LITTLE v. HAMMOND et al

Filing 46

MEMORANDUM OPINION that the motions to dismiss will be granted. Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 12/16/16. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SHAWN D. LITTLE,
Plaintiff,
v.
GREGORY HAMMOND, et al,
Defendants.

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Civil Action No. 1:16-cv-107

Magistrate Judge Susan Paradise Baxter

MEMORANDUM OPINION1
M.J. Susan Paradise Baxter
Presently pending before this Court are multiple motions to dismiss filed by the
Defendants. In particular, Defendant’s Shawn M. Estes, Andmoragan C. Thomas, and Eva C.
Stroup filed separate motions to dismiss. ECF No. 21; ECF No. 26; and ECF No. 32,
respectively. Additionally, Defendants Judge Gregory Hammond and the 37th Judicial District of
Pennsylvania Warren County Courthouse filed a joint motion to dismiss. ECF No. 4.
For the reasons set forth below, the motions to dismiss will be granted.

A. Relevant Procedural and Factual History
Plaintiff, Shawn Little, acting pro se, initiated this civil rights action on May 11, 2016.
Plaintiff, currently an inmate in state custody, brought this civil rights action alleging a web of
conspiracy as well as a litany of illegal actions and constitutional violations by Defendants
throughout Plaintiff’s criminal and child custody proceedings.

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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.
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Defendant Judge Gregory Hammond (“Hammond”) was the presiding judge over several
separate criminal proceedings involving Plaintiff. One such criminal proceeding resulted in an
acquittal of all charges against Plaintiff. ECF No. 10, ¶ 5-6. Plaintiff claims this result displeased
Defendant Hammond and triggered the ensuing unlawful conduct against Plaintiff. Id. During the
course of Plaintiff’s subsequent criminal proceedings, Plaintiff alleges Defendant Hammond
“took actions which violate[d] Plaintiff’s constitutionally protected rights and denied civil
liberties solely to further his personal malicious, vindictive agenda upon Plaintiff out of revenge”
for the acquittal in the prior criminal proceeding. ECF No. 8, page 6. In particular, Plaintiff
alleges Defendant Hammond violated his Due Process and Equal Protection rights, retaliated
against Plaintiff, conspired with other Defendants, and maliciously prosecuted Plaintiff.2 Id.
Defendant 37th Judicial District of Pennsylvania (“Judicial District”) is the location of the
Warren County Court of Common Pleas and where Defendant Hammond presides. Plaintiff
alleges Judicial District:
Allowed the continuous violation of Plaintiff’s constitutional rights and did
nothing to stop the defendants employed within their realm from causing Plaintiff
to suffer loss of liberty, civil rights, vindictive persecution by its officers based
upon gender and previous acquittal of malicious prosecution.
ECF No. 8, page 7.
Defendant Shawn M. Estes (“Estes”), a Warren County Court Hearing Officer, presided
over two evidentiary hearings in Plaintiff’s custody proceedings against his ex-wife, Defendant
Eva C. Stroup. Although the two evidentiary hearings were audio recorded, during an exceptions
hearing on Defendant Estes’ report and recommendation to the Court, the hearing testimony was
unavailable. Plaintiff alleges Defendant Estes:
Liberally construing Plaintiff’s complaint, this Court assumes Plaintiff is alleging malicious
prosecution when he refers to Defendant Hammond’s conduct as “vindictive persecution.” ECF
No. 8, page 6.
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Intentionally destroyed and/or erased the record of hearing testimony intentionally
so as to deny Plaintiff due process of law, right to appeal, causing him loss of
liberty, so as to further all defendants vindictive persecution, retaliation,
retribution, and continued violation of constitutional rights.
ECF No. 8, page 9.
Defendant Andmoragan Thomas (“Thomas”) was Defendant Hammond’s law clerk
during Plaintiff’s criminal proceedings. ECF No. 10, ¶ 8. Thereafter, Defendant Thomas left her
employment with the court and moved to a private law firm. Id. While working at this law firm,
Plaintiff alleges Defendant Thomas began representing Defendant Hammond as well as
Plaintiff’s ex-wife, Defendant Eva C. Stroup, in legal matters against Plaintiff. Id. Plaintiff
claims Defendant Thomas “acted individually and in concert with other Defendants to
vindictively persecute Plaintiff and act with total disregard for the truth/or the law in retaliation”
for the criminal proceeding in which Plaintiff was acquitted of all charges. ECF No. 8, page 8.3
Defendant Eva C. Stroup (“Stroup”), Plaintiff’s ex-wife, has been involved in custody
proceedings against Plaintiff over their two children. ECF No. 10, ¶¶ 8-9. Defendant Stroup was
awarded primary physical custody of the two children. Id. at ¶ 10. However, Plaintiff’s visitation
and communication rights with his children remain a highly litigated issue between Plaintiff and
Defendant Stroup. In his complaint, Plaintiff claims Defendant Stroup:
Acted individually and in concert with other Defendants to violate Plaintiff’s
constitutional rights, defame his character, suffer him loss of liberty for her own
personal agenda and to further other Defendants malicious personal intent to harm
plaintiff in retaliation.
ECF No. 8, page 8.

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In his Opposition brief, Plaintiff explains that his due process and equal protection claims
against Ms. Thomas are based on her alleged violation of a state professional rule of conduct and
are akin to conflict of interest. See ECF No. 42.
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Defendants filed motions to dismiss, arguing, among other defenses, judicial immunity,
absence of a state actor, and failure to state a claim.4 ECF No. 4; ECF No. 21; ECF No. 26; ECF
No. 32. Plaintiff has filed opposition briefs to each motion to dismiss. ECF No. 12; ECF No. 25;
ECF No. 42; ECF No. 39. This motion is ripe for disposition by this Court.

B. Standards of Review
1. Pro Se Litigants
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (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. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 141 F.2d 552,
555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read
“with measure of tolerance”). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a compliant in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). 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 Co.,
906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court may
consider facts and make inferences where it is appropriate.

2. Motion to dismiss pursuant to Rule 12(b)(6)

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Defendant Eva C. Stroup is representing herself and filed her motion to dismiss pro se.
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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.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)).
See also Ashcroft v. Iqbal, 556 U.S. 662 (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)(“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 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). “This

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‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must
take the following three steps:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to
state a claim.’ Second, the court should identify allegations that, ‘because
they are no more than conclusions, are not entitled to the assumption of
truth.’ Finally, ‘where there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement for relief.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
“The purpose of a motion to dismiss is to test the sufficiency of a complaint, not to
resolve disputed facts or decide the merits of the case.” Tacinda Corp. v. DaimlerChrysler AG,
197 F. Supp.2d 42, 53 (D.Del 2002) citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
Indeed, the Supreme Court has held that complaint is properly dismissed under Rule 12(b) where
it does not allege “enough facts to state a claim to relief that is plausible on its facts,” Twombly,
550 U.S. at 570, or where the factual content does not allow the court “to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The
question is not whether the plaintiff will prevail in the end but, rather, whether the plaintiff is
entitled to offer evidence in support of his or her claims. Swope v. City of Pittsburgh, 90
F.Supp.3d 400, 405 (W.D. Pa. 2015) citing Oatway v. American International Group, Inc., 325
F.3d 184, 187 (3d Cir. 2003).

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C. Judicial Immunity
The judicial Defendants, Judge Hammond, Hearing Officer Estes, and Judicial District
are entitled to judicial immunity.5 Judicial officers are immune from damage suits arising out of
their official duties. Stump v. Sparkman, 435 U.S. 349 (1978). Judicial immunity is “immunity
from suit, not just from an ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11
(1991). “A judge will not be deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of authority….” Sparkman, 435 U.S. at 356. See also Benn v.
First Judicial District, 426 F.3d 233 (3d Cir. 2005) (applying Eleventh Amendment immunity to
courts). See also Seigert v. Gilley, 500 U.S. 226, 231 (1991) (“One of the purposes of immunity,
absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted
demands customarily imposed upon those defending a long drawn out lawsuit.”); In Re
Montgomery County, 215 F.3d 367, 373 (3d Cir.2000) (“Absolute immunity creates not only
protection from liability, but also a right not to stand trial.”).
A judge is immune even if the acts were committed during an alleged conspiracy. Dennis
v. Sparks, 449 U.S. 24 (1980). See also Owens v. Armstrong, 171 F.Supp.3d 316, 330 (D.N.J.
Mar.22, 2016). Judicial immunity may only be overcome in limited circumstances when: (i) the
challenged actions were not taken in the judge's judicial capacity; or (ii) the challenged actions,

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In addition, Defendant Thomas would be afforded quasi-judicial immunity for actions taken
during her employment with the court as Judge Hammond’s law clerk. See Jodeco, In. v. Hann,
647 F. Supp. 488 (D.N.J. 1987) (extending immunity to nonjudicial officials whose activities are
integrally related to the judicial process and involve the exercise of discretion comparable to that
of a judge). Even liberally construing the allegations of Plaintiff’s complaint, this Court does not
infer that any of Plaintiff’s factual allegations against Defendant Thomas involve the time period
in which Thomas was employed by the court. Instead, Plaintiff’s factual allegations against
Defendant Thomas focus on the time period after she left her job as a law clerk and began
working in a private law firm. See ECF No. 42, Plaintiff’s Brief in Opposition to Defendant
Thomas’ Motion to Dismiss. Therefore, a discussion of quasi-immunity analysis as it pertains to
Defendant Thomas is not necessary.
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“though judicial in nature, were taken in the complete absence of all jurisdiction.” Mireles, 502
U.S. at 11–12.
Here, Plaintiff's factual allegations are based solely on the judicial actions of Defendants
Hammond, Estes, and Judicial District. Although Plaintiff disagrees with the decision-making
process, nothing in Plaintiff's complaint can be interpreted as an allegation that Defendants acted
outside of their judicial functions or in the clear absence of jurisdiction. Even if these rulings
were in error or in excess of authority, there is no plausible allegation that they were undertaken
without appropriate jurisdiction. Accordingly, Defendant Hammond, Estes and Judicial District
will be dismissed from this action.

D. State Actor Requirement - §1983
Plaintiff’s claims against Defendant Stroup and Thomas brought by way of §1983 fail
because Defendant Stroup and Thomas are not state actors. In order to bring suit under 42 U.S.C.
§ 1983, a plaintiff must allege that a person acting under color of state law deprived him of his
constitutional rights. Generally, anyone whose conduct is “fairly attributable to the state” can be
sued as a state actor under § 1983. Filarsky v. Delia, __ U.S. __, __, 132 S. Ct. 1657, 1661 (April
17, 2012) citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). “Action under color of
state law requires that one liable under §1983 have exercised power possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state law.”
Cirri v. Muroski, 2013 WL 2897868, at *4 (3d Cir. June 13, 2013) quoting Harvey v. Plains
Twp. Police Dept., 635 F.3d 606, 609 (3d Cir. 2011). Private citizens, such as Defendants Stroup

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and Thomas6, are not state actors, and therefore, they cannot be held liable under §1983.
Plaintiff’s complaint does not contain any allegations that overcome the state actor requirement,
and therefore, any §1983 claims against Defendant Stroup and Thomas will be dismissed.
Similarly, Plaintiff does not plead any factual allegations sufficient to impose liability
upon Stroupe or Thomas by virtue of their participation in an alleged conspiracy with the judicial
Defendants. Generally, in order “to properly plead an unconstitutional conspiracy, a plaintiff
must assert facts from which a conspiratorial agreement can be inferred.” Great W. Mining &
Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). Moreover, a plaintiff
alleging that (non-state actor) defendants conspired with judges must “plead an agreement
between the state court judges and Defendants to rule in favor of [Defendants].” Id. citing
Dennis, 449 U.S. at 28. Bare allegations of conspiracy, or the assertion that “Defendants engaged
in a concerted action of a kind not likely to occur in the absence of agreement,” are insufficient.
Id. The Court must distinguish between the potential “appearance of impropriety” from a
meeting of the minds sufficient to permit a § 1983 claim against that party. Id. at 179. Plaintiff
has not pled any factual allegations sufficient to infer a meeting of the minds necessary to render
Stroupe or Thomas as state actors for purposes of § 1983 liability. Dennis, 449 U.S. at 28
(“[M]erely resorting to the courts and being on the winning side of a lawsuit does not make a
party a co-conspirator or a joint actor with the judge.”).
Additionally, Plaintiff’s complaint sets forth generalized allegations of retaliation,
defamation, and “vindictive persecution.” Even liberally construing his complaint, Plaintiff fails

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The legal precedent is clear that Thomas is not a state actor by virtue of her position as an
attorney. See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277-78 (3d Cir. 1999)
(“Attorneys performing their traditional functions will not be considered state actors solely on
the basis of their position as officers of the court.”). See also Polk County v. Dodson, 454 U.S.
312, 318-19 (1981).
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to factually plead the necessary elements of any of these claims. Simply put, using the words
“retaliation,” “defamation,” or “vindictive persecution” as blanket assertions against Defendants
are not enough to survive a motion to dismiss. See Phillips, 515 F.3d at 231. As such,
Defendants’ motions to dismiss based upon a failure to state a claim will be granted.7
Any amendments to Plaintiff’s complaint would be futile in this action.8
For the reasons set forth above, the motion to dismiss filed by Hammond and the 37th
Judicial District of Pennsylvania [ECF No. 4], the motion to dismiss filed by Estes [ECF No. 21],
the motion to dismiss filed by Thomas [ECF No. 26], and the motion to dismiss filed by Stroup
[ECF No. 32] will be granted.

An appropriate Order follows.

Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

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As all of the federal claims against these Defendants are dismissed, this Court declines to
exercise supplemental jurisdiction over any state law claims Plaintiff attempts to assert against
these Defendants. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966)
(“That power [of supplemental jurisdiction] need not be exercised in every case in which it is
found to exist. It has consistently been recognized that pendent [or supplemental] jurisdiction is a
doctrine of discretion, not of plaintiff’s right…. Certainly, if the federal claims are dismissed
before trial, … the state claims should be dismissed as well.”).
Federal Rule of Civil Procedure 15(a)(2) states that “the court should freely give leave when
justice so requires.” Id. “In the absence of any apparent or declared reason--such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be
freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962) (interpreting Federal Rules of Civil
Procedure). An amendment would be futile when the complaint, as amended, would fail to state
a claim upon which relief could be granted. In re NAHC, Inc. Securities Litig., 306 F.3d 1314,
1332 (3d Cir. 2002).
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