JOSEPH v. ALLEGHENY COUNTY AIRPORT AUTHORITY et al

Filing 51

ORDER granting[] Motion to Dismiss for Failure to State a Claim; granting 35 Motion to Dismiss; granting[] Motion to Dismiss for Failure to State a Claim; granting[] Motion to Dismiss for Failure to State a Claim, all without prejudice as more fully stated in the Order. Signed by Judge Donetta W. Ambrose on 2/15/19. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HERBERT L. JOSEPH, III

)
)
) No. 18-752
)
)
)

Plaintiff,
v.
ALLEGHENY COUNTY AIRPORT
AUTHORITY, ALLEGHENY COUNTY
AIRPORT POLICE, CITY OF
PITTSBURGH POLICE,
and CITIZENS BANK,
Defendants.

OPINION AND ORDER
SYNOPSIS
In this civil action, Plaintiff, acting pro se, brings claims against Defendant that sound in
constitutional tort. In response to Motions to Dismiss Plaintiff’s initial Complaint, Plaintiff
amended his pleading. Plaintiff’s First Amended Complaint (“Amended Complaint”) avers that
Defendant Allegheny County Airport Authority (“Airport”) issued a “no trespass” notice against
Plaintiff’s entity, J.N. Limousine, and has mistreated Plaintiff for several decades. The notice,
Plaintiff contends, was carried out with the aid of the Allegheny County Airport Police (“County
Police”). He further alleges that the City of Pittsburgh Police (“City Police”) violated his civil
rights, when an officer went to Plaintiff’s home and stated that he was performing a welfare
check for Citizen’s Bank (“Citizens”), disparaged Plaintiff’s credentials as a licensed limousine
operator, and “secreted away” Plaintiff’s limousine on the back of a tow truck. As regards
Citizens, Plaintiff asserts that the conduct of the City Police was designed to deter Plaintiff from
complaining to Citizens Bank regarding overdraft charges. Further, Plaintiff suggests that he has
been subjected to traffic stops, and that all Defendants conspired against him.
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All Defendants have filed Motions to Dismiss, and Plaintiff has responded thereto. For
the following reasons, Defendants’ Motions will be granted, and Plaintiff’s Amended Complaint
dismissed without prejudice.
OPINION
I.

APPLICABLE STANDARDS
In deciding a motion to dismiss, all factual allegations, and all reasonable inferences

therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff.
Kamdem-Ouaffo v. Task Mgmt., No. 17-7506, 2018 U.S. Dist. LEXIS 113899, at *19 (D.N.J.
July 9, 2018). A claim is plausible on its face, and not subject to dismissal, "when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Ashcroft v. Iqbal, __U.S.__, 129 S. Ct 1937, 1949, 173 L. Ed.
2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007)). While "[t]he plausibility standard is not akin to a 'probability requirement' ...
it asks for more than a sheer possibility...." Id. at 949.
A motion to dismiss will be granted if the plaintiff has not articulated facts sufficient to
"raise a right to relief above the speculative level." Bangura v. City of Philadelphia, 338 Fed.
Appx. 261 (3d Cir. 2009) (citing Twombly, 127 S. Ct. at 1965). "[A] complaint must do more
than allege the plaintiff's entitlement to relief. . . [it] has to 'show' such an entitlement with its
facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Further, “for this
purpose the court does not consider conclusory recitations of law." Commonwealth of
Pennsylvania v. PepsiCo, Inc., 836 F.2d 173, 179 (3d Cir. 1988). Overall, a claim for relief must
contain "a short and plain statement of the claim showing that the pleader is entitled to relief" in

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order to provide "the defendant fair notice of what the … claim is and the grounds upon which it
rests." Twombly, 127 S. Ct. at 1964-65.
To determine the sufficiency of a complaint, a court must take 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." Third, "whe[n] 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."
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (citations omitted) (quoting Iqbal, 556 U.S.
662, 664).
If a complaint is subject to a Rule 12(b)(6) dismissal, I must permit a curative amendment
unless an amendment would be inequitable or futile. Spell v. Allegheny Cnty. Admin., No. 141403, 2015 U.S. Dist. LEXIS 36903, at *8 (W.D. Pa. Mar. 23, 2015).
Alongside these standards, it is axiomatic that pro se litigants are entitled to relatively
lenient and review of their submissions. Such litigants, however, are not excused from
complying with Twombly and the federal pleading requirements. Thakar v. Tan, 372 F. App'x
325, 328 (3d Cir. 2010). Instead, pro se litigants must still must allege sufficient facts in their
complaints to support a claim. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013).
II.

DEFENDANTS’ MOTIONS
A. CITIZENS
Defendant Citizens challenges Plaintiff’s jurisdictional allegations, both under subject

matter and diversity principles. Plaintiff’s pro se Amended Complaint states his intention to
assert federal constitutional claims, with, for example, specific reference to the rights of free
speech and to life, liberty, and happiness. Without assessing subject matter jurisdiction

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regarding each portion of this pro se pleading, the Court will consider subject matter jurisdiction
satisfied, overall and for present purposes.
Citizens, however, further contends that Plaintiff has failed to assert a cognizable cause
of action against it. To the extent that Plaintiff intends to assert constitutional claims, such
claims would appear to arise under 42 U.S.C. § 1983.1 Section 1983 requires a plaintiff to
demonstrate that he was deprived of a federal right, and that the person who deprived him of that
right was acting under color of state law. Groman v. Township of Manalapan, 47 F.3d 628, 633
(3d Cir. 2005). With regard to free speech rights and pertinent to Plaintiff’s allegations against
the City Police and Airport Authority, “it would ‘trivialize the First Amendment to hold that
harassment for exercising the right of free speech was always actionable no matter how unlikely
to deter a person of ordinary firmness from that exercise.’" Bart v. Telford, 677 F.2d 622, 625
(7th Cir. 1982). As regards conspiracy, a prima facie case requires “facts establishing a
combination, agreement, or understanding among all or between any of the defendants to plot,
plan or conspire to carry out the alleged chain of events. … Mere suspicion or speculation are not
sufficient to state a conspiracy claim.” Gay v. City of Phila., No. 03-5358, 2005 U.S. Dist.
LEXIS 15840, at *18-19 (E.D. Pa. Aug. 2, 2005) (citations omitted).
The entirety of Plaintiff’s factual assertions against Citizens are that a police officer,
“peering” through Plaintiff’s windows, stated that he was performing a welfare check for
Citizens. Plaintiff further avers that Citizens’ conduct – impliedly, requesting that police
perform a welfare check -- was designed to harass him, so that he would be deterred from

Plaintiff’s Amended Complaint does not evince an intent to bring non-constitutional claims. Nonetheless, the
Court notes that “most courts that have addressed this issue have declined to recognize claims for harassment and/or
prima facie tort in Pennsylvania.” Utz v. Johnson, No. 04-0437, 2004 U.S. Dist. LEXIS 11551, at *5 (E.D. Pa. June
16, 2004). Further, Plaintiff’s response possibly suggests an intention to bring a state law breach of contract claim
against the Airport Authority. The Court perceives no such action pleaded in the Amended Complaint.
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complaining about overdraft charges. Plaintiff suggests that Defendant’s conduct put him in
danger, due to the possible use of deadly force by the City Police during the welfare check.
Specifically, he alleged that Citizens placed “a Negro Indian in a compromising situation where
a likely ‘mistake’ would result in plaintiff’s demise.” He suggests this possibility because “many
persons resembling plaintiff have found death at the hands of a ‘mistake’ by the police.” He
does not allege that any such mistake occurred, or that the officer in question did anything other
than peer through a window and state his purpose.
Accordingly, Plaintiff’s Amended Complaint against Citizens does not plead sufficient
facts to assert a plausible claim against that Defendant. Initially, Defendant does not suggest that
Citizens, a bank, acted or should be deemed to have acted under color of state law. Bare,
conclusory allegations of conspiracy are not enough, either to establish state action or to plead a
claim for conspiracy. Further, Plaintiff identifies no circumstantial or direct facts that would
support his conclusory assertions that Citizens alleged conduct was aimed at silencing him, and
that Citizen’s never engages in similar conduct when dealing with other ethnicities. The alleged
deterrent effect, Plaintiff suggests, stems from the possibility of police misconduct, which
Plaintiff grounds in sweeping generalizations. The requisite chain connecting Citizens to the City
Police to speech deterrence is too tenuous to survive Twombly and Iqbal. That harm has been
done to non-party persons by non-party police in the past, no matter how egregious or unjust
those situations, simply does not create a cause of action for this Plaintiff under the facts alleged.
Plaintiff’s speculative averments, while colorfully expressed, simply do not meet the minimum
plausibility standards set by Rule 12(b)(6).
B. AIRPORT AUTHORITY

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Next, Defendant Airport Authority challenges Plaintiff’s Amended Complaint on grounds
that it fails to plead sufficient facts to support a claim. Plaintiff asserts only that the Airport
Authority issued a “no trespass” notice against his business entity, which notice “infringed on
Plaintiff’s rights” and was carried out with the aid of the Allegheny County Police. Plaintiff also
broadly asserts that the Airport Authority has mistreated him “for several decades,” and alleges
“all manner of debauchery and derring-do” by this Defendant. These allegations do not give rise
to the level of plausibility that Twombly and Iqbal require. The Amended Complaint does not,
for example, suggest which “rights” the “no trespass” notice is alleged to have violated. Alleging
decades of unspecified mistreatment, debauchery, and derring-do does not place Defendant on
notice of its alleged wrongdoing. Even Plaintiff’s response, which suggests that his insurer
indicated that he was treated differently than another one of her clients, does not sufficiently
plead a constitutional violation.
Additionally, Defendant claims immunity from suit under Pennsylvania’s Political
Subdivision Tort Claims Act (“PSTCA”), 42 Pa.C.S. §§ 8541-41. The Allegheny County Airport
Authority has been held immune under the PSTCA. Anthony Holdings Int'l, Inc. v. Allegheny
Cnty., No. 11-006530, 2011 Pa. Dist. & Cnty. Dec. LEXIS 412, at *4 (C.P. Nov. 21, 2011); see
also Bullard v. Lehigh-Northampton Airport Auth., 668 A.2d 223, 226 (Pa. Commw. Ct. 1995).
While Plaintiff’s response to Defendant’s Motion suggests an intent to rely on the PSTCA’s
negligence exception, his Amended Complaint clearly avers intentional, rather than negligent,
conduct. Plaintiff states, in conclusory fashion, that his complaint arises from negligence with
respect to the operation of a motor vehicle – apparently, Plaintiff’s limousine-- within the control
of the Airport Authority. The Section of the PTSCA to which Plaintiff refers, however, is

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patently inapplicable to his allegations, which do not involve vehicular negligence of the type
covered by that Section. See Pa. C.S. A. 8542(b).
As a final matter, as Plaintiff is aware, this Court has previously held that “in order for
the [Airport Authority] to be liable, Joseph would have to show that it had an established policy
or custom that resulted in the alleged constitutional violation at issue.” Joseph v. Allegheny
Cnty. Airport Auth., 152 F. App'x 121, 123 (3d Cir. 2005). 2 “That is, a plaintiff must allege
facts to show that "(1) an unconstitutional policy or custom (2) attributable to the municipality
(3) caused an official to inflict a constitutional injury upon the plaintiff.’" Mahmoud v. City of
Paterson, 611 Fed. Appx. 95, 2015 U.S. App. LEXIS 7542, 2015 WL 2114154, at *2 (3d Cir.
May 7, 2015) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d
611 (1978)). It is not sufficient “to allege the mere existence of such a policy or custom.”
Abdallah v. City of Paterson, No. 16-4660, 2017 U.S. Dist. LEXIS 82135, at *9 (D.N.J. May 26,
2017).
While Plaintiffs need not plead detailed facts regarding the alleged policy, custom, or
practice, they must, in the very least, plead facts that: (a) put Defendants on notice with
regard to the basis for the alleged policy, custom, or practice; and (b) "show" that she is
entitled to relief as a result of that policy, custom, or practice.

James v. City of Wilkes-Barre Wright Twp., No. 10-1534, 2011 U.S. Dist. LEXIS 90674, at *22
(M.D. Pa. June 10, 2011). Plaintiff’s Amended Complaint does not sufficiently allege a policy or
custom, and thus is deficient in this regard.

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Years ago, Plaintiff filed suit against the Airport Authority, the Airport Police, and other defendants, for alleged
civil rights violations related to a trespass notice. The matter was disposed of on summary judgment, and the Court
of Appeals affirmed. See, e.g., Joseph v. Allegheny Cnty. Airport Auth., 152 F. App'x 121 (3d Cir. 2005).

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C. COUNTY POLICE
The Defendant County Police challenges the Amended Complaint, based on the failure to
plead sufficient facts, failure to identify a cognizable cause of action, and immunity based on the
PSTCA. Plaintiff avers that the “no trespass” notice that “infringed upon Plaintiff’s rights” was
carried out “with the aid of” the County Police. He further avers that the County Police
“posed…a threat against plaintiff’s lawful right” to operate a business. These broad and
conclusory allegations, which indicate neither the County Police’s alleged conduct nor the legal
rights asserted, do not raise the entitlement to relief above a speculative level. Likewise, given
the lack of particular allegations regarding conduct of the Airport Police, the Amended
Complaint fails to afford this Defendant fair notice of the nature of the claims against it.3
D. CITY POLICE
As discussed supra, Plaintiff’s Amended Complaint alleges that an officer peered through
his window and stated that he was performing a welfare check for Citizen’s, thus somehow
placing Plaintiff in a situation of potential physical danger. Plaintiff further alleges that the City
Police “disparaged [his] credentials as a licensed Limousine operator on numerous occasions,”
and that such behavior is “only reserved” for people similarly situated to Plaintiff. The City
Police, Plaintiff says, also “secret[ed] plaintiff’s limousine away on the back of a tow truck.”
Plaintiff states that officers, “on other occasions,” would not write an incident report when
Plaintiff was wronged by limousine patrons. Plaintiff does not allege that the towing of the
limousine or failure to write incident reports violated the Constitution.

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The Airport Police also claims immunity under the PTSCA. It points neither to judicial authority specifically
holding it immune, nor to support for its assertions regarding its status as a sub-unit of Allegheny County. At this
juncture, I do not resolve the issue of the Airport Police’s immunity.

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In the first instance, absent any indication regarding the dates of the City Police’s alleged
conduct, the Amended Complaint is too vague to allow Defendant to frame a defense. In
addition, without more, the mere presence of a police officer as alleged here does not create a
legally actionable threat of physical harm. Moreover, Plaintiff’s factual allegations do not appear
to support a federal claim against this Defendant, as his claim sounding in equal protection rests
only on alleged disparagement. “[t]here is no cause of action for simple negligence… libel, or
slander under 42 U.S.C. 1983, which requires a violation of federal law. .. Such claims are
matters of state tort law.” Love v. Werholtz, No. 06-3210, 2007 U.S. Dist. LEXIS 31732, at *4-5
(D. Kan. Apr. 27, 2007).4
Additionally, a civil rights suit against a city police department is, in the eyes of the law,
a suit against the city; there is no respondeat superior liability. Therefore, it is well-settled
liability must be based on Monell and an official policy or custom. Plaintiff’s Amended
Complaint is devoid of allegations of an official policy, custom, or practice, or a causal link
between alleged constitutional violations and an official custom or policy. As a related matter,
local police departments, including that of the City of Pittsburgh, are not proper defendants in a
Section 1983 action. Smierciak v. City of Pittsburgh Police Dep't, No. 18-00734, 2018 U.S. Dist.
LEXIS 216282, at *11 (W.D. Pa. Dec. 26, 2018). For all of the foregoing reasons, Plaintiff’s
claim against the City Police must be dismissed.
CONCLUSION
In conclusion, Plaintiff’s Amended Complaint will be dismissed for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6). The dismissal is without prejudice to Plaintiff to file

Because Plaintiff’s Amended Complaint plainly asserts federal civil rights claims, this Court does not separately
assess the sufficiency of Plaintiff’s allegations in terms of potentially implicated state law claims. To the extent that
any such claims are intended, because Plaintiff’s federal claims will be dismissed, the Court declines to exercise
supplemental jurisdiction over potential state claims. 28 U.S.C. § 1367(c).
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a second amended pleading, within three weeks, in an effort to cure the defects identified herein.
An appropriate Order follows.
BY THE COURT:

___________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court
Dated: February 15, 2019

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HERBERT L. JOSEPH, III
Plaintiff,
v.

)
)
) No. 18-752
)
)
)

ALLEGHENY COUNTY AIRPORT
AUTHORITY, ALLEGHENY COUNTY
AIRPORT POLICE, CITY OF
PITTSBURGH POLICE,
and CITIZENS BANK,
Defendants.

ORDER
AND NOW, this 15th day of February, 2019, it is hereby ORDERED, ADJUDGED, and
DECREED that Defendants’ Motions to Dismiss [32] [35] [38] [44] are GRANTED, without
prejudice to file a second amended complaint in an effort to cure the defects identified in the
foregoing Opinion. Plaintiff may file such pleading within twenty-one (21) days of the date of
this Order.
BY THE COURT:

_______________________________
Donetta W. Ambrose

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