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BIEROS v. NICOLA

August 17, 1994

ROGER BIEROS, Plaintiff
v.
POLICE CHIEF NICOLA, et al., Defendants


J. CURTIS JOYNER, J.


The opinion of the court was delivered by: J. CURTIS JOYNER

Joyner, J.

 August 17, 1994

 Presently before the Court is Police Defendants' *fn1" Motion To Dismiss Plaintiff's Complaint and Amended Complaint, which incorporates Police Defendants' pending Motion for Judgment on the Pleadings.

 I. HISTORY OF THE CASE

 Plaintiff Bieros, an inmate at the state correctional institution in Graterford, Pennsylvania, filed a pro se complaint alleging that Police Defendants deprived him of his civil rights during his arrest and trial on assault charges. Plaintiff alleges at various times during and after his arrest, certain police Defendants used excessive force, coerced him to sign his Miranda warnings, and harassed him. Plaintiff's complaints *fn2" allege violations of 42 U.S.C. §§ 1983, 1985(3), 1986 and 1997d. On August 5, 1994, this Court dismissed all of Plaintiff's claims with prejudice against the County Defendants after giving plaintiff two opportunities to amend his complaint. See Bieros v. Nicola, No. 93-CV-4485 (E.D. Pa. Aug. 5, 1994).

 II. STANDARDS APPLICABLE TO A RULE 12(B)(6) MOTION TO DISMISS

 A motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is the appropriate method by which to challenge the legal sufficiency of a claim. See e.g. United States v. Marisol, Inc., 725 F. Supp. 833 (M.D. Pa. 1989). The court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The court must accept as true all of the matters pleaded and all reasonable inferences that can be drawn therefrom, construing them in the light most favorable to the non-moving party. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Hough/Loew Assoc., Inc. v. CLX Realty Co., 760 F. Supp. 1141, 1142 (E.D. Pa. 1991). A complaint is properly dismissed if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Courts must construe pro se complaints liberally, and such complaints are held to less stringent standards than those drafted by attorneys. Blassingale v. Administration at Suburban Gen. Hosp., No. CIV. A. 93-2601, 1993 WL 451491, at *1 (E.D. Pa. Nov. 3, 1993) (citations omitted); Orrs v. Comings, No. CIV. A. 92-6442, 1993 WL 418361, at *1 (E.D. Pa. Oct. 13, 1993) (citations omitted). The complaint must provide the defendant with fair notice of the plaintiff's claim and the grounds on which it rests. Comp v. Warren, CIV. A. 93-5436, 1994 WL 30303, at *3 (E.D. Pa. Feb. 3, 1994) (citing Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)); Timmons v. Cisneros, CIV. A. 93-1854, 1993 WL 276863, at *1 (E.D. Pa. July 22, 1993) (citing Leatherman v. Tarrant County Narcotics Intelligence Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993)); Sell v. Barner, 586 F. Supp. 319, 321 (E.D. Pa. 1984) (citing United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir. 1980)). Vague and conclusory allegations do not provide fair notice and thus cannot survive a motion to dismiss. Sell, 586 F. Supp. at 321.

 III. DISCUSSION

 A. 42 U.S.C. § 1983

 To plead an action under 42 U.S.C. § 1983 ("section 1983"), *fn3" the plaintiff must allege that the defendants acted under color of state law and deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 1604, 26 L. Ed. 2d 142 (1970); Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir. 1984), cert. denied, 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984). As Police Defendants do not dispute that they acted under color of state law, the only issue before the Court is whether plaintiff has sufficiently alleged that the Police Defendants deprived him of any constitutional rights. However, since section 1983 itself creates no substantive rights, the difficult task is in determining which constitutional right Plaintiff was deprived. See Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807, 811 (1994) ("The first step in any [section 1983] claim is to identify the specific constitutional right allegedly infringed."); Dismukes v. Hackathorn, 802 F. Supp. 1442, 1444 (N.D. Miss. 1992). In this case, the majority of Plaintiff's allegations is that Police Defendants assaulted him at various times. Thus, the key question then becomes what Plaintiff's status was at the time the excessive force was allegedly exerted. Stewart v. Roe, 776 F. Supp. 1304, 1306 (N.D. Ill. 1991).

 Claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other "seizure" *fn4" of a free citizen are analyzed under the Fourth Amendment objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395-9, 109 S. Ct. 1865, 1871-3, 104 L. Ed. 2d 443 (1989); Nelson v. Mattern, 844 F. Supp. 216, 222 (E.D. Pa. 1994). The analysis must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham, 109 S. Ct. at 1871; Nelson, 844 F. Supp. at 222. The test for objective reasonableness "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] . . . is attempting to evade arrest by flight." Graham, 109 S. Ct. at 1872 (citation omitted); Nelson, 844 F. Supp. at 222. Whether a particular use of force was objectively reasonable must be judged from the perspective of a reasonable officer at the scene and not by hindsight. Graham, 109 S. Ct. at 1872 (citation omitted).

 Whether the Fourth Amendment continues to protect individuals "beyond the point at which arrest ends and pretrial detention begins" is uncertain. Buck v. Caesar, No. CIV. A. 92-3191, 1993 WL 175396, at 2 n.1 (E.D. Pa. May 24, 1993); Stewart, 776 F. Supp. at 1306. It is clear that courts apply the Due Process Clause of the Fourteenth Amendment to protect pretrial detainees from excessive force. Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3rd Cir. 1990) (Fourteenth Amendment applies when plaintiff is a pretrial detainee); Buck, 1993 WL 175396, at 2 n.1 (citing Bell v. Wolfish, 441 U.S. 520, 535-539, 99 S. Ct. 1861, 1871-1874, 60 L. Ed. 2d 447 (1979)); Stewart, 776 F. Supp. at 1306 (citations omitted). See also Fagan v. City of Vineland, 22 F.3d 1296, 1305 n.5 (3rd Cir. 1994) ("where the excessive force does not involve a 'seizure' by law enforcement officials, courts have held that a...substantive due process claim survives."). Although a pretrial detainee has been defined as a person charged but not yet convicted of a crime, Bell v. Wolfish, 441 U.S. 520, 523, 99 S. Ct. 1861, 1865-66, 60 L. Ed. 2d 447 (1979), it is not clearly defined when an arrest ends and pretrial detention begins, nor are there any cases in this Circuit clearly explaining the dichotomy. Other courts have also struggled with this concept. See Valencia v. Wiggins, 981 F.2d 1440, 1449 n.44 (5th Cir. 1993) ("Precisely when the arrest mode ceases and the pretrial detainment mode begins remains an unanswered question..."); Austin v. Hamilton, 945 F.2d 1155, 1158-60 (10th Cir. 1991) (noting different courts' treatment of whether Fourth or Fourteenth Amendment applied to post-arrest excessive force and holding the Fourth Amendment applies up until arrestee's first judicial hearing.)

 The issue of whether claims of excessive force after one's arrest are governed by the Fourth or Fourteenth Amendments is further confounded by the Supreme Court's recent decision of Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994). In Albright, petitioner surrendered to the police after learning a warrant had been issued for his arrest, however, the case was ultimately dismissed. Petitioner brought suit against the arresting police officer under section 1983 alleging that he violated his right to be free from criminal prosecution except for probable cause under the Fourteenth Amendment. The Court affirmed the dismissal of petitioner's case, holding there was no substantive due process right which had been violated. Significantly, the Court noted that petitioner failed to bring a claim under the Fourth Amendment, "notwithstanding the fact that his surrender to the State's show of authority constituted a seizure for purposes of the Fourth Amendment." Id. at 812. In a ...


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