IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

DANA ELROY SMITH, et al., : Civ. No. 4:22-CV-1396 

 : 

 Plaintiffs, : 

 : (Judge Munley) 

v. : 

 : (Magistrate Judge Bloom) 

JOHN D. DECKER, et al., : 

 : 

Defendants. : 

 

REPORT AND RECOMMENDATION 

 

I. Statement of Facts and of the Case 

This case comes before this Court for consideration of a motion to 

dismiss filed by one of the defendants, Brian Tupper. (Doc. 61). The 

plaintiffs, Dana Smith and William Matthews, brought this action 

against Tupper and a host of other defendants arising out of their 2019 

state criminal prosecution for solicitation to commit criminal homicide 

and criminal conspiracy, charges that were ultimately dismissed. (Doc. 

51). 

The amended complaint alleges that Smith and Matthews were 

charged by a criminal complaint on or around December 30, 2019, with 

solicitation to commit criminal homicide and criminal conspiracy. (Doc. 

51 ¶ 13). These charges were brought by the Pennsylvania State Police 

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(“PSP”) through Defendants Decker, Williams, and Norton. (Id. ¶ 14). 

During the pendency of these state criminal proceedings, which were 

continued for nine and a half months, Smith was held at LCCF without 

bail. (Id. ¶¶ 16-17). As it relates to Defendant Tupper, a magisterial 

district court judge in Luzerne County, the amended complaint asserts 

that Tupper granted the Commonwealth’s requests for continuances of 

the plaintiffs’ preliminary hearing, resulting in Smith’s detention in 

LCCF for over nine months without bail. (Id. ¶¶ 19-21). 

Defendant Tupper has now filed the instant motion to dismiss (Doc. 

61), arguing that plaintiffs’ claims fail as a matter of law.1 This motion is 

fully briefed and ripe for resolution. For the following reasons, we 

recommend that the defendant’s motion to dismiss be granted. 

II. Discussion

 

A. Motion to Dismiss – Standard of Review 

The defendant has filed a motion to dismiss the complaint pursuant 

to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6) 

permits the court to dismiss a complaint if the complaint fails to state a 

1 The other remaining defendants have also filed motions to dismiss, 

which we will address separately. (Docs. 60, 64, 86). 

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claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under 

federal pleading standards, a complaint must set forth a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” Fed. 

R. Civ. P. 8(a)(2). 

In determining whether a complaint states a claim for relief under 

this pleading standard, a court must accept the factual allegations in the 

complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007), and accept “all reasonable inferences that can be drawn from 

them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 

1261 (3d Cir. 1994). However, a court is not required to accept legal 

conclusions or “a formulaic recitation of the elements of a cause of action.” 

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare 

recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice”). 

As the Third Circuit Court of Appeals has aptly summarized: 

[A]fter Iqbal, when presented with a motion to dismiss for 

failure to state a claim, district courts should conduct a twopart analysis. First, the factual and legal elements of a claim 

should be separated. The District Court must accept all of the 

complaint’s well-pleaded facts as true, but may disregard any 

legal conclusions. Id. Second, a District Court must then 

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determine whether the facts alleged in the complaint are 

sufficient to show that the plaintiff has a “plausible claim for 

relief.” Id. at 1950. In other words, a complaint must do more 

than allege the plaintiff’s entitlement to relief. A complaint 

has to “show” such an entitlement with its facts. See Phillips, 

515 F.3d at 234–35. As the Supreme Court instructed in Iqbal, 

“[w]here the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint 

has alleged—but it has not ‘show[n]’—‘that the pleader is 

entitled to relief.’ ” Iqbal, 129 S. Ct. at 1949. This “plausibility” 

determination will be “a context-specific task that requires 

the reviewing court to draw on its judicial experience and 

common sense.” Id. 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). 

 Generally, when considering a motion to dismiss, a court relies on 

the complaint and its attached exhibits, as well as matters of public 

record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court 

can also consider “undisputedly authentic document[s] that a defendant 

attached as an exhibit to a motion to dismiss if the plaintiff’s claims are 

based on the [attached] documents.” Pension Benefit Guar. Corp. v. 

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if 

the complaint relies on the contents of a document not physically 

attached to the complaint but whose authenticity is not in dispute, the 

court may consider such document in its determination. See Pryor v. 

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). 

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However, the court may not rely on any other part of the record when 

deciding a motion to dismiss. Jordan, 20 F.3d at 1261. 

B. The Motion to Dismiss should be Granted. 

As we have explained, the plaintiffs’ claims against Tupper arise 

out of Tupper’s actions as the magisterial district judge who presided over 

the plaintiffs’ state criminal proceedings. The amended complaint asserts 

that Tupper granted the Commonwealth’s numerous requests for a 

continuance of the preliminary hearing after the Commonwealth 

repeatedly failed to provide a witness. (Doc. 51 ¶¶ 19-21). After 

consideration, we conclude that any claims against Tupper are barred by 

the doctrine of absolute immunity. 

It is well settled that state judges are entitled to immunity from 

civil liability for claims arising out of acts taken in their official 

capacities. As the Third Circuit has explained, “[a] judicial officer in the 

performance of his or her duties has absolute immunity from suit.” 

Kwasnik v. LeBlon, 228 F. App’x 238, 243 (3d Cir. 2007) (citing Mireles 

v. Waco, 502 U.S. 9, 12 (1991)). 

Here, the claims against Tupper arise solely out of his duties as a 

judicial officer during the plaintiffs’ criminal prosecutions. The amended 

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complaint asserts that Tupper was the magisterial district judge 

assigned to preside over the plaintiffs’ criminal case (Doc. 51 ¶ 19), and 

that he granted the Commonwealth’s requests for a continuance of the 

preliminary hearing after the Commonwealth failed to provide a witness. 

(Id. ¶¶ 20-21). The amended complaint further asserts that Tupper 

refused to lower the plaintiffs’ bail despite the continuances. (Id. ¶ 22). 

The defendant was clearly performing his official duties as a judicial 

officer in the plaintiffs’ criminal case, and therefore, Tupper is entitled to 

absolute immunity from these claims. 

Further, the plaintiffs’ opposition brief appears to assert new facts, 

alleging that Judge Tupper was aware that the Commonwealth did not 

have a witness to testify, and despite this knowledge, continued to grant 

the Commonwealth’s requests and delay the case. (Doc. 75 at 7). 

However, “[i]t is axiomatic that the complaint may not be amended by 

the briefs in opposition to a motion to dismiss.” Com. of Pa. ex rel. 

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (citations 

and quotations omitted). Rather, the amended complaint asserts no facts 

from which we can infer that Tupper was acting outside the scope of his 

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judicial duties. Accordingly, Tupper is entitled to absolute immunity, and 

this motion to dismiss should be granted. 

III. Recommendation 

 For the foregoing reasons, IT IS RECOMMENDED THAT the 

defendant’s motion to dismiss the amended complaint (Doc. 61) be 

GRANTED. 

The parties are further placed on notice that pursuant to Local Rule 

72.3: 

Any party may object to a magistrate judge's proposed 

findings, recommendations or report addressing a motion or 

matter described in 28 U.S.C. § 636 (b)(1)(B) or making a 

recommendation for the disposition of a prisoner case or a 

habeas corpus petition within fourteen (14) days after being 

served with a copy thereof. Such party shall file with the clerk 

of court, and serve on the magistrate judge and all parties, 

written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report 

to which objection is made and the basis for such objections. 

The briefing requirements set forth in Local Rule 72.2 shall 

apply. A judge shall make a de novo determination of those 

portions of the report or specified proposed findings or 

recommendations to which objection is made and may accept, 

reject, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. The judge, 

however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the 

record developed before the magistrate judge, making his or 

her own determination on the basis of that record. The judge 

may also receive further evidence, recall witnesses or 

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recommit the matter to the magistrate judge with 

instructions. 

Submitted this day of January 2024. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

United States Magistrate Judge 

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