SCUTELLA v. COMMONWEALTH OF PENNSYLVANIA ATTORNEY GENERAL OF PA

Filing 26

MEMORANDUM OPINION & ORDER that Defendants motion to dismiss 19 be dismissed.IT IS FURTHER ORDERED that Plaintiff must file a Second Amended Complaint before January 21, 2013. Plaintiff must fully set forth the constitutional challenges to the spec ific statute/s and must fully identify the relief he seeks from this Court. No further amendment of the complaint will be permitted. Plaintiffs failure to file a Second Amended Complaint by January 21, 2013, may result in the dismissal of this case for failure to prosecute. Signed by Magistrate Judge Susan Paradise Baxter on 12/31/13. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JHEN SCUTELLA,
Plaintiff,
v.
COMMONWEALTH OF
PENNSYLVANIA ATTORNEY
GENERAL,
Defendants.

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Civil Action No. 12-165Erie

Magistrate Judge Baxter

MEMORANDUM OPINION AND ORDER1
M.J. Susan Paradise Baxter
This civil action was filed in this Court on July 24, 2012. Plaintiff, an inmate2 formerly
incarcerated at SCI Albion, brought this civil rights action under 42 U.S.C. § 1983 challenging
his conviction under Pennsylvania’s criminal statute outlawing “Possession with the Intent to
Deliver 100-1000 grams of Cocaine.”3 ECF No. 5. The only named Defendant is
“Commonwealth of Pennsylvania Attorney General of Pennsylvania (Linda Kelly).”
In response to the Original Complaint, Defendant moved to dismiss this action. ECF No.
11. Plaintiff filed an opposition brief in which he clarified his intent to challenge the
constitutionality of the statute under which he was convicted, instead of the conviction itself.

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment. See ECF Nos. 6, 15.
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It is unclear whether Plaintiff remains incarcerated at this time.

Petitioner entered a guilty plea on July 6, 2005, and was sentenced on September 7, 2005, to a
term of imprisonment of 4 ½ to 10 years. See Scutella v. D.M. Champerblain, C.A. No. 09-82E.
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ECF No. 16, page 1. Plaintiff further explained that he made an error in the relief he sought in his
complaint.
Because Plaintiff is a pro se litigant, this Court dismissed the pending motion to dismiss
and directed Plaintiff to file an Amended Complaint to more fully state his claim. ECF No. 17.
The Amended Complaint was filed on April 30, 2013. ECF No. 18. And, Defendant has again
moved to dismiss this action. ECF No. 19. Plaintiff has filed a one-page Opposition Brief
explaining that he has not been granted an opportunity to research his legal arguments due to his
placement at “Erie CCC.” ECF No. 24.

A. Standards of Review
1) Pro se litigants
Pro se pleadings, Ahowever inartfully pleaded,@ must be held to Aless stringent standards
than formal pleadings drafted by lawyers.@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant=s unfamiliarity with pleading requirements. See Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969)(A[W]e should recognize that a habeas corpus petition prepared by a prisoner
without the aid of counsel may be inartfully drawn and should therefore be read >with a measure
of tolerance.=@); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v.
Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules,
during the initial stages of litigation, a district court should construe all allegations in a complaint
in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other

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grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). See, e.g., Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v.
Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se
litigant, this Court will consider facts and make inferences where it is appropriate.

2) Motion to dismiss pursuant to Rule 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12
(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal,
___ U.S. ___, 129 S.Ct. 1937 (2009) (specifically applying Twombly analysis beyond the
context of the Sherman Act).
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, ___
U.S. at ___, 129 S.Ct. at 1949 (“The tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”). A plaintiff’s factual allegations
“must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at

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556, citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.
2004). Although the United States Supreme Court does “not require heightened fact pleading of
specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. In other words, at the motion to dismiss stage, a plaintiff is “required to make
a ‘showing’ rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008
WL 482469, at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008).

B. Plaintiff’s Allegations
In his Original Complaint, Plaintiff challenged his conviction under Pennsylvania’s
criminal statute outlawing “Possession with the Intent to Deliver 100-1000 grams of Cocaine.” 4
As relief, Plaintiff sought an order from this Court that “the conviction is void and the [Plaintiff]
is entitled to discharge and dismissal without delay.” ECF No. 5, page 7.
Liberally construing the allegations of his Amended Complaint, Plaintiff
claims that a Pennsylvania statute is unconstitutional because:
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The statute is void for vagueness;

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The statute was not enacted in accordance with Pennsylvania’s enacting
clause5;

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The punishment is too severe for a nonviolent offender; and

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The mandatory sentencing structure usurps the sentencing judge’s authority.

35 P.S. § 781-113(a)(30) prohibits “the manufacture, delivery, or possession with intent to
manufacture or deliver, a controlled substance … or knowingly creating, delivering or possessing
with intent to deliver, a counterfeit controlled substance.”
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The claim under Pennsylvania’s enacting clause arises strictly under Pennsylvania law and this
Court will not exercise supplemental jurisdiction over this matter. See Trinity Industries, Inc. v.
Chicago Bridge & Iron Co., 735 F.3d 131, 135 (3d Cir. 2013).
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ECF No. 18.6 However, Plaintiff complains of both the statute upon which he was convicted (35
P.S. § 781-113(a)(30)) and the statute under which he was sentenced (18 P.S. § 7508(b)).7
Furthermore, Plaintiff’s Amended Complaint does not request any relief beyond a declaration of
unconstitutionality of “the statute.” Given the vague nature of Plaintiff’s allegations, it is
impossible for this Court to determine whether Plaintiff has stated a claim upon which relief may
be granted.
The pending motion to dismiss does not address these deficiencies in the Amended
Complaint, but instead focuses on a previous habeas corpus action brought by Plaintiff and the
favorable termination requirement of Heck v. Humphrey, 512 U.S. 477, 484 (1994) (holding that
if success of a 1983 damages suit brought by a prisoner “would necessarily imply the invalidity
of his conviction or sentence, the prisoner may only bring the claim where the conviction or
sentence has been invalidated.”).
In accord with Haines v. Kerner, and its progeny, Plaintiff will be permitted to file a
Second Amended Complaint more fully stating his constitutional challenge and the pending
motion to dismiss shall be dismissed. Plaintiff must fully set forth his constitutional challenges to
either or both of the statutes. Plaintiff must fully identify the specific relief he seeks from this
Court. This will be Plaintiff’s final opportunity to set forth his claim.

An appropriate Order follows.
To the extent that any of Plaintiff’s allegations can be liberally construed as raising a civil rights
violation based upon his conviction, such a claim is barred by the favorable termination
requirement of
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This Court notes that § 7508(b) has recently been declared unconstitutional by the Superior
Court of Pennsylvania. See Commonwealth v. Watley, 2013 WL 6164340 (Pa.Super. Nov. 25,
2013).
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JHEN SCUTELLA,
Plaintiff,
v.
COMMONWEALTH OF
PENNSYLVANIA ATTORNEY
GENERAL,
Defendants.

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Civil Action No. 12-165Erie

Magistrate Judge Baxter

ORDER
AND NOW, this 31st day of December, 2013;
IT IS HEREBY ORDERED that Defendant’s motion to dismiss [ECF No. 19] be
dismissed.
IT IS FURTHER ORDERED that Plaintiff must file a Second Amended Complaint
before January 21, 2013. Plaintiff must fully set forth the constitutional challenges to the specific
statute/s and must fully identify the relief he seeks from this Court. No further amendment of the
complaint will be permitted. Plaintiff’s failure to file a Second Amended Complaint by January
21, 2013, may result in the dismissal of this case for failure to prosecute.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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