United States District Court, E.D. Pennsylvania
July 6, 2004.
NORMAN LOMAX HARVEY, Plaintiff,
DAVID EICHELBERGER, et al., Defendants.
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Proceeding pro se, Plaintiff Norman Lomax Harvey filed for and
was granted in forma pauperis status. Subsequently, he filed a
complaint against Defendants Police Officer David Eichelberger in
his official capacity, Amity Township Police Department, "Berks
County PA./Amity Township," and Alisa R. Hobart, alleging
violations of his constitutional rights under 42 U.S.C. § 1983.
Presently before the Court are Defendants' motions to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons set forth below, Defendants' motions are denied and
Plaintiff is granted leave to amend his complaint to fully set
forth all allegations against each defendant.
In his complaint, Plaintiff alleges that Officer David
Eichelberger violated his Fourth Amendment rights when Officer
Eichelberger "maliciously racially profiled" Plaintiff, pulled
him over for an alleged traffic violation, and "confiscated [his]
property without so much as a traffic ticket or criminal charge
being filed." (Compl. at 4.) In addition, Plaintiff alleges that
Officer Eichelberger did not have probable cause and lacked
evidence for the traffic stop. Plaintiff states that "[a]ll other
parties conspired with Officer Eichelberger to hide these
malicious acts." (Id.) Furthermore, Plaintiff alleges that Assistant District Attorney Alisa Hobart violated
his Fourteenth Amendment right to due process.*fn1 (Compl.
at 4.) Plaintiff seeks punitive damages in the amount of
$250,000.00 and $1,750.00 in damages for a computer that was
seized and not returned by Amity Township Police. As stated
above, all Defendants moved to dismiss Plaintiff's Complaint. In
his response to the motions to dismiss, Plaintiff makes the
additional allegation that "the township had a Policy or custom
depriving the plaintiff of his Constitutional Rights." (Resp. to
Mot. to Dismiss at 3.)
Defendants filed their motions to dismiss pursuant to
Rule 12(b)(6), contending that Plaintiff fails to sufficiently allege
a cause of action against them. Specifically, Defendant County of
Berks asserts that Plaintiff's Complaint ambiguously names it as
a defendant. Defendants Hobart and County of Berks contend that
the Complaint does not allege that Ms. Hobart or any County
employee was present for or participated in the seizure of
Plaintiff's property. Finally, Defendants Officer Eichelberger
and Amity Township Police state that the motion to dismiss should
be granted because: (1) "the vague allegations of civil rights
violations are conclusions of law"; (2) Plaintiff "fails to
allege a policy or custom having the effect of violating
Plaintiff's civil rights"; and (3) as such, Plaintiff has failed
to set forth any claim for which relief can be granted. (Defs.'
Mot. to Dismiss at 4.)
In order to determine the sufficiency of a pro se complaint, a
court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21(1972); see
also Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004), cert.
denied sub nom., Adamson v. Mazzuca, 124 S.Ct. 2033 (2004). The
Court must "accept as true all of the allegations in the
complaint and all reasonable inferences that can be drawn
therefrom, and view them in the light most favorable to the
plaintiff." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). A pro se complaint may be dismissed for failure
to state a claim only if it appears "`beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.'" Haines, 404 U.S. at 521
(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957));
Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981).
In Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.
2002), the Third Circuit instructed that "even when a [pro se]
plaintiff does not seek leave to amend, if a complaint is
vulnerable to 12(b)(6) dismissal, a District Court must permit a
curative amendment, unless an amendment would be inequitable or
futile." Alston, 363 F.3d. at 235 (citing Grayson, 292 F.3d
at 108). Specifically, the Third Circuit has repeatedly advised
that before dismissing a complaint for failure to state a claim,
district judges should:
[E]xpressly state, where appropriate, that the
plaintiff has leave to amend within a specified
period of time, and that application for dismissal of
the action may be made if a timely amendment is not
forthcoming within that time. If the plaintiff does
not desire to amend, he may file an appropriate
notice with the district court asserting his intent
to stand on the complaint, at which time an order to
dismiss the action would be appropriate.
Id. (quoting Shane v. Fauver, 213 F.3d 113
, 116 (3d Cir.
2000)); see also Grayson, 293 F.3d at 108 (holding that before
dismissing case, district court should have, absent inequity or
futility of amendment, specifically advised plaintiff that he
could amend his complaint).
In the present case, the gravamen of Defendants' motions is
that Plaintiff has failed to sufficiently set forth allegations to state a claim. Accordingly,
I grant Plaintiff leave to amend his Complaint. By August 6,
2004, Plaintiff must either: (1) amend his Complaint and fully
set forth allegations against each Defendant; or (2) advise the
Court that he does not intend to amend his complaint. Defendants'
motions are denied without prejudice to refiling in the event
that Plaintiff amends his complaint or to renewing their motions
in the event that Plaintiff advises the Court that he wishes to
proceed on the Complaint as it stands. An appropriate Order
AND NOW, this 6th day of July, 2004, upon
consideration Defendants' Motions to Dismiss, Plaintiff's
response thereto, and for the foregoing reasons, it is hereby
1. By August 6, 2004, Plaintiff shall either: (1)
amend his complaint and fully set forth allegations
against each Defendant; or (2) advise the Court that
he does not intend to amend his complaint.
2. Defendant Hobart's Motion to Dismiss (Document No.
12), Defendants Eichelberger and Amity Township
Police Department's Motion to Dismiss (Document No.
13), and Defendant Berks County's Motion to Dismiss
(Document No. 15) are DENIED without prejudice.