleges that her criticisms about the
administration of the Luzerne County Court of Common Pleas were the “basis for some of
the charges against her.” (Id. at ¶ 94.) Lokuta expanded on this in her submissions in

28

opposition to the motions to dismiss:
From the very outset of her proceedings before the CJD, the Plaintiff
alleged a conspiracy among the witnesses against her orchestrated by
Conahan. This allegation was repeatedly and consistently denied by Conahan
and participants in the JCB proceeding. Plaintiff attempted, unsuccessfully,
to discover information during the state court proceedings, starting with her
original deposition given to the JCB, specific requests for discovery, continuing
during cross examination of witnesses who testified against her, and thereafter
in petitions to reopen her proceedings.
(Doc. 27, 17.) Lokuta also knew of Conahan, Ciavarella, and Sharkey’s criminal indictments
and Moran’s Stipulation of Compromise in February 2009. (Doc. 19, 20.) Nevertheless,
Lokuta contends that the discovery rule tolls the limitations period until February 2011
because it was only at Ciavarella’s criminal trial that the corrupt relationships of Moving
Defendants were established beyond “rank speculation,” (Doc. 27, 18), when these
relationships “were finally admitted and became public.” (Doc. 19, 21.) However, “the
limitations period is ‘not postponed until the injured party knows every fact necessary to
bring his action.’” Brawner v. Educ. Mgmt. Corp., No. 11-6131, 2012 WL 3064019, at *13
(E.D. Pa. July 27, 2012) (quoting Danysh v. Eli Lilly and Co., 461 F. App’x 75, 77 (3d Cir.
2012)); see also Brawner v. Educ. Mgmt. Corp., 513 F. App’x 148, 151 (3d Cir. 2013)
(“knowledge of every fact necessary to prevail on the claim is not required to . . . trigger the
accrual period.”). Here, as Lokuta “discovered that [s]he had been injured and that [her]
injury had been caused by another party’s conduct well before” February 2011, Danysh, 461
F. App’x at 77, the discovery rule does not afford Lokuta relief from the statute of limitations.
ii.

Fraudulent Concealment

The doctrine of fraudulent concealment is also recognized under Pennsylvania law.
The doctrine of fraudulent concealment is an exception to the
requirement that a complaining party must file suit within the statutory period.
Where, through fraud or concealment, the defendant causes the plaintiff to
relax his vigilance or deviate from his right of inquiry, the defendant is
estopped from invoking the bar of the statute of limitations. The defendant's
conduct need not rise to fraud or concealment in the strictest sense, that is,
with an intent to deceive; unintentional fraud or concealment is sufficient . . .
mere mistake, misunderstanding or lack of knowledge is insufficient however,
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and the burden of proving such fraud or concealment, by evidence which is
clear, precise and convincing, is upon the asserting party.
Baselice v. Franciscan Friars Assumption BVM Province, Inc., 879 A.2d 270, 278 (Pa.
Super. Ct. 2005). “[I]n order for fraudulent concealment to toll the statute of limitations, the
defendant must have committed some affirmative independent act of concealment upon
which the plaintiff justifiably relied.” Kingston Coal Co. v. Felton Min. Co., 690 A.2d 284, 291
(Pa. Super. Ct. 1997). “[T]he fraudulent concealment doctrine does not toll the statute of
limitations where the plaintiff knew or should have known of his claim despite the
defendant's misrepresentation or omission.” Mest, 449 F.3d at 516 (citing Bohus, 950 F.2d
at 925-26).9
Here, the fraudulent concealment doctrine does not apply to Lokuta’s retaliation
claims. As detailed above, Lokuta knew of her claims before February 2011. Moreover,
the fraudulent concealment doctrine is inapplicable to the facts of this case because Moving
Defendants’ conduct did not cause Lokuta to relax her vigilance or deviate from her right
of inquiry. Rather, Lokuta repeatedly advanced the arguments in the judicial conduct
proceeding that have been raised in this litigation. Lokuta, therefore, did not justifiably rely
on any alleged concealment by Moving Defendants, and the fraudulent concealment does
not provide Lokuta relief from the statute of limitations.
iii.

Continuing Violations

The continuing violations doctrine is also an equitable exception to the timely filing
requirement. The continuing violations doctrine provides: “when a defendant’s conduct is

9

Although similar, the discovery rule and fraudulent concealment doctrine are
distinct rules under Pennsylvania law. See Fine v. Checcio, 870 A.2d 850, 858,
860 (Pa. 2005). The discovery rule acts to toll the accrual of the statute of
limitations during the time in which the plaintiff is unable through reasonable
diligence to discover the injury and its cause. Conversely, the fraudulent
concealment doctrine tolls the running of the statute of limitations due to a
defendant’s concealing conduct. See id.
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part of a continuing practice, an action is timely so long as the last act evidencing the
continuing practice falls within the limitations period; in such an instance, the court will grant
relief for the earlier related acts that would otherwise be time barred.” Cowell, 263 F.3d at
292. Courts in the Third Circuit consider the doctrine to be a narrow exception that is “often
invoked but infrequently applied.” See Swift v. McKeesport Hous. Auth., 726 F. Supp. 2d
559, 568 (W.D. Pa. 2010).
However, the continuing violations theory cannot be applied to acts which are
independently actionable. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
112–14, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002) (holding that the continuing violations
theory does not apply to discrete, independently actionable events even if they are related
to or are a part of a pattern or practice of discrimination); O'Connor v. City of Newark, 440
F.3d 125, 128 (3d Cir. 2006) (applying the Supreme Court's holding in Morgan, a Title VII
case, to § 1983 retaliation claims). Morgan, according to the Third Circuit,
established a bright-line distinction between discrete acts, which are
individually actionable, and acts which are not individually actionable but may
be aggregated to make out a . . . claim. The former must be raised within the
applicable limitations period or they will not support a lawsuit . . . . The latter
can occur at any time so long as they are linked in a pattern of actions which
continues into the applicable limitations period.
O’Connor, 440 F.3d at 127.
The Third Circuit explained in O’Connor that:
[T]he Morgan rule that individually actionable allegations cannot be
aggregated is of particular import in the context of First Amendment retaliation
claims. First Amendment retaliation claims are always individually actionable,
even when relatively minor.
O'Connor, 440 F.3d at 127-28 (emphasis added). Thus, the Third Circuit recognized that
the continuing violations theory does not apply to First Amendment retaliation claims. Id.
see also Baur v. Crum, 882 F. Supp. 2d 785, 797 (E.D. Pa. 2012) (O’Connor “explicitly held
that the continuing violations theory does not apply to First Amendment retaliation claims.”);
Breslin v. Dickinson Twp., 09-cv-1396, 2010 WL 3293337, at *5 (M.D. Pa. Aug. 19, 2010)
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(same).
Moreover, “a continuing violation is occasioned by continual unlawful acts, not
continual ill effects from the original violation.” Mumma v. High–Spec, Inc., 400 F. App'x
629, 632 (3d Cir. 2010) (quoting Weis-Buy Serv., Inc. v. Paglia, 411 F.3d 415, 422-23 (3d
Cir. 2005); see also Singer v. Bureau of Prof’l & Occupational Affairs, - - - F. App’x - - -,
2013 WL 3032176, at *2 (3d Cir. June 19, 2013) (continuing violations doctrine did not apply
to case where the plaintiff’s license to practice psychology which was suspended twenty
years before case was filed because the harm was traceable to that suspension and “[i]f the
law permitted a different result, then in the not unusual situation in which a personal injury
plaintiff is suffering on an ongoing basis from injuries caused by an accident, he could sue
far beyond the limitations period measured from the time of the accident to seek
compensation for those injuries.”).
In view of these principles, the continuing violations doctrine is inapplicable to
Lokuta’s First Amendment claims. The acts of retaliation for which Lokuta complains, such
as providing transcripts, giving interviews to the JCB, and leaking to the media the fact of
the judicial conduct investigation, were all individually actionable events which occurred
prior to February 2011. Thus, Lokuta’s First Amendment retaliation claim should have been
filed within two years of those events. The continuing violations doctrine also does not
apply because Lokuta is attempting to invoke the doctrine based on the ongoing
consequences from the alleged retaliation, i.e., her removal from the bench and the
prohibition against running for judicial office in the future. Because the continuing violations
doctrine focuses on the unlawful acts of defendants and not the continual ill effects from the
original violation, the doctrine does not apply in this case. Thus, Lokuta cannot rely on the
continuing violations doctrine to make timely her First Amendment claims which accrued
before February 2011.

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iv.

Federal Equitable Tolling

Finally, Lokuta’s submissions suggest that she is attempting to invoke federal
equitable tolling principles. (Doc. 19, 18 (citing Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380 (3d Cir. 1994)). “Equitable tolling functions to stop the statute of
limitations from running where the claim's accrual date has already passed.” Oshiver, 38
F.3d at 1387.
Although state tolling principles generally govern § 1983 claims, “[w]here state tolling
principles contradict federal law or policy, federal tolling principles may apply in certain
limited circumstances.” Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009). The Third Circuit
has recognized three general circumstances in which federal equitable tolling is appropriate:
“(1) where a defendant actively misleads a plaintiff with respect to her cause of action; (2)
where the plaintiff has been prevented from asserting her claim as a result of other
extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner
but has done so in the wrong forum.” Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000).
Lokuta’s alleged circumstances do not warrant the application of federal tolling
principles in this case. Here, no extraordinary circumstances within the contemplation of
federal equitable tolling principles prevented Lokuta from timely asserting her First
Amendment claims. And, for the reasons previously mentioned, Lokuta was not actively
misled with respect to her First Amendment causes of action. Therefore, Lokuta is unable
to invoke federal equitable tolling principles to toll the statute of limitations.
5.

Civil Conspiracy

Lokuta also asserts a civil conspiracy claim against all Moving Defendants pursuant
to § 1983. To make out a conspiracy claim under § 1983, a plaintiff must show that
“persons acting under color of state law conspired to deprive [her] of a federally protected
right.” Perano v. Township of Tilden, 423 F. App’x 234, 239 (3d Cir. 2011).

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“Section 1983 does not provide a cause of action per se for conspiracy to deprive
one of a constitutional right.” Holt Cargo Sys. Inc., v. Delaware River Port Auth., 20 F. Supp.
2d 803, 843 (E.D. Pa. 1998). Rather, a § 1983 conspiracy claim only arises when there has
been an actual deprivation of a federal right. Perano, 423 F. App’x at 239. Because Lokuta
fails to successfully plead an actionable constitutional deprivation by Moving Defendants,
she cannot plead a viable conspiracy claim under § 1983.
The civil conspiracy claim also fails because Moving Defendants are not alleged to
have committed any overt acts causing injury to Lokuta within the applicable limitations
period. See Arneault v. O’Toole, 864 F. Supp. 2d 361, 408 (W.D. Pa. 2012) (two-year
statute of limitations applies to conspiracy claims brought pursuant to § 1983.). In the Third
Circuit, the statute of limitations on a § 1983 conspiracy claim begins to run from the
commission of each overt act causing injury:
For each act causing injury, a claimant must seek redress within the prescribed
limitations period. Such a rule is consistent with the distinction between civil
and criminal conspiracies. In the civil case, actual injury is the focal point, not
the illegal agreement per se, as is true in the criminal context.
Adoption of the last overt act rule . . . would invite attempts to revive
time-barred injuries by piggy-backing them onto actions occurring within the
relevant period. No unfairness results in requiring diligence in seeking a
remedy within the period measured from the date an injury occurs.
Id. (quoting Kost v. Kozakiewicz, 1 F.3d 176, 191 (3d Cir. 1993)).
Here, Moving Defendants’ alleged overt acts in furtherance of the conspiracy
occurred before February 5, 2011. Specifically, Moving Defendants are all alleged to have
deprived Lokuta’s constitutional rights before and during the judicial conduct proceeding,
and, as a result, Lokuta is alleged to have suffered injuries. However, no overt acts in
furtherance of the conspiracy causing Loktua’s claimed injuries are alleged to have occurred
after February 5, 2011. Indeed, the only facts alleged in the Complaint that occurred within
the limitations period relate to testimony at Ciavarella’s trial in February 2011 that revealed
the full extent of what had been previously withheld from the public but claimed for years
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by Lokuta. (Compl., ¶¶ 47-55.) But, based on the facts set forth in the Complaint, it is not
plausible that this testimony constituted an overt act in furtherance of the conspiracy to
retaliate against Lokuta and remove her from judicial office, or that this testimony caused
Lokuta’s alleged injuries. Thus, since Moving Defendants’ overt acts in furtherance of the
conspiracy that caused Lokuta’s claimed injuries all occurred over two years before the
Complaint was filed in this action, the civil conspiracy cause of action is barred by the
statute of limitations.
IV. Conclusion
For the above stated reasons, the motions to dismiss filed by JCB Defendants,
County Defendants, and Sharkey will be granted. Although the Third Circuit has instructed
that a district court must permit a curative amendment if a claim is vulnerable to a 12(b)(6)
dismissal, a court need not grant leave to amend if amendment would be inequitable or
futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Because the
grounds for dismissal of Lokuta’s Complaint are not curable by amendment, it would be
futile to allow Lokuta to amend her claims against Moving Defendants. Thus, the claims
against Moving Defendants will be dismissed with prejudice.
An appropriate order follows.

October 9, 2013
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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