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OLSON v. MURPHY

October 20, 1976

Harold OLSON, Plaintiff,
v.
James T. MURPHY et al., Defendants



The opinion of the court was delivered by: MARSH

 Following his conviction in state court on charges of indecent assault and corrupting children, the plaintiff was dismissed from his position as a police officer for the Borough of Homestead. In successive civil rights actions, the plaintiff has challenged his dismissal as being a violation of due process rights. As part of the present civil rights action, counsel for the plaintiff has filed a "Petition for Preliminary Injunction" seeking to attack the plaintiff's state court conviction on the ground that the victim of the alleged indecent assault has recanted her trial testimony. The petition will be denied.

 In his complaint, plaintiff alleges that the individual defendants acted in concert to deprive him of continued employment as guaranteed by state law in 53 P.S. §§ 46190, 46191. These particular provisions were examined in detail by this court with respect to plaintiff's earlier civil rights action against the Borough of Homestead itself. *fn1" The court concluded, inter alia, that the plaintiff appeared to have received each of the required due process considerations, and the action against the borough was dismissed. Plaintiff's appeal of that decision is now pending.

 The individual defendants have responded to the complaint in this action by filing motions to dismiss. Subsequently, on October 12, 1976, plaintiff filed his petition for a preliminary injunction. Attached to the petition is a photocopy of a statement purportedly written by one Pam Opsitos at the Homestead Police Station on September 30, 1976, at 1:20 a.m. The statement reads as follows:

 
"every thing that happened isn't true. I just said it because I thought my mother didn't like him, I think she wanted him in trouble. So that's why I said it."

 The factors to be considered in evaluating a request for preliminary injunctive relief are: (1) whether the moving party has shown a reasonable probability of eventual success on the merits, and (2) whether the moving party has shown that he would suffer irreparable injury pendente lite if relief is not granted. The court must also take into consideration the public interest and the possibility of harm to other interested parties from the grant of an injunction. A. O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3rd Cir. 1976); Oburn v. Shapp, 521 F.2d 142, 147 (3rd Cir. 1975).

 At this time, it cannot be said that it is likely that the plaintiff will prevail on the merits in the instant civil rights action, particularly in light of the court's findings in plaintiff's previous civil rights action which dealt with the very same dismissal proceedings. Plaintiff acknowledges in the petition that he was in fact convicted in state court of indecent assault. The applicable state statute provides:

 
"No person employed in any police or fire force of any borough shall be suspended, removed or reduced in rank except for the following reasons:
 
. . .
 
(3) Violation of any law which provided that such violation constitutes a misdemeanor or felony.
 
(4) Inefficiency, neglect, intemperance, immorality, disobedience of orders, or conduct unbecoming an officer. . .."

 53 P.S. § 46190.

 The allegations raised in the petition do not increase plaintiff's likelihood of success on the merits since the alleged recantation on September 30, 1976, is basically not relevant to the issue raised by the plaintiff's civil rights action, i.e., whether the ...


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