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April 8, 1992


The opinion of the court was delivered by: RAMBO


 Before the court is the motion to dismiss of defendants City of Harrisburg Bureau of Police and Officer Dave Salada. The motion has been fully briefed, and is now ripe for disposition.


 Defendants have moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). The standard for dismissal under Rule 12(b)(6) is that "a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The court must "'take all well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,' and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985)), cert. denied, 109 S. Ct. 1338 (1989). "Because 12(b)(6) results in a determination on the merits at an early . . . stage . . ., the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn." Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). As a § 1983 civil rights claim is involved here, the plaintiff must, however, infuse his complaint with "a modicum of factual specificity" over and above what would be required for other claims, "identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs." Colburn, 838 F.2d at 666.

 Therefore, the court will take every allegation pleaded in Mr. Troublefield's complaint as true. According to the complaint, defendant Salada, a Harrisburg city police officer, was dispatched to the vicinity of North Sixth Street in the mid-afternoon of November 8, 1989 in response to a call about a possible car theft. Salada found plaintiff in the front seat of a car. Pistol drawn, Salada asked Troublefield if he owned the car. Troublefield, who was intoxicated, answered "No. I guess you got me."

 Salada ordered plaintiff to climb out of the car and lie on the ground. Troublefield complied without protest or struggle, extending himself prostrate, facing the ground. Pistol still drawn, the officer began to search the suspect, and then proceeded to apply handcuffs. As he locked on the handcuffs, Salada started to return his weapon to his holster. Suddenly, the weapon fired, propelling a bullet into Troublefield's leg.

 Plaintiff was subsequently taken to the hospital for surgery. The complaint alleges that his injuries resulted in permanent nerve and other physical damage. At this point, plaintiff's medical bills have exceeded $ 24,000.

 In July 1991, plaintiff commenced this suit by praecipe for a writ of summons in the Court of Common Pleas of Dauphin County, Pennsylvania. The complaint posed five separate causes of action, some brought pursuant to 42 U.S.C. § 1983 and some brought under common law tort theories. Plaintiff alleged: 1) that Officer Salada used excessive force in effectuating plaintiff's arrest in contravention of the fourth amendment's stricture against unreasonable searches and seizures; 2) that Salada's actions amounted to a denial of life, liberty or property in violation of the fourteenth amendment's due process clause; 3) that Salada was guilty of negligence under state tort law; 4) that the city's Bureau of Police is liable under the municipal liability doctrine for failure to train or supervise its officer in proper firearm techniques; and 5) that the city had wrongfully permitted Salada to carry a firearm when they were on notice through previous incidents that Salada was not fit to carry a firearm, as well as being vicariously liable.

 Defendants removed the action to this court on January 29, 1992. Soon afterward, defendants filed this motion to dismiss.


 The motion attacks every count of Troublefield's pleading. The court will, accordingly, address each count in order.

 I. Fourth Amendment Claim

 Plaintiff claims that the officer's actions in making the arrest constituted excessive force and therefore rise to the level of an unreasonable search and seizure in contravention of the fourth amendment of the United States Constitution.

 In Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the United States Supreme Court held that the fourth amendment and the fourth amendment only applies to excessive force cases arising from an arrest or an investigatory stop. Graham, 490 U.S. at 395. The Court then endorsed an objective reasonableness test in judging the behavior of the law enforcement officers in making an arrest. The inquiry is whether the officer's actions, given the perspective of a reasonable officer at the scene, was reasonable. Id. at 396. A "seizure" occurs when government actors have, "by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 n.16 (1968). "Whenever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985).

 Defendant's principal argument is that, given the facts as alleged in the complaint, no seizure occurred implicating fourth amendment rights because there was no intentional act on the part of Salada which resulted in Troublefield's injury.

 Plaintiff counters that fourth amendment protections under Graham were triggered as soon as Salada gained custody and control of him, and that, therefore, the officer's conduct must be evaluated under the objective reasonableness test of Graham.

 In a case announced just two months prior to Graham, Brower v. Inyo County, 489 U.S. 593, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989), the Court intimated that only intentional conduct on the part of law enforcement officials invokes the protection of the fourth amendment. Brower concerned a "blind" roadblock -- a tractor trailer parked across a highway just around a bend -- set up by police officials to stop a fleeing car thief. The thief plowed into the tractor trailer at high rate of speed and was killed. The Court reasoned that such a roadblock constituted a "seizure" of the suspect within the meaning of ...

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