CONCEPCION v. BECK

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JORGE L. CONCEPCION, : Plaintiff, : : v. : CIVIL ACTION NO. 21-CV-3434 : KIRSTEN KINCH, et al., : Defendants. : MEMORANDUM BAYLSON, J. JANUARY 11, 2022 Currently before the Court is an Amended Complaint filed by Plaintiff Jorge L.

Concepcion asserting claims pursuant to 42 U.S.C. § 1983 based on allegations that the Defendants harassed him, threatened him, and retaliated against him by having his probation revoked while he was living at a halfway house. (ECF No. 14.) For the following reasons, the Court will dismiss Concepcion’s Amended Complaint.

I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY The events giving rise to Concepcion’s claims occurred at Keenan House, a halfway house where he previously resided in connection with the terms of a sentence of probation.1 Concepcion filed his initial Complaint against two employees of Keenan House, “Kirsten K.”

Commonwealth v. Yenser, No. 354 EDA 2013, 2013 WL 11248431, at *1 (Pa. Super. Ct. Dec. 16, 2013). It appears Concepcion was transferred from Lehigh County Jail to Keenan House to serve his sentence. and “Tonya B.” who was identified as the “Clinical Director.” (ECF No. 2 at 1-2.)2 In an October 6, 2021 Memorandum and Order, the Court granted Concepcion leave to proceed in forma pauperis and dismissed Concepcion’s Complaint without prejudice to him filing an amended complaint. Concepcion v. Tonya B., Civ. A. No. 21-3434, 2021 WL 4592161, at *1 (E.D. Pa. Oct. 6, 2021). The Court understood “Concepcion to be raising federal claims, pursuant to 42 U.S.C. § 1983, for violation of his constitutional rights based on Kirsten and Tonya’s alleged interference with his mail and his ability to contact his attorney and the courts, as well as the harassment he claims to have endured at Keenan House.” Id. However, he failed to state a plausible basis for a claim under § 1983 because the complaint was “devoid of allegations from which the Court could conclude that the Defendants, who are employees at Keenan House, were state actors.” Id. at *3. Concepcion’s allegations that he “was ‘mandated’ to reside at Keenan House for drug rehabilitation and that if he had been kicked out of Keenan House he would be sent back to jail” were insufficient to establish that Keenan House employees were state actors for purposes of § 1983.

After having been granted two extensions of time, (ECF Nos. 11 & 13), Concepcion filed his Amended Complaint. The Amended Complaint names as Defendants employees of Keenan House Kirsten Kinch and Tonya Schafer; Brandy Beck, Concepcion’s probation officer; and “Mark Doe.” (ECF No. 14 at 1-2.) Concepcion’s allegations again concern how he was treated at Keenan House, where he resided between May and August of 2021, and the ultimate revocation of his probation. (Id. at 3.) He alleges that in May and June of 2021 he witnessed Kinch, his “counselor” at Keenan House, “engaged in inappropriate sexual behavior.” (Id. at 5.)

Kinch allegedly told Concepcion that if he reported what he witnessed, she would deny it, “have

Defendant Doe is identified as a “former client” of Kinch and Beck. (Id. at 9.) Doe allegedly “threatened [Concepcion] with bodily harm and or threats of violence to deter [him]”

Also on August 27, 2021, Beck charged Concepcion with violating his probation, causing him to be incarcerated.5 (Id. at 8.) According to Concepcion, these actions were taken because he filed a police report against Doe and because he refused to withdraw both that report and an unspecified “civil complaint” he filed. (Id. at 5.) Concepcion also alleges that Beck sought to protect Kinch from the consequences of her own actions. (Id. at 8.)

Concepcion claims that all four Defendants engaged in “harassment, intimidation and threats” against him, (id. at 5), and “conspired” to have him “locked up.” (Id. at 9.) He raises claims against the Defendants pursuant to 42 U.S.C. § 1983, for violation of his constitutional rights. (Id. at 2.) Concepcion seeks damages for “mental anguish,” “pain and suffering,” and to

Commonwealth v. Concepcion, CP-39-CR-3331-2020 (Lehigh C.P.). A hearing is currently scheduled for January 19, 2022. Id. compensate him for expenses he incurred as a result of the Defendants’ actions.6 (Id. at 10.) He also seeks punitive damages. (Id.) II. STANDARD OF REVIEW Since Concepcion is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the Amended Complaint if it 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 to determine whether the complaint contains “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 (2009) (quotations omitted).

“At this early stage of the litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . . contains facts sufficient to state a plausible [] claim.’” 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 Concepcion 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)).

Accordingly, in the event he was attempting to raise such a claim, it is dismissed.

III. DISCUSSION A. Lack of State Action As with his initial Complaint, several of Concepcion’s claims fail because he has not adequately alleged that the Defendants were acting under color of state law such that they are subject to liability under § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). “The color of state law element is a threshold issue; there is no liability under § 1983 for those not acting under color of law.” Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995).

Whether a defendant is acting under color of state law — i.e., whether the defendant is a state actor — depends on whether there is “such a close nexus between the State and the challenged action’ that seemingly private behavior may be fairly treated as that of the State itself.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005) (internal quotations omitted). “To answer that question, [the Third Circuit has] outlined three broad tests generated by Supreme Court jurisprudence to determine whether state action exists: (1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotations and alteration omitted). “Action taken by private entities with the mere approval or acquiescence of the State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Rather, to support a finding of state action, “the government must be ‘responsible for the specific conduct of which the plaintiff complains.’” Borrell v. Bloomsburg Univ., 870 F.3d 154, 160 (3d Cir. 2017) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)).

As explained in the Court’s October 6, 2021 Memorandum, Concepcion, 2021 WL 4592161, at *3, the employees of Keenan House are not state actors solely by virtue of their employment at a facility that provided drug rehabilitation services to Conception. See Daniels v. Nw. Hum. Servs, No. 20-1736, 2021 WL 4166285, at *2 (3d Cir. Sept. 14, 2021) (per curiam) (affirming dismissal of lawsuit against residential rehabilitation center and its employees where plaintiff alleged only that “Douglas House is a community residential rehabilitation residence under operation of [Northwestern Human Services] who is from my knowledge integrated working with the City of Philadelphia and its prison institutions and the state as well. People from the state jails are often sent to these [residential centers] for programs”); Smith v. Alternative Counseling Servs., Civ. A. No. 21-0076, 2021 WL 492513, at *3 (E.D. Pa. Feb. 10, 2021) (“Based on the allegations of the Complaint, it appears that these Defendants – a privately run halfway house, its owner, and its employees – are not subject to liability under § 1983.”); Veeder v. TRI-CAP, Civ. A. No. 17-11690, 2020 WL 1867212, at *5 (E.D. Mich. Jan. 30, 2020), report and recommendation adopted, 2020 WL 967481 (E.D. Mich. Feb. 28, 2020) (“‘[C]ourts have consistently held that drug treatment facilities that treat individuals pursuant to a condition of parole are not performing a public function.’”) (quoting Porter v. Game, Civ. A.

No. 19-1408, 2020 WL 127580, at *2 (E.D.N.Y Jan 9, 2020)). It appears that Concepcion may be attempting to allege that the employees of Keenan House should be considered state actors because they “conspired” with Beck, his probation officer. See Adams v. Cty. of Erie, Pa., 558 F. App’x 199, 203 (3d Cir. 2014) (“[P]rivate individuals can act under color of state law for purposes of § 1983 when they corruptly conspire with a state actor.” (internal quotations omitted)). To plausibly allege such a conspiracy, a plaintiff must provide factual allegations supporting an agreement and concerted action rather than relying on labels and conclusions.

Hoffman v. Cty. of Atl., Civ. A. No. 12-7018, 2014 WL 3573409, at *4 (D.N.J. July 18, 2014) (citing Capogrosso v. The Supreme Court of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009)).

Most of the allegations in the Amended Complaint do not support a plausible basis for a conspiracy or joint action. Liberally construing the Amended Complaint, the only joint action alleged between Keenan House employees and Beck, a state actor, relate to the occasion when Beck and Kinch allegedly confined Concepcion in an office. Otherwise, Concepcion’s allegations either do not allege joint action or rely solely on vague, undeveloped, conclusory allegations that are insufficient to plausibly allege state action. See Daniels, 2021 WL 4166285, at *2 (3d Cir. Sept. 14, 2021) (“Daniels’ allegations—including that the defendants’ actions resulted in Daniels being made to appear in court and being placed into state custody—are insufficient to state that the defendants were ‘willful participant[s] in joint action with the State or its agents.’”); Albrecht v. Hamilton, 233 F. App’x 122, 125 (3d Cir. 2007) (per curiam) (plaintiff failed to state a claim where “complaint contain[ed] only a general averment of conspiracy amounting to nothing more than a conclusion of law”). For instance, Concepcion has not adequately alleged that Kinch and Schafer’s alleged refusal to permit him to make phone calls to his attorney, their “harassment” of him, or any of Schafer’s conduct, is attributable to the Commonwealth. Nor has he adequately alleged that Doe’s threats to him are attributable to the Commonwealth. Accordingly, the Court will dismiss these claims and address his remaining claims below.

B. Retaliatory Arrest and /or Prosecution The Court understands Concepcion to be alleging that Beck charged him with violating his probation to retaliate against him for filing a police report against Doe and because he refused to withdraw both that report and an unspecified “civil complaint” he filed. (ECF No. 14 at 5.) “[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Hartman v. Moore, 547 U.S. 250, 256 (2006). “To plead retaliation for the exercise of First Amendment rights, a plaintiff must allege (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir. 2017) (internal quotations omitted). In the context of a retaliatory prosecution claim, “a plaintiff cannot state a claim of retaliatory prosecution in violation of the First Amendment if the charges were supported by probable cause.” Reichle v. Howards, 566 U.S. 658, 666 (2012) (citing Hartman, 547 U.S. 250)). The same is generally true when a plaintiff claims retaliatory arrest. See Nieves v. Bartlett, 139 S. Ct. 1715, 1723-24 (2019). In the probation context, only reasonable suspicion is required to support an arrest for violating the terms of probation. See generally Griffin v. Wisconsin, 483 U.S. 868, 875-880 (1987); see also Breslin v. Brainard, Civ. A. No. 01-7269, 2003 WL 22133833, at *7 (E.D. Pa. Sept. 15, 2003).

Although Concepcion alleges that he was charged with violating his probation in retaliation for filing a police report against Doe and for refusing to withdraw that complaint and another complaint he filed,7 he does not state the basis for the charge filed against him for

Concepcion has not plausibly alleged that a constitutional violation occurred. Initially, it is unclear what restrictions were placed on Concepcion’s liberty in connection with his sentence or in connection with the terms of his residency at Keenan House. Although the content of the conversation described by Concepcion is troubling, it is unclear that Concepcion’s probation officer and counselor would not be permitted to require him to remain present in an office for a discussion while serving his sentence at Keenan House or what constitutional right this would implicate, especially considering the limited due process, Fourth Amendment, or other rights in an institutional setting. It is also unclear how long this event is alleged to have lasted and whether other matters were discussed during this meeting that might affect the analysis.

Accordingly, the Court will dismiss this claim as implausible.

IV. CONCLUSION For the foregoing reasons, the Court will dismiss Concepcion’s Amended Complaint.

Concepcion will be given one final opportunity to file an amended complaint in the event he can state a basis for a claim. An appropriate Order follows.

BY THE COURT: /s/ MICHAEL M. BAYLSON ___________________________________ MICHAEL M. BAYLSON, J.