The opinion of the court was delivered by: J. CURTIS JOYNER
This civil rights case, involving an allegation of police brutality, has been brought before the Court by motion of the defendants, which seek the partial dismissal of the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the defendants' motion to dismiss will be granted in part.
The issue for the Court is whether Plaintiff has stated a claim on which relief can be granted; thus, we must take as true all of the factual allegations made in the complaint. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). Accordingly, the facts giving rise to this lawsuit are as follows. The plaintiff is Antonio Illiano, a Pennsylvania resident who works at Illiano's Restaurant in Clay Township, Lancaster County, Pennsylvania. Mr. Illiano alleges that on July 21, 1993, Defendant Richard Rhinier, a Clay Township police officer, entered the restaurant to confront Mr. Illiano. Mr. Illiano initially agreed to speak with Officer Rhinier, but then stated that he first wished to consult with his lawyer. When Mr. Illiano picked up the telephone, Officer Rhinier placed him in a choke hold and threw him to the floor, causing him to suffer facial lacerations and a fractured left wrist. Officer Rhinier then placed Mr. Illiano in handcuffs, lifted him by the handcuffs and his hair, and placed him in a police vehicle.
Along with his memorandum in opposition to the defendants' Rule 12(b)(6) motion, Mr. Illiano has submitted an affidavit in which he sets forth additional facts concerning the events of July 21, 1993. In January of 1993, according to the affidavit, Mr. Illiano was involved in an incident and was subsequently charged with disorderly conduct in Ephrata Township, Pennsylvania, a community near Clay Township. Mr. Illiano complained to the Ephrata Township Police Chief that he had been cited improperly and that the arresting officer had suppressed exculpatory evidence. As a result, the Police Chief commanded the arresting officer to drop the charges and issue an apology to the plaintiff. Mr. Illiano later spoke with a local newspaper reporter; and in April of 1993, a story appeared in the Lancaster Intelligencer Journal entitled "Ephrata Township Officer Told to Apologize to Man He Arrested." The plaintiff alleges that he was persistently harassed by police officers following the publication of the article, and that Officer Rhinier initiated the July 21 incident for purposes of retaliation.
Mr. Illiano subsequently filed this lawsuit in our Court, naming as defendants not only Officer Rhinier, but also Clay Township, the Clay Township Police Department, and Dale Stahl, Clay Township's Police Chief. The complaint contains four counts. In the first count, Mr. Illiano alleges that Officer Rhinier's conduct operated to deprive him of the rights guaranteed to him under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. The second count is brought against Clay Township, the Clay Township Police Department, and Chief Stahl (collectively, the "municipal defendants") under both the respondeat superior theory and on the grounds that the practice and procedure countenanced by the municipal defendants was deficient. In the third count, Mr. Illiano sets forth the tort claims of false arrest, assault, and battery. Further, Mr. Illiano asserts that all the defendants acted in a manner that deprived him of his rights under the Pennsylvania Constitution. Finally, in the fourth count, Mr. Illiano brings a plea for punitive damages against all of the defendants.
The defendants have filed the instant motion to dismiss, in which they argue that all claims brought under the First, Fifth, Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §§ 1985, 1986, and 1988 should be dismissed; that the Clay Township Police Department should be dismissed from the lawsuit; and that Counts II, III, and IV should be dismissed in their entirety. Upon review of Defendants' motion, Mr. Illiano has conceded that his claims brought under the Fifth, Eighth and Fourteenth Amendments and 42 U.S.C. §§ 1985 and 1986 should be dismissed. Finally, Mr. Illiano does not contest the motion as it applies to the dismissal of the Clay Township Police Department, the state law claims brought against Clay Township and Chief Stahl, or the claim for punitive damages brought against Clay Township. Thus, we are left to consider the remaining claims challenged by the instant motion.
A. Standards Applicable to a Rule 12(b)(6) Motion
The standard we use to resolve a motion filed under Rule 12(b)(6) is well settled. In considering such a motion, the complaint's allegations must be construed favorably to the pleader. The court must accept as true all of the plaintiff's factual allegations and draw from them all reasonable inferences. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991) (citations omitted). Thus, the court will grant a Rule 12(b)(6) motion only if the non-moving party cannot prevail legally under the set of facts alleged. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). In deciding this motion, this Court will apply this standard to each of the disputed claims in Mr. Illiano's complaint.
As we noted above, the first count contains the allegation that Officer Rhinier violated Mr. Illiano's civil rights. The parties agree that the claim is viable as a § 1983 action based upon the Fourth Amendment, but should be dismissed to the extent it is based upon the Fifth, Eighth, and Fourteenth Amendments and §§ 1985 and 1986. Moreover, Mr. Illiano appears to concede that his complaint is defective with regard to both the § 1983 claim based on the First Amendment and the § 1988 claim.
Thus, we will allow Mr. Illiano to cure these defects by submitting an amended complaint within ten days of the entry of ...