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August 7, 1984


The opinion of the court was delivered by: HUYETT


 In this action under 42 U.S.C. § 1983, plaintiff Charles Cerva asserts claims against Anthony Zerbe [sic] and James Stratford [sic], both Union County, Pennsylvania constables, for alleged violations of his constitutional rights and for two claims under state law. *fn1" The allegations stem from defendants' conduct in connection with an arrest of plaintiff in 1981 for criminal trespass. I have granted summary judgment in favor of defendant James Stratford and against plaintiff on all counts. I now enter judgment in favor of defendant Anthony Zerbe who is pro se. This memorandum opinion is a statement of the reasons for these rulings.

 A. Factual Background

 The arrest of plaintiff, which is the basis for this action, was the culmination of a series of events occurring over a seven month period. These earlier events are not relevant to the resolution of the motion for summary judgment. An arrest warrant for plaintiff had been issued by a Union County, Pennsylvania magistrate in connection with plaintiff's alleged removal of his tractor from a repair shop without payment of the bill. On the date of the arrest, defendant Stratford went with three other officers, including defendant Zerbe, to the home of plaintiff's sister in Lehigh County, in order to make the arrest. Stratford had telephoned her shortly before going to the home and had determined that plaintiff was living with her and would be at home. Upon arriving, the officers spoke to plaintiff's sister, wife and father. The father went into the house and spoke to plaintiff, who was in an upstairs bedroom. The parties dispute what happened next. Plaintiff alleges that his father told the officers that he would not come downstairs voluntarily because the arrest warrant showed an incorrect address. Plaintiff also alleges that defendants Stratford and Zerbe then forced their way into the house. Defendant Stratford contends that they were permitted entrance into the house. In either case, Stratford and Zerbe entered the house and went to the second floor. As Stratford's motion states, the "events of the actual placement of the plaintiff into custody are greatly disputed." Plaintiff claims that the arrest was made with excessive force and physical abuse. He alleges that the defendants struck and slapped him while conducting a pat down search and "violently and maliciously" pushed and pulled him while removing him from the house and placing him into defendants' car. Defendant Stratford claims that no physical contact was made with the plaintiff except the actual placement of the handcuffs on him.

 Following his arrest, plaintiff was taken before a Lehigh County magistrate. Plaintiff could not make bail, and he was held overnight. He was released the next day.

 Although there is a dispute as to the events which took place, for the reasons which I explain below, defendants are entitled to judgment as a matter of law, regardless of which party's version of the facts is correct, because the facts which might be in dispute are not material to the resolution of the motion.

 B. Plaintiff's Causes of Action

 Plaintiff's amended complaint against defendants Stratford and Zerbe contains three counts. In Count I, plaintiff alleges that defendants used excessive force in making the arrest, in violation of the eighth amendment and the due process clause of the fourteenth amendment. He also alleges that defendants convinced the Lehigh County magistrate to set high bail and to refuse the proffered security, in violation of the due process clause and the equal protection clause of the fourteenth amendment. In Count II, plaintiff alleges that defendants used excessive force in making the arrest, in violation of their obligation to exercise due care under state law. In Count III, plaintiff alleges that defendants' conduct in making the arrest constituted assault and battery under state law.

 1. The Eighth Amendment Claim.

 Plaintiff claims that defendants' conduct in making the arrest constituted cruel and unusual punishment in violation of the eighth amendment. Plaintiff's claim is without merit. The law on this issue is well settled. The constitutional ban against cruel and unusual punishment applies only to those who have been convicted of criminal offenses. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 n.16 (1979); United States v. Lovett, 328 U.S. 303, 317-18, 90 L. Ed. 1252, 66 S. Ct. 1073 (1946); Romeo v. Youngberg, 644 F.2d 147, 156 n.8 (3d Cir. 1980) (en banc), vacated on other grounds, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982); Patzig v. O'Neil, 577 F.2d 841, 847 (3d Cir. 1978). In the case before me, plaintiff was only under arrest when the alleged unconstitutional conduct occurred; he had not been convicted of any criminal offense and was not incarcerated. The eighth amendment ban, therefore, does not protect him. The only possible constitutional issue arising from defendants' conduct in making the arrest is one of due process under the fourteenth amendment which I shall discuss below.

 2. The Equal Protection Claim.

 Plaintiff claims that defendants' conduct in making the arrest and in attempting to have his bail increased deprived him of the equal protection of the laws in violation of the fourteenth amendment. This claim is without merit. An equal protection claim must be based on some allegation of invidious discrimination or discriminatory intent. Washington v. Davis, 426 U.S. 229, 238-48, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Plaintiff has offered no evidence whatsoever that defendants' conduct involved either invidious discrimination or discriminatory intent, and plaintiff has offered no legal argument or authority in support of the allegation.

 3. The Due Process Claim and the Setting of Bail.

 Plaintiff claims that following his arrest, defendants convinced the magistrate to raise his bail and to refuse the security offered by his family, in violation of his right to due process under the fourteenth amendment. In support of this allegation, plaintiff states only that the magistrate's actions "were taken at defendants' instigation." Plaintiff admits that there is no direct evidence on this issue; he merely argues that the inference should be drawn that defendants "somehow convinced" the magistrate that plaintiff should have been transferred back to Union County rather than posting bail in Lehigh County. Plaintiff's claim is without merit. In order to defeat defendant's motion for summary judgment on this issue, plaintiff, as the opposing party, must come forward with some evidence, by affidavit or otherwise, to show the existence of a material issue of fact. He cannot rest on the allegations of this complaint or on the conclusory arguments of counsel. Robin Constr. Co. v. United States, 345 F.2d 610 (3d Cir. 1965); Hollinger v. Wagner Mining Equip. Co., 505 F. Supp. 894 (E.D. Pa. 1981), vacated on other grounds, 667 F.2d 402 (3d Cir. 1981). Plaintiff has failed to come forward with any facts to support his allegation and has failed to articulate how defendants' conduct, even if true, constitutes a violation of his due process rights under the fourteenth amendment.

 4. The Fourth Amendment Claims.

 Plaintiff claims that defendants have violated his rights under the fourth amendment because the arrest warrant and the arrest itself were invalid. In support of this claim, plaintiff states that the warrant did not show the correct address and defendants executed it at an address different from the one shown. Plaintiff also claims that his fourth amendment rights were violated by defendants in forcing their way into the house after being refused entry by his sister. Both of these claims are without merit.

 In an arrest warrant, unlike a search warrant, the listed address is irrelevant to its validity and to that of the arrest itself. An arrest may take place at any location so long as there is probable cause to support the arrest. United States ex rel. Moore v. Russell, 330 F. Supp. 1074, 1078 (E.D. Pa. 1971); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). Plaintiff admits that he took his tractor from the repair shop without paying, and he does not deny that the defendants had telephoned his sister at the place of the arrest shortly before going there, and had confirmed that he would be there. Thus, there was probable cause for making the arrest. The error in the address was of no significance.

 Further, plaintiff's claim of forceable entry into the house is not a basis for a fourth amendment violation because, given the fact that the arrest warrant was valid and based on probable cause, the defendants were entitled to enter the premises in order to carry out the arrest. Permission ...

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