Walsh v. Barrasse et al

Filing 3

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 7/28/2016. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT COURT OF PENNSYLVANIA
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Plaintiff,
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v.
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JUDGE MICHAEL BARRASSE, et al.,
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Defendants.
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JOHN R. WALSH, III,

Civil Action No. 3:16-CV-1494
(Judge Kosik)

MEMORANDUM
Before the Court for disposition is another civil action filed by pro se Plaintiff, John R.
Walsh, III. Upon review of the complaint (Doc. 1), we will dismiss it pursuant to 28 U.S.C. §
1915(e)(2).
I. BACKGROUND
Plaintiff initiated this action by filing a complaint (Doc. 1) on July 20, 2016, against
two Lackawanna County Judges and a number of private attorneys, seeking $10,000,000.00,
for what Plaintiff alleges as a “miscarriage of Justice” when Judge Barrasse allegedly denied
Plaintiff’s request for counsel in a county court proceeding. (Doc. 1, ¶¶ 2, 16). Plaintiff thus
appears to allege a Sixth Amendment violation of his right to counsel against Judge Barrasse.
As for the remaining named Defendants, this Court cannot discern any other alleged causes of
action, other than what Plaintiff complains against Mark Giannotte, Esq., as “Obstruction of
Justice” when he did not do the “[r]ight [t]hing,” and speak out when Judge Barrasse denied
Plaintiff counsel in the county court proceeding. (Doc. 1, ¶¶ 3,4). Moreover, while Plaintiff
names Alex Hazzouri as a defendant in the caption of this action, this Defendant does not
appear anywhere in the body of the complaint.
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915, the court may review an in forma pauperis complaint
prior to service and “shall dismiss the case at any time if the court determines that ... the action

... (i) is frivolous or malicious [or] (ii) fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(i) and (ii). An action is “frivolous where it lacks an arguable basis
in either law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Factual allegations are
“clearly baseless” if they are “fanciful,” “fantastic,” or “delusional,” Neitzke, 490 U.S. at 328,
or where “the facts alleged rise to the level of the irrational or the wholly incredible.” Denton
v. Hernandez, 504 U.S. 25, 33 (1992). “[A] finding of factual frivolousness is appropriate
when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not
there are judicially noticeable facts available to contradict them.” Id. at 33.
28 U.S.C. § 1915's failure to state a claim standard mirrors Rule 12(b)(6) of the
Federal Rules of Civil Procedure, which authorizes the dismissal of a complaint for “failure to
state a claim upon which relief can be granted.” Fed.R.Civ.P. Rule 12(b)(6).
In determining the legal sufficiency of a complaint, the United States Court of Appeals
for the Third Circuit has documented the evolving nature of pleading practice in federal court,
stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court’s opinion in Bell
Atlantic Corp. V. Twombly, 550 U.S. 644 (2007) continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d
Cir. 2008)] and culminating recently with the Supreme Court’s
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than
the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must set forth a
claim for relief, which contains a short and plain statement of the claim, showing that the
pleader is entitled to relief. The complaint must provide the defendant with fair notice of the
claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The issue in a motion to
dismiss is whether the plaintiff should be entitled to offer evidence to support the claim, not
whether the plaintiff will ultimately prevail. See Phillips v. Cnty. of Allegheny, 515 F. 3d

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224, 232 (3d Cir. 2008) (the Rule 8 pleading standard “simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary element.”); Nami
v. Fauver, 82 F. 3d 63, 65 (3d Cir. 1996).
The onus is on the plaintiff to provide a well-drafted complaint that alleges factual
support for its claims. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in
original and internal citations omitted). The court need not accept unsupported inferences,
Cal. Pub. Employees Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), nor
legal conclusions cast as factual allegations, Twombly, 550 U.S. at 556. Legal conclusions
without factual support are not entitled to the assumption of truth. See Ashcroft v. Iqbal, 556
U.S. 662, 677-679 (2009) (“Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not” satisfy the requirements of Rule 8).
Once the court winnows the conclusory allegations from those allegations supported
by fact, which it accepts as true, the court must engage in a common sense review of the claim
to determine whether it is plausible. This is a context-specific task, for which the court should
be guided by its judicial experience. The court must dismiss the complaint if it fails to allege
enough facts “to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 677
(quoting Twombly, 550 U.S. at 570). A “claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 677. Lastly, a pro se complaint is held
to “less stringent standards than formal pleadings drafted by lawyers” and can only be
dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404
U.S. 519, 520-21 (1972).

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III. DISCUSSION
We first address the purported Sixth Amendment violation of right to counsel before
Judge Barrasse in the county court proceeding that took place on June 14, 2013. In doing so,
we must first look to the applicable statute of limitations to discern whether the current action
has been timely filed. Statutes of limitations are not “simply technicalities,” but rather are
“fundamental to a well-ordered judicial system.” Board of Regents v. Tomanio, 446 U.S. 478,
487 (1980). The federal civil rights laws do not contain a specific statute of limitations for §
1983 actions; however, it is well established that the federal courts must look to the relevant
state statute of limitations. Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). With respect to
claims pursuant to 42 U.S.C. § 1983, the Supreme Court has concluded that such claims are
best characterized as personal injury actions for purposes of state statutes of limitations.
Wilson v. Garcia, 471 U.S. 261 (1985). As such, claims which are brought pursuant to 42
U.S.C. § 1983 are also subject to a two-year statute of limitations in Pennsylvania. Chester v.
Beard, 657 F.Supp.2d 534, 539 (M.D.Pa. 2009); Burger v. Borough of Ingram, 697 A.2d
1037, 1041 (Pa. Commw. Ct. 1997).
Here, Plaintiff alleges that on June 14, 2013, he stood before Judge Barrasse and
requested “an appointment of an attorney for this nothing infraction.” (Doc. 1, ¶ 2). While it
is not abundantly clear as to whether Defendant Ernie Preate or Mark Giannotte was
representing Plaintiff at this proceeding, and Plaintiff was merely requesting court appointed
counsel instead, we do not need to delve any deeper in this consideration. Plaintiff’s claim is
time-barred by the two-year statute of limitations period. Because the alleged deprivation of
Plaintiff’s right occurred on June 14, 2013, his filing of this instant action on July 20, 2016,
was well beyond the applicable statute of limitations, and therefore, must be dismissed
Moreover, the Court finds Plaintiff’s remaining allegations, if they can be categorized
as such, to be frivolous because they are wholly incredible and delusional. Additionally,
Plaintiff falls far short of stating any claim upon which relief may be granted. Plaintiff does

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not provide any factual allegations to support any legal grounds for liability against any of the
named Defendants.1 This Court cannot even discern any legal grounds set forth in Plaintiff’s
Complaint. Beyond a doubt, there are no facially plausibile claims pleaded by Plaintiff.
III. CONCLUSION
For the foregoing reasons, we will dismiss Plaintiff’s complaint (Doc. 1). An
appropriate order follows.

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Further, it is well settled that a “judicial officer in the performance of his duties has absolute immunity
from suit and will not be liable for his judicial acts. Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per
curiam). Additionally, the facts alleged by Plaintiff, even if liberally construed as an action brought under 42 U.S.C.
§ 1983, fail to set forth a cognizable claim against any of the private attorney defendants. Blum v. Yaretsky, 457
U.S. 991, 1002 (1982) (the “under color of state law” requirement excludes from its reach “merely private conduct,
no matter how discriminatory or wrongful”). The Court further notes that Plaintiff recites the names of alleged
causes of actions in the caption of his complaint, such as “obstruction of justice” and “RICO,” etc., without any
further explanation or development of facts or elements to support such causes of actions. Such claims must be
dismissed since Plaintiff fails to even provide threadbare recitals of the elements of any of the recited causes of
action. Iqbal, 556 U.S. at 677-679 (Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not” satisfy the requirements of Rule 8). Moreover, the criminal statutes Plaintiff recites
to, do not create a private right of action and therefore precludes Plaintiff from bringing such claims. See
Rockefeller v. U.S. Court of Appeals Office, for Tenth Circuit Judges, 248 F.Supp. 2d 17, 23 (D.D.C. 2003)
(“[T]here is no private right of action under these federal criminal statutes.”). Finally, any claim that Plaintiff was
denied his right to the “pursuit of happiness” is not a cognizable claim that may be pursued through the judicial
system. Coffey v. United States, 939 F. Supp. 185, 191 (E.D.N.Y. 1996).

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