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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY D. HILL :

: Case No. 4:05-CV-1229

Plaintiff, :

:

v. :

: (Judge McClure)

EVELYN DERRICK, :

RICHARD SUTTON, :

JANE STUGART-OTTERBEIN, :

AND LORI CRESSMAN, :

:

Defendants. :

MEMORANDUM

November 3, 2005

BACKGROUND:

On June 20, 2005, plaintiff Jeffrey D. Hill, commenced the instant litigation

by filing pro se a complaint in the Middle District of Pennsylvania. The complaint

obtusely alleges that defendants violated a variety of state and federal laws and is

captioned “CIVIL RIGHTS - RACKETEERING - OFFICIAL OPPRESSION

COMPLAINT.” The complaint arises out of a July 21, 2003 incident involving Hill

at the Muncy Public Library. Apparently Hill was involved in an altercation with

two teenage patrons who were harassing a “deaf mute.” Muncy Police Chief

Richard Sutton was called to investigate the incident. As a result of the incident Hill

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was banned from the Muncy Public Library. Hill asserts, among other things, that

the defendants conspired to violate, and ultimately violated his constitutional and

civil rights to “assemble at the Muncy Public Library and without due process.” 

(Rec. Doc. No. 1, at 6, ¶ 26.) Hill seeks compensatory and punitive damages, as

well as injunctive relief.

On September 20, 2005, defendants filed the instant motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(1) and (6). For the following reasons we will

grant defendants’ motion to dismiss in part. Because we find that the library

employees may be state actors and that Hill’s allegations may warrant relief we will

allow section 1983 claims to proceed against defendants Derrick and Cressman.

DISCUSSION:

I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must view all allegations stated in the complaint as true and

construe all inferences in the light most favorable to plaintiff. Hishon v. King &

Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.

1993). In ruling on a motion to dismiss the court primarily considers the allegations

of the pleading, but is not required to consider legal conclusions alleged in the

complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court

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considers whether plaintiff is entitled to offer evidence to support the allegations in

the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint

should be dismissed only if the court, from evaluating the allegations in the

complaint, is certain that under any set of facts relief cannot be granted. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132

F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100,

103 (3d Cir. 1994).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

II. Relevant Facts

Hill was involved in an incident at the Muncy Public Library on July 21,

2003. Muncy Police Chief Richard Sutton was called to investigate. As a result of

the incident Hill was banned from the library. Evelyn Derrick, President of the

Board of Trustees of the Muncy Public Library, conveyed the ban to Hill by a twoCase 4:05-cv-01229-JFM Document 20 Filed 11/03/05 Page 3 of 13
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sentence letter dated July 21, 2003. Also on July 21, 2003, librarian Lori Cressman

orally informed Hill of the ban. Cressman was working at the library when the

incident occurred with co-defendant Jane Stugart-Otterbein, another librarian.

III. Muncy Public Library Employees May Be

Acting Under Color of State Law and May Have Violated Hill’s

Constitutional Rights

The complaint relies implicitly on 42 U.S.C. § 1983 as the vehicle for relief

from the alleged violations of plaintiff’s constitutional and civil rights. Section 1983

provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects,

or causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . .

42 U.S.C. § 1983.

In order for a plaintiff to prevail under 42 U.S.C. § 1983 he must establish two

elements: 1) that the conduct complained of was committed by a person acting

under color of state law; and 2) that the conduct deprived a person of rights,

privileges, or immunities secured by the Constitution or laws of the United States. 

Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (citing Parratt v. Taylor, 451

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1Though difficult to decipher, plaintiff asserts that his banishment violated his

First Amendment right to assemble at the library and that the procedure which the

library used to banish Hill violated Fourteenth Amendment procedural due process.

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U.S. 527, 534 (1981), overruled in part on other grounds by Daniels v. Williams,

474 U.S. 327 (1986)).

Plaintiff has obtusely asserted constitutional and civil rights violations against

three private individuals based on their conduct relative to their positions at the

Muncy Public Library, a private non-profit literary and educational institution. The

allegations in Hill’s complaint, liberally construed in light of Haines v. Kerner, 404

U.S. 519, 520-21 (1972), may state a cognizable claim for relief from violations of

the First and Fourteenth Amendments.1 See, e.g., Kreimer v. Bureau of Police for

Town of Morristown, 958 F.2d 1242 (3d Cir. 1992) (homeless man challenged

constitutionality of city library rules under the First Amendment where New Jersey

legislature vests authority in the public library to enforce “proper rules and

regulations for the government of the library and generally do all things necessary

and proper to the establishment and maintenance” of the library, and the rules at

issue were instituted and enforced pursuant to that vested authority); 24 Pa. C.S.A.

§ 4415. Therefore, we agree with defendants that the success of their instant

motion to dismiss depends on the state action prong of section 1983.

As defendants correctly note, under limited circumstances a private actor

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may be considered as “acting under the color of state law” for purposes of 42

U.S.C. § 1983. The defendants cite Hollenbaugh v. Carnegie Free Library, 545

F.2d 382 (3d Cir. 1976), for the proposition that it cannot be said that the

“operation of a library constitutes private performance of a function traditionally

associated with sovereignty.” Id. at 383. However, in Hollenbaugh, the Third

Circuit held that the Commonwealth of Pennsylvania’s involvement with a public

library was significant enough to find that the state was a joint participant with the

library. The court applied a nexus test to determine whether the library could be

considered a state actor. As part of that test, the court weighed a series of factors

including the percentage of the library’s funds which came from state and local

government financing, and the number of the library’s trustees appointed by

governmental bodies. Id. at 384.

The district court in Hollenbaugh decided at the summary judgment stage

that the library was not acting under color of state law, and that decision was

ultimately reversed. We have no basis to determine at this early stage in the

litigation that the Muncy Public Librarians were not acting under color of state law

when they banned Hill from the library. Of course this does not preclude

defendants from coming forward with evidence that distinguishes the Muncy Public

Library from Hollenbaugh’s Carnegie Free Library.

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2Hill also asserts that Sutton directed his subordinates to arrest Hill. Hill was

not arrested and criminal charges were not filed against him.

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We will only allow Hill to proceed with a section 1983 claim alleging

deprivation of his First Amendment right to assemble and Fourteenth Amendment

right to procedural due process against defendants Derrick and Cressman. They

are the only parties alleged in the complaint to have communicated to Hill that he

was banished from the library. 

IV. No Ostensible 42 U.S.C. § 1983 Claim Against Richard Sutton

Hill asserts that Muncy Police Chief Richard Sutton “deliberately refused to

conduct a competent, complete investigation” of the incident at the library. (Rec.

Doc. No. 1, at 3, ¶ 10.)2 More specifically, Hill states that Sutton deliberately failed

to include details about the misconduct of the teenagers involved in the July 21,

2003 incident in his police report. The Third Circuit has held that “an allegation of

a failure to investigate, without another recognizable constitutional right, is not

sufficient to sustain a section 1983 claim.” Graw v. Fantasky, 68 Fed.Appx. 378,

383 (3d Cir. 2003) (citing DeShaney v. Winnebago County Dep’t of Soc. Servs.,

489 U.S. 189, 195-96 (1989)). Any alleged failure on the part of Sutton relates

solely to the adequacy of his investigation of the incident. Hill’s allegations that

Sutton was part of a larger conspiracy are conclusory. Therefore, plaintiff cannot

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state a legally cognizable claim under section 1983 against defendant Richard

Sutton.

V. Other Claims

Hill refers to a variety of laws in his complaint including: (1) Conspiracy; (2)

Official Oppression, 18 Pa. C.S.A. § 5301; (3) “Racketeering”, 18 U.S.C. § 1961

et seq.. As we have already noted, Hill’s conspiracy allegations are conclusory,

and we are convinced that any leave to amend that claim would be futile.

Hill’s state law claim of official oppression fails because there is no implied

private cause of action under that provision of the Pennsylvania Criminal Code. 

D’Errico v. DeFazio, 763 A.2d 424, 429-30 (Pa. Super. Ct. 2000); see also Agresta

v. Goode, 797 F. Supp. 399, 410 (E.D. Pa. 1992) (Pollak, J.).

Finally, Hill’s civil RICO claim is dismissed, as he has not alleged facts that

satisfy any of the requisite elements necessary to demonstrate a violation of RICO,

see, e.g., Shearin v. E.F. Hutton Group, Inc., 885 F.2d 1162, 1165 (3d Cir. 1989),

and it would be futile for us to provide him leave to amend.

VI. Res Judicata and/or Collateral Estoppel Do Not Bar

Hill’s Section 1983 Claim Against Derrick

Finally, defendant contends that “res judicata” bars the instant action against

defendant Derrick. Plaintiff previously filed a lawsuit regarding the incident in the

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3The doctrine of res judicata is commonly referred to as claim preclusion. 

“Claim preclusion ‘gives dispositive effect to a prior judgment if the particular

issue, albeit not litigated in the prior action, could have been raised.’” Witkowski v.

Welch, 173 F.3d 192, 199 n.8 (3d Cir. 1999). Res judicata is commonly confused

with collateral estoppel, which is known as issue preclusion. Id. Issue preclusion

“prevents parties from litigating again the same issues when a court of competent

jurisdiction has already adjudicated the issue on its merits, and a final judgment has

been entered as to those parties and their privies.” Id. at 198 (citations omitted)

(emphasis added).

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Court of Common Pleas of Lycoming County. Derrick was the only named

defendant in that suit. That complaint emphasized Hill’s RICO claim instead of his

constitutional and civil rights claims. On April 16, 2004, the state court denied

Hill’s motion for leave to proceed in forma pauperis and simultaneously dismissed

his complaint as frivolous pursuant to Pennsylvania Rule of Civil Procedure 240(j). 

Defendant’s argument as to the preclusive effect of this earlier judgment on

plaintiff’s constitutional and civil rights claims, which were asserted in Hill’s first

complaint, should be based on collateral estoppel, and not res judicata.3

The federal full faith and credit statute, 28 U.S.C. § 1738, requires federal

courts to “give preclusive effect to State court judgments whenever the courts of

the State from which the judgments emerged would do so.” Allen v. McCurry, 449

U.S. 90, 96 (1980); Delaware River Port Authority v. Fraternal Order of Police, 290

F.3d 567, 572 (3d Cir. 2002). The issue we must decide then is whether the Court

of Common Pleas decision to dismiss Hill’s prior complaint as frivolous bars the

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instant section 1983 civil rights action against defendant Derrick. “A federal court

looks to the law of the adjudicating state to determine its preclusive effect.” 

Delaware River Port Authority, 290 F.3d at 573 (citing Greenleaf v. Garlock, Inc.,

174 F.3d 352, 357 (3d Cir. 1999)).

Under Pennsylvania law the following four elements must be present to bar a

potential claim under the doctrine of collateral estoppel: (1) the issue decided in the

prior adjudication must be identical with the one presented in the later action; 

(2) there must have been a final judgment on the merits; (3) the party against whom

collateral estoppel is asserted must have been a party or in privity with the party to

the prior adjudication; and (4) the party against whom collateral estoppel is asserted

must have had a full and fair opportunity to litigate the issue in question in the prior

adjudication. Witkowski v. Welch, 173 F.3d 192, 199 (3d Cir. 1999). Defendant

has noted that the issue of whether a dismissal of a complaint pursuant to 240(j) as

frivolous constitutes a decision on the merits has not been decided by the courts of

Pennsylvania. See McGriff v. Vidorich, 699 A.2d 797, 798 n.1 (Pa. Commw. Ct.

1997). Because the law of Pennsylvania is not clear on whether dismissal of a

complaint as frivolous constitutes a decision on the merits, and we find that Hill

may have a cognizable claim under the First and Fourteenth Amendments, we will

not preclude the instant action on the basis of either res judicata or collateral

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estoppel. We believe Hill deserves a full and fair opportunity to litigate his

constitutional claims on the merits against defendant Derrick and Cressman with

regard to his banishment from the Muncy Public Library. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY D. HILL :

: Case No. 4:05-CV-1229

Plaintiff, :

:

v. :

: (Judge McClure)

EVELYN DERRICK, :

RICHARD SUTTON, :

JANE STUGART-OTTERBEIN, :

AND LORI CRESSMAN, :

:

Defendants. :

O R D E R

November 3, 2005

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion to dismiss is granted in part. (Rec. Doc. No. 9.)

2. All claims against defendants Sutton and Stugart-Otterbein are

dismissed for failure to state a claim upon which relief can be granted.

3. Plaintiff’s conspiracy, official corruption, and RICO claims are

dismissed for failure to state a claim upon which relief can be granted.

4. Only Plaintiff’s section 1983 claims, alleging violations of his First and

Fourteenth Amendment rights, against defendants Derrick and Cressman remain, to

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which defendants Derrick and Cressman shall file an answer within twenty (20)

days. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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