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WISHNEFSKY v. ADDY

July 11, 1997

BRUCE L. WISHNEFSKY
v.
DAVID W. ADDY



The opinion of the court was delivered by: VAN ANTWERPEN

 VAN ANTWERPEN, J.

 JULY 11, 1997

 I. BACKGROUND

 The plaintiff, Bruce L. Wishnefsky ("Wishnefsky"), is a criminal defendant in Carbon County, Pennsylvania, awaiting trial on charges that he engaged in numerous sexual assaults against minors as described in a 133 Count Criminal Information. Wishnefsky has filed a pro se Complaint *fn1" in our court alleging civil rights violations under 42 U.S.C. § 1983. Wishnefsky subsequently filed an Amended Complaint expanding his action to include two claims of state law defamation. The defendant, David W. Addy ("ADA Addy"), is an Assistant District Attorney prosecuting Wishnefsky in the state court criminal proceedings.

 Wishnefsky's amended complaint alleges Fourth Amendment violations arising out of an alleged improper search of his residence in Pottsville, Schuylkill County, Pennsylvania, on April 6, 1996. Wishnefsky alleges that on that date ADA Addy, together with two Pennsylvania state police troopers, came to his home to serve an arrest warrant and arrest him on sexual assault charges. Wishnefsky further alleges that the "search conducted by the State Police and ADA Addy of Wishnefsky's home prior to obtaining consent was in violation of Wishnefsky's rights under the United States Constitution, Fourth Amendment and Wishnefsky was injured thereby." Amended Complaint, P 17.

 Wishnefsky additionally asserts pendent state law claims of defamation in Counts II and III. In each count, he alleges that ADA Addy made statements to newspapers which were defamatory under Pennsylvania law. Finally, in Count IV, Wishnefsky makes a claim for punitive damages.

 ADA Addy filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on June 6, 1997. In the brief accompanying the motion, ADA Addy has asked in footnote 1 that we judicially notice the Wishnefsky's state court criminal proceedings. Attached to the motion to dismiss are an Affidavit and copies of the docket, court orders, and other documents relating to Wishnefsky's state court criminal proceedings. It appears that Wishnefsky has filed a large number of pro se motions in his criminal case. By Order dated June 11, 1997, we directed Wishnefsky to file a proper response to ADA Addy's motion to dismiss in our case. We have received Wishnefsky's response in the form of a 4-page Memorandum of Law without affidavits which was filed on July 2, 1997.

 II. LEGAL STANDARD

 Pursuant to Fed. R. Civ. P. 12(b)(6), this court may dismiss a claim for relief if it fails to state a claim upon which relief can be granted. 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 or her claim which would entitle him or her to relief. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). All allegations in the complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). The court's inquiry is essentially limited to the content of the complaint. Biesenbach v. Guenther, 588 F.2d 400, 402 (3d Cir. 1978). Pleadings must be liberally construed. Richardson v. Pennsylvania Dept. of Health, 561 F.2d 489, 492 (3d Cir. 1977). The allegations of the pleading will be supplemented by any relevant matter that can be judicially noticed. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1363 (1990); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 n. 3 (3d Cir.), cert. denied, 488 U.S. 967, 109 S. Ct. 495, 102 L. Ed. 2d 532 (1988). Nevertheless, the parties must be given a reasonable opportunity to respond to documents which are judicially noticed. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1206 n. 18 (3d Cir. 1992). Wishnefsky was aware of what we were asked to judicially notice from the brief and exhibits accompanying the motion to dismiss. Wishnefsky was given a full opportunity to respond by our Order of June 11, 1997.

 A wholly different standard applies to ADA Addy's 12(b)(1) motion. ADA Addy has not merely made a facial attack of subject matter jurisdiction in his 12(b)(1) motion, but has raised additional issues through the judicially noticed exhibits to his brief. We believe this amounts to a factual attack. As the court said in Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977):

 
The factual attack, however, differs greatly [from the facial attack] for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction--its very power to hear the case--there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.

 Accordingly, with regard to the 12(b)(1) motion, we are free to proceed under Fed. R. Civ. P. 43(e) and ...


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