525 F. App'x 78

3rd Cir.

2013

Derrick GODFREY, Appellant v. Commonwealth of PENNSYLVANIA; Larry Thompson; Julio M. Algarin, Assistant Warden; Francis J. Bernhardt; Gregory Nestor, In his personal capacity; Jesse King; Eileen Whalon Behrl, In her personal capacity; Justin James Boehret; Pietro Angelo; William J. Carpenter; Charles S. Naber.

No. 13-1188

United States Court of Appeals, Third Circuit

May 15, 2013

and tortious interference claims, which fail for the reasons set forth above or are otherwise inadequately pleaded under Fed.R.Civ.P. 8(a). See also Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895, 898-99 (1971). They afford no independent basis for relief. Furthermore, Marin‘s theory of state action, which he employs in his attempt to lodge a constitutional cause of action against the Times-News (a private party), has no grounding in law.³

IV.

For the foregoing reasons, we agree with the District Court that dismissal was proper, and having reviewed Marin‘s submissions both below and on appeal, we conclude that amendment would be inequitable or futile. See Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013). Thus, finding no substantial question to be presented, we will summarily affirm. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir.2011) (per curiam). Marin‘s motion to strike Third Circuit I.O.P. 10.6 is denied.⁴

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 May 2, 2013.

Opinion filed: May 15, 2013.

Derrick Godfrey, Philadelphia, PA, pro se.

Attorney General Pennsylvania, Office of Attorney General of Pennsylvania, Harrisburg, PA, for Appellee.

Before: FUENTES, FISHER and VANASKIE, Circuit Judges.

OPINION

PER CURIAM.

Derrick Godfrey appeals from the District Court‘s order dismissing his complaint. For the following reasons, we will dismiss the appeal as frivolous.

I.

Godfrey, who at the time was imprisoned at the Montgomery County Correctional Facility, brought a civil action under 42 U.S.C. § 1983 in the Eastern District of Pennsylvania against the Commonwealth of Pennsylvania and several individual defendants. Godfrey alleged that Defendants committed various constitutional violations by arresting, prosecuting and imprisoning him, by taking his property, by denying him bail, and by conspiring against him.

Acting pursuant to its authority under 28 U.S.C. § 1915(e), the District Court dismissed without prejudice Godfrey‘s initial amended complaint for failure to state a viable claim. Godfrey filed a second amended complaint, which the District Court dismissed with prejudice, determining that, again, he failed to state a viable claim. Godfrey timely appealed.

II.

We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over the District Court‘s dismissal. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000). To survive dismissal, a plaintiff‘s 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). We will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as it lacks an arguable basis either in law or fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

Godfrey‘s second amended complaint, like his first, was chock-full of legal conclusions couched as factual allegations, making it profoundly difficult to decipher exactly his claims.¹ At first blush, it appears that he alleged that Defendants’ mere acts of arresting, prosecuting, and imprisoning him were unconstitutional. Godfrey claimed, for instance, that he was unlawfully seized when Defendant Thompson stopped him, removed him from his vehicle, handcuffed him, and accused him of committing a crime. He did not state how this amounted to anything other than a routine arrest. Without more, these allegations do not state a viable claim. See Iqbal, 556 U.S. at 678.

To the extent that Godfrey‘s claims were for false arrest and imprisonment, and malicious prosecution, he needed to point to facts suggesting that Defendant Thompson lacked probable cause to believe he had committed the offense for which he was arrested. See Dowling v. City of Phila., 855 F.2d 136, 141 (3d Cir.1988); Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1197 (3d Cir.1993).² Tellingly, he did not. Rather, he alleged only that Defendants “constructed an affidavit of probable cause ... which was given to [Godfrey] as a means to trick him into believing that his rights [were not] being violated and that he [had] been arrested by such information and should accept ... being placed in servitude.” (Pls.’ Second Am. Compl. 2.) Accordingly, Godfrey‘s allegations did not support claims of false arrest, false imprisonment, and malicious prosecution. See Iqbal, 556 U.S. at 678.

Finally, Godfrey claimed that Defendants conspired to imprison him unlawfully. To demonstrate the existence of a conspiracy under § 1983, he needed to show that two or more conspirators reached an agreement to deprive him of a constitutional right under color of law. See Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir.1993), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. Of Warrington, 316 F.3d 392 (3d Cir.2003). Not only did he fail to point to facts suggesting that his arrest, imprisonment, or prosecution were unconstitutional, he also failed to allege facts plausibly suggesting an illicit agreement. He simply stated, for instance, that Defendants conspired to “keep [him] physically restrained in servitude.” (Pls.’ Second Am. Compl. 2.) Therefore, he did not state a viable claim of conspiracy. See Iqbal, 556 U.S. at 678.

For the reasons given, we agree with the District Court‘s determination and we will dismiss Godfrey‘s appeal as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).³ See Neitzke, 490 U.S. 319, 325 (1989).

Notes

1. In its initial screening of Godfrey‘s first amended complaint, the District Court properly dismissed with prejudice the claims Godfrey brought under various federal criminal statutes, as there is no federal right to require the government to initiate criminal proceedings. See . The District Court also properly dismissed the Commonwealth as a defendant. See .

2. The record does not reveal whether Godfrey was convicted of anything as a result of this particular arrest. If he was, some of his claims would be barred by the favorable termination rule of . See ; (“[T]he Heck favorable termination requirement does not apply to false arrest claims in the absence of an existing conviction....“).

3. The Times-News might be surprised to learn, as Marin insists, that it has the power to “make[] or break[] candidates,” that it “control[s] every race,” and that it “under-mine[s] the voting process in Erie County,” to such degree that it is “effectively ... a state actor” under . After defeating Marin, Congresswoman Dalhkemper was endorsed by the Times-News. See Editorial, Erie Times-News Lists Endorsements in Key Races, Erie Times-News, Nov. 1, 2010. But she, in the end, would be “knocked off” by “Mike Kelly, the Republican car dealer and former Notre Dame University football player,” in the 2010 Republican landslide. Kevin Flowers, Kelly Coasts, Erie Times-News, Nov. 3, 2010. 3. Under the circumstances, including Godfrey‘s repeated attempts to amend, the District Court need not have offered Godfrey an additional opportunity to amend his allegations. See .

4. Marin argues that I.O.P. 10.6 is “void for vagueness,” but does not explain how our procedure runs afoul of that doctrine. Contrary to his assertions, we employ the same standard of review—plenary analysis of orders granting and denying motions to dismiss whether evaluating them before or after briefing. Thus, even if we have authority to “strike” our summary action procedure, the motion lacks merit.

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