DOHENY v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION,BUREAU OF DRIVE RLICENSING et al

Filing 24

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum & Order filed herewith, Defendants' Motion to Dismiss (Doc. 13 ) is GRANTED, and Plaintiff's Motion for Preliminary Injunction (Doc. 19 ) is DENIED. Plaintiff's Amended Complaint is hereby DISMISSED with prejudice. A judgment order pursuant to Federal Rule of Civil Procedure 58 will follow. Signed by Judge Cathy Bissoon on 4/6/2017. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PATRICK J. DOHENY, JR.,

)
)
Plaintiff,
)
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v.
)
)
COMMONWEALTH OF
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PENNSYLVANIA, DEPARTMENT OF
)
TRANSPORTATION,
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BUREAU OF DRIVER LICENSING, et al. )
)
Defendants.
)

Civil Action No. 16-1744
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I.

MEMORANDUM

Pending before the Court is Plaintiff Patrick J. Doheny, Jr.’s (“Plaintiff”)’s Motion for
Preliminary Injunction (Doc. 19) and Defendants’ Motion to Dismiss for Failure to State a Claim
(Doc. 13). For the reasons that follow, Plaintiff’s Motion for Preliminary Injunction (Doc. 19)
will be DENIED, and Defendants’ Motion to Dismiss for Failure to State a Claim (Doc. 13) will
be GRANTED.
A. BACKGROUND
This case stems from Plaintiff’s unsuccessful statutory appeal of a one-year suspension of
his vehicle operating privilege. On January 23, 2013, Plaintiff was convicted of one count of
aggravated assault by vehicle while driving under the influence of alcohol pursuant to 75 Pa.
C.S.A. § 3735.1 (AA-DUI) and one count of driving under the influence (high rate of alcohol)
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pursuant to 75 Pa. C.S.A. § 3802(b) (DUI). (Amended Complaint (Doc. 12) ¶ 48). On July 3,
2013, Pennsylvania’s Department of Transportation, Bureau of Driver Licensing (“PENNDOT”)
issued two separate notices to Plaintiff: (1) one notice advised of his license suspension for one
year “effective 08/07/13” based on his AA-DUI conviction (Doc. 12-1); and (2) the second
notice advised of his license suspension for one year “effective 08/07/14” based on his DUI
conviction (Doc. 12-2). (Doc. 12 ¶¶ 51-54). The signature of then-Director Janet L. Dolan
(“Dolan”) appeared on both notices. (Id.). Both notices stated that Plaintiff had a right to appeal
within 30 days of the mail date, July 3, 2013 (by August 2, 2013). (Doc. 12 ¶ 69).
Plaintiff contends the notices were drafted so as to make him believe PENNDOT was
only imposing a one-year merged suspension; thus, he did not file an appeal by August 2, 2013.
(Doc. 12 ¶¶ 68-71). Plaintiff claims he had no idea he was subject to two separate one-year
suspensions until he received the August 20, 2013 “restoration requirements letter” from
PENNDOT which advised he was eligible to have his operator’s privilege restored as of 8/7/15.
(Doc. 12 ¶¶ 73-77). Nearly 30 days later, on September 17, 2013, Plaintiff filed a “Petition to
File Appeal Nunc Pro Tunc” with the Court of Common Pleas of Allegheny County. (Doc. 12
¶¶ 85-86). On September 26, 2013, the Court of Common Pleas held a hearing on his Petition,
wherein Defendant Kuhar represented PENNDOT. According to Plaintiff’s observations of the
tone used by the Judge and counsel, Kuhar effectively consented to his filing an untimely, nunc
pro tunc Petition. (Doc. 12 ¶¶ 87-115).
The Amended Complaint details the subsequent de novo hearing process, including the
fact that Kuhar requested several continuances (to which Plaintiff consented) pending a decision
by the Pennsylvania Supreme Court in a similar case, Bell. (Doc. 12 ¶¶ 140-148). The
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Pennsylvania Supreme Court ultimately issued its Opinion in Bell on July 21, 2014, finding that
the criminal doctrine of merger was not applicable in the civil arena of operating privilege
suspensions. Bell v. Com., Dept. of Trans. Bureau of Driver Licensing, 96 A.3d 1005, 1019-20
(Pa. 2014). At Plaintiff’s de novo hearing on July 24, 2014, Court of Common Pleas Judge
Gallo, following Bell, held that Plaintiff’s operating privilege suspensions for AA—DUI and
DUI did not merge. (Doc. 12 ¶ 226).
Thereafter, Plaintiff appealed to the Commonwealth Court which, on December 23, 2015,
held that the trial court erred in allowing Plaintiff’s late, nunc pro tunc, appeal in the first place,
and dismissed his appeal. (Doc. 12-5, p. 9). According to the Commonwealth Court, a
“misunderstanding rooted in a licensee’s failure to read a suspension notice carefully is not a
basis for allowing an appeal nunc pro tunc and the record does not contain any evidence showing
either extraordinary or non-negligent circumstances.” (Id.). Subsequently, Plaintiff filed a
Petition for Allowance of Appeal to the Pennsylvania Supreme Court, which was denied by per
curiam Order on July 6, 2016. (Doc. 12 ¶¶ 306, 309).
Following the Pennsylvania Supreme Court’s decision, on or about November 1, 2016,
Plaintiff filed a Complaint against Defendants in the Court of Common Pleas of Allegheny
County. Defendants thereafter timely removed the action to federal court. (Doc. 1). On
December 23, 2016, Plaintiff filed the currently operative Amended Complaint. (Doc. 12).
Plaintiff’s Amended Complaint seeks declaratory, injunctive and monetary relief relating to the
“double-suspension” of Plaintiff’s driver’s license, and in particular, the second of the two oneyear Suspension Notices issued by PENNDOT on July 3, 2013. (See generally Doc. 12). In
Count I, Plaintiff seeks a declaration that his DUI Suspension is null and void, ab initio, as a
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violation of state law. (Doc. 12 ¶¶ 312-327). In Count II, he seeks a declaration that Section
1550(a) of the Vehicle Code (which gives individuals whose licenses have been suspended a
right to appeal pursuant to the Judicial Code) and Section 5571(b) of the Judicial Code (which
requires the appeal to be commenced within 30 days) are “unconstitutional on their face and as
applied.” (Doc. 12 ¶¶ 329-350). In particular, Plaintiff disputes the Commonwealth Court’s
interpretation of those statutory provisions as jurisdictional and accuses defendants of
“exploiting” that interpretation. (See Doc. 12 ¶¶ 332, 334, 341, 345, 346-348). In Count III,
Plaintiff seeks prospective injunctive relief against PENNDOT and Defendant Templeton under
42 U.S.C. §1983 to cure the alleged continuing violation of his property right to operate a motor
vehicle, citing to the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
(Doc. 12 ¶¶ 352-367). Count IV is a claim for damages under §1983 against six of the individual
defendants (former Director Dolan and five attorneys) for alleged violations of due process and
equal protection. (Doc. 12 ¶¶ 369-391). Finally, Count V is a conspiracy claim under §1985(3)
against the same individuals. (Doc. 12 ¶¶ 393-404).
On January 20, 2017, Defendants filed a Motion to Dismiss the Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 13). On February 28, 2017,
Plaintiff filed a Motion for Preliminary Injunction. (Doc. 19). On March 1, 2017, the Court
issued a Show Cause Order to the Defendants as to why this case should not be dismissed for
lack of jurisdiction under the Rooker-Feldman doctrine. On March 8, 2017, Plaintiff filed a
response to the Show Cause Order, arguing that the Rooker-Feldman doctrine was inapplicable
because Plaintiff’s claims are “independent” of the previous state court determinations. On
March 15, 2017, Defendants filed their response, stating that “plaintiff is attempting to re-litigate
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the validity of his license suspension after he was unsuccessful in the state courts” and thus they
do not object to the dismissal of this case based on the Rooker-Feldman doctrine. After
consideration of the pleadings, the Court finds that the Rooker-Feldman doctrine does not bar
this Court’s consideration of the Amended Complaint. However, as discussed below, the Court
will dismiss Count I of the Amended Complaint for lack of subject matter jurisdiction pursuant
to the Eleventh Amendment. The Court will also dismiss Plaintiff’s remaining claims (Counts II,
III, IV, and V) on the merits. Finally, for the reasons stated below, the Court will deny
Plaintiff’s Motion for a Preliminary Injunction (Doc. 19).
B. MOTION TO DISMISS
a. Dismissal Based on Jurisdictional Issues
Although Defendants did not move to dismiss this case on jurisdictional grounds, this
Court is required to address questions of subject matter jurisdiction “sua sponte,” i.e., of its own
accord. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir. 2003). In reviewing the
Amended Complaint, the Court has identified two jurisdictional bars that potentially apply in this
case—the Rooker-Feldman doctrine, 1 and Eleventh Amendment immunity. The Court will
discuss each jurisdictional issue in turn.

1

In their briefing, Defendants argued that “[h]ad plaintiff originally filed this case in Federal
Court, Rooker-Feldman abstention would apply.” (Doc. 14 at 10, n. 6). Based on Defendants’
argument and the Court’s initial review of the Amended Complaint, the Court ordered
Defendants to show “good cause why this case should not be dismissed for want of subject
matter jurisdiction and remanded to state court pursuant to the Rooker-Feldman doctrine.” (Doc.
21). However, as discussed below, following further briefing and analysis of the case law, the
Court finds that the Rooker-Feldman doctrine does not bar its consideration of Plaintiff’s claims.
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1. Rooker-Feldman Doctrine
“Under the Rooker-Feldman doctrine, a district court is precluded from entertaining an
action, that is, the federal court lacks subject matter jurisdiction, if the relief requested effectively
would reverse a state court decision or void its ruling.” Taliaferro v. Darby Twp. Zoning Bd.,
458 F.3d 181, 192 (3d Cir. 2006). The United States Supreme Court explains that the RookerFeldman doctrine deprives the lower federal courts of jurisdiction only in “cases brought by
state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Rooker-Feldman is not implicated “simply because a party attempts to litigate in federal court a
matter previously litigated in state court.” Id. at 293. If the matter was previously litigated, as
long as the “federal plaintiff ‘present[s] some independent claim, albeit one that denies a legal
conclusion that a state court has reached in a case to which he was a party . . . , then there is
jurisdiction and state law determines whether the defendant prevails under principles of
preclusion.’” Id.
Clarifying this doctrine, the Court of Appeals for the Third Circuit has held that a federal
court lacks jurisdiction only if (1) the federal plaintiff lost in state court; (2) the plaintiff
complains of injuries caused by the state-court judgment; (3) the judgment was rendered before
the federal suit was filed; and (4) the plaintiff has invited the district court to review and reject
the state judgment. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166
(3d Cir. 2010). The Third Circuit has explained that “[t]he second and fourth requirements are
the key to determining whether a federal suit presents an independent, non-barred claim.” Great
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W. Mining, 615 F.3d at 166. The second requirement is best understood as an “inquiry into the
source of the plaintiff’s injury.” Id. Specifically, Rooker-Feldman does not bar a federal
plaintiff from bringing claims that complain of “injur[ies] caused by the defendant’s actions and
not by the state-court judgment.” Id. at 167 (further citations omitted). “The critical task is thus
to identify those federal suits that profess to complain of injury by a third party, but actually
complain of injury “produced by a state-court judgment and not simply ratified, acquiesced in, or
left unpunished by it.” Id. “A useful guidepost is the timing of the injury, that is, whether the
injury complained of in federal court existed prior to the state-court proceedings and thus could
not have been ‘caused by’ those proceedings.” Id. The fourth requirement, in turn, “targets []
whether the plaintiff’s claims will require appellate review of state-court decisions by the district
court.” Id. at 169. For instance, a lawsuit seeking “[a] declaration that [a] federal statute was
unconstitutional as applied” does not invite a district court’s review and rejection of a state court
judgment applying that statute. See id. at 168 (citing Adkins v. Rumsfeld, 464 F.3d 456, 460
(4th Cir. 2006)).
Undoubtedly, Plaintiff’s Amended Complaint meets the first and third requirements of
the Rooker-Feldman doctrine as Plaintiff is a “state-court loser,” and the Commonwealth Court
issued its judgment before this action was filed. However, Plaintiff’s claims are not barred by
the Rooker-Feldman doctrine as his alleged injuries were caused not by the state court’s decision
but rather by Defendants’ actions. Specifically, Counts I and III of the Amended Complaint seek
declaratory and injunctive relief based on PENNDOT’s July 3, 2013 Suspension Notice and the
alleged continuing violation of Plaintiff’s property right to operate a motor vehicle. Thus, the
source of Plaintiff’s injury at Counts I and III is Defendants’ issuance of the July 3, 2013
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Suspension Notice, and not the state court judgment dismissing Plaintiff’s suit challenging the
validity of that notice. Likewise, Counts IV and V, which seek monetary damages against the
individual capacity Defendants pursuant to §1983 and §1985(3), seek redress for alleged
misconduct by these Defendants prior to and during the course of the underlying state court
proceeding that was, and is, independent of the Commonwealth Court’s December 23, 2015
decision. Notably, in Great Western, the Third Circuit explained that a § 1983 claim challenging
the process of the underlying state proceeding does not constitute a review of the judgment. 615
F.3d at 161. Finally, although Count II challenges the “‘jurisdictional’ interpretation of 75 Pa.
S.C.A.1550(a) and 42 Pa.S.C.A. 5571(b) by the Commonwealth Court of Pennsylvania,” (Doc.
12 ¶ 334)—an interpretation that resulted in the Commonwealth Court dismissing Plaintiff’s
appeal in this case—his request for a declaratory judgment is not barred by the Rooker-Feldman
doctrine, as he does not seek a direct reversal of the Commonwealth Court’s December 23, 2015
decision relying on those statutes. See id. at 168 (citing Adkins, 464 F.3d at 460). For these
reasons, the Rooker-Feldman doctrine does not bar the Court’s consideration of this case.
2. Eleventh Amendment Immunity
Although the Rooker-Feldman doctrine does not strip this Court of jurisdiction, the Court
finds that it lacks jurisdiction over Count I of the Amended Complaint for another reason – the
Eleventh Amendment. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir.
1996) (the Eleventh Amendment “is a jurisdictional bar which deprives federal courts of subject
matter jurisdiction”). The Eleventh Amendment proscribes actions in the federal courts against
states and their agencies. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania);
Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977) (state agencies). Among other
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things, the Eleventh Amendment bars all claims in federal court brought against state officials
alleging violations of state law. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89,
106 (1984). As the United States Supreme Court explained in Pennhurst, “it is difficult to think
of a greater intrusion on state sovereignty than when a federal court instructs state officials on
how to conform their conduct to state law. Such a result conflicts directly with the principles of
federalism that underlie the Eleventh Amendment.” Pennhurst, 465 U.S. at 106; see also Pa.
Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 325 (3d Cir. 2002) (“Simply put, the
Eleventh Amendment prohibits a federal court from considering a claim that a state official
violated state law in carrying out his or her official responsibilities.”); Alessi by Alessi v. Com.
of Pa., Dep’t of Pub. Welfare, 893 F.2d 1444, 1457 (3d Cir. 1990) (holding that the Pennhurst
doctrine applies equally to claims for injunctive and declaratory relief against state officials for
alleged violations of state law); Smolow v. Hafer, 353 F. Supp. 2d 561, 569 (E.D. Pa. 2005) (“In
Pennhurst, the Supreme Court held that, consistent with the Eleventh Amendment, a federal
court may not grant ‘relief against state officials on the basis of state law, whether prospective or
retroactive.’”).
As an agency of the Commonwealth, PENNDOT is entitled to the same Eleventh
Amendment immunity that the Commonwealth enjoys. Warner v. Comm. of Pa., 569 F. App’x
70, 72 (3d Cir. 2014) (affirming dismissal of civil rights claim asserted against PENNDOT on
Eleventh Amendment immunity grounds). As noted above, in Count I, Plaintiff seeks a
declaratory judgment against PENNDOT and Defendant Templeton, in her official capacity,
based on his argument that the July 3, 2013 Suspension Notice violated state law at the time it
was issued, and thus was null and void. (See Doc. 12 at ¶ 324 (“As of July 3, 2013, the date on
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which PENNDOT issued the Suspension Notices to Plaintiff (Exhibits “1” and “2”), both the
General Assembly’s amendments to Pennsylvania’s Vehicle Code in 2003 (Act. No. 24, Senate
Bill No. 8 (2003 Pa. Laws 24)) and the Commonwealth Court’s controlling decision in
Zimmerman v. Commonwealth, Dep’t of Transp., 759 A.2d 953 (Pa. Commw. 2000) required
that any driver’s license suspensions issued to licensees on the basis of AA-DUI and DUI
convictions arising out of the same motor vehicle accident merge into a single one-year
suspension.”)). Because Plaintiff seeks in Count I a declaration that the Defendant state agency
and state official violated state law when issuing the July 3, 2013 Notice, this Court lacks subject
matter jurisdiction over this claim. 2
b. Dismissal of Remaining Claims on the Merits (Rule 12(b)(6))
Defendants moved to dismiss all counts in the Amended Complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 13). “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
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When faced with a motion to dismiss, a
2

The Court further notes that Defendant Templeton enjoys Eleventh Amendment immunity from
any suit for money damages. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d
Cir. 2010) (“Individual state employees sued in their official capacity are also entitled to
Eleventh Amendment immunity because ‘official-capacity suits generally represent only another
way of pleading an action” against the state.’”) (citations omitted). However, as discussed below,
in Count III, Plaintiff is seeking prospective injunctive relief against Defendant Templeton for an
alleged violation of his federal rights. Accordingly, Plaintiff’s claim against Defendant
Templeton at Count III is not barred by the Eleventh Amendment. See Ex Parte Young, 209
U.S. 123 (1908); see also Christ the King Manor, Inc. v. Sec’y U.S. Dep't of Health & Human
Servs., 730 F.3d 291, 318 (3d Cir. 2013) (“The theory behind Young is that a state officer lacks
the authority to enforce an unconstitutional state enactment, and thus the officer is stripped of his
official or representative character and becomes subject to the consequences of his individual
conduct.”) (quotation marks and citation omitted).
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court “must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
1. Count II: Plaintiff’s Request for Declaratory Judgment
In Count II, Plaintiff seeks a declaratory judgment “that Section 1550(a) of the Vehicle
Code, 75 Pa. S.C.A. § 1550(a), and Section 5571(b) of the Judicial Code, 42 Pa. S.C.A. §
5571(b), are unconstitutional on their face and as applied.” (Doc. 12 ¶ 329). For the reasons
below, the Court will deny Plaintiff’s request and dismiss this claim.
Section 1550(a) of the Vehicle Code provides:
(a) General rule.--Any person who has been denied a driver’s license, whose
driver’s license has been canceled, whose commercial driver’s license designation
has been removed or whose operating privilege has been recalled, suspended,
revoked or disqualified by the department shall have the right to appeal to the
court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating
to judiciary and judicial procedure).
75 Pa. S.C.A. § 1550(a).
Pursuant to Sections 5571(b) of the Pennsylvania Judicial Code, a licensee has 30 days
from the mailing date of a notice of suspension to file an appeal with the trial court. 42 Pa.C.S.
§ 5571(b). Appeals filed beyond the 30–day appeal period are untimely and deprive the trial
court of subject matter jurisdiction over the appeals. See Hudson v. Dep’t of Transp., Bureau of
Driver Licensing, 830 A.2d 594, 598 (Pa. Cmwlth. 2003); Kovalesky v. Com., Dept. of Transp.,
Bureau of Driver Licensing, 850 A.2d 26, 29 (Pa. Cmwlth. 2004) (explaining that 30-day period
to appeal from notice of suspension or revocation of driver’s license is jurisdictional; failure to
bring an appeal within the statutorily prescribed period precludes common pleas court from
exercising subject matter jurisdiction).
Plaintiff claims that the jurisdictional bar imposed by Section 5571(b) is
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“unconstitutional” because it makes no provision for late filing “where a governmental agency,
such a PENNDOT, and/or PENNDOT’s Director, initially takes administrative action against a
citizen without any legal authority . . . to take such action” and thereby “condones PENNDOT’s
Directors and lawyers engaging, and even incentivizes PENNDOT’s Directors and lawyers to
engage, in material dishonesty and fraud through the issuance and defense of patently illegal but
deceptively-worded suspension notices.” (Doc. 12 at ¶¶ 334, 341). As an initial matter, the
Court finds this argument factually misleading. Based on the Court’s research, it appears that the
30-day filing deadline is not—as Plaintiff suggests—absolute. Rather, state courts may permit a
licensee to appeal nunc pro tunc where the licensee’s failure to timely appeal results from
extraordinary circumstances involving fraud or a breakdown in the administrative or judicial
process. Kulick v. Dep’t of Transp., Bureau of Driver Licensing, 666 A.2d 1148, 1150
(Pa.Cmwlth.1995). Thus, in cases where a plaintiff’s late filing is caused by “material
dishonesty and fraud” by PENNDOT, as Plaintiff contends occurs, he or she may rely on the
“extraordinary circumstances” standard to overcome the procedural bar.
In any case, the Court finds that Pennsylvania’s 30-day jurisdictional deadline for filing a
notice of appeal is not, either on its face or as applied, unconstitutional. Appellate deadlines
generally are jurisdictional in nature. Indeed, the Supreme Court has repeatedly emphasized that
the requirement of a timely notice of appeal is “mandatory and jurisdictional.” Browder v.
Director, Dep’t of Corrections, 434 U.S. 257, 264 (1978); Union Pac. R.R. Co. v. Bhd. of
Locomotive Eng’rs, 558 U.S. 67, 82 (2009) (stating that “we have reaffirmed the jurisdictional
character of the time limitation for filing a notice of appeal”). Furthermore, a 30-day deadline
for filing an appeal is standard, see Fed. R. App. P. 4(a)(1)(A), and courts uniformly hold that
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30-day filing deadlines are not unconstitutionally short. See, e.g., Kilgore v. Bowersox, 124 F.3d
985, 993 (8th Cir. 1997) (30-day filing deadline contained in state’s rule on postconviction
proceedings was not unconstitutionally short); Talamantes-Penalver v. I.N.S., 51 F.3d 133 (8th
Cir. 1995) (even a 10-day filing deadline for notice of appeal from immigration judge’s decision
did not violate alien’s due process rights). Indeed, Plaintiff’s proposition, taken to its logical
conclusion, would result in every statute or court rule codifying a 30-day filing deadline being
found unconstitutional and require that courts grant litigants an unlimited time to submit a notice
of appeal or other document. That is simply not what the Constitution requires. For these
reasons, this Court finds that Plaintiff’s claims in Count II are wholly without merit.
2. Counts III and IV: Plaintiff’s § 1983 Claims
a. PENNDOT is Not a “Person” Under § 1983
At Count III, Plaintiff attempts to bring claims against Defendant PENNDOT pursuant to
42 U.S.C. § 1983. However, PENNDOT is not a “person” subject to suit under 42 U.S.C. §
1983. See Hammonds v. Templeton, 2015 WL 106618, at *3 (W.D. Pa. Jan. 7, 2015), aff’d sub
nom (“Neither the Commonwealth nor PennDOT is a ‘person’ for purposes of § 1983, and
therefore neither is amendable to suit under the civil rights statute.”); Petsinger v. Pa. Dep’t of
Transp., 211 F. Supp. 2d 610, 613 (E.D. Pa. 2002); Fitzpatrick v. Pennsylvania Dep’t of Transp.,
40 F. Supp. 2d 631, 635 n.4 (E.D. Pa. 1999); see also O'Hara v. Ind. Univ. of Pa., 171 F.Supp.2d
490, 495 (W.D. Pa.2001) (“The Commonwealth of Pennsylvania has not waived its immunity in
§ 1983 civil rights cases and Congress did not abrogate state immunity in general in enacting
civil rights legislation, including § 1983.”). Accordingly, the Court will dismiss Plaintiff’s §
1983 claim against Defendant PENNDOT at Count III.
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b. PENNDOT’s Attorneys are Immune from Suit
In Count IV, Plaintiff sues five attorneys (Kuhar, Edwards, Smith, Bricknell and
Cressler) from PENNDOT’s Chief Counsel’s office, in connection with their legal representation
of PENNDOT in defending against Plaintiff’s appeal. Plaintiff’s § 1983 claims against these
Defendants also must be dismissed because they are entitled to absolute immunity with respect to
actions they allegedly took during the course of the state court proceedings. See Elliott v.
Dorian, 2007 WL 120031, at *2 (W.D. Pa. Jan. 10, 2007) (citing Buckley v. Fitzsimmons, 509
U.S. 259, 269 (1993)); see also Butz v. Economou, 438 U.S. 478, 512–14 (1978) (extending
absolute immunity to government attorneys participating in proceedings before administrative
tribunals). Absolute immunity attaches to all actions performed in a “quasi-judicial” role,
including “activity taken while in court, such as the presentation of evidence or legal argument,
as well as selected out of court behavior ‘intimately associated with the judicial phases’ of
litigation.” Safford v. Favata, 2007 WL 570205, at *2 (D. Del. Feb. 20, 2007) (citing Imbler v.
Pachtman, 424 U.S. 409 (1976)).
Here, Plaintiff claims that “Kuhar, through lies of omission, sabotaged Plaintiff’s
statutory appeal by advising Plaintiff prior to the hearing that Kuhar and PENNDOT would
consent to the granting of nunc pro tunc relief, and by conscientiously not opposing, during and
after the hearing, the granting of the Petition by the trial court,” and that “Edwards, Smith,
Cressler and Bricknell thereafter torpedoed and sank Plaintiff’s appeal by reversing position,
mid-case, and claiming that the lower court had ‘erred’ in granting Plaintiff nunc pro tunc relief.”
(Doc. 18 at 21-22). Based on these allegations, it is clear that Plaintiff is challenging the legal
arguments that were made (and not made) by PENNDOT’s attorneys regarding the timeliness of
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Plaintiff’s appeal during the course of the state court proceedings, which are protected by
absolute immunity. See Wilson v. Somerset Cty. Prosecutors Office, 2016 WL 1090811, at *8
(D.N.J. Mar. 21, 2016) (holding that prosecutor was “entitled to absolute immunity for the
arguments he made in his legal brief . . . because he was advocating for the state’s position
during the course of Plaintiff’s criminal proceedings”). For these reasons, Plaintiff’s claims
against the attorney Defendants will be dismissed.
c. Plaintiff Fails to Allege a Due Process Violation
Plaintiff’s “due process” claims against the remaining defendants (Defendant Templeton
at Count III and Defendant Dolan at Count IV) will also be dismissed. Although a person does
not have a constitutional right to a driver’s license, see Banks v. Bickley, 2005 WL 1138461, at
*2 (M.D. Pa. Apr. 27, 2005), “it is clear that once a [driver’s] license is bestowed, a person has a
real property interest in the license that cannot be taken away without due process.” Pascarella v.
Swift Transp. Co., Inc., 643 F.Supp.2d 639, 649 (D.N.J. July 14, 2009) (citing Mackey v.
Montrym, 443 U.S. 1, 11 (1979)); Muhammad v. Weis, 2009 WL 2525454 (E.D. Pa. Aug. 17,
2009) (“[T]he state must only afford a person due process when suspending or revoking his or
her driver's license.”). In order to state a claim for deprivation of procedural due process rights
under §1983, “a plaintiff must allege that (1) he was deprived of an individual interest that is
encompassed within the Fourteenth Amendment's protection of life, liberty, or property, and
(2) the procedures available to him did not provide due process of law.” Hammonds v. Director,
Pennsylvania Bureau of Driver Licensing, 618 Fed. Appx. 740, 742 (3d Cir. 2016) (citing Hill v.
Borough of Kutztown, 455 F.3d 225, 233–34 (3d Cir. 2006)).
Plaintiff has not, and cannot, plead facts sufficient to support a claim for violation of his
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due process rights. “In order to state a claim for failure to provide due process, a plaintiff must
have taken advantage of the processes that are available to him or her, unless those processes are
unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Here,
by his own admission, Plaintiff did not timely utilize the available process—a civil statutory
appeal pursuant to 75 Pa. C.S. § 1550. Pennsylvania courts repeatedly have held that 75 Pa. C.S.
§ 1550 satisfies the due process guarantees associated with a license suspension. Rutkowski v.
Dept. of Trans, 780 A.2d 860, 862 (Pa. Cmwlth. 2001) (citing Harrington v. Com., Dept. of
Trans., Bureau of Driver Licensing, 763 A.3d 386 (Pa. 2000)). According to the Commonwealth
Court, “[w]hen a person’s operating privilege is suspended, he is given due process; he is
afforded an appeal to the trial court, pursuant to Section 1550(a) of the Vehicle Code, 75 Pa.C.S.
§ 1550(a). This is all the process to which Licensees are entitled.” Smires v. O’Shell, 126 A.3d
383, 391 (Pa. Cmwlth. 2015).
Here, Plaintiff had available to him an appeals process that fully satisfied the
Constitution’s due process guarantees but he failed to take advantage of it in a timely manner.
Defendants cannot be faulted for his lack of diligence. See Pascarella, 643 F. Supp. 2d at 652–
53 (“Plaintiff cannot state a claim for deprivation of due process on the grounds that he was
deprived a pre-deprivation hearing, because he did not request a hearing through the
administrative procedure made available to him.”). Furthermore, as discussed above, the 30-day
jurisdictional bar for filing appeals pursuant to § 1550(a) did not, in itself, violate Plaintiff’s due
process rights. See Sanchez v. Lytle, 166 F.3d 348 (10th Cir. 1998) (explaining that “the
limitation period did not deprive Sanchez of his opportunity for federal review; rather Sanchez
himself failed to pursue his available remedies in a timely fashion”).
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For these reasons, Plaintiff cannot state a claim for violation of his due process rights.
d. Plaintiff Fails to Allege an Equal Protection Violation
Plaintiff also fails to allege a violation of the Equal Protection Clause. The Equal
Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV. In his
briefing, Plaintiff argues that Defendants, by issuing him two separate license suspensions for his
two DUI offenses, have violated the Equal Protection Clause by discriminating against a class of
“licensees, including Plaintiff, convicted of felony and misdemeanor grade DUI offenses arising
out of the same accident.” (Doc. 18 at 16). Notably, Plaintiff’s claim implicates neither a
suspect classification nor a fundamental right. 3 See Knight v. State of Ariz., 39 F.3d 1187 (9th
Cir. 1994) (holding that “DWI/DUI inmates are not a suspect class”); Doe v. Edgar, 721 F.2d
619, 622 (7th Cir. 1983) (“Nor do we find that twice-convicted DUI offenders constitute a
suspect class; that label has been reserved for groups ‘saddled with such disabilities, or subjected
to such a history of purposeful unequal treatment, or relegated to such a position of political
powerlessness as to command extraordinary protection from the majoritarian political process.’”)
(citations omitted). Because Plaintiff’s allegations “do not implicate a suspect or quasi-suspect
class, the state action here is presumed to be valid and will be upheld if it is ‘rationally related to
a legitimate state interest.’” Tillman v. Lebanon Cty. Corr. Fac., 221 F.3d 410, 423 (3d. Cir.
2000) (citations omitted).
The Court finds that the Commonwealth of Pennsylvania clearly has a legitimate interest
3

The Pennsylvania Supreme Court has repeatedly held that driving a motor vehicle is a privilege,
not a fundamental right. Commonwealth v. Zimmer, 539 Pa. 548, 559 (1995); Commonwealth
v. Yarger, 538 Pa. 329, 335 (1994); Commonwealth v. Funk, 323 Pa. 390, 394 (1936).
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in protecting citizens from motorists who have committed prior DUI offenses. See Shalna v.
Bensalem Twp. Police Dep’t, 1988 WL 71420, at *8 (E.D. Pa. June 30, 1988) (“Certainly the
state objective at issue here, prevention of alcohol-related traffic injuries, is legitimate.”); Doe,
721 F.2d at 623 (“Drunk driving is related to one-half of the nation’s highway fatalities . . . . The
Secretary’s policy combats a serious problem by removing current repeat offenders from the
road deterring potential offenders.”). Indeed, courts have upheld far more severe driving
restrictions imposed on ex-felons (even ones who did not commit DUI offenses) under rational
basis review, including, for instance, a seemingly permanent exclusion for all ex-felons from
employment as school bus drivers. See Hill v. Gill, 703 F. Supp. 1034, 1037 (D.R.I. 1989)
(stating that “[i]t is difficult to imagine a more legitimate state interest than that of protecting . . .
school-age children from the possibility of either physical harm or immoral influences” and that
“the selection of school bus drivers directly impacts upon that interest”). Thus, to the extent that
PENNDOT treats individuals who have committed DUI offenses differently from other
individuals, as Plaintiff alleges it does, such differentiation is not a violation of the Equal
Protection Clause. 4

4

The Court notes the Supreme Court of Pennsylvania has rejected the claim that
operating privilege suspensions based on DUI convictions violate either a motorist’s equal
protection or due process rights, finding:
The mandatory suspension of a driver’s license upon conviction for DUI is a
collateral civil penalty administratively imposed by [PENNDOT] pursuant to the
mandates of the [ ] Vehicle Code not the Crimes Code. Thus, the mandatory
suspension is not a direct criminal penalty, but rather, is a civil sanction wholly
unrelated to Petitioner's appeal of the criminal conviction to the Superior Court.”
Commonwealth v. Wolf, 534 Pa. 283, 290, 632 A.2d 864, 867 (1993) (citations
omitted) (emphasis in original). As operating privilege suspensions are
collateral civil consequences, not criminal penalties, they do not violate a
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3. Count V: Plaintiff’s § 1985(3) Claim
Count V purports to bring a conspiracy claim against the individually-named Defendants
under 42 U.S.C. § 1985(3). To state a § 1985(3) Conspiracy Claim, “a plaintiff must allege: (1)
a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive,
directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act
in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any
right or privilege of a citizen of the United States.” Russo v. Voorhees Twp., 403 F. Supp. 2d
352, 359 (D.N.J. 2005). The Court finds that the Amended Complaint fails to state a claim for
conspiracy under § 1985(3) for two reasons.
First, Plaintiff’s § 1985(3) claim fails in this case, because “the absence of an underlying
§ 1983 deprivation of rights precludes a § 1985 conspiracy claim predicated on the same
allegations.” Rhames v. Sch. Dist. of Philadelphia, 2002 WL 1740760, at *5 (E.D. Pa. July 17,
2002) (citation omitted)..
Second, Plaintiff does not allege any actionable form of “invidious discriminatory
animus” against an identifiable class in his Amended Complaint. See Farber v. City of Paterson,
440 F.3d 131, 135 (3d Cir. 2006). “In order to ensure that a § 1985(3) class has an independent
identifiable existence, a reasonable person must be able to ‘readily determine by means of an
objective criterion or set of criteria who is a member of the group and who is not.’” Id. at 136

motorist's equal protection or due process rights, nor does a defendant in a
criminal case need to be informed of the collateral consequence for his criminal
conduct, as it does not constitute a portion of his or her punishment.
Bell v. Com., Dep’t of Transp., Bur. of Driver Licensing, 626 Pa. 270, 292, 96 A.3d 1005, 1019
(2014) (emphasis added).
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(quoting Aulson v. Blanchard, 83 F.3d 1, 5 (1st Cir. 1996)). In Bray v. Alexandria Women’s
Health Clinic, the Supreme Court stated that “the class ‘cannot be defined simply as the group of
victims of the tortious action,’” or broadly defined “as those seeking to engage in the activity the
defendant has interfered with.” 506 U.S. 263, 266-67 (1993) (quoting United Bhd. of Carpenters
and Joiners of America v. Scott, 463 U.S. 825, 850 (1983) (Blackmun, J., dissenting)).
Here, Plaintiff defines the “class” as individuals licensed to operate a vehicle who have
been convicted of felony and misdemeanor DUI offenses arising out of a single accident. (Doc.
12 ¶ 401). As discussed above, this alleged “class” is not a suspect or quasi-suspect class under
federal law, and Plaintiff cites to no case law supporting the conclusion that it should be
otherwise protected. Bray, 506 U.S. at 269 (“Whatever may be the precise meaning of a ‘class’
for purposes of Griffin’s speculative extension of § 1985(3) beyond race, the term
unquestionably connotes something more than a group of individuals who share a desire to
engage in conduct that the § 1985(3) defendant disfavors.”). For these reasons, Plaintiff’s
§ 1985(3) claim will be dismissed.
C. NO FURTHER AMENDMENT
In civil rights cases, district courts must generally extend plaintiffs an opportunity to
amend the complaint before dismissal. Fletcher-Harlee Corp. v. Pote Concrete Contractors, 482
F.3d 247, 253 (3d Cir. 2007). A district court can refuse to permit a curative amendment on
grounds of bad faith, undue delay, prejudice, or futility. Alston v. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). In this case, because no amendment to the Amended Complaint would allow
Plaintiff to state a claim upon which relief may be granted in this Court, amendment would be
futile, and thus, the Amended Complaint will be dismissed with prejudice.
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D. PRELIMINARY INJUNCTION MOTION
On a motion for a preliminary injunction, a plaintiff bears the burden to show, among
other things, “that he is likely to succeed on the merits … .” Ferring Pharms., Inc. v. Watson
Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014) (citation omitted). Given the Court’s holding
Plaintiff has failed to state any claim for relief over which this Court has jurisdiction, he
necessarily cannot show that he is likely to succeed on the merits. For this reason, Plaintiff’s
Motion for a Preliminary Injunction (Doc. 19) will be denied.
II.

ORDER

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 13) is GRANTED, and
Plaintiff’s Motion for Preliminary Injunction (Doc. 19) is DENIED. Plaintiff’s Amended
Complaint is hereby DISMISSED with prejudice. A judgment order pursuant to Federal Rule of
Civil Procedure 58 will follow.

IT IS SO ORDERED.

April 6, 2017

s/Cathy Bissoon
.
Cathy Bissoon
United States District Judge

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