ROBERT D. MARIANI, District Judge.
Presently before the Court is Magistrate Judge Mehalchick's Report and Recommendation ("R&R") (Doc. 26) regarding Defendants' motion to dismiss pro se Plaintiff Marc Antwain X. Rivers, Sr., Muhammad's ("Plaintiff's") complaint for failure to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) (Doc. 14). For the reasons stated below, the Court will adopt in part and reject in part the R&R, grant Defendants' motion to dismiss, and direct Plaintiff to file an amended complaint within 28 days if he wishes to maintain this action.
In this action filed on December 29, 2017, Plaintiff seeks recovery for alleged constitutional violations under 42 U.S.C. § 1983 as well as the criminal prosecution of Defendants (two Wilkes-Barre city police officers) under 18 U.S.C. §§ 241-242, due to events that occurred on the night of September 23 into the morning of September 24, 2017. (Doc. 1). Liberally construing pro se Plaintiff's Complaint, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Riley v. Jeffes, 777 F.2d 143, 147-48 (3d Cir. 1985), a summary of the factual allegations is as follows:
During night hours, Plaintiff was "outside in the parking lot sidewalk area" of his housing complex, Mineral Springs, in Wilkes-Barre.
Construing his claims broadly, Plaintiff alleges that Defendants violated his First Amendment rights to free exercise of religion and freedom of speech, his Fourth and Fourteenth Amendment rights due to his unlawful arrest and malicious prosecution, and various similar rights under the Pennsylvania state constitution. (Id. at 3). He seeks "nominal, compensatory, and punitive damages" and wants Defendants criminally prosecuted under 18 U.S.C. §§ 241-42. (Id. at 9).
Defendants filed a motion to dismiss Plaintiff's Complaint on May 29, 2018, arguing that Plaintiff's Complaint fails to state a claim upon which relief can be granted. (Doc. 14, Doc. 17). Defendants contend that Plaintiff's suit is a collateral attack on his arrest and conviction, and is thus barred by Heck v. Humphrey, 512 U.S. 477, 476-87 (1994). (Doc. 17 at 6, 8, 9-11). Defendants further argue that Plaintiff has not sufficiently and plausibly alleged that Defendants interfered with his right to practice his religion or his freedom of speech, or that Defendants retaliated against him for the exercise of those rights. (Id. at 5-7). Defendants also contend that the Pennsylvania state constitutional claims, official capacity claims, and punitive damages claims should be dismissed. (Id. at 12-13). Plaintiff responds that his actions the night of his arrest did not justify his arrest, and that Defendants arrested him for exercising his religion.
Magistrate Judge Mehalchick issued an R&R on February 6, 2019, recommending dismissal of Plaintiff's Complaint with leave to amend. (Doc. 26). Plaintiff filed Objections to the R&R, although these were not formally docketed on the record but rather were included as an attachment to Defendants' Appendix of Exhibits in Support of their Brief in Opposition to Plaintiff's Objections to the R&R. (Doc. 28-1). Plaintiff asserts in his Objections that he "[has] clearly articulated under liberal construance [sic]" that he has stated a claim for relief. (Id.)
A District Court may "designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition" of certain matters pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's Report and Recommendation, the District Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. at § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); M.D. Pa. Local Rule 72.3; Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L. Ed. 2d 868 (2009).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations, alterations, and quotations marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but. . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citation, alteration, and quotation marks omitted). Thus, "the presumption of truth attaches only to those allegations for which there is sufficient `factual matter' to render them `plausible on [their] face.'" Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id.
"Although the plausibility standard `does not impose a probability requirement,' it does require a pleading to show `more than a sheer possibility that a defendant has acted unlawfully.'" Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting Iqbal, 556 U.S. at 678). "The plausibility determination is `a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 786-87 (quoting Iqbal, 556 U.S. 679).
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
Id.
Upon de novo review of the R&R, the Court will adopt the findings of Magistrate Judge Mehalchick with respect to Plaintiff's Fourth/Fourteenth Amendment and Pennsylvania state constitutional claims.
The R&R recommends dismissal of Plaintiff's First Amendment free exercise claim because Plaintiff does not allege that Defendants "inhibited him from manifesting some central tenant [sic] of his religious beliefs, or that he was in some way prevented from engaging in activities fundamental to the practice of his religion." (Doc. 26 at 8). In setting forth the legal standard which it uses to determine if Plaintiff has alleged that Defendants' violated his right to free exercise of religion, the R&R cites a Third Circuit case from 1994, Brown v. Borough of Mahaffey, 35 F.3d 846 (3d Cir. 1994), and a 1996 case from this District, Klemka v. Nichols, 943 F.Supp. 470 (M.D. Pa. 1996). (Id.) Citing Klemka, the R&R states that "in order to state a prima facie case against a state actor for non-intentional interference with her religious beliefs, plaintiff must allege that his religion is established, that she sincerely believes in its tenants [sic], and that the state actor's conduct has `substantially interfered' with her [sic] practice of religion." (Id.) However, both Brown and Klemka rely on a legal standard imported from the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq. Brown, 35 F.3d at 849-50; Klemka, 943 F. Supp. at 474-75 (noting that the RFRA provides the standard for evaluating a free exercise claim and that government can only substantially burden the exercise of religion if the burden furthers a compelling government interest and is the least restrictive means of furthering that interest). In 1997 in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court found that Congress exceeded its constitutional authority in applying the RFRA to the actions of state governments, as opposed to merely the federal government. Id. at 536; Adams v. Comm'r of Int. Rev., 170 F.3d 173, 175 (3d Cir. 1999) (assuming RFRA still constitutional as applied to the federal government). Here, Plaintiff has not brought a claim under the RFRA, nor has he brought a claim against the federal government or its agents.
Accordingly, the proper standard under which to evaluate Plaintiff's allegations is different than that set forth in the R&R, and is also not addressed by the parties in their respective briefing:
Holman v. Koltanovich, No. 06-cv-2133, 2007 WL 3125048, at *4 (M.D. Pa. Oct. 23, 2007) (full citations added), aff'd sub nom. Holman v. City of York, 564 F.3d 225 (3d Cir. 2009); Tenafly, 309 F.3d at 165 (noting that "a free exercise claim can prompt either strict scrutiny or rational basis review").
Rational basis review of Defendants' conduct applies here. Assuming the truth of Plaintiff's well-pled factual allegations, the Court finds that Plaintiff has not pled facts that suggest that Defendants' conduct, either in initially confronting Plaintiff or later arresting him for disorderly conduct and public drunkenness, did not consist of neutral and generally applicable actions that only incidentally burdened Plaintiff's asserted practice of his religion. In the Complaint, Plaintiff does not allege that Defendants arrested him because of his religion; or that the laws that he was arrested for violating unlawfully discriminate against religious conduct; or that Defendants enforced otherwise neutral laws in a discriminatory, religiously-motivated fashion. Instead, Plaintiff sets forth conclusory allegations that Defendants violated his rights by "prohibiting me from walking and talking to God." (Doc. 1 at 8). In the absence of other factual allegations suggesting to the contrary, Defendants' conduct (confronting and arresting Plaintiff) is rationally related to the legitimate government objective of enforcing state law. As the Complaint stands now, Plaintiff's First Amendment free exercise claim fails to state a claim upon which relief can be granted. The Court will dismiss the claim with leave to amend.
The R&R recommends dismissal of Plaintiff's First Amendment freedom of speech claim, construing it as a claim for free speech retaliation. Specifically, the R&R states that Plaintiff appears to be "attempting to allege that his arrest was in retaliation for his past interactions with the justice systems." (Doc. 26 at 8-9). The R&R finds that Plaintiff "fails to allege any causal connection between the purported protected activity and his arrest." (Id. at 9 (citing Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (setting forth retaliation standard)). The Court does not disagree with this finding. However, the Court finds that Plaintiff also appears to allege a free speech retaliation claim with respect to Plaintiff's apparent airing of grievances more generally with respect to his issues with the legal system or his complaints about politics that are not limited to his prior run-ins with the law. (Doc. 1 at 4 (remarking on "parental kidnapping" of his son and lack of assistance provided by the legal authorities), 7 (remarking on "form of government" in the country)). Like the retaliation claim considered in the R&R, the only causal connection plausibly asserted here is the temporal proximity between Plaintiff's speech and his arrest. Plaintiff does not allege that this temporal proximity is unusually suggestive of retaliatory intent, particularly considering that Defendants were investigating a noise complaint and Plaintiff admits that his discourse was "angry" and was construed by Defendants as "yelling." DeFlaminis, 480 F.3d at 267 (noting that the temporal proximity must be "unusually suggestive" or that there must be "a pattern of antagonism coupled with timing to establish a causal link"); (Doc. 1 at 6-7). Thus, Plaintiff's First Amendment Free Speech claim will be dismissed with leave to amend.
Neither the R&R nor Defendants' motion to dismiss address Plaintiff's claim for criminal prosecution of the Defendants under 18 U.S.C. §§ 241-42. (Doc. 1 at 9). A private plaintiff cannot seek criminal prosecution of a defendant under these statutory provisions. Watson v. Washington Twp. of Gloucester Cty. Pub. Sch. Dist., 413 F. App'x 466, 468 (3d Cir. 2011). Thus, the Court will dismiss this claim with prejudice.
The R&R recommends dismissal of claims against Defendants in their official capacities, reasoning that "claims asserted against individual defendants in their official capacities are redundant if the plaintiff has also sued the entity." (Doc. 26 at 11). This is true. See, e.g., Judge v. Shikellamy Sch. Dist., 135 F.Supp.3d 284, 300-01 (M.D. Pa. 2015). However, as the R&R acknowledges, Plaintiff has not named the municipal entity (the City of Wilkes-Barre) as a defendant. (Id.) Nonetheless, the R&R recommends dismissal of the claims against Defendants in their official capacities with prejudice. (Id.) The Court will not adopt this portion of the R&R. Though the Court will dismiss Plaintiff's Complaint in its entirety with leave to amend because it finds that Plaintiff has not stated any cognizable claim for relief, in an amended pleading he will be permitted to allege claims against Defendants in their official capacities unless he also amends the Complaint to name the municipal entity as a defendant, in which case the defendant officers' official capacity claims will be subject to dismissal with prejudice.
Finally, the R&R recommends dismissal of "[Plaintiff's] claims for punitive damages against the governmental entity" because punitive damages are not available against municipal entities in a Section 1983 action. (Doc. 26 at 12-13). And the R&R recommends denying dismissal of punitive damage claims "to the extent that [Plaintiff] is seeking punitive damages against the Defendants in their individual capacities . . . as the record is yet undeveloped at the motion to dismiss stage." (Id. at 13). The Court will adopt in part and reject in part this portion of the R&R.
As stated above, Plaintiff has not named any municipal entity as a defendant in this action, and, for that reason, the R&R has incorrectly recommended that Plaintiff's claims against Officers Dumont and Rennick, brought in their official capacities, be dismissed with prejudice. Further, Plaintiff has not sued the defendant officers in their individual capacities, yet clearly seeks punitive damages. To correct pro se Plaintiff's pleading omissions and the erroneous recommendation of the Magistrate Judge that the official capacity claims brought by Plaintiff against the defendant officers be dismissed with prejudice, the Court will order Plaintiff, should he wish to properly seek punitive damages, to do the following: amend his complaint by suing the defendant officers in their individual capacities. Punitive damages are not available against a municipality in a Section 1983 action but are available in actions against officials in their individual capacities. Kentucky v. Graham, 473 U.S. 159, 167 n.13 (1985).
For the reasons discussed above, the Court will adopt the R&R in part and reject it in part. Defendants' motion to dismiss will be granted, and Plaintiff will be provided with leave to amend his Complaint.
