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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BLAKE MATTHEWS, : No. 4:CV-06-1760

Plaintiff, : Judge Jones

:

v. :

:

LT. JOSEPH G. ELIAS, et. al, :

Defendants. :

MEMORANDUM AND ORDER

October 31, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss of Defendant, Attorney

General of Pennsylvania (doc. 4) filed on September 21, 2006. Also pending

before the Court is a Motion to Dismiss of Defendant, Pennsylvania State Police

(doc. 7) filed on September 26, 2006.

For the following reasons the Motions (docs. 4 and 7), shall be granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY:

On September 30, 2006, local police officers entered Plaintiff Blake

Matthews’ (“Plaintiff”) residence upon a report from Plaintiff’s ex-girlfriend that

Plaintiff was suicidal and was in need of hospitalization. The officers took Plaintiff

into custody and transported him to the Ephrata Community hospital where he was

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involuntarily committed, as a result of an application filed by Plaintiff’s ex-girlfriend

under Section 302 of the Mental Health Procedures Act. The officers also took

possession of certain firearms which were the property of Plaintiff. On October 3,

2003, a hearing was held, as required by Section 303 of the Mental Health

Procedures Act, and it was determined by the hearing officer that the Plaintiff was

not in need of emergency involuntary treatment and he was released from the

hospital.

Plaintiff alleges that he continually has asked the police for the return of the

firearms, however on July 14, 2005, Plaintiff received a letter from Defendant

Lieutenant Joseph Elias, on the letter head of the Defendant Pennsylvania State

Police, that his request for return of his firearms was being denied. The letter cited

18 Pa. C. S. § 6105(c)(4), which prohibits a person who has been adjudicated

incompetent or has been involuntarily committed to a mental institution for inpatient

care under Section 302, 303 or 304 of the Mental Health Procedures Act from

possession of a firearm.

On September 8, 2006, the Plaintiff filed a complaint with this Court, seeking

damages from the Defendants jointly and severally for claimed violations of

Plaintiff’s Fourth, Fifth and Fourteenth Amendment rights (Counts One, Two and

Three). The complaint also seeks declaratory relief concerning the constitutionality

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of 18 Pa. C.S. § 6105(c)(4), and an injunction against its enforcement (Count

Four). The instant Motions (docs. 4 and 7) were filed by Defendants Attorney

General of Pennsylvania and Pennsylvania State Police. The Motions have been

fully briefed and are therefore ripe for our review.

STANDARD OF REVIEW:

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a

court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes,

416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.

1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for

the Third Circuit added that in considering a motion to dismiss based on a failure to

state a claim argument, a court should "not inquire whether the plaintiffs will

ultimately prevail, only whether they are entitled to offer evidence to support their

claims." Furthermore, "a complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S.

41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir.

1986). 

DISCUSSION:

A. Motion to Dismiss of Defendant Attorney General of 

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Pennsylvania

The Defendant Attorney General of Pennsylvania (“Attorney General”)

moves this Court to dismiss the complaint, alleging that none of the counts in the

complaint state a claim against the Attorney General upon which relief may be

granted.

Counts One, Two and Three allege claims of violations of the Plaintiffs

Fourth, Fifth and Fourteenth Amendment rights via 42 U.S.C. § 1983. To establish

a §1983 claim, a plaintiff must demonstrate: (1) a violation of a right secured by the

Constitution and the laws of the United States; and (2) that the alleged deprivation

was committed by a person acting under color of state law. See Nicini v. Morra,

212 F.3d 798, 806. “A defendant in a civil rights action must have personal

involvement in the alleged wrongs; liability cannot be predicated solely on the

operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988)(citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). “Personal

involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence. Allegations of participation or actual knowledge and

acquiescence . . . must be made with appropriate particularity.” Id. 

The Attorney General argues that since no factual allegations are presented

against him with respect to the Plaintiffs §1983 claims, that there is no basis upon

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which to hold the Attorney General liable in damages. Plaintiff argues that because

the Attorney General oversees the actions of the Defendant Pennsylvania State

Police in upholding or overruling the denial of an alleged prohibition to possess

firearms, that a §1983 claim is properly pled against the Attorney General.

It is quite apparent from a review of Counts One, Two and Three of

Plaintiff’s complaint that the Attorney General is not alleged to have participated in,

or to have had knowledge of and acquiesced in, the confiscation of Plaintiff’s

firearms, the involuntary commitment proceeding or even the decision to refuse to

return Plaintiff’s firearms to him. Plaintiff’s allegation that the Attorney General

generally oversees co-Defendant Pennsylvania State Police does not save Plaintiff’s

§1983 claim against the Attorney General inasmuch as Plaintiff has not alleged any

personal involvement by the Attorney General in the alleged deprivation of

Plaintiff’s rights. Accordingly, we shall dismiss Counts One, Two and Three as

against the Attorney General.

Count Four of the complaint seeks declaratory and injunctive relief against

the Attorney General in connection with a determination by the Court that 18 Pa. C.

S. § 6105(c)(4) is unconstitutional. 

“[A] plaintiff challenging the validity of a state statute may bring suit against

the official who is charged with the statute’s enforcement only if the official has

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either enforced, or threatened to enforce, the statute against the plaintiffs. General

authority to enforce the laws of the state is not sufficient to make government

officials the proper parties to litigation challenging the law.” 1

st Westco Corp. v.

School District of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)(citing Rode, 845

F.2d at 1209).

As properly submitted by the Attorney General, the Pennsylvania State

Police, the entity that refused to return Plaintiff’s firearms, is an agency under the

Governor’s jurisdiction. Furthermore, although the Plaintiff suggests that the

Attorney General “oversees” the decision of the Pennsylvania State Police with

respect to the implementation of 18 Pa. C. S. § 6105(c)(4), under the Pennsylvania

Uniform Firearms Act, the Attorney General’s involvement is limited to a review of

a challenge by an individual to the accuracy of his or her records. See 18 Pa. C. S.

§ 6111.1(e). 

Plaintiff has not alleged that the Attorney General has enforced §6105(c)(4)

against him, nor can he allege such, because the Attorney General does not oversee

the administration of the subject section or the Pennsylvania State Police. 

Accordingly, because Plaintiff has failed to state a claim against the Attorney

General with respect to Count Four, we shall dismiss the complaint as against the

Attorney General.

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B. Motion to Dismiss of Defendant, Pennsylvania State Police

The Defendant Pennsylvania State Police (“PSP”) moves this Court to

dismiss the complaint, alleging that none of the counts in the complaint state a claim

against the PSP upon which relief may be granted. The PSP further alleges that, as

an agency of the government of the Commonwealth of Pennsylvania, it is entitled to

Eleventh Amendment immunity.

Immunity under the Eleventh Amendment to the United States Constitution

precludes suits against a state or state agency in federal court by citizens of that

state or other states. See College Savings Bank v. Florida Prepaid Postsecondary

Ed. Expense Bd., 527 U.S. 666, 669 (1999), Edelman v. Jordan, 415 U.S. 651,

662-663 (1974). The Eleventh Amendment’s jurisdictional bar is equally applicable

to suits seeking money damages and equitable relief. See Edelman, 415 U.S. at

663; Alabama v. Pugh, 438 U.S. 781, 782 (1978). A state may consent to suit

against it or its agency in federal court by waiving its immunity. In the absence of

consent a suit against a state or one of its agencies is proscribed by the Eleventh

Amendment. See Pennhurst State School and Hopsital v. Halderman, 465 U.S. 89,

98 (1984).

It is not alleged that the PSP, an agency of the Commonwealth of

Pennsylvania, has waived in its immunity in this action. Accordingly, because

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immunity has not been waived, the Eleventh Amendment provides a jurisdictional

bar to suit against the PSP and the Motion (doc. 7) shall be granted and complaint

shall be dismissed as against the PSP.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Motion to Dismiss of Defendant Attorney General of Pennsylvania

(doc. 4) is GRANTED.

2 The complaint is DISMISSED as against Defendant Attorney General

of Pennsylvania.

3. The Clerk shall terminate Defendant Attorney General of Pennsylvania

as a party to this action.

4. Motion to Dismiss Defendant Pennsylvania State Police (doc. 7) is

GRANTED.

5. The complaint is DISMISSED as against Defendant Pennsylvania

State Police.

6. The Clerk shall terminate Defendant Pennsylvania State Police as a

party to this action.

s/ John E. Jones III

John E. Jones III

United States District Judge

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