LOMBARDO v. ZANELLI et al | E.D. Pennsylvania | 04-23-2024 | www.anylaw.com (2024)


MEMORANDUM YOUNGE, J. APRIL 23, 2024 Plaintiff Michael A. Lombardo, a prisoner currently incarcerated at the Lehigh County Jail, brings this pro se action alleging violations of his civil rights. Named as Defendants are: Amy Zanelli, Andrew Yost, Robert L. Nickelson, Thomas Rasich, Matthew Steidel, Christopher Pfanco*ck, and the Bethlehem City Police Department. Lombardo seeks to proceed in forma pauperis. For the following reasons, the Court will grant Lombardo leave to proceed in forma pauperis and dismiss his Complaint. He will be granted leave to file an amended complaint, in the event he can cure the deficiencies noted by the Court. I. FACTUAL ALLEGATIONS 1

Lombardo alleges that he telephoned the Bethlehem City Police Department on November 14, 2023, to report that he had been illegally evicted, assaulted, and kidnapped. (Compl. at 4.) 2

Due to call volume, Lombardo left a voicemail message with his contact

1 The factual allegations set forth in this Memorandum are taken from Complaint (ECF No. 2) and publicly available dockets. See Buck v. Hampton Twp. Sch. Dist., whether a pleading has stated a claim). 2 The Court adopts the sequential pagination supplied by the CM/ECF docketing system. information so that he could receive a call back. (Id.) His call was returned later that day, and

Id.) Lombardo was told that he would need to appear at the police station in person, which Lombardo was unable to do at that time because he was in New Jersey. (Id.) Lombardo indicated his willingness to press charges and told the officer that he would do so when he returned to Pennsylvania. (Id.)

Pennsy Id.) According to Lombardo, instead, the Bethlehem

[ing] him in a show of Id. at 4-5.) Lombardo insisted that he had been assaulted and wished to pursue criminal - Id. at 5.) He claims that he was Id.)

Lombardo contends that instead of assisting him, Officers Steidel, Pfanco*ck, and other John Doe Officers assisted Ms. Meinhart, because she reported that Lombardo had threatened her on November 9, 2023. (Id. gone unreported to police. (Id. (female captured by police body camera. (Id.) As alleged, while the officers conspired with Ms.

i Id.) and set up a[n] emergency [Protection From Abuse] meeting (for unreported words from over a tion that was unfounded & unreported Id. at 6.) Approximately one hour later, police arrived with a temporary PFA Id.) Lombardo claims that there was no verification of the alleged threat made by

him. (Id. rate Amy Zanelli fabricated provided equal protection of the law. (Id.)

Based on these allegations, Lombardo claims that he was subjected to an illegal search and seizure in violation of his rights secured by the Fourth Amendment; that certain Defendants committed identity theft; that he was discriminated against on the basis of his gender and his right to equal protection of the law was violated; and that certain Defendants conspired to violate his constitutional rights. (Id. at 7-8.) As relief, he seeks monetary damages. (Id. at 9.) 3 Lombardo further requests that his case be placed on the Civil Rights Panel for appointment of counsel. (Id.)

A review of the publicly available state court docket system reveals that Lombardo currently has three active criminal prosecutions. Two pertain to the November 2023 events described above. See Commonwealth v. Lombardo, CP-39-CR-0000987-2024 (C.P. Lehigh); Commonwealth v. Lombardo, CP-39-CR-0000988-2024 (C.P. Lehigh). The third case pertains to events that occurred on December 8, 2023, for which Lombardo has commenced a separate civil action. See Commonwealth v. Lombardo, CP-39-CR-0000986-2024 (C.P. Lehigh); Lombardo v. Wescoe, et al., Civil Action No. 24-1385.

3 Lombardo also includes in his request for relief. (Compl. at 9.) This Court may not provide such relief. See Stefanelli v. Minard, 342 U.S. 117, 120 (1951) he federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure. II. STANDARD OF REVIEW

The Court will grant Lombardo leave to proceed in forma pauperis because it appears that he is incapable of paying the fees to commence this civil action. 4

Accordingly, 28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss the Complaint if, among other things, the Complaint fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court t Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quotations omitted). will] accept the facts alleged in [the pro se

contains facts sufficient to state a plausible Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.

As Lombardo is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th

182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)). Id.

Id. (quoting Mala, 704 F. 3d at 245). An unrepresented

4 However, since Lombardo is a prisoner, he will be obligated to pay the filing fee in installments in accordance with the Prison Litigation Reform Act. See 28 U.S.C. § 1915(b). they must abide by the same rules that apply to all Id. III. DISCUSSION

The Court understands Lombardo to primarily raise constitutional claims under 42 U.S.C. See Compl. at 3.) Section 1983,

its own terms, create substantive rights; it provides only remedies for deprivations of rights Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); Pappas v. City of Lebanon 1983 is not a source of

Gonzaga Univ. v. Doe, 536 U.S. 273, 284- n of a right secured by the Constitution and laws of the United States, and must show that the alleged West v. Atkins, 487 U.S. reshold issue; there is no liability under § Groman v. Twp. of Manalapan, 47 F .3d 628, 638 (3d Cir. 1995). Additionally, in a § 1983 action, the personal involvement of each defendant in the alleged constitutional violation is a required element, and, therefore, a plaintiff must allege how each defendant was involved in the events and occurrences giving rise to the claims. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998); see also Iqbal, 556 U.S. at 676 Government-

Furthermore, to state a § 1983 claim against a municipality, a plaintiff must , 436 U.S. 658, 694 (1978). For the following reasons, claims are not plausible.

A. Claims Against the City of Bethlehem Police Department Lombardo has named the City of Bethlehem Police Department as a Defendant. Following Monell, courts concluded that a police department is a sub-unit of the local government and, as such, is merely a vehicle through which the municipality fulfills its policing functions. See, e.g., Johnson v. City of Erie, Pa., 834 F. Supp. 873, 878-79 (W.D. Pa. 1993). Thus, while a municipality may be liable under § 1983, a police department, as a mere sub-unit of the municipality, may not. Id.; Martin v. Red Lion Police Dept. (3d Cir. 2005) (per curiam) (stating that police department is not a proper defendant in an action pursuant to 42 U.S.C. § 1983 because it is a sub-division of its municipality); Bonenberger v. Plymouth Twp. ity and Colburn v. Upper Darby Township, 838 F.2d 663, 671 n.7 (3d Cir. 1988)); Hadesty v. Rush Twp. Police , No. 14-2319, 2016 WL 1039063, at *9 n.4 (M.D. Pa. Mar. 15, 2016). Therefore, Bethlehem Police Department is not a proper defendant in this case under § 1983, and

B. Official Capacity Claims Lombardo seeks to bring claims against the individual Defendants in their official capacities as well as their individual capacities. (See Compl. at 9.) Claims against municipal officials named in their official capacity are indistinguishable from claims against the municipality that employs them. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) - Monell official-


Nonetheless, a municipality such as the City of Bethlehem is not vicariously liable under § 1983 for the actions of its employees. See Connick v. Thompson, 563 U.S. 51, 60 (2011)

own Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). Rather, to plead a basis for municipal liability under § 1983, a

constitutional rights. See Monell plaintiff] mu McTernan v. City of York, PA authority to establish municipal policy with respect to the action issues an official proclamation, Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (internal of conduct, although not specifically endorsed or authorized by law, is so well-settled and

Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). For a custom to be the proximate cause of an injury, the defendant must have edge of similar unlawful conduct in the past, failed to take precautions against future Id. (internal quotations and knowledge and acquiescence by McTernan, 564 F.3d at 658. General allegations that simply paraphrase the standard for municipal liability do not support a plausible claim. See Szerensci v. Shimshock, No. 20- conclusory allegation, which generally paraphrases the relevant standard, is insufficient to state a claim for § 1983 liability under Monell

To the extent Lombardo seeks damages from the named individual Defendants in their official capacities, or from the City of Bethlehem, he has failed to allege facts that support Monell liability. Lombardo has not pled a municipal policy or custom with respect to any of the alleged constitutional violations, that any such policy or custom caused the constitutional violation, or any municipal failures amounting to deliberate indifference. Accordingly, the official capacity claims are not plausible and will be dismissed.

C. Personal Involvement As noted above, a defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable. See Rode, 845 F.2d at 1207; see also Jutrowski v. Twp. of Riverdale t official, his or her title notwithstanding, is only liable for his or her own Iqbal, 556 U.S. at 677)

direction or of actual knowledge and a Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Rode, 845 F.2d at 1207)). Lombardo has named Officer Andrew Yost, Officer Robert Nickelson, and Detective Rasich in the caption of his Complaint and in the list of Defendants. (See Compl. at 1.) However, Lombardo includes no facts about how Officer Andrew Yost, Officer Robert Nickelson, or Detective Rasich may be held liable for a constitutional claim. Indeed, they are not mentioned anywhere in the body of the Complaint. 5 Accordingly, any claims against Officer Andrew Yost, Officer Robert Nickelson, and Detective Rasich will be dismissed.

D. Claims Barred by Judicial Immunity Lombardo seeks to bring claims against Magistrate Amy Zanelli based on actions she is alleged to have taken in connection with a PFA Order that was issued against him. (See Compl. at 6.) Lombardo claims that her findings were without probable cause and that she conspired with officers and Ms. Meinhart in issuing the Order. (Id.) However, Magistrate Zanelli must be dismissed. Judges are entitled to absolute immunity from civil rights

claims that are based on acts or omissions taken in their judicial capacity, so long as they do not act in the complete absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56 (1978); Harvey v. Loftus per curiam); Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam if Gallas v. Supreme Ct. of Pa., 211 F.3d 760,

Figueroa v. Blackburn, 208

5 Lombardo submitted two Complaints that were received by this Court on the same date the present case, which was assigned Civil Action No. 24-1383, and Lombardo v. Wescoe, et al., Civil Action No. 24-1385. Civil Action No. 24-1385 concerns est on December 8, 2023, and raises allegations of various constitutional violations as well. Detective Thomas Rasich is named as a Defendant in Civil Action No. 24-1385 and Lombardo presents allegations concerning his conduct therein.

Page 3 of the Complaint submitted in the present case includes a passing reference to Detective Rasich. (See Compl. at 3.) the allegations described therein do not relate to the case at bar. Lombardo discusses facts pertaining to the incident underlying his allegations in Civil Action No. 24-1385. Accordingly, the Court will disregard page 3 of the Complaint for purposes of the case at bar, as it appears that it was inadvertently included in this filing. F.3d 435, 443-44 (3d Cir. 2000) (quoting Barnes v. Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)). Because judges must feel free to act without fear of incurring personal liability for their actions in court, judicial immunity remains in force even if the actions are alleged to be legally incorrect, in bad faith, malicious, or corrupt, Mireles v. Waco, 502 U.S. 9, 11-12 (1991), or are taken as a result of a conspiracy with others, Dennis v. Sparks, 449 U.S. 24, 27 (1980). As Lo while presiding over a matter over which she had jurisdiction, Magistrate Zanelli is entitled to

See Lee v. Gallina Mecca, No. 22-2871, judicial acts that appear to be unfair, malicious, or ex parte are not stripped of their judicial

immunity); Mikhail v. Kahn, 991 F. Supp. 2d 596, 660 (E.D. Pa. 2014) (finding judges who presided over protection from abuse, custody, and divorce proceedings were entitled to immunity because acts were taken in judicial capacity and plaintiff did not show an absence of jurisdiction, and immunity applied despite allegations of bad faith and conspiracy), Cir. 2014).

E. Equal Protection Claim The Court understands Lombardo to allege that Officers Steidel and Pfanco*ck, as well as John and Jane Doe officers, violated his right to equal protection of the laws pursuant to 42 U.S.C. § 1981 by discriminating him on the basis of his gender. (See Compl. at 8.) This claim fails for several reasons.

First, unlike § 1983, which provides a cause of action only against state actors, § 1981 does not provide a private right of action against state actors and instead applies to private conduct. See McGovern v. City of Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009) (explaining that see also Goodall- Court properly noted, § 1981 Because the named Defendants are state actors, Lombardo cannot obtain relief under § 1981 for

their actions.

Moreover, § 1981 prohibits private acts of race discrimination, not gender discrimination. See Anjelino v. New York Times Co., 200 F.3d 73, 98 (3d Cir. 1999) (affirming dismissal of §

discrimination in the making and enforci ; Smith v. Philadelphia Works Inc., No. 22-1458, 2022 WL 16553381, at *4 (E.D. Pa. Oct. 31, 2022) (dismissing claims for age and sex discrimination under § 1981 because they are not actionable under that statute).

Because he also references the Fourteenth Amendment in his claim, it is possible that Lombardo prosecution pursuant to § 1983.

commands that

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe enforcement that has been held to violate the Equal Protection Clause of the Fourteenth

Amendment since Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), which

Davis v. Malitzki must be proved: first, that persons similarly situated were not prosecuted; second, that the decision to prosecute was made on the basis of an unjustifiable Id. (quoting United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989) (per curiam Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). To successfully assert a selective prosecution claim, a plaintiff will have to prove that similarly situated individuals. See Regan v. Upper Darby Twp., No. 06-1686, 2009 WL 650377,

at *9 (E.D. Pa. Mar. 11, 2009), 6

Nonetheless, Lombardo has failed to allege a plausible equal protection claim against any individual. He nor does he offer factual support for his conclusion that the decision by officers to consider her allegations over his was made because she is a woman, and that the decision was intentionally made on that basis. Instead, he offers only the wholly conclusory allegation that the assertion that she was threatened, and not his, because she is female. (See Compl. at 6.) Accordingly, any equal protection claim against Defendants Steidel and Pfanco*ck and the Doe Defendants will be dismissed. See Fullman v. City of Philadelphia, No. 23-3073, 2024 WL 1637550, at *2 (3d Cir. Apr. 16, 2024) (per curiam) (affirming dismissal of equal protection claim that, inter alia, was based on only conclusory allegations that police

6 The United States Court of Appeals for the Third Circuit has held that selective Dique v. New Jersey State Police Davis v. Malitzki Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)). Nevertheless, the stan Id. failed to adequately investigate and the District Attorney refused to prosecute criminal complaint because plaintiff is black, has a criminal record, and has a history with local law enforcement); Johnson v. Koehler, No. 14-1490, 2015 WL 1470948, at *16 (M.D. Pa. Mar. 31, 2015) (dismissing claim of selective prosecution where plaintiff failed to allege that a similarly situated person was treated differently); see also Karns v. Shanahan, 879 F.3d 504, 521 (3d Cir.

. 7

F. Conspiracy Claim Lombardo asserts that Ms. Meinhart, Magistrate Zanelli, Officers Steidel and Pfanco*ck, as well as John and Jane Doe officers conspired to violate his rights, and that at all times these individuals other that Ms. Meinhart were acting under the color of state law. (Compl. at 8.) He seeks to bring this claim under 42 U.S.C. § 1985. (Id.) Nothing in the Complaint supports a allege (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed

to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997); Farber v. City of Paterson, 440 F.3d 131, 136 (3d Cir. 2006)

7 Additionally, Lombardo may not bring a due process claim based on his assertion that officers failed to investigate his claim of assault, robbery, and kidnapping. See Sanders v. Downs, per curiam) (affirming dismissal of due process claim that police right to the investigation or prosecution of another Nedab v. Lencer, No. 06-54, 2007 WL 853595, at *3 (W.D. Pa. Mar. 20, 2007) (plaintiff lacked standing to assert constitutional related to assault against plaintiff). gedly conspired against a group that has an

; Hauptmann v. Wilentz conspiracy only affects the plaintiff individually, the allegations will not satisfy the class-based , 770 F.2d 1070 (3d Cir. 1985), Hauptmann, 770 F.2d 1070 (3d Cir. 1985). Nothing in the Complaint suggests any factual basis

for race or class-based discrimination. To the extent Lombardo invokes this statute, his claim is not plausible.

It is possible that Lombardo seeks to bring his conspiracy claim pursuant to § 1983. The persons conspire to deprive any person of [constitutional rights]; (2) one or more of the

conspirators performs . . . any overt act in furtherance of the conspiracy; and (3) that overt act injures the plaintiff in his person or property or deprives the plaintiff of any right or privilege of a

the color of state l Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 (3d Cir. 2018) (quoting Barnes Foundation v. Township of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001)). h a Great W. Mining & Mineral Co. v. Fox Rothschild LLP Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). As acknowledged by Lombardo, Ms. Meinhart is not a state actor and could not be liable for a constitutional violation on this basis. In any event, the Complaint fails to allege concerted action by the named Defendants. Lombardo has not adequately alleged any factual basis from which a conspiracy could plausibly be inferred. Accordingly, any § 1985 and § 1983 conspiracy claims must be dismissed.

G. Fourth Amendment Claims Lombardo alleges that Officers Steidel and Pfanco*ck, as well as various John Doe officers, violated his Fourth Amendment rights. (Compl. at 7.) 8

The Fourth Amendment

searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and

underlying command of the Fourth Amendment is always that searches and seizures be New Jersey v. T.L.O. Id. The elements of a § 1983 claim for unreasonable search and seizure are: (1) the actions of the police officers constituted a search or seizure within the meaning of the Fourth Amendment; and (2) the actions were unreasonable in light of the surrounding circ*mstances. Brower v. Cnty. of Inyo, 489 U.S. 593, 597-99 (1989). Although searches generally require probable cause or, at least, reasonable suspicion, there are exceptions including one that permits an arresting officer to perform a search incident to an

8 Lombardo also references 18 U.S.C. § 2236 (searches without warrant) in support of this claim. (See Compl. at 7.) His reliance upon this statute is misplaced. See Wilson-Johnson v. Walker, No. 18-1076, 2018 WL 1641223, at *2 (E.D. Pa. Apr. 4, 2018) (dismissing claim under 18 U.S.C.§ 2236 as it does not provide for a private civil cause of action) (citing Roller v. Matheny, No. 12-cv-262, 2012 WL 5451527, at *3 n.2 (E.D. Tenn. Nov. 7, 2012); Buchanan v. Biden, No. 10-727, 2010 WL 5071057, at *5 (D. Del. Dec. 6, 2010) (finding plaintiff failed to state a cause of action under § 1983 where plaintiff sought to bring claims under various criminal prosecution see also Kent v. Ed Carber Inc., 467 F. App x 112, 113 (3d Cir. 2012) (per curiam) ( the prosecution . . . of another. (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). arrest. See generally Birchfield v. North Dakota, 579 U.S. 438, 455-61 (2016) (discussing the search-incident-to-arrest doctrine).

that on November 17, 2023, he attempted to alert authorities that he was in Pennsylvania but did not receive a return call. (Compl. at 4.) He contends that the Bethlehem City Police Department Id. at 4-5.)

Lombardo further avers that he informed the officers that he had been assaulted and wished to pursue criminal charges against Ms. Meinhart, however, she also reported that she had been assaulted by Lombardo. (Id. at 5.) Lombardo the

actions were unconstitutional. See, e.g., Medina v. Aprile, No. 23-1057, 2023 WL 3440236, at *9 (E.D. Pa. May 12, 2 under the Fourth Amendment, [the plaintiff] must plead the circ*mstances under which the

, t, No. 23- 2055, 2023 WL 7381461 (3d Cir. Nov. 8, 2023). claims based on an alleged unreasonable search and seizure will also be dismissed. 9

9 Lombardo should note that if he files an amended complaint raising nonconclusory Fourth Amendment claims relating to the search and seizure, such claims may be subject to dismissal or stay in accordance with the doctrine of abstention developed in Younger v. Harris, 401 U.S. 37 (1971). Under the Younger federal-court interference with pending state judicial proceedings absent extraordinary , 457 U.S. 423, 431 (1982). The specific elements of Younger proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise federal claims. Schall v. Joyce, 885 F.2d 101, 106 (3d Cir. 1989); see, e.g., Rex v. Fisher, No. 12-4045, 2012 WL 3537846, at *2 (E.D. Pa. Aug. 15, 2012) (staying false arrest and illegal search claims for

H. Identity Theft Claim Lombardo also asserts a claim against the Bethlehem City Police Department, Officers Steidel and Pfanco*ck, as well as several John and Jane Doe Officers based on statutory identity theft, 18 Pa. Cons. Stat. § 4120. (Compl. at 7.) The Court understands this claim to be based on allegation that See id. at 5.)

Pennsylvania provides for a private civil action for damages based on identity theft as defined by the criminal statute 18 Pa. Cons. Stat. § 4120. McCullagh v. McCullagh, 826 F.

identity theft of another person if he possesses or uses, through any means, identifying information of another person without the consent of that other person to further any unlawful However, Lombardo has made no plausible allegation that his identifying information was used by any Defendant to further an unlawful purpose.

Switzer v. Franklin Inv. Corp., No. 22-0208, 2023 WL 2313482, at *3 (W.D. Pa. Jan. 31, 2023) (citations omitted), report and recommendation adopted, No. 22-0208, 2023 WL 2307410 (W.D. Pa. Feb. 28, 2023).

damages in light of pending criminal prosecution when plaintif his Fourth s Fourth Amendment claims are undeveloped, and therefore not plausible, the Court will not address at this time whether Younger abstention necessitates that such claims be stayed pending resolution of the state judicial proceedings. IV. CONCLUSION For the foregoing reasons, the Court will grant Lombardo leave to proceed in forma pauperis and dismiss his Complaint. Lombardo claims against the Bethlehem City Police Department and Magistrate Zanelli, as well as any claims brought pursuant to 42 U.S.C. § 1981, 42 U.S.C § 1985, and 18 U.S.C. § 2236, will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. He will not be given leave to amend these claims because the Court concludes that amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 110 (3d Cir. 2002).

All other claims will be dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Lombardo will be given an opportunity to correct the defects in his claims by filing an amended complaint. Any amended complaint must clearly describe the factual basis for his claims and how the defendant was personally involved in the alleged denial of his rights. Lombardo may not reassert a claim that has already been dismissed with prejudice, or rename a party that has already been terminated from this case.

without prejudice to renewal after the Court conducts a statutory screening of any amended complaint Lombardo may file. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (in determining whether appointment of counsel is appropriate, the Court should first determine

An appropriate Order follows, which provides further instruction about amendment.


/s/ John Milton Younge JOHN MILTON YOUNGE, J.

LOMBARDO v. ZANELLI et al | E.D. Pennsylvania | 04-23-2024 | www.anylaw.com (2024)


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