IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


CATHERINE F. LANGELLA, ) 


) 


Plaintiff ) 


) 

v. 	 ) Case No. 09-cv-312E 

) 

DOMINIC A. CERCONE, JR. et al., ) 

) 

Defendants 	 ) 


) 


OPINION 

Pending before this Court is the "Motion to Dismiss Plaintiffs Amended Complaint on 

Behalf of Defendants Magisterial District Judge Dominic A. Cercone, Jr. and Family Law Master 

Deborah Willson Babcox" ("the Judicial Defendants") [Doc. #20]. For the reasons set forth 

below, the Judicial Defendants' Motion to Dismiss is granted. With respect to Family Law 

Master Babcox, said dismissal is with prejudice. With respect to Magisterial District Justice 

Cercone, said dismissal is with prejudice to the extent Plaintiff s Section 1983 claim is based 

upon Magisterial District Justice Cercone's conduct in 2007 and is without prejudice to the 

extent Plaintiff s Section 1983 claim is based upon Magisterial District Justice Cercone's 

conduct in 2009. 

I. Standards of Review. 

As explained by the Third Circuit Court in Fowler v. UPMC Shadyside, 578 F.3d 203 (3d 

Cir.2009): 

when presented with a motion to dismiss for failure to state a claim, district courts 

should conduct a two-part 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 

Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 1 of 16
District Court must then 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 plaintiffs 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 

ofmisconduct, 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, 578 F.3d at 2 I 0-211. See also IQbal, 129 S.Ct. at 1949 (Quoting Bell Atlantic Corp. v. 

Twombly, 127 S.Ct. 1955, 1965-66 (2007) ("a complaint must contain sufficient factual matter, 

accepted as true, to 'state a claim to relief that is plausible on its face.' 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."); Twombly, 127 S.Ct. at 1965 

(factual allegations of a complaint "must be enough to raise a right to relief above the speculative 

level."). "This [standard] 'does not impose a probability requirement at the pleading stage,' but 

instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal 

evidence or the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 

2008) (Quoting Twombly, 127 S.Ct. at 1965). Thus, "a plaintifrs obligation to provide the 

'grounds' ofhis 'entitle[ment] to relier requires more than labels and conclusions, and a 

formulaic recitation ofthe elements of a cause of action will not do." Twombly, 127 S.Ct. at 

1965 (citations omitted). 

In examining a pro se complaint that has been challenged by a motion to dismiss, said 

complaint is to be liberally construed. Alston v. Parker, 363 F.3d 229,234 (3d Cir. 2004) (citing 

Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003)). Indeed, the Supreme Court has held 

2 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 2 of 16
that, after Twombly, the Court is required to hold a pro se complaint, "to less stringent standards 

than formal pleadings drafted by lawyers," however inartfully pled. Erickson v. Pardus, 127 

S.Ct. 2197,2200 (2007) (citing Estelle v. Gamble, 97 S.Ct. 285 (1975». See also Holley v. Dept. 

of Veterans Affairs, 165 F.3d 244,247-48 (3d Cir. 1999) (holding that the court must read apro 

se complaint for substance and apply the applicable law, regardless ofwhether the plaintiff used 

the appropriate names for his or her claims). 

II. Factual Allegations. 

A. Factual allegations related to Family Law Master Babcox. 

Relevant to her claims against Family Law Master Babcox, Plaintiff alleges the 

following. Family Law Master Babcox is currently the court-appointed Family Law Master of 

McKean County, Pennsylvania. Amended Complaint, ~ 9. Plaintiffhad filed a Petition for 

Spousal Support on October 23,2007, and a hearing on Plaintiffs Petition was scheduled to be 

heard before Family Law Master Babcox on December 17, 2007. Id. at ~ 29. Family Law 

Master Babcox had been a friend, associate and colleague of Plaintiff's husband for more than 20 

years. Id. at ~ 30. At the hearing, Family Law Master Babcox allowed Plaintiffs husband to 

speak for more than 30 minutes, testifYing that his wife had hit him and stolen from his checking 

account. Id. at ~ 31. When Plaintiffs husband was through testifYing, Plaintiff began to testifY 

that her husband had been abusive for many years, had multiple addictions, and that she was in 

possession of a copy of his online addictions journal. Id. When Plaintiff attempted to give a copy 

ofthe addictions journal to Family Law Master Babcox, Family Law Master Babcox put up her 

hand, told Plaintiff"Mrs. Langella, I am not interested in anything you have to say," and then 

stated "Mrs. Langella, I am not interested in anything you have to show me." Id. Family Law 

3 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 3 of 16
Master Babcox thereafter ruled that she was not awarding Plaintiff any spousal support as she 

had determined that Plaintiffs husband had proven that he was an injured spouse. Id. Family 

Law Master Babcox did not allow Plaintiff to put on any defense or rebuttal. Id. 

Plaintiff then asked Family Law Master Babcox why she was hearing the matter as she 

obviously had serious bias and prejudice. Id. at ~ 32. Family Law Master Babcox then said she 

would ask that "someone else" hear Plaintiffs Petition. Although Plaintiff had no source of 

income, had no vehicle and no resources, nothing else was scheduled for months after that 

hearing. Id. 

As a result of Family Law Master Babcox's actions, Plaintiffwas subject to extreme 

mental and emotional distress, and was deprived of reasonable spousal support to care for 

herself, as well as monetary contributions from Plaintiffs husband to care for Plaintiffs rescue 

animals for many months, causing Plaintiff to literally go begging for food and supplies for both 

herself and her animals, as well as to suffer the termination of telephone services, repeated 

threatened cut-off of gas and electric service, water and sewer services, impending mortgage 

foreclosure, deprivation of any transportation costs and the inability to resume working outside 

the home due to the removal of Plaintiffs vehicle by Plaintiffs husband. Id. at ~ 33. 

B. Factual allegations related to Magisterial District Judge Cercone. 

Relevant to her claims against Magisterial District Judge Cercone, Plaintiff alleges that 

following. Judge Cercone is a District Judge in the Magisterial District 48-1-01, City of 

Bradford, McKean County, Pennsylvania. Id. at ~ 7. On October 22, 2007 Plaintiff was charged 

with simple assault and harassment for striking her husband, then the McKean County Chief 

Public Defender. Id. at ~~ 12 and 18. She was arraigned before Magisterial District Judge 

4 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 4 of 16
Cercone, a long-time colleague and friend of Plaintiff s husband, who set bail at $5000, 

unsecured, but with the condition that Plaintiff was to have no contact with her husband. Id. On 

November 2,2007, Magisterial District Judge Cercone was advised that Plaintiff had violated the 

terms of her bail. Plaintiff was arrested, placed in a holding cell, a bail revocation hearing was 

held by Magisterial District Judge Cercone, and Plaintiff was remanded to the McKean County 

Prison ("the Prison") to await a previously scheduled Preliminary Hearing that was scheduled for 

November 12,2007. Id. at ~ 13. 

During the bail revocation hearing, Plaintiff attempted to testify that she had not 

intentionally violated the terms of her bail, and was repeatedly cut off by Magisterial District 

Judge Cercone. Id. at ~14. After Magisterial District Judge Cercone advised that she would "sit 

in jail" until the date of her Preliminary Hearing, Plaintiff begged and pleaded with Magisterial 

District Judge Cercone to be allowed to go home to take care of her more than forty (40) rescue 

animals, explaining that many of the animals were in bad health and that she was the only one 

that would care for the animals. Id. In response and in front of witnesses, Magisterial District 

Judge Cercone began to ridicule Plaintiff, telling her she had "more important things to worry 

about" than her animals. Id. at ~ 15. Plaintiff was then transferred to the Prison where she 

remained for forty-two (42) days, until December 12, 2007. Id. at ~~ 16-17, 23. 

During Plaintiffs time in the Prison, Magisterial District Judge Cercone repeatedly 

denied Plaintiffs requests to be able to attend her Preliminary Hearing and to have her bail 

reinstated. Id. at ~ 17. Plaintiffs appointment of counsel had to go though the McKean County 

Public Defender's office, her husband's office. Id. at ~ 18. On numerous occasions, Magisterial 

District Judge Cercone stated that he would not allow Plaintiff a preliminary hearing until she 

5 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 5 of 16
had appointed counsel. Id. Plaintiffs husband's secretary from the Public Defender's Officer 

also told Judge Cercone that Plaintiff wanted to appear at a preliminary hearing without counsel, 

but Magisterial District Judge Cercone denied that request. Id. at, 19. A corrections officer from 

the Prison also spoke with Magisterial District Judge Cercone's secretary and later with 

Magisterial District Judge Cercone to advise Magisterial District Judge Cercone that Plaintiff 

was requesting a preliminary hearing and/or reinstatement ofher bail; Judge Cercone advised the 

corrections officer that he had "no intention of giving Plaintiff a hearing or reinstating her bail." 

Id. at ~ 20. 

Magisterial District Judge Cercone later falsified an official court document to attempt to 

show that Plaintiffhad appointed counsel, Attorney James Martin, and that Attorney Martin had 

requested an additional continuance of two (2) weeks for Plaintiffs preliminary hearing. Id. at ~ 

21. As of the date ofthe purported requested continuance, Attorney Martin has not yet been 

appointed to represent Plaintiff, and Magisterial District Judge Cercone again refused to allow 

Plaintiff to appear at a preliminary hearing. Id. 

During the time period when Magisterial District Judge Cercone was repeatedly denying 

Plaintiffs request for a preliminary hearing and/or reinstatement of her bail, many of Plaintiffs 

rescue animals died. Id. at ~ 22. 

Plaintiff finally had a preliminary hearing on December 12, 2007. Id. at ~ 23. During the 

hearing Magisterial District Judge Cercone threatened Plaintiff with involuntary commitment to a 

psychiatric facility and gave Plaintiff until 5:00 on December 12, 2007, to find a psychiatrist that 

would attest to him that Plaintiff did not need to be involuntarily committed. Id. When Plaintiff 

told Magisterial District Judge Cercone that she had been told that she no longer had a vehicle 

6 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 6 of 16
because her husband had taken the car, and therefore, she did not have transportation, Magisterial 

District Judge Cercone stated in open court "that's not my problem." Id. 

Two years later, on December 9,2009, Plaintiff called Magisterial District Judge 

Cercone's office to ask for an appointment with Magisterial District Judge Cercone. Id. at ~ 24. 

Magisterial District Judge Cercone's secretary told Plaintiff to come to the office any time after 

lunch. Id. 

Plaintiff went to Magisterial District Judge Cercone's office and asked to speak with him 

in private, telling him that she wanted to speak with him "face-to-face" to discuss the events 

from 2007. Id. at ~ 25. Magisterial District Judge Cercone agreed to speak with Plaintiff with 

one of his secretaries present. Id. 

Once Plaintiff began speaking with Magisterial District Judge Cercone about his actions 

from 2007 in her case, Magisterial District Judge Cercone told Plaintiff he had "done nothing" to 

her, jumped up, told her to leave or he would "call the police," and, as Plaintiff was leaving, 

shouted to his office staff "I think Cathy is having another episode; I think we should call 

Stoney." Id. at ~ 26. Stoney Greenman is a mental health professional. Id. Magisterial District 

Judge Cercone then asked Plaintiff if she "needed to be committed." Id. Plaintiff left Magisterial 

District Judge Cercone's office and returned to work. Id. at ~ 27. The total amount oftime 

Plaintiff spent in Magisterial District Judge Cercone's office was approximately five (5) minutes. 

Id. 

Within two (2) hours of Plaintiff returning to work, Plaintiffs husband received a phone 

call from Todd Godwin ofthe Office of the Attorney General, who informed him that Magisterial 

District Judge Cercone had lodged a complaint with McKean County Adult Probation, the 

7 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 7 of 16
Attorney General's Office and the Bradford City Police Department. Id. As a result of Judge 

Cercone's actions, Plaintiff became terrified that Judge Cercone would again imprison her in 

some fashion, using his position and power to control Plaintiffs very existence. Id. at ~ 28. 

III. Legal Analysis of Plaintifrs 42 U.S.c. § 1983 claims. 

A. Claims with respect to Family Law Master Babcox. 

Plaintiff states the following with respect to Family Law Master Babcox: "Plaintiff brings 

this suit pursuant to Title 42 U.S. Code §1983 for violation of certain protections guaranteed to 

her by the First, Fifth, Eighth, Ninth and Fourteenth Amendments to the U.S. Constitution, by the 

Defendant Deborah W. Babcox, under color oflaw in her capacity as Family Law Master of the 

County of McKean, Pennsylvania. Id. at ~ 3. Again, she also alleges "[b]ecause of the unilateral 

and cooperative actions of all Defendants, Plaintiff was deprived of every one of her 

Constitutional Rights of Due Process and Equal Protection under the law." Id. at 40. 

In her Response to Defendant's Motion to Dismiss, however, Plaintiff clarifies her claim 

against Family Law Master Babcox: "Plaintiff avers that Defendant Babcox denied her basic due 

process of law and, as a result, was deprived of access to spousal support for more than three 

months." Plaintiffs Response, p. 2. See also Id. at p. 6 ("the record ofthe proceedings before her 

demonstrate a clear bias and prejudice toward the Plaintiff and a denial of the most basic legal 

right of due process."); Id. ("The actions of Defendant Babcox as alleged in Plaintiffs complaint 

implicate clear bias and prejudice, denial of basic due process and left the Plaintiff no immediate 

recourse for access to the Court to pursue her clam for spousal support. "). 

8 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 8 of 16
B. Section 1983 claim against Magisterial District Judge Cercone. 

In her Amended Complaint, Plaintiff states as follows with respect to her claims against 

Magisterial District Judge Cercone: "Plaintiff brings this suit pursuant to Title 42 U.S. Code 

§1983 for violation of certain protections guaranteed to her by the First, Fifth, Eighth, Ninth and 

Fourteenth Amendments to the U.S. Constitution, by the Defendant Dominic A. Cercone, Jr., 

under color of law in his capacity as a District Magisterial District Judge in Magisterial District 

48-1-01, City of Bradford, McKean County, Pennsylvania. Amended Complaint, ~ 2. She further 

alleges "[b]ecause of the unilateral and cooperative actions of all Defendants, Plaintiff was 

deprived of every one of her Constitutional Rights of Due Process and Equal Protection under the 

law." Id. at 40. 

In her Response to Defendants' Motion to Dismiss, she clarifies her Section 1983 claim 

against Magisterial District Judge Cercone with respect to the allegations concerning Magisterial 

District Judge Cercone in 2007: 

the first series of allegations [in 2007] implicate actions by Defendant Cercone 

which denied Plaintiff the right to a timely preliminary hearing, in violation of her 

basic due process rights. Plaintiffs liberty was being restrained and the courts 

have recognized a legal right of a prisoner to proceed pro se, or unrepresented by 

counsel. Denial of adequate access to the courts is a violation of the basic 

Constitutional rights." Plaintiffs Response, p. 6 (citations omitted). 

Plaintiffs Complaint and Amended Complaint allege that Defendant Cercone 

denied Plaintiff access to his court and to a preliminary hearing on the criminal 

charges filed and pending against Plaintiff. The Complaint alleges that Defendant 

Cercone falsified an official court document and continued the November 14, 

2007, scheduled preliminary hearing, reciting that the continuance was at the 

request of Defendant's counsel when, in fact, no counsel had yet been appointed. 

Plaintiffs Response, pp. 6-7. Plaintiff does not enumerate in her Response what constitutional 

9 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 9 of 16
right(s) Magisterial District Judge Cercone's conduct in 2009 violated. However, based upon the 

arguments contained in Plaintiffs Response, we find that Plaintiff is alleging that said conduct 

violated her liberty interest in personal security. See Plaintiff s Response, p. 3 ("Plaintiff had 

asked permission to speak with Defendant Cercone, was given permission, and had broken no 

law, but still was threatened with jail and involuntary commitment by Defendant Cercone"); Id. 

at pp. 4 ("with respect to ... Plaintiffs claims regarding the incident at Defendant Cercone's 

office on December 9, 2009, ... his actions were meant to threaten, harass and instill fear in 

Plaintiff, being fully aware ofwhat he had done to Plaintiff previously ...."); Id. at pp. 7-8 

("Plaintiffs Amended Complaint alleges that, in response to Plaintiffs request to speak to 

Defendant Cercone about the prior incidents in 2007, Defendant Cercone became verbally 

abusive and threatening toward Plaintiff in front of his office staff, creating extreme emotional 

distress and fear to Plaintiff."). In Iniraham v. Wriiht, 430 U.S. 651, 97 S.Ct. 140 I (1977), the 

Supreme Court stated that "[a]mong the historic liberties [protected by the due process clause] 

was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal 

security." Id. at 673. 

C. Applicability of Judicial Immunity. 

The Judicial Defendants' motion to dismiss is based upon the contention that Plaintiff's 

Section 1983 claims against them must be dismissed with prejudice because they are barred due 

to Family Law Master Babcox and Magisterial District Judge Cercone being entitled to absolute 

judicial immunity.' "Plaintiffs claims for monetary damages against Judicial Defendants are 

'The Judicial Defendants also summarily state: "[p]ursuant to Rule 1 O(c) of the Federal 

Rules of Civil Procedure, Judicial Defendants hereby incorporate as iffully set forth the legal 

arguments, to the extent applicable, set forth co-Defendant Egbert's previously filed Motion to 

10 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 10 of 16
based on her disagreement with Judicial Defendants rulings made in proceedings involving 

Plaintiff. The doctrine ofjudicial immunity bars damages claims against Judicial Defendants 

based on such allegations." Brief in Support of Judicial Defendants Motion to Dismiss Plaintiffs 

Amended Complaint ("Judicial Defendants' Supporting Brief'), pp. 3-4. See also Id. at p. 5 

("[a]ll of Judicial Defendants contacts with Plaintiff were in their judicial capacities and within 

their jurisdiction."). 

1. Judicial Immunity and Family Law Master Babcox. 

With respect to Family Law Master Babcox, Plaintiff first argues that judicial immunity 

does not apply with respect to her Section 1983 claim against Family Law Master Babcox 

because Family Law Master Babcox lacked jurisdiction over Plaintiff by virtue of her bias and 

prejudice in favor of Plaintiff s husband with respect to the Petition for Spousal Support. In 

particular, Plaintiff argues that based upon Family Law Master Babcox's prior long-standing 

relationship with Plaintiffs husband, Family Law Master Babcox knew or should have known 

that the Rules of Judicial Conduct required her to recuse herself if she felt that she could not be 

fair and impartial toward Plaintiff, that Family Law Master Babcox's actions during the hearing 

Dismiss Plaintiffs Amended Complaint." 

Fed.R.Civ.P. lO(c) states in pertinent part: "[a] statement in a pleading may be adopted by 

reference elsewhere in the same pleading or in any other pleading or motion." This rule of civil 

procedure does not provide a legal mechanism whereby a court should consider legal arguments 

raised in another party's motion to dismiss; incidentally, a motion to dismiss is not a pleading. 

See Fed. R. Civ. P. 7 (pleadings include complaint, answer, reply to counterclaim, answer to 

cross-claims, third party complaint and third-party answer and, by order of court, a reply to an 

answer or third-party answer). 

More importantly, it is not this Court's responsibility to search another party's motion to 

detennine which, if any, of the arguments set forth in said motion are applicable to a different 

defendant and the Court will not do so in this case. In the future, if a party wants to utilize a 

specific legal argument already advanced to this Court in another party's motion, the party shall 

take the time to fully transcribe said argument into his or her document. 

11 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 11 of 16
clearly demonstrated a lack of impartiality that denied Plaintiff's due process of law, and 

therefore, Family Law Master Babcox lacked jurisdiction over Plaintiff. Plaintiff's Response, p. 

4. 

Plaintiff further argues that judicial immunity does not apply to her Section 1983 claim 

against Family Law Master Babcox because Family Law Master Babcox was acting in an 

administrative action, and not in any way as a matter of adjudication when she unilaterally and 

erroneously chose to ignore the Rules of Judicial Conduct and to oversee the matter, even though 

she was personally biased and was not impartial, all which denied Plaintiff any meaningful or 

proper access to the court system to pursue any claim for spousal support for more than three 

months. Id. 

As recently explained by the Third Circuit court in Capogrosso v. The Supreme Court of 

New Jersey, 588 F.3d 180 (3d Cir. 2009): '''A judicial officer in the performance of his duties 

has absolute immunity from suit and will not be liable for his judicial acts'. 'A judge will not be 

deprived of immunity because the action he took was in error, was done maliciously, or was in 

excess of his authority; rather, he will be subject to liability only when he has acted "in the clear 

absence of all jurisdiction"'." Id. at 184 (quoting Azubuko v. Royal, 443 F 3d 302, 303 (3d 

Cir.2006); Stump v. Sparkman, 435 U.S. 349,356-57,98 S.Ct. 1099 (1978)). Here, Plaintiff has 

not alleged any facts which would show that Family Law Master Babcox acted either in the 

complete absence ofjurisdiction or in a non-judicial (for example administrative) capacity with 

respect to Plaintiff. To the contrary, all of the alleged actions taken by Family Law Master 

Babcox related to judicial actions she took as a judicial officer. That Family Law Master Babcox 

allegedly acted with bias, partiality and prejudice in performing these judicial acts does not 

12 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 12 of 16
eliminate the applicability ofjudicial immunity. See Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 

286,288 (1991) ("judicial immunity is not overcome by allegations of bad faith or malice"). 

Accordingly, Family Law Master Babcox is entitled to absolute immunity from suit by Plaintiff 

and her motion to dismiss Plaintiffs Amended Complaint must be granted with prejudice. 

2. Judicial Immunity and Magisterial District Judge Cercone. 

With respect to Magisterial District Judge Cercone, Plaintiff argues that judicial 

immunity does not apply with respect to her Section 1983 claim against him because: 

his actions in repeatedly denying Plaintiff access to a Preliminary Hearing was not 

in the nature of an adjudicatory function but rather an administrative act regarding 

the scheduling of a hearing and access to the court itself. 

Also with respect to Defendant Cercone and Plaintiffs claims regarding the 

incident at Defendant Cercone's office on December 9,2009, the Defendant had 

no legal matter concerning the Plaintiff pending before him and, as such, his 

actions were meant to threaten, harass, and instill fear in Plaintiff, being fully 

aware ofwhat he had done to Plaintiff previously, and were in no way connected 

to an adjudicatory function. 

Plaintiff's Response, pp. 4-5. Plaintiff also argues that given the unusual fact pattern of this case, 

Magisterial District Judge Cercone should have recused himself form Plaintiff's case at the 

outset. Id. at p. 7. 

With respect to Plaintiffs allegations concerning Magisterial District Judge Cercone's 

action in 2007, we find that all ofthe alleged action undertaken by Magisterial District Judge 

Cercone in 2007, including his alleged falsification of a court document to make it appear that 

Plaintiffs attorney had requested an additional continuance oftwo (2) weeks for Plaintiff's 

preliminary hearing when Plaintiff did not even have an attorney at that juncture in the 

proceedings, related to judicial actions and were not taken in the complete absence ofjurisdiction 

or in a non-judicial, administrative, capacity. Again, as with Family Law Master Babcox's 

13 

Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 13 of 16
alleged conduct, that Magisterial District Judge Cercone allegedly acted with bias, partiality and 

prejudice in performing these judicial acts does not eliminate the applicability ofjudicial 

immunity Accordingly, Magisterial District Judge Cercone is entitled to absolute immunity from 

suit with respect to the claims brought against him as a result of his conduct in 2007 and his 

motion to dismiss Plaintiff's Amended Complaint must be granted with prejudice with respect to 

this part of Plaintiff's Section 1983 claim against him. 

With respect to the alleged action undertaken by Magisterial District Judge Cercone in 

2009, however, we agree with Plaintiff that said actions were not undertaken in a judicial 

capacity. Therefore, Magisterial District Judge Cercone is not entitled to judicial immunity with 

respect to this part of Plaintiff's Section 1983 claim filed against him and the Judicial 

Defendants' motion to dismiss this part of Plaintiff's Amended Complaint on the basis of the 

applicability ofjudicial immunity is denied 

That said, we will still dismiss Plaintiff's Amended Complaint against Magisterial 

District Judge Cercone with respect to Magisterial District Judge Cercone's conduct in 2009 

because Plaintiff's Amended Complaint fails to state a Section 1983 claim against Magisterial 

District Judge Cercone upon which relief can be granted. As stated above, we read the allegations 

in Plaintiff's Amended Complaint about Magisterial District Judge's Cercone's conduct in 2009 

to be alleging a violation of Plaintiff's liberty interest in personal security as secured by the 

Fourteenth Amendment to the United States Constitution. 

Section 1983 provides in relevant part: 

Every person who, under color of any statute, ordinance, regulations, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen ofthe United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

14 

Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 14 of 16
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 .... 

Id. "In any § 1983 action the initial inquiry must focus on whether the two essential elements to 

a § 1983 action are present: (1) whether the conduct complained ofwas committed by a person 

acting under color of state law; and (2) whether this conduct deprived a person ofrights, 

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

Taylor, 451 U.S. 527, 535,101 S.Ct. 1908,68 L.Ed.2d 420 (1981), overruled on other grounds 

by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Section 1983 "is 

not itself a source of substantive rights, but a method for vindicating federal rights elsewhere 

conferred." Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). 

Our focus is on the second essential element of Plaintiffs Section 1983 claim-whether 

Magisterial District Judge Cercone's conduct in 2009, if true, violated Plaintiffs liberty interest 

in personal security guaranteed to her under the Fourteenth to the United States Constitution. 

Allegations ofverbal abuse, threats, or harassment generally are not actionable under 

Section 1983. See, for example, Burkholderv. Newton, 116 Fed.Appx. 358, 360 (3d Cir. 2004) 

(quoting Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y.l996» (explaining "[ilt is well 

established that '[a]llegations ofthreats or verbal harassment, without injury or damage, do not 

state a claim under 42 U.S.C. § 1983'."). Courts have held that a plaintiff may obtain relief under 

Section 1983 if verbal threats are accompanied by a reinforcing act. See, for example, 

Northington v. Jackson, 973 F.2d 1518 (loth Cir. 1992) and Douglas v. Marino, 684 F.Supp. 395 

(D.N.J. 1988). 

Applying this law to the allegations contained in Plaintiffs' Amended Complaint with 

respect to Magisterial District Judge Cercone's conduct in 2009, the Amended Complaint 

15 

Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 15 of 16
contains only allegations that Magisterial District Judge Cercone verbally abused, threatened, 

and/or harassed Plaintiff, unaccompanied by a reinforcing act; Magisterial District Judge 

Cercone's subsequent action of lodging a complaint with McKean County Adult Probation, the 

Attorney General's Office and the Bradford City Police Department does not constitute a 

reinforcing act. As such, with respect to Judge Cercone's conduct in 2009, the Amended 

Complaint does not state a Section 1983 claim for violation of Plaintiffs rights under the 

Fourteenth Amendment upon which relief can be granted and this part of Plaintiff's Section 1983 

claim against Judge Cercone must be dismissed. This dismissal, however, is without prejudice 

Plaintiff to file an amendment curing this deficiency, within the time frame set forth in the 

accompanying Order. 

IV. Conclusion. 

An appropriate Order follows. 

June~, u; 2010 ~~6,{1.fiJ.e. :x.r. 

MaUrIce B. Cohill, Jr. 

Senior District Court Judge 

16 


Case 1:09-cv-00312-MBC Document 32 Filed 06/10/10 Page 16 of 16