MCGEE v. BOROUGH OF CALIFORNIA et al
Filing
40
MEMORANDUM OPINION re 27 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by TERRY CHILDS, MARK COSTELLO, JEFFREY GILLEN, BOROUGH OF CALIFORNIA, BOROUGH OF CALIFORNIA POLICE DEPARTMENT, 25 MOTION to Dismiss re 22 Amended Compl aint filed by JUSTIN T. SCHULTZ. As set forth on the record at the hearing held on August 6, 2014, plaintiff's claims against Childs, Costello, and Schultz for false imprisonment (count II), initiation and pursuit of prosecution without probabl e cause (count III), false arrest under Pennsylvania common law (count IV), and malicious prosecution under Pennsylvania common law (count V), are dismissed from this case because they are barred by Heck. Signed by Chief Judge Joy Flowers Conti on 9/23/2014. (cal)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEVIN A. THOMAS,
Plaintiff,
v.
NORMAN BARILLA, ESQ., JOHN
DICOLA, JR., DOLORES DICOLA, and
HOLLY THOMAS,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2:11-1344
MEMORANDUM OPINION
Conti, Chief District Judge
I.
Introduction
This matter is before the court upon motions for summary judgment filed by defendants
Norman Barilla (“Barilla”) (ECF. No. 98), John DiCola, Jr. (“John” or “DiCola”) (ECF No.
109), Delores DiCola (“Delores”) (ECF No. 120), and Holly Thomas (“Holly”) (ECF No. 114).
In the underlying action, plaintiff Kevin Thomas (“Kevin” or “plaintiff”) contends that the
defendants conspired to deprive him of his constitutional rights during the course of state custody
proceedings related to his son, CJT. (ECF No. 35.) Invoking 42 U.S.C. § 1983, plaintiff
primarily contends that the defendants violated his constitutional rights as secured by the First
and Fourteenth Amendments (Counts I and II). (Id.) He also raises a civil conspiracy claim
related to the aforementioned violations (Count III) and asserts a state law claim of intentional
infliction of emotional distress (Count IV). (Id.) This court has jurisdiction pursuant to 28
U.S.C. § 1331, 1343(a)(3), (4) and 42 U.S.C. § 1983.
II.
Factual Background
Kevin and his ex-wife, Holly, are the divorced parents of a minor child. (Combined
Statement of Material Facts (“C.S.F.”) (ECF No. 146) ¶ 6.) John and Delores DiCola are Holly’s
parents. (Id. ¶ 7.) Barilla, a Lawrence County attorney, is a high school classmate and friend of
DiCola. (Deposition of Norman Barilla (“Barilla Depo.”) (ECF No. 130-2) at 11). Defendant
Deborah Shaw (“Shaw”), another Lawrence County attorney, is a former legal partner and
employee of Barilla. (C.S.F. (ECF No. 93) ¶ 9.) Judge John Hodge (“Judge Hodge”) is a judge
on the Lawrence County Court of Common Pleas. (Id. ¶ 8.)
Since 2004, Kevin and Holly have been embroiled in a custody dispute concerning their
son, CJT. (Deposition of Holly Thomas (“Holly Depo.”) (ECF No. 130-6) at 35.) In broad
brush, Kevin alleges in the instant action that DiCola and Barilla supported Judge Hodge in his
2005 judicial election campaign in exchange for Judge Hodge’s agreement to administer CJT’s
custody proceedings in a manner that favored Holly. To this end, Kevin’s second amended
complaint portrays DiCola as a heavyweight in local politics and a longtime friend and political
associate of Judge Hodge. (ECF No. 35 ¶¶ 14, 17.) Kevin asserts that Judge Hodge’s reputation
had previously been marred by scandal and that he would not have been elected to the bench
without the direct support of DiCola. (Id. ¶¶ 26-27.) In return for that support, Kevin contends
that Judge Hodge explicitly agreed to help DiCola’s daughter, Holly, gain the upper hand in
CJT’s custody proceedings.
(Id. ¶¶ 31-32).
Kevin suggests that Barilla, because of his
friendship with both Judge Hodge and DiCola, participated in and supported this scheme. (Id. ¶
35.) Kevin alleges that the defendants met on many occasions to discuss how best to aid Holly
in the custody case. (Id. ¶¶ 35, 41.)
2
Because the facts underlying these accusations are heavily disputed, the court will
examine them in depth.
A. The Relationship Between the Parties
From 1988 through 2010, DiCola served as an elected township supervisor in
Neshannock Township, located in Lawrence County. (Deposition of John DiCola (“DiCola
Depo.”) (ECF No. 130-5) at 17-18.) From 1982 until 1996, and again in 2004, Judge Hodge
served as the Lawrence County solicitor.
(Deposition of John Hodge (“Hodge Depo.”) (ECF
No. 130-3) at 13-14.) Prior to his election to the bench, Judge Hodge and Barilla had legal
offices next door to one another on Wilmington Road in Neshannock Township. (C.S.F. (ECF
No. 93) ¶ 37.) Over the course of the years that they worked in adjoining buildings, Barilla and
Judge Hodge would occasionally meet in Barilla’s office to socialize. (Id. ¶ 36.)
According to Kevin, DiCola and Judge Hodge worked together on a handful of occasions
while both held public office in Lawrence County. (Deposition of Kevin Thomas (“Kevin
Depo.”) (ECF No. 130-1) at 15-20.) For example, Kevin testified that DiCola had consulted
with Judge Hodge concerning how to create a permanent full-time township position for himself.
(Id. at 16-17.) He testified that Judge Hodge later assisted DiCola with a property matter (id. at
19-20), and once gave Holly advice on an employment issue that arose while she was working
for UPMC in 1999. (Id. at 20.) With respect to each of these interactions, Kevin stated that he
had learned about them directly from DiCola. (Id. at 15, 17-18, 20.)
Kevin testified that a local attorney, Luanne Parkenon (“Parkenon”), approached him at a
social gathering in 2011 and informed him that Barilla and Judge Hodge shared a “long-time
relationship.” (Kevin Depo. (ECF No. 130-1) at 21.) Prior to becoming an attorney, Parkenon
3
had briefly worked as a legal assistant for Barilla in 1995 and 1996. (Barilla Depo. (ECF No.
130-2) at 42-43; Affidavit of Luanne Parkonen (“Parkenon Aff.”) (ECF No. 101-9) ¶ 2.)
According to Kevin, Parkenon informed him that Barilla and Judge Hodge used to “regularly”
visit in Barilla’s law offices and that Barilla had supported Judge Hodge in his judicial election
campaign. (Kevin Depo. (ECF No. 130-1) at 22-23, 28.) Kevin testified that Parkonen also
implied that John DiCola had “probably” supported Judge Hodge during his election campaign.
(Id. at 32.) Kevin recalls Parkenon stating that DiCola also occasionally met with Judge Hodge
and Barilla, although she could not provide any specific dates, times, or details with respect to
those meetings. (Id. at 27-28.)1
For their part, DiCola and Judge Hodge each denied that any of the interactions alleged
by Kevin ever took place. (DiCola Depo. (ECF No. 130-5) at 28-29, 31, 44; Hodge Depo. (ECF
No. 130-3) at 25-26, 44-45.) During his deposition, DiCola testified that he had never met Judge
Hodge prior to the custody proceedings between Keven and Holly. (DiCola Depo. (ECF No.
130-5) at 28-29, 31, 44.) Judge Hodge admitted that he had heard of DiCola because of DiCola’s
position as a Neshannock Township supervisor, but testified that he has never interacted with
him or met him outside of court. (Hodge Depo. (ECF No. 130-3) at 18-19, 25-26, 44-45.) Both
DiCola and Judge Hodge denied ever consulting on any legal matters during their public
employment or taking any steps to manipulate the assignment of CJT’s custody proceeding.
(DiCola Depo. (ECF No. 130-5) at 44-46; Hodge Depo. (ECF No. 130-3) at 46.)
Barilla acknowledged his long relationship with DiCola and admitted that he knew Judge
Hodge from their time working in adjacent buildings in Neshannock. (Barilla Depo. (ECF No.
1
Kevin’s testimony about what Parkenon told him is not admissible because it is hearsay. See, e.g., Smith v. City of
Allentown, 589 F.3d 684, 693 (3d Cir. 2009) (“Hearsay statements that would be inadmissible at trial may not be
considered for purposes of summary judgment.”).
4
130-2) at 8-13.) However, he denied ever taking any action to use his friendship with DiCola or
his acquaintance with Judge Hodge to influence CJT’s custody proceedings. (Id. at 8-9, 65.)
In an affidavit filed on behalf of the defendants, Parkenon recalled mentioning to Kevin
that Judge Hodge and Barilla used to visit occasionally in Barilla’s office, but did not remember
stating that either of them had any connection to DiCola. (Parkenon Aff. (ECF No. 101-9) ¶¶ 35.) She explained that she had not worked for Barilla for over ten years prior to her conversation
with Kevin and, consequently, would have no personal knowledge about whether DiCola, Barilla
and Judge Hodge maintained a friendship or ever met with one another. (Id. ¶¶ 4-5.)
B. The Custody Proceedings
In 2004, Kevin and Holly commenced custody and child support hearings in the
Allegheny County Court of Common Pleas. (Holly Depo. (ECF No. 130-6) at 35.) In June
2004, Holly moved to Neshannock Township, in Lawrence County. (Id. at 35.) On August 21,
2006, Holly’s attorney petitioned to have the proceeding transferred to Lawrence County where
it was assigned to Judge Hodge. (C.S.F. (ECF No. 93) ¶ 4.) On September 25, 2009, Judge
Hodge appointed Shaw, Barilla’s legal partner, to serve as CJT’s Guardian Ad Litem (“GAL”).
(Id. ¶ 10.)
In June 2011, John and Delores DiCola began to investigate the possibility of purchasing
a local bakery, possibly in conjunction with Holly.
(Id. ¶ 25).
They requested Barilla’s
assistance in negotiating the potential purchase. (Id. ¶ 25.) Shortly thereafter, Kevin, through
counsel, expressed his discomfort with Shaw serving as GAL given that her legal partner,
Barilla, might represent Holly and her parents in the bakery acquisition. (Id. ¶¶ 25-27.) Shaw
5
responded by filing a voluntary petition to withdraw as GAL. (Id. ¶ 28.) Judge Hodge signed an
order granting that petition on July 1, 2011. (Id. ¶ 29.)
Throughout the custody proceedings, Kevin became increasingly uncomfortable with
what he perceived as “disastrous behavior” on the part of Judge Hodge in the administration of
the case. (Kevin Depo. (ECF No. 130-1) at 43.) In particular, Kevin criticized Judge Hodge’s
decision to appoint Shaw as GAL given her connection to the DiCola’s by way of Barilla. (Id. at
50.) Kevin also contends that Holly taunted him at one point by asking him, “How do you like
my new Judge?” (Id. at 43.) Eventually, Kevin became convinced that the defendants had
arranged to have CJT’s custody proceedings transferred from Allegheny County to Lawrence
County so that they could be placed under Judge Hodge’s control. Based upon this belief, Kevin
initiated the instant lawsuit against Judge Hodge, Shaw, Barilla, Holly, and John and Delores
DiCola. (ECF No. 1.) The following day, Judge Hodge recused himself from the underlying
custody proceedings. (C.S.F. (ECF No. 93) ¶ 8.)
III.
Procedural History
Kevin commenced the instant lawsuit on October 24, 2011. (ECF No. 1.) On December
6, 2011, Judge Hodge moved to dismiss on the grounds of Eleventh Amendment and judicial
immunity. (ECF. No. 5.) The remaining defendants filed a motion to dismiss for failure to state
a claim on December 12, 2011.
On May 29, 2012, the court held a hearing and dismissed Judge Hodge from this action
with prejudice on the basis of judicial immunity. (ECF No. 78 at 2.) The court dismissed
Kevin’s claims against the remaining defendants without prejudice and instructed Kevin he may
file an amended complaint. (Id.)
6
Kevin’s first amended complaint was filed on June 18, 2012. (ECF. No. 27.) A second
amended complaint was filed on July 30, 2012.
(ECF. No. 35.)
Each of the remaining
defendants again moved to dismiss. (ECF. No. 36.) On November 13, 2012, the court granted
Shaw’s motion to dismiss, but denied the motion to dismiss with respect to the other remaining
defendants. (ECF. No. 76.)
Following a period of discovery, Barilla filed a motion for summary judgment on January
13, 2014. (ECF. No. 98.) On January 20, 2014, John, Holly, and Delores each filed separate but
identical motions for summary judgment. (ECF. Nos. 109, 114, 120.) Kevin responded to each
motion on March 24, 2014. (ECF. Nos. 131, 135.) The defendants filed individual reply briefs
on April 2, 2014. (ECF. Nos. 136-139.) Each motion is now fully briefed and ripe for review.
IV.
Standard of Review
Summary judgment may only be granted where the moving party shows that there is no
genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED.
R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary
judgment against a party who fails to make a showing sufficient to establish an element essential
to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the court must interpret the facts
in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or
her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially
on the moving party to demonstrate that the evidence contained in the record does not create a
genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d
Cir. 2004). A dispute is “genuine” if the evidence is such that a reasonable trier of fact could
7
render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d
Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party
may meet its burden by showing that the admissible evidence contained in the record would be
insufficient to carry the nonmoving party’s burden of proof. Celotex Corp., 477 U.S. at 322.
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must
go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions,
admissions or answers to interrogatories showing that there is a genuine issue of material fact for
trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion for summary
judgment by simply reasserting unsupported factual allegations contained in his or her pleadings.
Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
IV.
Discussion
To prevail on a claim under 42 U.S.C. § 1983 a plaintiff must demonstrate: (1) that he
was deprived of a right, privilege or immunity secured by the Constitution or the laws of the
United States, and (2) that the conduct complained of was committed by a person acting under
color of state law. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1264 (3d Cir.
1994). An individual may be considered a state actor when: “(1) he is a state official, (2) ‘he has
acted together with or has obtained significant aid from state officials,’ or (3) his conduct is, by
its nature, chargeable to the state.” Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d
Cir. 1999) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)).
A private individual can be liable under § 1983, despite not being a state actor, if he or
she engages in a conspiracy with a state actor to deprive another person of his or her
constitutional rights. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (“Private persons, jointly
8
engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes
of § 1983 actions.”). This is true even where the only state actor involved in the conspiracy is
entitled to immunity. Id. at 28. Thus, “[p]rivate parties who corruptly conspire with a judge . . .
are . . . acting under color of state law within the meaning of § 1983 . . . .” Id. at 29.
In the instant case, there is no dispute that the remaining defendants are private
individuals rather than state actors. Consequently, in order for Kevin to prevail on any of his
federal claims, he must establish that one or more of the defendants conspired with Judge Hodge
to deprive him of a federally protected right.
The existence of a civil conspiracy under § 1983 is established if the plaintiff
demonstrates that “two or more persons [combined] to do an unlawful or criminal act or to do a
lawful act by unlawful means or for an unlawful purpose.” Ammlung v. City of Chester, 494
F.2d 811, 814 (3d Cir. 1974).
Specifically, the plaintiff must establish a “combination,
agreement, or understanding among all or between any of the defendants [or coconspirators] to
plot, plan, or conspire to carry out the alleged chain of events.” Hammond v. Creative FinPlanning Org., Inc., 800 F. Supp. 1244, 1249 (E.D. Pa. 1992); see Rose v. Bartle, 871 F.2d 331,
366 (3d Cir. 1989) (allegations of conspiracy must address “the period of the conspiracy, the
object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that
purpose”). The “sine qua non” of a conspiracy is an agreement to deprive the plaintiff of a
federally protected right. Spencer v. Steinman, 968 F. Supp. 1011, 1020 (E.D. Pa. 1997); see
Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008) (“To constitute a conspiracy, there
must be a meeting of the minds.”); Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir. 1999) (requiring
“actions taken in concert by the defendants with the specific intent to violate” a protected right).
9
Apropos to the instant case, the United States Supreme Court and the Court of Appeals
for the Third Circuit have each explicitly addressed the “requirements for cases in which a
plaintiff alleges conspiracy with a judge.” Mikhail v. Kahn, 991 F.Supp.2d 596, 645 (E.D. Pa.
2014). In Dennis, the Supreme Court observed that “merely 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.” Dennis, 449 U.S. at 28. The plaintiff must establish the existence of “an agreement
between the state court judges and [d]efendants to rule in favor of [defendants].” Great W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (citing Dennis,
449 U.S. at 28).
Bare allegations that a conspiracy must have existed simply because of
“concerted action of a kind not likely to occur in the absence of an agreement” are insufficient.
Great W. Mining, 615 F.3d at 178. “ʻA conspiracy cannot be found from allegations of judicial
error, ex parte communications (the manner of occurrence and substance of which are not
alleged) or adverse rulings absent specific facts demonstrating an agreement to commit the
alleged improper actions.ʼ” Capogrosso v. Supreme Court of N.J., 588 F.3d 180, 185 (3d Cir.
2009) (quoting Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)). A plaintiff cannot
merely rely on “his own suspicion and speculation” to meet this evidentiary burden. Young v.
Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).
Applying these principles to the instant case, the court concludes that summary judgment
is appropriate because Kevin failed to produce any evidence that the defendants reached an
agreement with Judge Hodge to deprive him of a fair custody proceeding.2 In attempting to
create a triable issue of fact on this issue, Kevin relies entirely on his own deposition testimony,
2
As an aside, the court notes that there are clearly disputed issues of fact concerning the details of the general
relationship between the alleged co-conspirators. Although Kevin alleges that Judge Hodge, DiCola and Barilla
shared broad political and personal connections, the defendants denied those allegations. This dispute, if deemed
material, would need to be resolved by a jury. However, as discussed below, this dispute is not material because
Kevin did not produce any evidence suggesting the existence of an agreement or a meeting of the minds.
10
the statements allegedly made by Parkenon, and the comment by Holly concerning “her new
Judge.” A scrutinizing examination of Kevin’s testimony, however, reveals nothing more than
vague and unsupported allegations. For example, when asked to describe the general basis for
his belief that a conspiracy existed, Kevin primarily relied on his own observations concerning
the outcome of the proceedings:
Q:
What information do you have that Mr. DiCola promised to
help Judge Hodge in his election efforts if Judge Hodge
promised to help Holly in her case?
A:
Twofold. We had afterwards statements made by Holly
asking how I liked her new judge, and we have the disastrous
behavior of the judge in the case.
Q:
The what behavior?
A:
Disastrous behavior.
Q:
Disastrous?
A:
Yes, sir.
Q:
What do you mean by that?
A:
As we moved through the case, from outset on down it
became apparent the judge was disinterested in the case itself
but, rather, in serving the interests of his long-time friend,
John DiCola, and his long-time friend [sic] daughter, Holly.
Q:
And that’s based on your observations?
A:
Yes, sir.
(Kevin Depo. (ECF No. 130-1) at 43.) When pressed to elaborate, Kevin stated only that it was
common for DiCola to “talk about his power in the community and his ability to get things
done.” (Id. at 44-46.) He, however, could not supply any factual detail concerning what factors
made it “apparent” that Judge Hodge’s “disastrous” rulings stemmed from loyalty to DiCola. As
noted above, a plaintiff cannot establish that a defendant conspired with a judge simply through
11
“allegations of judicial error” or by opining that the outcome was “not likely to occur in the
absence of an agreement.” Capogrosso, 588 F.3d at 185; see Great W. Mining, 615 F.3d at 178.
Similarly, although Kevin’s conspiracy claim derives in large measure from his belief
that DiCola assisted Judge Hodge’s bid for election, Kevin could not supply any support for this
proposition, stating only that it was “standard routine” for DiCola to exchange “favors for
favors” with political allies.3 (Kevin Depo. (ECF No. 130-1) at 44-46.) Kevin cited to his
conversation with Parkenon, who allegedly indicated that DiCola had “probably” supported
Judge Hodge. (Id. at 32.) Kevin, however, conceded that Parkenon’s statements were based on
“common knowledge throughout the community” rather than personal knowledge, as required by
Rule 56. (Id. at 32.) See Fed. R. Civ. Pro. 56(c)(4) (evidence used to “support or oppose” a
summary judgment motion must be based on “personal knowledge”). Moreover, the statements
attributed to Parkenon are also hearsay and cannot be relied upon to create a triable issue of
material fact. Smith, 589 F.3d at 693; see White v. Brown, 408 F. App’x 595, 599 (3d Cir. 2010)
(affirming the district court’s grant of summary judgment in favor of defendants on a § 1983
conspiracy claim where the only evidence of an agreement to deprive the plaintiff of a
constitutional right was in the form of inadmissible hearsay).
Kevin admitted that he had no personal knowledge of any out-of-court meetings or
conversations between any of the defendants and Judge Hodge in furtherance of the alleged
conspiracy:
Q:
Now, you write in here in paragraph 35 that, quote, “They met
on numerous occasions to discuss how to further the
3
Curiously, Kevin testified at one point that DiCola’s opinion of Judge Hodge had “soured acutely and fairly
dramatically” at some point prior to Judge Hodge’s election campaign due to accusations of “shady deals” and
“alcoholism.” (Kevin Depo. (ECF No. 130-1) at 35-36.) When asked to explain why DiCola would support a
person for judge of whom he held such a low opinion, Kevin offered only that “[DiCola’s] opinion of people tends
to blow with the wind pretty quickly.” (Id.)
12
agreement to aid Defendant Holly Thomas with Judge
Hodge’s assistance.” What meetings are you aware of?
A:
Individual meetings and dates --
Q:
Yes.
A:
-- I don’t have.
Q:
What is your basis for making that allegation?
A:
A simple coordination of the case.
Q:
A simple what?
A:
A simple coordination of this case to move forward.
*
*
*
*
*
*
*
Q:
Turn to paragraph 41, please. Again, you speak of periodic
meetings with the DiColas, Holly, and input from Judge
Hodge. Do you have any information as to where or when
these meetings took place?
A:
I do not.
Q:
Again, you simple believe that they had to have occurred
because of the coordination of the case.
A:
That would be accurate.
(Id. at 49-52.) When asked to explain what he meant by “coordination,” Kevin again pointed to
the outcome of the proceedings, particularly Judge Hodge’s sua sponte appointment of Shaw as
GAL and Shaw’s performance in that position. (Id. at 50.)
As noted above, when a civil rights conspiracy is alleged, “ʻthere must be some specific
facts . . . which tend to show a meeting of the minds and some type of concerted activity. A
plaintiff cannot rely on subjective suspicions and unsupported speculation.ʼ” Savage v. Judge,
644 F.Supp.2d 550, 561 (E.D. Pa. 2009) (quoting Wilkins v. Bittenbender, No. 04-2397, 2006
WL 860140, at * 6 (M.D. Pa. Mar. 31, 2006)). Contrary to this standard, Kevin’s testimony
13
consists primarily of vague and conclusory allegations that a conspiracy must have existed
simply because of how poorly he believes that Judge Hodge handled his case. Kevin failed to
“go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’” Celotex Corp., 477 U.S. at 324 (quoting FED. R. CIV. P. 56(e)).
This failure is fatal to Kevin’s federal claims. The § 1983 claims asserted in Counts I-III
each depend upon the existence of a conspiracy between the defendants and the lone state actor
involved in this action, Judge Hodge. None can survive in this case due to the absence of any
evidence suggesting the existence of an agreement with Judge Hodge to manipulate the outcome
of CJT’s custody proceedings.
Because summary judgment must be granted in favor of the defendants with respect to
the federal claims, the court need not address the state law claim for intentional infliction of
emotional distress. A district court may decline to exercise supplemental jurisdiction where the
federal claims are no longer viable. 28 U.S.C. § 1367(c)(3); Trinity Indus., Inc. v. Chicago
Bridge & Iron Co., 735 F.3d 131, 135 (3d Cir. 2013). The decision with respect to whether to
exercise supplemental jurisdiction under these circumstances is within the district court’s
discretion, and factors such as when the federal claims are removed from the case, and under
what circumstances, are relevant. 28 U.S.C. § 1367(c)(3), cmt. (1988) (Discretionary Rejection
of Supplemental Jurisdiction); Growth Horizons, Inc. v. Delaware Cnty., Pa., 983 F.2d 1277,
1284-85 (3d Cir. 1993). The Court of Appeals for the Third Circuit has held that, where all
federal claims are dismissed before trial, “the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the parties
14
provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000) (citations omitted).
V.
Conclusion
Because plaintiff failed to produce evidence demonstrating that a genuine issue of
material fact exists concerning the existence of a conspiracy between the defendants and Judge
Hodge, the defendants’ motions for summary judgment will be granted and judgment will be
entered in favor of the defendants with respect to the federal claims and the state law claim will
be dismissed without prejudice.4 (ECF Nos. 98, 109, 114, 120.) An appropriate order follows.
By the court:
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
Dated: September 22, 2014
4
John and Delores Dicola and Holly each filed motions for sanctions pursuant to Rule 11 of the Federal Rules of
Civil Procedure. (ECF Nos. 140, 142, 144.) Rule 11 sanctions are “appropriate only when the filing of the
complaint constitutes abusive litigation or misuse of the court’s process.” Mary Ann Pensiero, Inc. v. Lingle, 847
F.2d 90, 95 (3d Cir. 1988). “If there is an arguable basis, no matter how tenuous, Rule 11 may not be invoked even
when a attorney is unable to produce adequate evidence after discovery to withstand a motion for summary
judgment.” Id. (internal citation omitted). In the instant case, although plaintiff’s claims did not ultimately prevail,
they were not frivolous or abusive. As such, there is no basis for an award of sanctions pursuant to Rule 11. The
Rule 11 motions will be denied.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?