Case 2:22-cv-03389-NIQA Document 20-1 Filed 09/15/22 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_________________________________________
:
FENICIA REDMAN, :
:
Plaintiff, : CIVIL ACTION
:
v. : No. 22-3389
:
THOMAS WESTERMAN WOLF, et al. :
:
Defendants. :
_________________________________________

MEMORANDUM OF LAW IN SUPPORT OF

THE COMMONWEALTH DEFENDANTS’
MOTION TO DISMISS COMPLAINT

Defendants Gov. Tom Wolf (identified as “Thomas Westerman Wolf”) and Attorney

General Josh Shapiro (identified as “Joshua Shapiro”) (collectively, “Commonwealth

Defendants”), by counsel, respectfully submit this memorandum of law in support of their

Motion to Dismiss Complaint (ECF No. 1).

I. INTRODUCTION

Plaintiff has filed this action, pro se, seeking changes to the management of public school

libraries. In particular, she has sued the Governor of Pennsylvania and the state’s Attorney

General asking for an injunction that would require these officials to remove “obscene” material

from school libraries, conduct an “audit” of school libraries, and further “investigate the

organized transmission” of allegedly explicit material. Simply put, this is not a proper federal

civil claim, particularly as to these Commonwealth officials. The Complaint should be

dismissed.

First, Gov. Wolf and Attorney General Shapiro are entitled to Eleventh Amendment

immunity. This Court lacks jurisdiction to compel state officials to take action, except in limited

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situations not applicable here. Second, there is no viable federal cause of action to compel a

governor to adopt a particular policy position or to compel a state prosecutor to take action,

particularly with respect to enforcing alleged federal criminal violations. Third, there is no valid

civil rights claim here because there is no contention that any state official is violating Plaintiff’s

civil rights. Fourth, even if this case could proceed, Plaintiff cannot represent her son’s interests

pro se in this action.

All claims against Gov. Wolf and Attorney General Shapiro should be dismissed.

II. ALLEGED FACTS

The majority of the facts pled in the Complaint are immaterial to this motion; the relevant

facts are set forth below.

Plaintiff is the parent of a child at Great Valley High School. Compl. at 7. She objects to

allegedly “obscene” material in books in her son’s school library, and she provides a list of

examples that she contends came from the school’s library. Compl. at 7-17. Since at least

November 2021, Plaintiff has been actively petitioning the school district and other elected

officials to remove books. Compl. at 18-66.

The Complaint contains few allegations regarding the Commonwealth Defendants.

Plaintiff states that she lobbied Gov. Wolf and others to remove books from the high school

library. Compl. at 7. Plaintiff avers that she gave “posters” to Pennsylvania’s Speaker of the

House of Representatives, and that these posters “were shown to Governor Wolf.” Compl. at 9;

accord id. at 61-65. Gov. Wolf subsequently vetoed Senate Bill 1277, which Plaintiff supported,

and Plaintiff then “retrieved [her] posters from the Governor’s office.” Compl. at 9. As to

Attorney General Shapiro, there appears to be no allegations beyond the general plea for law

enforcement action to remove books from school libraries. See Compl. at 7.

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Plaintiff seeks an injunction to remove particular books from all schools in the Great

Valley School District, the Commonwealth, and the United States; an “independent audit” of all

school libraries in the Great Valley School District, the Commonwealth, and the United States

for “other sexually explicit materials”; and an order compelling law enforcement to investigate

the transmission of obscene materials. Compl. at 67. She contends that she is entitled to this

relief because these materials violate two federal criminal statutes and meet the constitutional

standard for obscenity. Compl. at 5-6.

III. STANDARD OF REVIEW

A defendant may move to dismiss a complaint under Rule 12(b)(1) where the district

court lacks subject-matter jurisdiction over a claim. Fed. R. Civ. P. 12(b)(1). The assertion of

immunity under the Eleventh Amendment challenges the court’s subject matter jurisdiction, and

thus is properly raised under Rule 12(b)(1). Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,

694 n.2 (3d Cir. 1996). In a facial challenge to subject-matter jurisdiction, in which the defendant

attacks the sufficiency of a complaint, “the court must only consider the allegations of the

complaint and documents referenced therein and attached thereto, in the light most favorable to

the plaintiff.” Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).

A defendant may also move to dismiss a complaint for failure to state a claim upon which

relief may be granted. Fed. R. Civ. P. 12(b)(6). While a complaint need only contain a “short and

plain statement” of the facts, see Fed. R. Civ. P. 8(a), it must contain “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a plaintiff must

plead factual allegations sufficient “to raise a right to relief above the speculative level.” Id.

Although courts “must take all of the factual allegations in the complaint as true,” they “are not

bound to accept as true a legal conclusion couched as a factual allegation.” Id.; see also George

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v. Rehiel, 738 F.3d 562, 583-84 (3d Cir. 2013). The “mere possibility of misconduct” is not

enough; the complaint “must contain sufficient factual matter, accepted as true, to state a claim

to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Assessing a

complaint’s sufficiency is “a context-dependent exercise” because “[s]ome claims require more

factual explication than others to state a plausible claim for relief.” W. Penn Allegheny Health

Sys., Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010).

IV. ARGUMENT

A. The Commonwealth Defendants Are Entitled to Eleventh Amendment

Immunity

It has been long established that the Eleventh Amendment of the United States

Constitution bars all private lawsuits against non-consenting states in federal court. Karns v.

Shanahan, 879 F.3d 504, 512 (3d Cir. 2018) (citing Hans v. Louisiana, 134 U.S. 1 (1890)).

Eleventh Amendment immunity “is designed to preserve the delicate and ‘proper balance

between the supremacy of federal law and the separate sovereignty of the States.’” Id. (quoting

Alden v. Maine, 527 U.S. 706, 757 (1999)); see also In re Ayers, 123 U.S. 443, 505 (1887) (“The

very object and purpose of the Eleventh Amendment were to prevent the indignity of subjecting

a State to the coercive process of judicial tribunals at the instance of private parties.”). This

immunity bars suits against the states and state agencies “regardless of the relief sought.” Puerto

Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). A claim

against a state government official in his or her official capacity is “no different from a suit

against the State itself” because it “is not a suit against the official but rather is a suit against the

official’s office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).

The courts have developed a limited exception to a state’s Eleventh Amendment

immunity for certain kinds of claims for injunctive relief. To “ensure[ ] that state officials do not

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employ the Eleventh Amendment as a means of avoiding compliance with federal law,” see

Puerto Rico Aqueduct, 506 U.S. at 146, a federal court “may enjoin state officials to conform

their future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337

(1979). This exception allowing certain kinds of declaratory or injunctive relief against state

officials in their official capacity—initially noted in Ex parte Young, 209 U.S. 123 (1908)—is

“narrow,” in that it “applies only to prospective relief, [and] does not permit judgments against

state officers declaring that they violated federal law in the past.” Puerto Rico Aqueduct, 506

U.S. at 146. “In determining whether the doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)

(quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., joined

by Scalia and Thomas, JJ., concurring in part and concurring in judgment)). An official is a

proper party to this kind of suit if the official “by virtue of his [or her] office has some

connection with the enforcement of the act” sought to be enjoined. Ex parte Young, 209 U.S. at

157.

To fall within the reach of Ex parte Young, there must be “a sufficient connection

between the state official and the offending conduct in question.” Doe v. Wolf, No. 16-cv-6039,

2017 WL 3620005, at *11 (E.D. Pa. Aug. 23, 2017); accord Poplawski v. Vilarino, No. 21-cv-

3084, 2022 WL 717277, at *3 (E.D. Pa. Mar. 10, 2022) (dismissing injunction claim against

Attorney General arising out of state civil proceedings in which the Office of Attorney General

had no involvement).

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Plaintiff’s claims against Gov. Wolf and Attorney General Shapiro are barred by

Eleventh Amendment immunity because this case does not fit into the Ex parte Young exception.

It is not seeking to enjoin either Commonwealth Defendant from their ongoing violation of

Plaintiff’s constitutional rights. There is no allegation that any state official is currently violating

Plaintiff’s civil rights. Moreover, Plaintiff’s claim concerns books in a high school library, and

there is no connection that is alleged—or could be alleged—between the Commonwealth

Defendants and the content of a public school library. See Doe, 2017 WL 3620005, at *11.

Because Plaintiffs cannot fit their claims into the narrow Ex parte Young exception,

Eleventh Amendment immunity bars any claim against Gov. Wolf or Attorney General Shapiro.

B. The Complaint Fails to State a Civil Rights Claim

1. A Plaintiff Cannot File a Civil Suit Under Federal Criminal Statutes to

Compel a State Criminal Prosecution

“As a general matter, ‘Title 18 is a federal criminal statute which does not create civil

liability or a private right of action.’” Shipp v. Donaher, No. 09-cv-2475, 2010 WL 1257972

(E.D. Pa. Mar. 25, 2010) (citing U.S. ex rel Stafford v. Luongo, No. 85-cv-1642, 1989 WL

45910, at *2 (E.D. Pa. Apr.19, 1989)); see also Jones v. Lockett, No. 08-cv-16, 2009 WL

2232812, at *8 (W.D. Pa. July 23, 2009). Thus, a plaintiff cannot bring a civil claim alleging that

a defendant has violated federal criminal law. Id. Further, it is well established that a plaintiff

cannot bring a civil claim to compel prosecutors to investigate or bring criminal charges against

a third party. Matthews v. Villella, 381 Fed. Appx. 137, 140 (3d Cir. 2010); see also Concepcion

v. Resnik, 143 Fed. Appx. 422, 425-26 (3d Cir. 2005) (quoting U.S. v. Friedland, 83 F.3d 1531,

1539 (3d Cir.1996)) (“[T]he United States Attorney is responsible for the prosecution of all

criminal cases within his or her district.”).

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The Complaint fails to state a cognizable civil cause of action. Simply put, Plaintiff’s

attempt to invoke Title 18 cannot be the basis of any civil claim. Moreover, there is no basis in

federal civil law for Plaintiff to compel government officials to undertake a criminal

investigation or prosecution, or to take any policy position or action. Finally, a state prosecutor,

even the Attorney General, cannot bring charges under federal criminal statutes, because

prosecution of federal crimes lies exclusively with the United States Attorney’s Office. For all of

these independent reasons, the Complaint fails to state a claim against Gov. Wolf or Attorney

General Shapiro.

2. Plaintiff Does Not Allege that Gov. Wolf or Attorney General Shapiro Are
Violating Federal Law

The only potentially relevant civil statute that might give rise to a claim is 42 U.S.C.

§ 1983. Section 1983 authorizes suit only against a “person” who, under color of state law,

“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.” 42 U.S.C. § 1983. And because “neither a State nor its officials acting in

their official capacities are ‘persons’ under Section 1983,” the statute by its own terms does not

provide any cause of action against the Commonwealth, its agencies, or its officials. Will, 491

U.S. at 71. Further, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at

678 (quoting Twombly, 550 U.S. at 570). “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.” Id.

Here, the Complaint fails to state any Section 1983 claim against either Gov. Wolf or

Attorney General Shapiro. It does not allege that either official, or anyone acting on their behalf,

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is violating anyone’s civil rights, let alone Plaintiff’s or her son’s. That Gov. Wolf vetoed a bill

that Plaintiff supported is certainly not grounds for a civil claim. See Compl. at 7. And there are

no particular allegations against Attorney General Shapiro at all. The Complaint as to both

officials should be dismissed.

C. Plaintiff Cannot Represent Her Child Pro Se and Lacks Standing in Her
Own Right

Parties in federal court may proceed in only one of two ways: pro se or by counsel. 28

U.S.C. § 1654. It is well established in this circuit that a non-lawyer guardian or parent may not

represent his or her child in federal court. Osei-Afriyie by Osei-Afriyie v. Med. College of Pa.,

937 F.2d 876, 883 (3d Cir. 1991); accord Pinkney v. City of Jersey City Dep’t of Housing and

Econ. Dev., 42 Fed. Appx. 535, 536 (3d Cir. 2002). This is true even where the guardian has

been granted power of attorney, even though that title “may confer certain decision-making

authority under state law.” Williams v. United States, 477 Fed. Appx. 9, 11 (3d Cir. 2012); see

also Ferguson v. Warden Schuylkill FCI, 647 Fed. Appx. 70, 71 (3d Cir. 2016) (“The District

Court correctly concluded that Varnam, a non-attorney, cannot represent Ferguson pro se in

federal court . . . even though Varnam purported to proceed under a power of attorney.”). “While

this limitation may create difficulties for litigants . . . it ‘is a venerable common law rule’ which

the Court cannot ignore.” Robinson v. Derrah, No. 16-cv-6323, 2017 WL 2242865, at *3 (E.D.

Pa. May 23, 2017) (quoting Collinsgru v. Palmyra Bd. of Educ., 161 F.3d 225, 232 (3d Cir.

1998)). Moreover, a parent does not have his or her own constitutional right to assert a civil

rights claim on behalf of a child. See Rogan v. Cnty. of Lawrence, Pa., No. 12-cv-1375, 2013

WL 3369146, at *6 (W.D. Pa. July 2, 2013) (noting that, in civil rights claims generally, a parent

“does not have standing to bring a civil rights claim” asserting a child’s harm).

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Plaintiff here appears pro se while asserting a claim on behalf of her child. See Compl. at

7. She claims that her child is harmed by the presence of certain books in the public school

library. But Plaintiff lacks the authority to represent her child’s claim in court, and she lacks any

civil rights claim in her own right. To the extent Plaintiff’s child has any claim, it must be

asserted via counsel.

V. CONCLUSION

Wherefore, this Court should dismiss all claims against Gov. Tom Wolf and Attorney

General Josh Shapiro.

Dated: September 15, 2022 Respectfully submitted,

JOSH SHAPIRO
Attorney General

COMMONWEALTH OF PENNSYLVANIA BY: /s/ Stephen R. Kovatis

OFFICE OF ATTORNEY GENERAL STEPHEN R. KOVATIS (Pa. No. 209495)
The Phoenix Building, 1600 Arch St. Senior Deputy Attorney General, Attorney-in-Charge
Philadelphia, PA 19103
Telephone: (215) 560-2940 KAREN M. ROMANO
Fax: (717) 772-4526 Chief Deputy Attorney General
[email protected] Civil Litigation Section