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BROCKWAY v. SHEPHERD

October 4, 1996

LOUIS BROCKWAY, Plaintiff
v.
JIM R. SHEPHERD and KIMBERLY MILAZZO, Defendants


James F. McClure, Jr., United States District Judge


The opinion of the court was delivered by: MCCLURE

October 4, 1996

 BACKGROUND:

 On July 1, 1996, plaintiff Louis Brockway initiated this action by filing a complaint pursuant to 42 U.S.C. § 1983. Brockway alleges that he was arrested and prosecuted without probable cause by defendant Kimberly Milazzo, a police officer employed by the Courtdale (Luzerne County, Pennsylvania) Police Department. The arrest was for disorderly conduct after Brockway made an obscene gesture at Milazzo.

 Before the court is a motion by Milazzo to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).

 Also named as a defendant is Jim R. Shepherd, a police officer employed by the Luzerne Police department. A separate motion to dismiss was filed by Shepherd, but will not be addressed in this memorandum and order as counsel for plaintiff has indicated to the court that Brockway and Shepherd have agreed to settle the matter. The motion to dismiss filed by Shepherd will be denied as moot. However, based on the settlement and because we grant Milazzo's motion to dismiss, the complaint will be dismissed in its entirety.

 DISCUSSION:

 I. STANDARD OF REVIEW

 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). "It is the settled rule that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leone v. Aetna Casualty & Surety Co., 599 F.2d 566, 567 (3d Cir. 1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99, (1957)). The complaint must be read in a light most favorable to the plaintiff with every doubt resolved in plaintiff's favor. In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D. Pa. 1981).

 II. STATEMENT OF FACTS

 The facts recited herein are limited to those which relate to defendant Milazzo, as the facts with respect to defendant Shepherd are immaterial for present purposes.

 On January 14, 1996, Brockway, while a passenger in a car, gestured at Milazzo with his middle finger (no explanation for such conduct is provided). Milazzo made a vehicle stop, arrested Brockway, and charged him with disorderly conduct in violation of 18 Pa. Cons. Stat. Ann. § 5503(a)(3). Other charges against Brockway were withdrawn by Milazzo at a preliminary hearing. The charge of disorderly conduct was "waived" to the Court of Common Pleas without a finding of probable cause. On June 24, 1996, the Luzerne County District Attorney's Office "nolle prossed" (dismissed) all charges against Brockway.

 According to Brockway, the gesture which he made at Milazzo is not proscribed by Pennsylvania law, so that there was no probable cause either for the initial stop or for the subsequent arrest. Milazzo moves to dismiss because: (1) a gesture like that made by Brockway violates § 5503(a)(3); and (2) the doctrine of qualified immunity bars recovery.

 III. QUALIFIED IMMUNITY

 A defendant is entitled to qualified immunity from a claim of a violation of a constitutional right if the right was not clearly established at the time of the alleged deprivation and the contours of the right are sufficiently clear that a reasonable official would understand that what he or she is doing violates that right. In re City of Philadelphia Litigation, 49 F.3d 945, 961 (3d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)), cert. denied, 116 S. Ct. 176 (1995). The doctrine of qualified immunity protects public officials so that they may perform discretionary duties in a swift and firm manner. Id. at 960-961 (quoting Harlow at 807; Scheuer v. Rhodes, 416 U.S. 232, 246, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). The determination of whether qualified immunity applies should be made as early in the litigation as possible to spare a public official/defendant who properly raises the defense from the time and expense of defending a suit on the merits. Id. at 961 (quoting Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991)).

 
Furthermore, for there to be liability, the right alleged to have been violated "must have been 'clearly established' in a more particularized, and hence more relevant, sense." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). While the abstract right to be free from unreasonable seizure clearly is established, for qualified immunity purposes the right must be considered on a more specific level: "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id.

 In re City of Philadelphia Litigation at 961 (brackets in original).

 Brockway claims that there was no probable cause either for the arrest or the prosecution. Probable cause for an arrest exists if, at the time of the arrest, there were facts and circumstances within the knowledge of the police officer sufficient to warrant belief by a prudent person that the arrestee had committed or was committing an offense. Hunter v. Bryant, 502 U.S. 224, 228-229, 116 L. Ed. 2d 589, 112 S. Ct. 534 (1991). See also Illinois v. Gates, 463 U.S. 1237, 77 L. Ed. 2d 1453, 104 S. Ct. 33 (1983) (totality of the circumstances test in context of probable cause for issuance of search warrant).

 In this case, arrest and prosecution without probable cause in the general sense may be well-established, but the "more particularized sense" in which the doctrine of qualified immunity applies is the reasonableness of Milazzo's belief that there was probable cause for the charge of disorderly conduct, given the conduct of Brockway. This application gives rise to the ...


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