MOORE v. GONZALES et al

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LINDELL MOORE, 	: 	CIVIL ACTION
Plaintiff, 	:
:
v. 	: 	NO. 	25-7380
:
CODY GONZALES, et al., 	:
Defendants. 	:
MEMORANDUM
MURPHY, J. 	February 17, 2026
In a prior memorandum and order, we dismissed the pro se civil rights complaint filed by
Lindell Moore against Allentown Police Officer Cody Gonzalez and the Allentown Police
Department (“APD”). Moore v. Gonzales, 2026 WL 36536 (E.D. Pa. Jan. 6, 2026). We
dismissed the claims against the APD with prejudice because it was not a proper defendant in a
civil rights case brought pursuant to 42 U.S.C. § 1983, and we dismissed the claim against
Officer Gonzales without prejudice but granted Mr. Moore leave to amend his claim against the
officer. Id. at *2-*3. Mr. Moore has now filed an amended complaint. DI 7. Because he has
again not alleged plausible claims against Officer Gonzalez, we dismiss all federal claims against
Officer Gonzalez with prejudice. All state law claims are dismissed without prejudice.
I. 	PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS1
Mr. Moore’s initial complaint was brief. He claimed that after leaving a custody trial at
the Lehigh County Courthouse on December 18, 2025, he was threatened with bodily harm by a
1 Unless otherwise indicated, the factual allegations are taken from Mr. Moore’s amended
complaint. DI 7. We adopt the sequential pagination supplied by the CM/ECF docketing
system. Where needed, punctuation, spelling, and capitalization will be corrected in quotes from
Mr. Moore’s materials.
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family member if he came to their home to visit his children. DI 2 at 3. He reported the incident
to Officer Gonzalez, who initially disregarded his report. Id. Two days later, after urging from
Mr. Moore, Officer Gonzalez went to the home and questioned the person or persons who made
the threat. Id. After receiving an explanation why the threat was made, Officer Gonzalez left
and told Mr. Moore to stay away from the home and the children. Id. Mr. Moore met with
Internal Affairs about the matter but Internal Affairs concurred with Officer Gonzalez “as to the
solution to the problem: stay away from [the] home and children.” Id. Mr. Moore asserted that
he followed the command to stay away and no one has been arrested for making the threat. Id. at
4. He brought a claim against Officer Gonzales for violating his equal protection rights, while he
also named the Allentown Police Department. Id. at 1-2.
In our prior memorandum, we dismissed the APD with prejudice because a police
department is not a proper defendant under section 1983 and dismissed the equal protection
claim against Officer Gonzalez because Mr. Moore failed to allege facts (1) that he was treated
differently from other similarly situated individuals, and (2) that such disparate treatment was
predicated upon “an unjustifiable standard, such as race, or religion, or some other arbitrary
factor” or rendered “to prevent the exercise of a fundamental right.” Moore, 2026 WL 36536 at
*2 (citation modified) (quoting Dique v. N.J. State Police, 603 F.3d 181, 184 n.5 (3d Cir. 2010)).
In his short amended complaint, Mr. Moore now alleges a due process violation under the
Fourteenth Amendment “in regards to [Officer Gonzales’s] gross negligence in performing his
duties.” DI 7 at 2. He again alleges that, after leaving a custody hearing, Mr. Moore and his
spouse were threatened by his children’s caretakers and told they would be shot if Mr. Moore
showed up at their house to see the children. Id. at 3. Mr. Moore made a report of terroristic
threats to Officer Gonzales the same day and, although “defendants [sic] confirmed the threats,
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no arrest was made.” Id. Although he concedes that “no physical injuries occurred” from
Officer Gonzales’s conduct, Mr. Moore seeks $10 million in damages. Id. at 4.
II. 	STANDARD OF REVIEW
Because Mr. Moore has been granted leave to proceed in forma pauperis, the amended
complaint is subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B), which requires us to
screen and dismiss the case if Mr. Moore fails to state a claim. We must determine whether Mr.
Moore’s amended 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). Conclusory allegations do not suffice. Id. And though we liberally construe a pro se
litigant’s allegations, pro se litigants must still allege sufficient facts to support their claims.
Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citation omitted).
III. 	DISCUSSION
Mr. Moore again asserts constitutional claims under section 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) (citation modified); see
also Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995) (“The color of state
law element is a threshold issue; there is no liability under § 1983 for those not acting under
color of law.”) (citation omitted). Rather than attempt to reassert the equal protection claim
contained in the original complaint, Mr. Moore now attempts to raise a due process claim based
on the same sparce facts under the Fourteenth Amendment’s Due Process Clause.
Mr. Moore has not alleged a procedural due process violation. To plead that claim
plausibly, he must first allege that he has been deprived of a constitutionally protected property
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or liberty interest. Daniels v. Williams, 474 U.S. 327, 328, 331 (1986); Renchenski v.
Williams, 622 F.3d 315, 325 (3d Cir. 2010). Only upon finding that a protected interest is
asserted do we consider the constitutional sufficiency of the procedures associated with the
interest. But as we have instructed Mr. Moore, “an allegation of a failure to investigate, without
another recognizable constitutional right, is not sufficient to sustain a section 1983 claim.”
Moore, 2026 WL 36536 at *2 (citing Graw v. Fantasky, 68 F. App’x 378, 383 (3d Cir. 2003)
(quotations omitted); Boseski v. North Arlington Municipality, 621 F. App’x 131, 135 (3d Cir.
2015) (per curiam) (finding plaintiff lacked a “cognizable claim against a government entity for
its failure to investigate or bring criminal charges against another individual”) (citation
modified); Millhouse v. Levi, 267 F. App’x 140, 141 (3d Cir. 2008) (per curiam) (affirming
dismissal of plaintiff’s “motion to investigate” because, inter alia, “there is no federal right to
require the government to initiate criminal proceedings”) (citing Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973)). Because Mr. Moore had no protected interest in the investigation, Officer
Gonzales’s alleged failure to investigate his claim of terroristic threats by his children’s
caretakers cannot support a procedural due process violation. Linda R.S., 410 U.S. at 619 (“[A]
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another”).
A plaintiff may also assert a claim under the “substantive” prong of the Due Process
Clause, which bars certain arbitrary, wrongful government actions regardless of the fairness of
the procedures used to implement them. Zinermon v. Burch, 494 U.S. 113, 125 (1990)
(citing Daniels, 474 U.S. at 331)). To be plausible, this type of due process claim must allege
governmental conduct that “shocks the conscience . . . or interferes with rights implicit in the
concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987) (citation
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modified) (citations omitted). The United States Supreme Court explained that “the core of the
concept” of due process is “protection against arbitrary action” and that “only the most egregious
official conduct can be said to be arbitrary in the constitutional sense.” County of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998) (citation modified) (citation omitted). Accordingly, in a
substantive due process challenge to an action taken by a government official, “the threshold
question is whether the behavior of the governmental officer is so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience.” Id. at 847 n.8; see also United
Artists Theatre Circuit, Inc. v. Township. of Warrington, 316 F.3d 392, 399-400 (3d Cir. 2003)
(“[O]ur cases have repeatedly acknowledged that executive action violates substantive due
process only when it shocks the conscience[.]”). Because nothing about Officer Gonzales’s
failure to investigate Mr. Moore’s claim rises to the level of arbitrary, conscious-shocking
behavior, particularly where Mr. Moore specifically alleges that he suffered no physical injury,
we conclude that Mr. Moore has not alleged a plausible substantive due process claim.2
2 Mr. Moore’s labeling of Officer Gonzales’s conduct as “gross negligence” (DI 7 at 2)
also fails to assert a plausible constitutional claim because it is conclusory. Iqbal, 556 U.S. at
678 (holding that conclusory allegations do not suffice to state plausible claims). To the extent
that Mr. Moore intended to bring a state law claim for gross negligence, we decline to exercise
supplemental jurisdiction over the claim because all the federal law claims are dismissed. 28
U.S.C. § 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“A district
court’s decision whether to exercise [supplemental] jurisdiction after dismissing every claim
over which it had original jurisdiction is purely discretionary.”) (citation omitted); Shaffer v. Bd.
of Sch. Directors of Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984)
(explaining we should refuse to exercise supplemental jurisdiction where no viable federal
claims remain absent “extraordinary circumstances” to exercise such jurisdiction) (citation
omitted). Nor is there an apparent basis for diversity jurisdiction because Mr. Moore does not
provide citizenship allegations for himself and Officer Gonzales, and both have Pennsylvania
addresses. Thus, any state law claim will be dismissed without prejudice for lack of subject
matter jurisdiction so that Mr. Moore can reassert the claim in a state court, if he so chooses.
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IV. 	CONCLUSION
Because Mr. Moore has not alleged a plausible federal civil rights claim, we dismiss this
claim against Officer Gonzales with prejudice. As Mr. Moore has already been given a second
opportunity to flesh out his factual allegations in order to assert plausible claims, and he has not
asserted plausible claims, we conclude that further amendment would be futile. See Jones v.
Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (amendment by
pro se litigant would be futile when litigant “already had two chances to tell his story”); Nicholas
v. SCI Smithfield, 2025 WL 2807762, at *1 (3d Cir. Sept. 30, 2025) (per curiam) (citing Krantz v.
Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002) (per curiam) (explaining
that “[a] District Court has discretion to deny a plaintiff leave to amend where the plaintiff was
put on notice as to the deficiencies in his complaint, but chose not to resolve them[.]”)). We
dismiss Mr. Moore’s state law claims without prejudice to his ability to refile in state court. A
final order of dismissal will be entered separately. Fed. R. Civ. P. 58(a).
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