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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANDREW RICHARDSON, )

Plaintiff )

) C.A. No. 05-226 Erie

vs. ) District Judge McLaughlin

) Magistrate Judge Baxter

DEPARTMENT OF HUMAN SERVICES, )

OFFICE OF CHILDREN AND YOUTH, )

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I. RECOMMENDATION

It is respectfully recommended that Defendant’s motion to dismiss [Document # 10] be

granted.

II. REPORT

A. Relevant Procedural and Factual History

Plaintiff Andrew Richardson, presently incarcerated at the Erie County Prison, brings

this pro se civil rights action pursuant to 42 U.S.C. § 1983. Although Plaintiff’s rambling

allegations are somewhat difficult to comprehend, it appears Plaintiff is asking this Court to

enjoin Defendant from “continued harassment” and making “false allegations”of child

molestation against him. (Complaint at Section VI). In particular, Plaintiff makes the following

allegations, which are set forth verbatim from his complaint: 

The Children of Youth brought allegations of child molestation. I was

first informed that I had touched all 7 girls, then as time went on they

had me report to the Police Department for an interview (by tape). I

was released that day with no further contact with the police. Roughly

1 week later I was arrested for statutory rape. I was booked and placed

in the Erie County Prison. Upon going to my preliminary they never

informed me of the charges. (They claimed cuz I couldn’t read).

Then I was brought to two separate suppression hearings where I had to

listen to false allegations be made. They bound all tapes & evidence

over to trial. Upon the date of trial there was no tapes to be found. All

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criminal proceedings were based on these tapes which were suppose to

have me admitting to this crime. Said tapes were never found.

Now Children and Youth are trying to continue to push the same

allegations of child molestation even after my daughter came to court

and stated no such thing happen! Even after 2 counts were dismissed

they are still trying to recharge me.

(Complaint at Section IV.C).

Defendant has filed a motion to dismiss [Document # 10], claiming that (i) this Court

lacks subject matter jurisdiction to grant the relief requested, or (ii) Plaintiff has failed to plead

the existence of an unconstitutional policy, custom, or practice implemented by Defendant that

caused a constitutional deprivation and, thus has failed to state a claim upon which relief may be

granted. Despite being given the opportunity to do so, Plaintiff has failed to file a response to

Defendant’s motion. This matter is now ripe for consideration.

B. Standards of Review

1. Subject Matter Jurisdiction - F.R.C.P. 12(b)(1)

When a motion to dismiss is made under Federal Rule of Civil Procedure 12(b)(1) for

lack of subject matter jurisdiction which attacks the complaint as deficient on its face, the Court

must take all allegations in the complaint as true. Mortensen v. First Federal Sav. and Loan

Ass'n, 549 F.2d 884, 891(3d Cir. 1977). However, when the motion attacks the existence of

subject matter jurisdiction in fact, no presumptive truthfulness attaches to plaintiff's allegations

and the Court may weigh the evidence to satisfy itself that subject matter jurisdiction exists in

fact. Id. at 891. See also Carpet Group Intern. v. Oriental Rug Importers Ass'n, Inc., 227 F.3d

62, 69 (3rd Cir. 2000); Poling v. K. Hovnanian Enterprises, 99 F.Supp.2d 502, 515 (D.N.J.

2000).

In Mortensen, the Third Circuit delineated the standard of review to be used in a

12(b)(1) motion, as opposed to a motion under 12(b)(6), stating:

The basic difference among the various 12(b) motions is, of

course, that 12(b)(6) alone necessitates a ruling on the merits of

the claim, the others deal with procedural defects. Because

12(b)(6) results in a determination on the merits at an early stage

of plaintiff's case, the plaintiff is afforded the safeguard of having

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all its allegations taken as true and all inferences favorable to

plaintiff will be drawn. . . . 

The procedure under a motion to dismiss for lack of subject

matter jurisdiction is quite different. At the outset we must

emphasize a crucial distinction, often overlooked, between

12(b)(1) motions that attack the complaint on its face and 12(b)(1)

motions that attack the existence of subject matter jurisdiction in

fact, quite apart from any pleadings. The facial attack does offer

similar safeguards to the plaintiff: the court must consider the

allegations of the complaint as true. The factual attack, however,

differs greatly for here the trial court may proceed as it never

could under 12(b)(6) or Fed.R.Civ.P. 56 . Because at issue in a

factual 12(b)(1) motion is the trial court's jurisdiction its very

power to hear the case there is substantial authority that the trial

court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case. In short, no presumptive

truthfulness attaches to plaintiff's allegations, and the existence of

disputed material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional claims. Moreover,

the plaintiff will have the burden of proof that jurisdiction does in

fact exist.

549 F.2d 884, 891. Accordingly, no presumptive truthfulness attaches to Plaintiff's allegations

regarding subject matter jurisdiction. 

2. Motion to Dismiss

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Langford v.

City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The motion cannot be granted unless

the court is satisfied “that no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). See also

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 

Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a

claim for relief which contains a short and plain statement of the claim showing that the pleader

is entitled to relief. The issue is not whether the plaintiff will prevail at the end but whether he

should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319

(1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). However, a court need not credit a

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complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse

v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) citing In re Burlington Coat

Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). Therefore, in order to

survive a motion to dismiss for failure to state a claim, the complaint must only set forth

sufficient information to suggest that there is some recognized legal theory upon which relief

can be granted. See Swierkiewicz.

3. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972) quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared

by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith

v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections,

949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe

all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6)

standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same).

C. Discussion

1. Rooker-Feldman Doctrine

Defendant argues that “in order for this Court to conclude that defendant’s investigation

and findings that lead to the charges in question were somehow improper and violated plaintiff’s

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This doctrine arises out of the decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149 (1923) and

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303 (1983).

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constitutional rights, this Court would have to determine that plaintiff’s conviction was wrong. 

Such relief is a request to have this Court determine that the State proceedings were erroneous

or otherwise ineffectual, and are barred by Rooker-Feldman.” (Document # 10, Defendant’s

motion to dismiss, at ¶ 11). Under the Rooker-Feldman Doctrine,1 federal courts are prohibited

“from exercising ‘subject matter jurisdiction to review final adjudications of a state’s highest

court or to evaluate constitutional claims that are inextricably intertwined with the state court’s

[decision] in a judicial proceeding.’” Ernst v. Child and Youth Services of Chester County, 108

F.3d 486, 491 (3d Cir. 1997), cert. denied, 522 U.S. 850, 118 S.Ct. 139 (1997)(quoting FOCUS

v. Allegheny County Court of Common Pleas, 75 F.3d 834, 840 (3d Cir. 1996))(internal

citations omitted). 

In this case, however, Plaintiff is not asking this Court to review the decision of the state

court, nor is he asking for the state court judgment to be overturned. Plaintiff is essentially

claiming that his substantive due process rights have been violated by Defendant’s allegedly

false allegations of child molestation, which he is asking this Court to enjoin. Because

Plaintiff’s allegations do not “involve the invalidation of any conclusion or judgment reached by

the state court,” Rooker-Feldman is not implicated. Ernst, 108 F.3d at 492. As a result,

Defendant’s motion to dismiss Plaintiff’s complaint for lack of subject matter jurisdiction

should be denied. 

2. Respondeat Superior

Defendant’s argue that “Plaintiff’s § 1983 claim against defendant must be dismissed

because plaintiff has failed to plead the existence of an unconstitutional policy, custom or

practice implemented by defendant that caused a constitutional deprivation.” (Document # 10,

Defendant’s motion to dismiss, at ¶ 12). The Court agrees. Plaintiff merely claims that

Defendant has made false allegations against him, which has essentially violated his

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constitutional right to due process; he makes no mention of any policy, custom or practice of

Defendant that led to such a violation. Without alleging a policy, custom or practice, Plaintiff

has failed to state a prima facie case against Defendant under Section 1983. Marran v. Marran,

376 F.3d 143, 156 (3d Cir. 2004). As a result, Defendant’s motion to dismiss Plaintiff’s

complaint for failure to state a claim should be granted.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that Defendant’s motion to

dismiss [Document # 10] be granted.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten days from the date of 

service to file objections to this Report and Recommendation. 

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: June 1, 2006

cc: The Honorable Sean J. McLaughlin

United States District Judge 

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