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 aI., ) 

) 

Defendants 	 ) 


) 


OPINION 

Pending before this Court is the "Motion of Defendant Christopher G. Hauser, Esq. To 

Dismiss Amended Complaint" [Doc. #18]. For the reasons set forth below, Attorney Hauser's 

Motion to Dismiss is granted and the Amended Complaint filed against him by Plaintiff 

Catherine Langella ("Plaintiff') dismissed; said dismissal, however, is without prejudice to 

Plaintiff to file a Second Amended Complaint within the time frame stated in the Order 

accompanying this Opinion. 

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 

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 

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of misconduct, the complaint has alleged-but it has not 'show[n], -'that the pleader 

is entitled to relief.' " Igbal, 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 210-211. See also Igbal, 129 S.Ct. at 1949 (guoting 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 of the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 

2008) (guoting Twombly, 127 S.Ct. at 1965). Thus, "a plaintiff s obligation to provide the 

'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a 

formulaic recitation of the 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 FJd 365, 369 (3d Cir. 2003». Indeed, the Supreme Court has held 

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. 

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

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

the appropriate names for his or her claims). 

II. Factual Allegations. 

Relevant to her Section 1983 claim against Attorney Hauser, Plaintiff alleges the 

following. Attorney Hauser is an attorney in private practice who is a close friend ofPlaintiff's 

husband. Amended Complaint, ~~ 5 and 38. From November 2,2007 to December 12,2007, 

Plaintiff was incarcerated at the McKean County Prison for allegedly violating the terms of bail 

that was issued after Plaintiff was charged with simple assault and harassment for allegedly 

hitting her husband in the face. Id. at ~~ 12,23. During the time period when Plaintiff was 

incarcerated and desperately begging to appear at a preliminary hearing and to again be released 

on bail, Attorney Hauser spoke to fellow Defendant Dominic A. Cercone, the judge who had 

originally arraigned Plaintiff and who had revoked her bail and remanded her to prison pending a 

previously scheduled preliminary hearing; Attorney Hauser asked Judge Cercone to do whatever 

he could to ensure that Plaintiff would not be released from the prison. Id. at ~ 38. In so doing, 

Attorney Hauser sought to influence Judge Cercone in depriving Plaintiff of a timely hearing 

and/or her continued detention at the prison in violation of her rights to procedural due process 

under the Fourteenth Amendment. Id. 

Judge Cercone falsified an official court document to attempt to show that Plaintiff had 

appointed counsel, James Martin, who had requested a continuance of two weeks for Plaintiffs 

preliminary hearing. Id at ~ 21. At the time ofthe purported requested continuance, Attorney 

Martin had not yet been appointed to represent Plaintiff. Id. 

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III. Legal Analysis of Plaintiff's 42 V.S.c. § 1983 claim. 

In her Amended Complaint, Plaintiff states that she is bringing this suit pursuant to Title 

42 U.S.C. § 1983 against Defendant Hauser individually for violation of certain protections 

afforded to her by the First, Fifth, Eighth, Ninth and Fourteenth Amendment to the United States 

Constitution by Defendant Hauser, individually. Amended Complaint, ~ 5. 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 Defendant Hauser's Motion to Dismiss, however, Plaintiff clarifies 

her claims against Attorney Hauser: "Plaintiff s Complaint, when read in its entirety, sets forth 

plausible facts to support a claim for Section 1983 conspiracy liability on the part of Defendants 

Hauser and Cercone [to deprive her of her due process rights]." Plaintiffs Response to 

Defendant Christopher G. Hauser's Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) ("Plaintiffs 

Response"), p. 3. She further explains her Section 1983 claim against Attorney Hauser as 

follows: 

The Plaintiffs Complaint alleges that, during the period of her incarceration at the 

McKean County Prison, Hauser called Defendant Cercone and attempted to 

influence and persuade Defendant Cercone to keep Plaintiff behind bars as long as 

possible. The Complaint also alleges that Defendant Cercone falsified an official 

court document and continued a scheduled preliminary hearing under the false 

premise that Plaintiffs "counsel" had requested the continuance. Plaintiff 

contends that Defendant Hauser conspired with Defendant Cercone to deprive her 

of her due process rights under the United States Constitution to a timely 

preliminary hearing. 

Plaintiffs Response, p. 2. As such, we are limiting our review of Plaintiffs Amended 

Complaint to an examination of whether Plaintiff has stated a claim for Section 1983 conspiracy 

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liability with respect to Attorney Hauser upon which relief can be granted. 

42 U.S.C. §1983 ("§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 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 .... 

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 of was committed by a person 

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

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). 

Plaintiff claims that Attorney Hauser and Judge Cercone conspired to violate her due 

process rights in violation of Section 1983. In order to state a cause of action for civil conspiracy 

under §1983, a plaintiff must plead both the elements of cause of action under §1983 and 

conspiracy. See Marchese v. Umstead, 110 F.Supp. 2d 361, 371 (E.D. Pa. 2000) (citing Holt 

Cargo Systems, Inc. v. Del. River Port Auth., 20 F.Supp. 2d 803, 843 (E.D. Pa. 1998), affd, 165 

F.3d 242 (3d Cir. 1999) ("there can be no liability for a conspiracy to violate section 1983 

without an actual violation of section 1983") (citations omitted)). While a heightened pleading 

standard generally does not apply to civil rights actions against individual defendants and 

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municipalities, see, for example, Verney v. Pa. Turnpike Commission, 881 F.Supp. 145, 149 

(M.D. Pa. 1995); Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 985 n. 4 (E.D. Pa. 

1994), a complaint that alleges a conspiracy must be pled with particularity. Miskovich v. Walsh, 

2010 WL 1643625, *2 (W.D. Pa. April 22, 2010) (Lenihan, J.); Bieros v. Nicola, 860 F.Supp. 

223,225 (E.D. Pa. 1994) (citing Loftus, 843 F.Supp. at 985) (internal citations omitted). 

Attorney Hauser argues in support of his Motion to Dismiss that Plaintiffs Amended 

Complaint "fails to allege any facts to support a claim that Hauser and Cercone conspired to 

deprive Langella of any constitutionally protected rights." Brief of Defendant Christopher G. 

Hauser, Esq. In Support of Motion to Dismiss ("Hauser's Supporting Brief'), p. 6. With respect 

to the conspiracy aspect of a Section 1983 conspiracy claim, in order to survive a Rule 12(b)( 6) 

motion to dismiss, a plaintiffs "allegations of a conspiracy must provide some factual basis to 

support the existence of the elements of a conspiracy: agreement and concerted action." 

Capogrosso v. The Supreme Court ofN.J., 588 FJd 180, 185 (3d Cir. 2009) (quoting Crabtree v. 

Muchmore, 904 F.2d 1475, 1480-81 (10th Cir. 1990)). Indeed, a plaintiff is required to allege that 

two or more co-conspirators reached an agreement for the purpose of depriving him of his 

constitutional rights under color ofstate law. Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 

700 (3d Cir.1993) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598 (1970)). 

"It is not enough to allege that the end result of the parties' independent conduct caused plaintiff 

harm or even that the alleged perpetrators ofthe harm acted in conscious parallelism." Spencer 

v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997). Rather, the plaintiff must show that the 

alleged conspirators "directed themselves toward an unconstitutional action by virtue of a mutual 

understanding or agreement." Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 

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(E.D. Pa. 1982) (citing Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7th Cir. 1980)). 

While Plaintiff contends that her "Complaint and Amended Complaint, when read in its 

entirety, state facts from which it can be inferred that there was an agreement between Defendant 

Hauser and Defendant Cercone to deprive Plaintiff ofher due process rights, and that Defendant 

Cercone thereafter took actions in furtherance of the agreement," we disagree. See Plaintiffs 

Response, p. 2. The allegations in Plaintiff s Amended Complaint do not "provide some factual 

basis to support the existence ofthe elements of a conspiracy: agreement and concerted action" 

and as such, Defendant's motion to dismiss Plaintiffs Section 1983 conspiracy claim must be 

granted and the claim dismissed. 

Attorney Hauser also argues that Plaintiff s Section 1983 conspiracy claim against him 

must be dismissed because he is not a state actor. Hauser's Supporting Brief, pp. 6-7. "[T]o act 

'under color of state law for § 1983 purposes does not require that the defendant be an officer of 

the State. It is enough that he is a willful participant in joint action with the State or its agents. 

Private persons, jointly engaged with state officials in the challenged action, are acting see 'under 

color' of law for purposes of § 1983 actions." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) 

(citations omitted). See also Adickes v. S. H. Kress & Co., 398 U.S. 144, 152,90 S.Ct. 1598, 

1605 (1970) ("a private party involved in such a conspiracy [with a state official], even though 

not an official of the State, can be liable under §1983."). For example, in Dennis the allegations 

were that an official act of a defendant judge was the product of a corrupt conspiracy between the 

judge and private parties. The Court held that "[u]nder these allegations, the private parties 

conspiring with the judge were acting under color of state law." Dennis, 449 U.S. at 28. As pled, 

Plaintiffs Amended Complaint does not contain factual allegations that would establish that 

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Attorney Hauser was acting under color of state law. 

Attorney Hauser's motion to dismiss Plaintifrs Section 1983 conspiracy claim against 

him is granted for failure to state a claim upon which relief can be granted.' Said dismissal is 

without prejudice to Plaintiff to file a second Amended Complaint curing said deficiencies within 

the time frame stated in the Order accompanying this Opinion. 

IV. Conclusion. 

An appropriate Order follows. 

u;. 

June!L:.,2010 ~11. e,k~. Maunee B. Cohill, Jr. l 

Senior District Court Judge 

'Given this conclusion, it is unnecessary to address Attorney Hauser's remaining 

argument that Plaintifrs Section 1983 conspiracy claim is barred under the Rooker-Feldman 

doctrine and we elect not to do so at this time. Attorney Hauser is free to raise this argument at an 

appropriate time in the future. 

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