Catanzaro v. Davis et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Barbara J. Rothstein on 12/7/15. (ao)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY P. CATANZARO,
Plaintiff,
v.
JUDGE LEGROME D. DAVIS, JUDGE
NORA BARRY FISCHER, JUDGE
JAMES MUNLEY, PATRICK ROGAN,
MARY D’ANDREA, KEVIN CALPIN,
KATY NALEVANKO, MICHAEL
COLLINS, AND DOES 1-5,

MEMORANDUM OPINION
GRANTING DEFENDANTS’
MOTION TO DISMISS AND
DENYING PLAINTIFF’S MOTION
TO APPOINT COUNSEL
Case Number: 14-1889

Defendants.

On September 29, 2014, pro se Plaintiff Anthony P. Catanzaro filed this civil rights action
against the following Defendants: the Honorable James M. Munley; the Honorable Nora Barry
Fischer; the Honorable Legrome D. Davis; Operations Supervisor for the Clerk of Courts Kevin
Calpin; Docket Clerk Specialist for the Clerk of Courts Katy Nalevanko; former Clerk of Courts
for the Middle District of Pennsylvania Mary D’Andrea; Attorney Patrick Rogan; and Attorney
Michael Collins. Defendants have moved to dismiss the Complaint. Having reviewed all relevant
materials and legal authorities and finding Plaintiff’s Complaint cannot withstand judicial scrutiny,
the Court GRANTS Defendants’ motion to dismiss. The Court’s reasoning follows:
I.

LEGAL STANDARD FOR A MOTION TO DISMISS A PRO SE ACTION
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. When
considering a motion to dismiss, courts must accept all well-pleaded material allegations as true
and construe them in the light most favorable to the plaintiff. See id.; NL Indus. Inc. v. Kaplan,
792 F.2d 896, 898 (9th Cir. 1986). However, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(conclusory allegations are “not entitled to be assumed true”).
“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations omitted). Cf. Fed. Rule
Civ. Proc. 8(f) (“All pleadings shall be so construed as to do substantial justice”).
II.

BACKGROUND

A. Previous Lawsuits
In 1997, Plaintiff was tried for “indirect criminal contempt” in the Lackawanna County
Court of Common Pleas. See Catanzaro v. Collins, 2010 WL 1754765, at *2 (M.D. Pa. Apr. 27,
2010) aff'd, 447 F. App'x 397 (3d Cir. 2011). Defendant Patrick Rogan served as Plaintiff’s courtappointed counsel. Plaintiff was ultimately convicted and sentenced to nine months imprisonment.
Doc. No. 1 at 1.
After serving his sentence, Plaintiff retained Defendant Michael Collins to represent him
in a civil suit on Plaintiff’s behalf against Defendant Rogan and Lackawanna County officials. On
June 1, 1999, Defendant Collins filed a civil rights action against the Lackawanna County officials.
Catanzaro v. County of Lackawanna, et. al, 99-CV-876 (1999). However, according to Plaintiff,
Defendant Collins refused to name Defendant Rogan in the suit. Therefore, Plaintiff filed a second
suit pro se against Defendant Rogan and others. Catanzaro v. Carbondale Housing Authority, 99-

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CV-00874 (M.D. Pa. 1999). Doc. No. 1, 2-3. The second suit alleged, among other things, that
Defendant Rogan violated Plaintiff’s civil rights by providing ineffective assistance and by
refusing to appeal the criminal conviction. Id. The Honorable James McClure, Jr., United States
District Court Judge for the Middle District of Pennsylvania presided over these lawsuits, both of
which were dismissed with prejudice in 2000. 1
On May 17, 2007, Plaintiff read a news article which indicated that Defendant Rogan is
the son-in-law of the Honorable James Munley, United States District Court Judge for the Middle
District of Pennsylvania, a defendant in this case. Shortly after reading this article, Plaintiff filed
his third complaint. See Catanzaro v. Collins, et al., 2010 WL 1754765 (M.D. Pa. Apr. 27, 2010).
This complaint alleged that Judge McClure, Defendant Collins, Defendant Rogan, and Defendant
Judge Munley conspired together to “fix” the outcomes of Plaintiff’s 1999 civil actions in order to
shield Defendant Rogan from liability. (Doc. No. 1 at 2).2 Defendant the Honorable Nora Barry
Fischer, United States District Court Judge for the Western District of Pennsylvania, presided over
the case. On April 27, 2010, Defendant Judge Fischer dismissed the claims against Defendants
Collins, Rogan, and Judge Munley on the grounds that these claims were barred by the statute of
limitations and failed to state a plausible claim for relief. See Catanzaro v. Collins, et al., 2010
WL 1754765 (M.D. Pa. Apr. 27, 2010), affd 447 Fed. Appx. 397 (3d Cir. 2011). The court also
held that Defendant Judge Munley was entitled to judicial immunity. Id.

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The first complaint was dismissed on March 8, 2000 for failure to state a claim; the second complaint was dismissed
on July 26, 2000 on summary judgment. Both decisions were affirmed by the Court of Appeals. See Catanzaro v.
Carbondale Housing Authority, et al., 262 F.3d 403 (3d. Cir. 2001); Catanzaro v. County of Lackawanna, et al., 262
F.3d 403 (3d Cir. 2001). The Supreme Court denied Plaintiff’s petition for a writ of certiorari. See Catanzaro v.
Carbondale Housing Authority, 535 U.S. 935 (2002).

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The complaint also alleged that Defendant Collin tried to protect Defendant Rogan by giving Plaintiff improper
advice and by refusing to add Defendant Rogan to the complaint.

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Immediately following the dismissal of the third complaint, Plaintiff filed a fourth
complaint. The fourth complaint reiterated his previous allegations against Defendants Rogan,
Collins, and Judge Munley; it also alleged that Defendant Judge Fischer was part of the same
conspiracy to protect Defendant Rogan. See Catanzaro v. Fischer et al., No. 12-862 (M.D. Pa.
Sept. 30, 2013) aff’d 570 Fed. Appx 162 (3d Cir. 2014). Defendant the Honorable Legrome Davis,
United States District Court Judge for the Eastern District of Pennsylvania, presided over this case.
On September 30, 2013, Defendant Judge Davis entered an order dismissing Plaintiff’s claims on
several grounds: 1) Plaintiff failed to state a plausible claim for relief against any defendant; 2) all
claims against Defendant Judge Munley were barred by the statute of limitations, the doctrine of
judicial immunity, and the doctrine of res judicata; 3) all claims against Defendant Judge Fischer
were barred by the doctrine of judicial immunity and the statute of limitations; and 4) all claims
against Defendants Rogan and Collins were barred by the statute of limitations and the doctrine of
res judicata. Id.
B. Plaintiff’s Complaint
On September 29, 2014, Plaintiff filed his fifth lawsuit. Doc. No. 1. The Complaint
reiterates the same claims against Defendants Collins, Rogan, Judge Munley, and Judge Fischer.
It also alleges that Defendant Judge Davis, Defendant Kevin Calpin, Operations Supervisor for the
Clerk of Courts, Defendant Katy Nalevanko, Docket Clerk Specialist for the Clerk of Courts, and
Mary D’Andrea, former Clerk of Courts for the Middle District of Pennsylvania, are part of the
conspiracy. Specifically, the Complaint alleges that Defendant Judge Davis violated Plaintiff’s
rights by entering the September 30, 2013 order dismissing Plaintiff’s fourth complaint and that
Defendants Calpin, Nalevanko, D’Andrea violated Plaintiff’s rights by refusing to grant a motion
for default judgment Plaintiff filed during that case. Doc. No. 1 at 5.

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C. Procedural History in the Case Before the Court
On June 15, 2015, Defendants moved to dismiss the Complaint. Under Local Rule 7.6,
Plaintiff’s opposition to the motion was due no later than June 29, 2015. On August 19, 2015,
Plaintiff, citing health concerns, requested a twenty-day “extension” of time to file the opposition.
Doc. No. 28. On August, 31, 2015, the Court granted Plaintiff’s motion, holding that “Plaintiff
shall respond to the Defendants’ Motion to Dismiss by September 9, 2015 or risk dismissal of his
lawsuit.” Doc. No. 89. On September 8, 2015, Plaintiff submitted a motion to appoint counsel,
averring that he is physically incapable of filing an opposition to the motion to dismiss due to his
severe health issues. Doc. No. 30.
On September 10, 2015, this Court entered an order directing Plaintiff to respond to
Defendants’ motion to dismiss and extending the deadline to file that opposition to September 22,
2015. Doc. No. 32. On September 21, 2015, Plaintiff reiterated that he is physically incapable of
writing an opposition brief and should be given appointed counsel. Doc. No. 34.
III.

PRELIMINARY RULINGS
A. The Court Will Analyze the Merits of Plaintiff’s Complaint
When a plaintiff fails to file a timely opposition, courts generally treat the motion to dismiss

as unopposed and dismiss the claim without conducting a merits analysis. See Hollister v. U.S.
Postal Serv., 142 F. App’x 576, 577 (3d Cir. 2005). However, where the plaintiff is pro se and
has indicated on the record that he desires to oppose the motion, the Third Circuit has “expressed
a preference for an assessment of the complaint on the merits . . . before concluding that the
sanction of dismissal is warranted.” Xenos v. Hawbecker, 441 F. App’x 128, 131 (3d Cir. 2011).
Despite receiving two extensions of time, Plaintiff has not filed an opposition to the motion
to dismiss. However, Plaintiff did file a motion for appointment of counsel, requesting a court-

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appointed attorney to write an opposition brief on his behalf. While filing a motion to appoint
counsel does not stay the case or excuse a plaintiff from his obligation to comply with the court’s
deadlines, Plaintiff’s motion to appoint counsel clearly indicates that he wishes to oppose the
motion to dismiss. See Hollister, 142 F. App'x at 577. Accordingly, the Court will examine the
Complaint.
B. Doe Defendants 1-5 Are Dismissed
Plaintiff has named five Doe Defendants to this action. A plaintiff may name a fictitious
defendant to an action, provided his allegations state a potential cause of action and he has
demonstrated that he may be able to determine the defendant’s identity during discovery. Abels
v. State Farm Fire & Cas. Co., 770 F.2d 26, 31–32 (3d Cir.1985). Plaintiff, however, has failed
to demonstrate any likelihood that he will be able to identify unnamed individuals against whom
he can state a claim. Therefore, the Court will dismiss the Doe Defendants.
IV.

ALL CLAIMS AGAINST DEFENDANTS ROGAN, COLLINS, JUDGE MUNLEY,
AND JUDGE FISCHER ARE BARRED BY THE DOCTRINE OF RES JUDICATA
The doctrine of res judicata bars the re-litigation of matters that have been previously

adjudicated. Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993); See also
Williams v. Lehigh Cty. Dep't of Corr., 19 F. Supp. 2d 409, 411 (E.D. Pa. 1998). A matter is
deemed previously adjudicated where there is: “(1) a final judgment on the merits in a prior suit
involving (2) the same parties or those in privity with them, and (3) a subsequent suit based on the
same cause of action.” Equal Employment Opportunity Commission, 921 F.2d 489, 493 (3d Cir.
1990); Douris v. Schweiker, 229 F. Supp. 2d 391, 400 (E.D. Pa. 2002) aff'd sub nom. Douris v.
Rendell, 100 F. App'x 126 (3d Cir. 2004).
Defendants assert that the claims against Defendants Rogan, Collins, Judge Munley and
Judge Fischer have been previously adjudicated and, therefore, should be dismissed. According
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to Defendants, courts have already dismissed two identical cases against Defendants Rogan,
Collins, and Judge Munley, and one identical case against Judge Fischer. Defendants are correct.
In Catanzaro v. Collins, et al., 2010 WL 1754765 (M.D. Pa. Apr. 27, 2010), Plaintiff
alleged that Defendants Rogan, Collins, and Judge Munley conspired with other court officers to
“fix” the outcome of Plaintiff’s civil cases and, in doing so, violated his Fourth, Fifth, and
Fourteenth Amendment rights. He further alleged that Defendant Rogan violated his rights by
intentionally providing ineffective assistance. On April 27, 2010, Defendant Judge Fischer
dismissed the claims against all three defendants with prejudice.
In Catanzaro v. Fischer et al., No. 12-862 (M.D. Pa. Sept. 30, 2013), Plaintiff reiterated
his allegations against Defendants Rogan, Collins, and Judge Munley, and further alleged that
Defendant Judge Fischer was part of this same conspiracy. On September 30, 2013, Judge Davis
entered an order dismissing the claims against Defendants Rogan, Collins, and Judge Munley on
res judicata grounds. The court also dismissed the claims against Defendant Judge Fischer on the
grounds that she was entitled to judicial immunity.
Plaintiff’s current Complaint presents precisely the same allegations against Defendants
Rogan, Collins, Judge Munley, and Judge Fischer: They conspired to “fix” the outcomes of
Plaintiff’s civil cases, in violation of his Fourth, Fifth, and Fourteenth Amendment rights.
Accordingly, all claims against these defendants have already been adjudicated and must be
dismissed with prejudice.
V.

ALL CLAIMS AGAINST JUDGE DAVIS ARE BARRED BY THE DOCTRINE OF
JUDICIAL IMMMUNITY
Judges are entitled absolute immunity from suit with respect to all actions taken in their

roles as judges. See, e.g. Cleavinger v. Saxner, 474 U.S. 193 (1985); Pierson v. Ray, 386 U.S.
547, 553-54 (1967); Kwasnik v. LeBlon, 228 F. App'x 238, 244 (3d Cir. 2007); Figueroa v.
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Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (quotations and citations omitted). Such immunity
applies “however erroneous the act may have been, and however injurious in its consequences it
may have proved to the plaintiff.” Cleavinger, 474 U.S. at 199-200. That is to say, a judge is
immune from suit even in cases where the plaintiff has alleged “bad faith,” provided her actions
are judicial in nature. Stump v. Sparkman, 435 U.S. 349, 359 (1978); Gallas v. Supreme Court of
Pennsylvania, 211 F.3d 760, 768 (3d Cir. 2000); see also Bey v. Bruey, No. CIV.09-1092(JBS),
2009 WL 961411, at *3 (D.N.J. Apr. 8, 2009) (“Allegations that actions were undertaken with an
improper motive diminish neither their character as judicial actions nor the judge's immunity.”).
Plaintiff alleges that Defendant Judge Davis violated his constitutional rights by entering
the “final authoritative ‘ORDER’ dismissing” Plaintiff’s fourth case. Doc. No. 1 at 4. There is
perhaps no act more judicial in nature than the entering of an order. Defendant Judge Davis is
clearly entitled to judicial immunity.
VI.

ALL CLAIMS AGAINST DEFENDANTS D’ANDREA, CALPIN AND
NALEVANKO ARE BARRED BY THE DOCTRINE OF QUASI-JUDICIAL
IMMMUNITY
Courts have expanded the judicial immunity doctrine to also include quasi-judicial

officials. See Hughes v. Long, 242 F.3d 121 (3d Cir. 2001); Byers & Anderson, Inc., 508 U.S. 429,
436 (1993) (citations omitted). A party is considered a quasi-judicial official when he or she
performs “tasks that are an integral part of the judicial process.” See, e.g. Atkins v. Deptford Twp.,
813 F. Supp. 1098, 1102–03 (D.N.J.), aff'd,995 F.2d 215 (3d Cir.); Stewart v. Evans, 2009 WL
2707540 (M.D. Pa. Aug. 25, 2009).
The Complaint alleges that Defendant Mary D’Andrea, Clerk of Courts for the Middle
District of Pennsylvania, Kevin Calpin, the Operations Supervisor for the Clerk of Courts, and
Defendant Katy Nalevanko, the Docket Clerk Specialist for the Clerk of Courts, violated Plaintiff’s

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constitutional rights by refusing to enter default judgment against Defendant Collins during the
fourth lawsuit. See Catanzaro v. Fischer et al., No. 12-862 (M.D. Pa. Sept. 30, 2013) aff’d 570
Fed. Appx 162 (3d Cir. 2014).
It is well-established that a clerk’s role in handling a request for default is an “integral part
of the judicial process” and, therefore, is protected by the doctrine of quasi-judicial immunity. See
Bey v. Bruey, 2009 WL 961411, at *3 (D.N.J. Apr. 8, 2009); Rodriguez v. Weprin, 116 F.3d 62,
66 (2d Cir.1997) (“[C]ourt's inherent power to control its docket is part of its function of resolving
disputes between parties. This is a function for which judges and their supporting staff are afforded
absolute immunity.”); Fischer v. United States, 2003 WL 21262103, *4–*5 (C.D.Cal.2003)
(finding that court clerks were immune from claims that they had obstructed justice and
encouraged organized crime by not entering defaults). Accordingly, Defendants D’Andrea, Calpin
and Nalevanko are entitled to quasi-judicial immunity.
VII.

PLAINTIFF’S COMPLAINT
DEFENDANTS

FAILS

TO

STATE

A

CLAIM

AGAINST

But Plaintiff’s claims have more problems; they fail to state a plausible claim for relief.
Plaintiff’s allegations against Defendants are premised on one unsupported supposition: Several
judges, attorneys, and court officials entered into a conspiracy to violate Plaintiff’s constitutional
rights so that they could protect Defendant Rogan from civil liability.
On a motion to dismiss, the Court must accept all well-pleaded allegations as true and
construe them in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 681. However,
conclusory allegations and blanket assertions are “not entitled to be assumed true.” Id.; NL Indus.
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986) (“Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.”). Rather, the complaint must
provide “enough fact[ual allegations] to raise a reasonable expectation that discovery will reveal
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evidence of [an] illegal agreement.” Twombly, 550 U.S. at 556 (allegations must be reasonably
specific in order to “nudge . . . claims across the line from conceivable to plausible”). “Put another
way . . . [Federal Rule of Civil Procedure] 8(a)(2) requires a ‘showing’ rather than a blanket
assertion of an entitlement to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir.
2008).
Here, Plaintiff offers nothing in support of his theory other than his own speculation that
these defendants must have “fixed” his cases because Defendant Rogan was related to a federal
judge. Plaintiff provides no evidence of any agreement or communication between any of the
defendants regarding Plaintiff’s cases. Accordingly, the Court finds that this supposition is
insufficient to “nudge” Plaintiff’s assertions “across the line from conceivable to plausible” and
are insufficient to state a claim. Twombly, 550 U.S. at 556; see Iqbal, 556 U.S. at 678 (“Factual
allegations must be enough to raise a right to relief above the speculative.”).
VIII.

CLAIMS AGAINST DEFENDANTS ROGAN, COLLINS, AND D’ANDREA ARE
DISMISSED SUA SPONTE

The Court notes and the record reflects that Plaintiff failed to supply the Marshals with a
proper address for Defendants Rogan, Collins, and D’Andrea.

Doc. Nos. 10, 11, 12, 13.

Accordingly, Defendants Rogan, Collins, and D’Andrea have not been served and have not moved
for dismissal. However, as discussed above, the claims against these defendants are clearly barred
by the doctrines of res judicate and judicial immunity. Since waiting for service and motions to
dismiss from these defendants would prove a waste of judicial resources, the Court dismisses these
claims sua sponte. See Bethea v. Nation of Islam, 248 F. App’x 331, 332 (3d Cir. 2007) (court
may dismiss frivolous actions sua sponte).

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IX.

PLAINTIFF’S MOTION TO APPOINT COUNSEL IS DENIED
Plaintiff seeks court-appointed counsel on the grounds that he is physically incapable of

pursuing his case. A district court has the “broad discretion” “to request an attorney to represent
any person unable to afford counsel.” 28 U.S .C. § 1915(e)(1). In exercising this discretionary
authority, however, the Court must first determine if the “plaintiff's claim has arguable merit in
fact and law . . .” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993); Rummel v. Lewisburg Police,
2014 WL 7359390, at *2 (M.D. Pa. Dec. 23, 2014). If the complaint possesses no arguable merit,
i.e. should clearly be dismissed, then the court should deny the motion to appoint counsel. Id.
As discussed above, Plaintiff’s claims lack any arguable merit. Therefore, the motion to
appoint counsel is denied.
X.

CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss will be GRANTED and all

claims against Defendants Judge Fischer, Judge Davis, Judge Munley, Collins, Rogan, Calpin,
Nalevanko, D’Andrea, and Does 1-5 are DISMISSED. An appropriate order follows.

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

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