MEMORANDUM AND ORDER
This civil rights matter is now before the Court on motion of
Doucette, Donnelly, Skerle and the Borough of Doylestown to
dismiss the plaintiffs complaint. For the reasons set forth
below, the motion shall be granted in part and denied in part.
According to the complaint, on November 18, 1999, Plaintiff
James Douris was inside the building located at 50 Main Street
in Doylestown Borough, which apparently houses the Bucks County
Department of Weights and Measures and the Federal E.M.A.
("FEMA"), to obtain various public records which he intended to
use in defending a summary parking meter violation action.
(Complaint, ¶ s12-15). Plaintiffs aver that on that date, Mr.
Douris asked John Dougherty, the Director of Emergency Services
for Bucks County, how Bucks County used its FEMA money.
(Complaint, ¶ 16). Mr. Dougherty then purportedly informed
Defendants Joseph Kissel and William Doucette of the Doylestown
Borough Police Department that Plaintiff was trespassing by
being in a restricted area of the building. Plaintiffs'
complaint goes on to allege that Officers Kissel and Doucette
then "physically seized, arrested, handcuffed, searched and
violently dragged Plaintiff out of the public building, for
trespassing, and in doing so injured him." (Complaint, s17-19).
Given that this arrest was allegedly without "a reasonable
basis, warrant, consent or authority," Plaintiffs aver in Count
I of their complaint that it was in violation of Mr. Douris'
"federally secured rights, immunities and privileges to liberty,
free speech, unreasonable search and seizure, equal protection,
procedural due process and substantive due process as secured by
the United States Constitution under the First, Fourth, Ninth
and Fourteenth Amendments" and is thus actionable under
42 U.S.C. § 1983.
In addition, Plaintiffs contend that Defendants Eynon and
Skerle, who are parking enforcement officers for the Borough of
Doylestown, prosecuted them for parking at expired meters
despite purportedly "knowing the parking enforcement policy and
practice was contrary to clearly established state law," and
that Defendants Donnelly and Doylestown Borough should be held
liable for their alleged failure to properly train and/or
supervise its police and parking enforcement officers.
(Complaint, ¶ s30-47).
Standards Applicable to Rule 12(b)(6) Motions
In resolving a Rule 12(b)(6) motion to dismiss for failure to
state a claim upon which relief may be granted, 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 (3rd Cir. 1990). In
so doing, the court must accept as true the facts alleged in the
complaint, together with all reasonable inferences that can be
drawn therefrom and construe them in the light most favorable to
the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100,
103 (3rd Cir. 1990); Hough/Loew Associates, Inc. v. CLX Realty
Co., 760 F. Supp. 1141 (E.D.Pa. 1991). The court's inquiry is
directed to whether the allegations constitute a statement of a
claim under Rule 8(a) and whether the plaintiff has a right to
any relief based upon the facts pled. Dismissal under
Rule 12(b)(6) for failure to state a claim is therefore limited to
those instances where it is certain that no relief could be
granted under any set of facts that could be proved. Ransom v.
Marrazzo, 848 F.2d 398, 401 (3rd Cir. 1988); Angelastro v.
Prudential-Bache Securities, Inc., 764 F.2d 939, 944
(3rd Cir. 1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88
L.Ed.2d 274 (1985).
As noted above, Plaintiffs seek to hold Defendants liable
under 42 U.S.C. § 1983, which provides in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for
redress. . . .
The purpose of Section 1983 is to provide a civil cause of
action to protect persons against the misuse of power possessed
by virtue of state law and made possible because the defendant
was cloaked with the authority of the state. Del Signore v.
McKeesport, 680 F. Supp. 200, 203 (W.D.Pa. 1988). Section 1983
does not create a cause of action in and of itself; rather it
provides redress for certain violations of rights arising under
the federal constitution or laws of the United States which are
caused by persons acting under color of state law. Lee v.
Gateway Institute & Clinic, Inc., 732 F. Supp. 572, 575 (W.D.Pa.
1989), citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct.
2689, 2692, 61 L.Ed.2d 433 (1979).
To make out a claim under Section 1983, a plaintiff must
demonstrate that the conduct of which he is complaining has been
committed under color of state or territorial law and that it
operated to deny him a right or rights secured by the
Constitution and laws of the United States. Gomez v. Toledo,
446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1988);
Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995),
cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107
(1995). The plaintiff must also establish that it was the acts
of the defendant which caused the constitutional deprivation.
See: Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 604,
46 L.Ed.2d 561 (1976); Duchesne v. Sugarman, 566 F.2d 817, 831
(2d Cir. 1977).
The traditional definition of action under color of state law
requires that one liable under § 1983 have exercised power
possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.
Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998). To act
"under color of" state law for § 1983 purposes does not
necessarily require that the defendant be an officer of the
State. Rather, it is enough that the defendant is a willful
participant in joint action with the State or its agents.
Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 186, 66 L.Ed.2d
185 (1980). A person may therefore be found to be a state actor
when (1) he is a state official, (2) he has acted together with
or has obtained significant aid from state officials, or (3) his
conduct is, by its nature, chargeable to the state. Angelico v.
Lehigh Valley Hospital 184 F.3d 268, 277 (3d Cir. 1999).
A. Plaintiffs' claims against the officer and parking
enforcement officer defendants.
In the case at bar, the plaintiff alleges that by arresting
and commencing "a malicious or abusive criminal prosecution
against him," the police officer defendants Kissel and Doucette
and the parking enforcement defendants Skerle and Eynon, "while
acting under color of state law deprived [them] of [their]
rights, immunities and privileges to liberty, free speech,
unreasonable search and seizure, equal protection, procedural
due process, and substantive due process as secured by the
United States Constitution under the First, Fourth, Ninth and
Fourteenth Amendments," in violation of 42 U.S.C. § 1983.
Plaintiffs also aver that "Defendant Kissel and Dougherty, while
acting in concert and/or individually agreed to and/or did
commence state criminal process against Plaintiff G. Douris for
engaging in First Amendment protected activities, to wit,
seeking to obtain public records to show the Doylestown Borough
parking meters violated federal and state law, and thus the
parking violation prosecution was illegal, and for seeking
information on how federal FEMA money is being used by Bucks
County and the Bucks County Emergency Service Department."
(Complaint, Counts I and II).
Accepting these averments and the inferences reasonably
deducible therefrom as true, we must conclude that Plaintiff has
adequately pled a § 1983 claim under the First and Fourth
Amendments only against Officers Doucette and Kissel. To be
sure, the First Amendment protects an individual's rights to the
free exercise of religion, free speech, and to peaceably
assemble and petition for a redress of grievances. To establish
a § 1983 claim of retaliation for the exercise of free speech,
Plaintiffs must prove that: (1) Defendants were acting under
color of state law; (2) Plaintiffs' speech activities were
protected under the First Amendment; and (3) Plaintiffs'
exercise of their protected right was a substantial or
motivating factor in Defendants's actions. See: Merkle v. Upper
Dublin School District, 211 F.3d 782, 793 (3d Cir. 2000);
Harrington v. Harris, 118 F.3d 359, 364 (5th Cir. 1997);
Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996); Keenan v.
City of Philadelphia, 983 F.2d 459, 466 (3d Cir. 1992).
The Fourth Amendment, in turn, protects against unreasonable
searches and seizures while the Fourteenth dictates that "[n]o
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty or property
without due process of law, nor deny to any person within its
jurisdiction of the equal protection of the laws." In
determining whether there exists a substantive constitutional
right to be free from malicious or criminal prosecution without
probable cause, the U.S. Supreme Court has refused to recognize
such a right under the Due Process Clause of the Fourteenth
Amendment, although it has intimated that relief could be
obtained under the Fourth. Albright v. Oliver, 510 U.S. 266,
268, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994). Moreover, to
state such a malicious prosecution claim under the Fourth
Amendment, the plaintiff must show some deprivation of liberty
consistent with the concept of seizure and that the allegedly
malicious proceedings terminated in his favor. Donahue v.
Gavin, 280 F.3d 371 (3d Cir. 2002); Torres v. McLaughlin,
163 F.3d 169 (3d Cir. 1998); Gallo v. City of Philadelphia,
161 F.3d 217, 221 (3d Cir. 1998). See Also: Heck v. Humphrey,
512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).
In light of the very liberal notice pleading standard adhered
to in the federal courts, we find that plaintiffs' averments
adequately plead a First Amendment cause of action for police
officer Kissel's purported infringement of their right to
address and defend the parking violations against them and a
Fourth Amendment claim for Mr. Douris' alleged arrest by
Defendants Kissel and Doucette. Given
that the plaintiffs' complaint is devoid of any averments as to
any seizure by the parking enforcement defendants, we shall
dismiss their Fourth and Fourteenth Amendment claims against
those defendants from Count I of the complaint and shall dismiss
Count II in its entirety.
Finally, the Ninth Amendment provides that: "[t]he enumeration
in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people." Nowhere in
the plaintiffs' complaint are there any allegations which could
be construed as invoking a Ninth Amendment violation.
Accordingly, those claims are likewise dismissed in their
B. Plaintiffs' Claims Against Mayor Donnelly and the
Borough of Doylestown.
In Count III, Plaintiffs seek to hold the Borough of
Doylestown and James Donnelly, who is alleged to be the "highest
ranking officer, next to the Mayor, for police officers in
Doylestown Borough . . ." liable under Section 1983.
A municipality may be held liable under § 1983 only where the
municipality itself causes the constitutional violation at
issue and thus respondeat superior or vicarious liability will
not attach against a municipal defendant. Monell v. New York
City Department of Social Services, 436 U.S. 658, 681, 98 S.Ct.
2018, 2036, 56 L.Ed.2d 611 (1978). Instead, it is only when the
execution of the government's policy or custom, whether made by
its lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflicts the injury that the
municipality may be held liable under § 1983. Id., 436 U.S. at
694, 98 S.Ct. at 2037-38; Reitz v. County of Bucks,
125 F.3d 139, 144 (3d Cir. 1997).
Policy is made when a decision maker possessing final
authority to establish municipal policy with respect to the
action, issues an official proclamation, policy or edict.
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990), citing
Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct.
1292, 1299, 89 L.Ed.2d 452 (1986) and Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Custom can be
proven by showing that a given course of conduct, although not
specifically endorsed or authorized by law is so well-settled
and permanent as virtually to constitute law. In either
instance, a plaintiff must show that an official who has the
power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled
To determine who has policymaking responsibility, the court
must determine which official has final, unreviewable discretion
to make a decision or take an action. Id.; Andrews, 895 F.2d
at 1481. Indeed, under § 1983, only the conduct of those
officials whose decisions constrain the discretion of
subordinates constitutes an act of the municipality. Id.,
citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108
S.Ct. 915, 926, 99 L.Ed.2d 107 (1988). Finally, in addition to
identifying the challenged policy and attributing it to the city
itself, a plaintiff must also demonstrate a causal link between
the execution of the policy and the injury which he has
suffered. Gottlieb v. Laurel Highlands School District,
272 F.3d 168, 176 (3d Cir. 2001); Losch v. Borough of Parkesburg,
736 F.2d 903, 910 (3d Cir. 1984).
It should be noted that the U.S. Supreme Court has also held
that the inadequacy of police training may serve as the basis
for § 1983 liability where the failure to train amounts to
deliberate indifference to the rights of persons with whom the
police come into contact. City of Canton, Ohio v. Harris,
489 U.S. 378, 388-389, 109 S.Ct. 1197, 1204-1205, 103 L.Ed.2d 412
(1989). This is not to say that municipal liability for failure
to train can be predicated solely upon a showing that a city's
employee could have been better trained or that additional
training was available that would have reduced the risk of
constitutional injury. Colburn v. Upper Darby Township,
946 F.2d 1017, 1029-1030 (3d Cir. 1991). However, in light of the
duties assigned to specific officers or employees, the need for
more or different training may be so obvious and the inadequacy
so likely to result in the violation of constitutional rights
that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need. City of Canton,
supra., 489 U.S. at 390, 109 S.Ct. 1197.
In this case, plaintiffs' only allegation against Defendant
Donnelly and the Borough is set forth at paragraph 47 of the
As a direct and/or proximate result of Defendant
Doylestown Borough's policy or practices regarding
arrests, prosecution, and parking violation
enforcement through the use of state court, and/or
its and Defendant Donnelly's failure to properly
train and/or supervise Defendants Kissel, Doucette,
Skerle and/or Eynon in areas of arrest, prosecution,
and parking enforcement through state court action,
the Plaintiffs suffered the aforementioned
deprivations, harm, injury, humiliation and extreme
Again, viewing these allegations through the lense of the
liberal notice pleading standards prescribed by the Federal
Rules of Civil Procedure, we find that they are sufficient to
survive a Rule 12(b)(6) dismissal motion. See, e.g.,
Fed.R.Civ.P. 8(a), (e), (f). For this reason, the motion to
dismiss of Defendants Donnelly and Doylestown Borough must be