1985. Count II of the complaint argues that the 1987 arrest and detention were illegal in that they were based on an unconstitutional conviction. Upon review of the substantial documentation of the history of plaintiff Tillio's case in the Court of Common Pleas, I find no impropriety in the underlying conviction that would so taint the 1987 arrest.
Mr. Tillio's appeal of his summary conviction resulted in the hearing before Judge Davenport on August 8, 1985. The transcript of this hearing shows that Mr. Tillio and his attorney were present. Exh. A, Defendants' Reply Brief. Neither objected to the evidence of the violations of the Lower Merion ordinances presented at the hearing. Plaintiff alleges no facts tending to establish that Judge Davenport denied him a hearing or improperly denied his motion for a new trial. Although plaintiff now denies it, he admitted to Judge Nicholas in the April 1, 1987 hearing that he withdrew his appeal to Judge Davenport's ruling, Exh. B, Defendants' Reply, at 5; and he does not now point to anything inconsistent with the October 3, 1985 application of his attorney to withdraw the appeal and the Superior Court's entry of that withdrawal on October 4, 1985, Exh. F, Defendants' motion. In sum, plaintiff appeared to be fully aware of his conviction, to have exercised the full panoply of his legal rights to contest it, and to have known of the bench warrant for his delinquency. Exh. F, para. G, Defendants' Motion (affidavit and docket noting letter advised Mr. Tillio of warrant).
I thus find that plaintiff's amended complaint fails to state a claim as to the 1985 proceedings or as to the legitimacy of the April 1, 1987 custody pursuant to the bench warrant.
I will thus dismiss count II of plaintiff's complaint against all defendants.
Plaintiff also alleges that he was "punched in the back" by a sheriff when put in the cell at the courthouse. Defendants argue that this act is insufficiently "shocking" to constitute a violation of constitutional rights and that the complaint fails to plead this cause with sufficient particularity.
On the facts as alleged, I find this act to have constituted excessive and unnecessary force sufficient to support a § 1983 action. See, e.g., Sambrick v. Borough of Norristown, 639 F. Supp. 1351, 1355 (E.D. Pa. 1986).
However, I do find plaintiff's amended complaint fails to meet the minimal requirement of factual specificity necessary to support a § 1983 action. Although plaintiff describes the time, place and general circumstances of the punch, he fails to identify who hit him. See Anela v. City of Wildwood, 790 F.2d 1063, 1067-68 (3d Cir.) (affirming dismissal of equal protection claim that failed to identify particular police officers responsible for alleged illegal detention), reh'g denied en banc, 793 F.2d 514, cert. denied, 479 U.S. 949, 93 L. Ed. 2d 384, 107 S. Ct. 434 (1986). This omission clearly frustrates the requirement that § 1983 complaints contain, inter alia, sufficient facts to provide defendants with adequate notice to frame an answer. See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988).
Although plaintiff has already had the opportunity to amend his complaint with the assistance of counsel, he arguably has not had sufficient opportunity to discover the identity of the sheriff who took him into custody on the morning of April 1, 1988. I will thus deny defendants' motions for dismissal or summary judgment as to count I of the present complaint against the individual sheriff who allegedly hit the plaintiff. Plaintiff will be allowed limited discovery for the purposes of discovering the identity of the defendant and a final opportunity to amend his complaint.
As I have already concluded that plaintiff has failed to state a claim against the county for the conviction in 1985 and the resultant 1987 custody, the sole remaining claim is count III against Montgomery County. In this count, plaintiff argues that the county is liable for its sheriff's alleged act of hitting the plaintiff. In order to establish liability of a local government under § 1983, a plaintiff must (1) allege the existence of a custom or policy of such long standing as to have the force of law, (2) allege that an employee violated plaintiff's civil rights while acting pursuant to this custom or policy, and (3) articulate sufficient facts to support these allegations. See Sambrick v. Borough of Norristown, 639 F. Supp. 1351, 1353 (E.D. Pa. 1986), citing Monell v. Department of Social Services, 436 U.S. 658, 691-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
Although plaintiff broadly claims that the sheriff's act was the result of the county's failure to train properly and to prevent such acts, he utterly fails to identify any policy or practice underlying the custodial procedure in this case. Nor does the plaintiff identify any county official responsible for training and supervision who had contemporaneous knowledge of the incident or of risk of such an incident based on past occurrences, or any official who approved the act. See Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). Plaintiff simply provides no facts upon which to base an extension of liability against it.
Because the broad generalizations of the amended complaint fail to allege with sufficient particularity any claim against defendant Montgomery County, I will dismiss all claims as to this defendant.
An appropriate order follows.
ORDER - September 28, 1988, Filed and Entered
For the reasons stated in the accompanying memorandum, it is hereby ORDERED and DIRECTED that:
1) Defendants' motion to dismiss is DENIED IN PART as to count I of plaintiff's amended complaint against the "Norristown Sheriff" alleged to have struck plaintiff, and GRANTED IN PART as to all other claims and defendants;
2) For 45 days from the date of this order, plaintiff may conduct discovery limited to identifying the sheriff who allegedly hit him;
3) Plaintiff must file a properly amended complaint within 55 days of the date of this Order or this action shall be dismissed; and
4) Defendant(s), as identified in the properly amended complaint, must file an answer to that complaint within 20 days of its filing.