IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

:
PRISON LEGAL NEWS, et al.
:
v.

: Civil Action No. 15-0045

(Chief Judge Conner)
:

KATHLEEN KANE, et al.

:
MEMORANDUM OF LAW IN SUPPORT OF DISTRICT ATTORNEY R.
SETH WILLIAMSS MOTION TO DISMISS

R. Seth Williams
Philadelphia District Attorney
Michael Scalera
Assistant District Attorney
Attorney ID 312281
Philadelphia District Attorneys
Office
Civil Litigation, 13th Floor
Three South Penn Square
Philadelphia, PA 19107
Phone: (215) 686-5688
Fax: (215) 686-5725
michael.scalera@phila.gov

Bryan C. Hughes
Attorney ID 318042

Counsel for Defendant District Attorney

R. Seth Williams

Table of Contents
I.

Background ................................................................................................ 2

II.

Statement of Questions Involved ............................................................... 3

III.

Standard of Review .................................................................................... 4

IV.

Argument ................................................................................................... 5

A. There is no case or controversy between Plaintiffs and the District Attorney

because there is no threat that the RRA will be enforced against them. .............. 6
B. Plaintiffs 1983 action fails to state a claim for relief against the District
Attorney because it does not allege a policy or custom of infringing on First
Amendment rights by the District Attorney. ....................................................... 9
C. The District Attorney takes no position as to the propriety of a preliminary
injunction if he remains a party to this litigation. ...............................................12
V.

Conclusion .................................................................................................12

ii

Plaintiffs complaint seeks to enjoin the Attorney General and the

Philadelphia District Attorney, Seth Williams, from bringing suit on behalf of
crime victims under the newly enacted Revictimization Relief Act (RRA). But
as with all federal litigation, there must be a live case or controversy between the
parties to invoke the Courts jurisdiction. That is not the case here. The District
Attorney takes no position on the constitutionality of the RRA. He has never
brought suit under the RRA and has stated that he will not do so pending the
outcome of the litigation between Plaintiffs and the Attorney General. To the
extent that the Court denies the District Attorneys motion to dismiss, he does not
take a position on the propriety of a preliminary injunction, as an injunction (or its
absence) will have no effect on this Offices actions going forward. What remains,
therefore, is little more than an academic exercise between parties that are adverse
only in the sense that they appear on opposite sides of the v. in the caption. A
federal court does not have jurisdiction to hear such claims.
Even if this were a justiciable controversy, Plaintiffs 1983 claim against
the District Attorney still fails. The District Attorney is a municipal official, and a
suit that names him in his official capacity is for all intents and purposes a suit
against the City of Philadelphia. Because the complaint does notand cannot
allege that the District Attorney has a policy or custom of using the RRA to
deprive individuals of their constitutional rights, as required by Monell v.
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Department of Social Services, 436 U.S. 658 (1978), it fails to state a claim for
relief.
I.

Background
On October 21, 2014, Pennsylvania Governor Tom Corbett signed into law

an amendment to the Commonwealths Crime Victims Act, providing a right of

action by a victim of a personal injury crimeor any district attorney or the
Pennsylvania Attorney General acting on their behalfagainst the convicted
criminal to enjoin conduct that has the effect of perpetuating the impact of the
crime on the victim. This provision, entitled the Revictimization Relief Act, states
as follows:
(a) Action. In addition to any other right of action and any other
remedy provided by law, a victim of a personal injury crime may
bring a civil action against an offender in any court of competent
jurisdiction to obtain injunctive and other appropriate relief, including
reasonable attorney fees and other costs associated with the litigation,
for conduct which perpetuates the continuing effect of the crime on
the victim.
(b) Redress on behalf of victim. The district attorney of the county
in which a personal injury crime took place or the Attorney General,
after consulting with the district attorney, may institute a civil action
against an offender for injunctive or other appropriate relief for
conduct which perpetuates the continuing effect of the crime on the
victim.
(c) Injunctive relief. Upon a showing of cause for the issuance of
injunctive relief, a court may issue special, preliminary, permanent or
any other injunctive relief as may be appropriate under this section.

(d) Definition. As used in this section, the term conduct which

perpetuates the continuing effect of the crime on the victim includes
conduct which causes a temporary or permanent state of mental
anguish.
18 P.S. 11.1304. 1
Shortly after commencing this action pursuant to 42 U.S.C. 1983,
Plaintiffs filed a complaint against the District Attorney and Pennsylvania Attorney
General Kathleen Kane (the Attorney General), in their official capacities,
challenging the constitutionality of the RRA. (Compl., ECF No. 1.) Plaintiffs are
organizations and formerly incarcerated individuals who either publish speech that
they allege could fall within the ambit of the RRA or engage in such speech. (Id.
at 9-10.) Plaintiffs allege that the RRA violates the First Amendment, as
applied to the states by the Fourteenth Amendment. (Id. at 151-174.) Notably,
the complaint does not allege that an action authorized by the RRA has been
brought by the District Attorney or Attorney General on behalf of any crime
victim, or even that the District Attorney has threatened such an action.
II.

Statement of Questions Involved

1.

Does a case in which Plaintiffs seek to enjoin the District Attorney

from enforcing an allegedly unconstitutional statute present a justiciable

controversy if the District Attorney has never brought suit under the statute, has

The District Attorneys Office has attempted to locate analogous provisions in

other states and has found none.
3

never threatened to bring suit under the statute, and has in fact agreed not to bring
suit under the statute pending the outcome of this litigation?
2.

An official-capacity lawsuit against a district attorney is generally

considered a lawsuit against the municipality he or she represents. To state a claim

against a municipality under 1983, a plaintiff must allege a policy or custom that
causes a deprivation of constitutional rights. Does the complaint state a claim
against the District Attorney if it does not allege a policy or custom that deprives
Plaintiffs of a constitutional right?
III.

Standard of Review
Under Rule 12(b)(6), the Court must dismiss an action on motion made

before a responsive pleading is filed when the complaint fail[s] to state a claim
upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To plead a viable cause of action, the allegations must transcend the
speculative and conceivable and include enough facts to state a claim to relief
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007). The Court must disregard both legal conclusions and conclusory
statements and must scrutinize the well-pleaded factual allegations to ensure that
they are more than merely consistent with a defendants liability. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal marks omitted); see also Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (disregarding bald
assertions and legal conclusions in evaluating a motion to dismiss).
A complaint must do more than allege a plaintiffs entitlement to relief;
rather, it must show such entitlement through well-pleaded factual allegations.
See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). A plaintiffs
obligation to provide the grounds of [its] entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Factual allegations must be enough to raise a right to relief
above the speculative level. Twombly, 550 U.S. at 555.
IV.

Argument
Plaintiffs claims against the District Attorney should be dismissed, for two

reasons. First, there is no case or controversy between Plaintiffs and the District
Attorney sufficient to invoke this Courts subject-matter jurisdiction. But even if
there were, Plaintiffs failure to allege that the District Attorney has a policy or
custom of using the RRA in violation of Plaintiffs constitutional rights dooms
their 1983 count. Either way, the complaint should be dismissed as to the
District Attorney.

A.

There is no case or controversy between Plaintiffs and the District

Attorney because there is no threat that the RRA will be enforced
against them.

Article III of the U.S. Constitution limit[s] . . . the judicial power to

resolving Cases and Controversies. Lexmark Intl, Inc. v. Static Control
Components, Inc., __ U.S. __, 134 S. Ct. 1377, 1386 (2014). As Chief Justice
Roberts observed, [i]f a dispute is not a proper case or controversy, the courts
have no business deciding it, or expounding the law in the course of doing so.
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).2 It is the plaintiffs
responsibility to allege facts that invoke the courts jurisdiction. Presbytery of
N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)
Generally, plaintiffs need not await prosecution under a statute to challenge
its constitutionality if they can assert a genuine threat of enforcement. See Steffel
v. Thompson, 415 U.S. 452, 459 (1974) (holding that plaintiff who handed out antiVietnam War handbills had standing to challenge criminal-trespass statute where

The related doctrines of ripeness and standing often overlap, and have even been
called indistinguishable. Joint Stock Socy v. UDV N. Am., Inc., 266 F.3d 164,
174 (3d Cir. 2001) (Alito, J.) (citation omitted); see also id. ([T]he Article III
issues in this case could be addressed under either doctrine.). The Third Circuit
has noted that [w]hereas ripeness is concerned with when an action may be
brought, standing focuses on who may bring a ripe action. Id. Whether the
Court concludes that this action was brought too early, or was brought against the
wrong party, the conclusion that this is not a justiciable case or controversy
remains the same.

enforcement of statute had been repeatedly threatened). This is particularly so in

the First Amendment context. See Dombrowski v. Pfister, 380 U.S. 479, 487
(1965). But neither the Supreme Court nor the Third Circuit has ever found a live
case or controversy based solely on the existence of an allegedly unconstitutional
statute that the defendant has expressly forborne from enforcing. To the contrary,
courts have found no case or controversy in such situations. See, e.g., Renne v.
Geary, 501 U.S. 312, 322-23 (1991) (finding no ripe controversy where there
was no evidence of a credible threat that [the allegedly unconstitutional statute]
will be enforced); Salvation Army v. Dept of Cmty. Affairs of State of N.J., 919
F.2d 183, 192 (3d Cir. 1990) (finding no standing where the record reflect[ed] not
only the absence of a threat of enforcement but an express assurance that there will
be no enforcement against TSA of the waived provisions of the statute).
To establish standing, (1) the plaintiff must have suffered an injury in fact;
(2) there must be a causal nexus between that injury and the conduct complained
of; and (3) it must be likely that the injury will be redressed by a favorable judicial
decision. Joint Stock Socy, 266 F.3d at 175. Plaintiffs can show none of these.
First, Plaintiffs have suffered no injury in fact. It is axiomatic that
[a]llegations of a subjective chill are not an adequate substitute for a claim of
specific present objective harm or a threat of specific future harm. Laird v.
Tatum, 408 U.S. 1, 13-14 (1972). Yet all that appears in the complaint is the
7

repeated allegation that Plaintiffs reasonably fear[] that the Silencing Act will be
usedby whom, we are not toldin an effort to enjoin [them] from, or penalize
him for, speaking in public. (Compl. 121, 130, 138.) Notably absent are any
facts to show a threat to utilize the RRA, or a chilling effect on Plaintiffs speech.
This cannot be squared with the Supreme Courts repeated admonitions that
threatened injury must be certainly impending to constitute injury in fact, and that
allegations of possible future injury are not sufficient. Clapper v. Amnesty Intl
USA, __ U.S. __, 133 S. Ct. 1138, 1147 (2013) (internal quotation marks and
alteration omitted).
Nor is there a causal nexus between that injury and the conduct complained
of. In addition to there being no injury to Plaintiffs, the complaint alleges no
conduct on the part of the District Attorney that could fairly be considered the
cause of any hypothetical injury.
Finally, any injury would not be redressed by a favorable judicial decision
against the District Attorney. An injunction against the District Attorney would do
nothing to change the parties actions, because he does not intend to take action
under the RRA until this litigation concludesregardless of whether or not he is a
party. Thus, to the extent that the District Attorney remains in this litigation, an
order enjoining him from filing suit under the RRA would be precisely the sort of
advisory opinion that the Supreme Court has expressly forbidden. See Chafin v.
8

Chafin, __ U.S. __, 133 S. Ct. 1017, 1023 (2013) (Federal courts may not decide
questions that cannot affect the rights of litigants in the case before them or give
opinions advising what the law would be upon a hypothetical state of facts.
(internal quotation marks and alteration omitted)).
Accordingly, Plaintiffs lack standing to bring suit against the District
Attorney.
B.

Plaintiffs 1983 action fails to state a claim for relief against the
District Attorney because it does not allege a policy or custom of
infringing on First Amendment rights by the District Attorney.

The complaint brings suit against the District Attorney in his official
capacity. (Am. Compl. 15.) Official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an
agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985) (citations and internal
quotation marks omitted); see also id. at 166 ([A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.).
Under the Pennsylvania Constitution, the District Attorney is an officer of
Philadelphia County. Pa. Const. art. IX, 4. As the Pennsylvania Supreme Court
has observed:
The . . . language of the Constitution of Pennsylvania is, we repeat,
crystal clear. It states in the clearest imaginable language that District
Attorneys are Countynot Stateofficers, and in Philadelphia, by
virtue of the above-quoted Constitutional provisions and the Home
Rule Charter, are Citynot Stateofficers, and no Procrustean
stretch can alter or change or nullify this clear language.
9

Chalfin v. Specter, 233 A.2d 562, 565 (Pa. 1967).

Though some cases have

concluded that a district attorney can be considered a state official when

prosecuting individuals criminally, see Carter v. City of Philadelphia, 181 F.3d
339, 352-53 (3d Cir. 1999), this reasoning does not apply where, as here, the issue
is unrelated to their strictly prosecutorial functions. Id. at 353. Because this case
involves a statute that gives the District Attorney the option (but not the duty) to
sue Plaintiffs civillybut not to prosecute them criminallyit does not implicate
his prosecutorial functions, and is therefore a suit against the City of Philadelphia.
To state a 1983 claim against a municipality, Plaintiffs must allege that the
municipalitys official policy or custom is responsible for a deprivation of rights
protected by the Constitution. Monell v. Dept of Soc. Servs., 436 U.S. 658, 690
(1978); see also Mulholland v. Govt Cnty. of Berks, Pa., 706 F.3d 227, 237 (3d
Cir. 2013) (When a suit against a municipality is based on 1983, the
municipality can only be liable when the alleged constitutional transgression
implements or executes a policy, regulation or decision officially adopted by the
governing body or informally adopted by custom. (citations and internal quotation
marks omitted)). This applies equally to an action for prospective relief. L.A.
Cnty. v. Humphries, 131 S. Ct. 447, 454 (2010). A government policy or custom
can be established in two ways.

Policy is made when a decisionmaker

possess[ing] final authority to establish municipal policy with respect to the action
10

issues an official proclamation, policy, or edict. Andrews v. City of Phila., 895

F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986) (alteration in original)). By contrast, [a] course of conduct is
considered to be a custom when, though not authorized by law, such practices of
state officials [are] so permanent and well settled as to virtually constitute law.
Id. (quoting Monell, 430 U.S. at 690 (alteration in original)).
The complaint does notand cannotallege that the District Attorney has a
policy or custom of using the RRA in violation of Plaintiffs constitutional rights.
The complaint alleges no policy, statement, custom, or any other action by the
District Attorney that would deprive Plaintiffs of a constitutional right. Indeed, the
Plaintiffs only reason for joining the Philadelphia District Attorney in this suit
appears to be the RRAs inclusion of him as one of many parties (including crime
victims and the district attorneys of all other counties in Pennsylvania) who could
elect to sue Plaintiffs civilly for violations of the statute, but have no duty to do so.
This is an insufficient basis for liability, because when a county is merely
enforcing state law, without adopting any particular policy of its own, it cannot be
held liable under the Monell line of cases. Doby v. DeCrescenzo, 171 F.3d 858,
868 (3d Cir. 1999). This is particularly so where, as here, the complaint does not
even allege that the District Attorney has ever filed suit against anyone, much less
Plaintiffs, under the RRA.
11

Because the complaint fails to allege a policy or custom that is attributable to

the District Attorney, Plaintiffs 1983 claim should be dismissed. Furthermore,
because amendment would be futile, see Kanter v. Barella, 489 F.3d 170, 181 (3d
Cir. 2007), leave to amend the complaint should be denied.
C.

The District Attorney takes no position as to the propriety of a

preliminary injunction if he remains a party to this litigation.

The District Attorney does not take a position as to the constitutionality of

the RRA, rendering his continued participation in this litigation both unnecessary
and undesirable, as demonstrated above. Furthermore, he will not file suit under
the RRA until this litigation concludes. Should the Court nevertheless determine
that the District Attorney should remain in this litigation, he takes no position
regarding the propriety of a preliminary injunction.
V.

Conclusion
There is no reason to include the District Attorney in this litigation. An

injunction against him would have no additional effect beyond that which a finding
that the RRA is unconstitutional would have generally. But even if there were
standing to justify including the District Attorney in this action, he must still be
dismissed for failure to state a claim for relief, because the complaint fails to allege
a policy or custom of using the RRA to deprive Plaintiffs of their constitutional
rights.

12

For all of these reasons, the complaint should be dismissed as to the District
Attorney, and leave to amend should be denied as futile.
Respectfully submitted,

R. SETH WILLIAMS
Philadelphia District Attorney
By:
Philadelphia District Attorneys
Office
Civil Litigation, 13th Floor
Three South Penn Square
Philadelphia, PA 19107
Phone: (215) 686-5688
Fax: (215) 686-5725
michael.scalera@phila.gov

s/ Michael Scalera
Michael Scalera
Assistant District Attorney
Attorney ID 312281

Counsel for Defendant District Attorney

R. Seth Williams

13

CERTIFICATE OF SERVICE
I, Michael Scalera, Assistant District Attorney, hereby certify that on this 6th day of
February, 2015, I caused to be served a true and correct copy of the foregoing document on all
counsel via filing on the Courts ECF system and/or via electronic mail.
s/ Michael Scalera
Michael Scalera
Assistant District Attorney

CERTIFICATE OF CONCURRENCE/NON-CONCURRENCE
I, Michael Scalera, Assistant District Attorney, hereby certify that hereby certify that I
have sought concurrence in the inclusion of the District Attorneys 12(b)(1) argument from all
parties to the case. Plaintiffs concur in the request to include an argument under Fed. R. Civ. P.
12(b)(1) in the same brief as Defendant Williamss motion to dismiss under 12(b)(6), but
plaintiffs do not concur in the granting of any dismissal motion and do not waive any arguments
as to timeliness of the 12(b)(1) argument
s/ Michael Scalera
Michael Scalera
Assistant District Attorney