The opinion of the court was delivered by: ROBERT KELLY, Senior District Judge
Presently before this Court are Defendants' Motion for Summary
Judgment and Plaintiff's Response which includes a Cross-Motion
to Amend the Complaint. For the reasons discussed below,
Defendants' Motion for Summary Judgment will be granted.
Plaintiff's Cross-Motion to Amend the Complaint will be denied
because such amendment would be futile.
I. FACTUAL AND PROCEDURAL HISTORY
Pro se Plaintiff, John H. Morley, Jr. ("Morley"), is suing
Defendants, the Philadelphia Police Department, Police
Commissioner Sylvester Johnson ("Johnson"), former Police
Commissioner John F. Timoney ("Timoney"), Special Assistant to
the Police Commissioner Bradford A. Richman ("Richman") and
Detective Steven Caputo ("Caputo") (collectively referred to as
"the Defendants") alleging deprivation of his constitutional
rights and conspiracy in furtherance of such deprivation.
Plaintiff's action is based upon his arrest for brandishing a
firearm in a bar during an altercation and the revocation of his
license to carry a firearm by the City of Philadelphia following
A. March 10, 1999 Incident
Morley's action arises from an incident that occurred at
O'Neals Bar on March 10, 1999.*fn1 At approximately 3:00
a.m. on March 10, 1999, police officers were called to O'Neals
Bar following a altercation involving Morley, Susan Morley,
Michael Wigmore ("Wigmore"), Mark Fox ("Fox"), Greg Rand ("Rand")
and Frank Murphy ("Murphy"). The altercation began during a
discussion between Morley and Wigmore. As the discussion
escalated, Morley began to shout at Wigmore and pounded his fists
against the bar. Morley then picked up a beer bottle, smashed it
on the bar and proceeded to throw the remains of the bottle
behind the bar. Morley and Wigmore got into a physical
altercation. Fox, Rand and Murphy intervened into the physical
altercation. As the men were wrangling, Morley took out his
handgun, pulled the slide back, pointed it in the air, and
ordered everyone out of the bar. Wigmore, Fox and Murphy exited
the bar. Susan Morley and Rand remained in the bar. As Morley was
exiting the bar, he re-holstered his gun. The gun apparently fell
out of the holster as he passed by the bar's threshold onto the
Once outisde of O'Neals Bar, Fox called 9-1-1 for assistance.
After a short period of time, the police arrived and were
informed of the incident. Morley's handgun was recovered by the
police in front of the bar on top of a trash bag. The gun was
recovered with one live round in the chamber and twelve live
rounds in the magazine.*fn2 Morley, Susan Morley, Wigmore,
Fox, Rand and Murphy were all transported to South Detectives
Division ("SDD") for investigation. Caputo and Sergeant Richard
Zoog interviewed the witnesses. Morley was not placed under
arrest, but was released pending further investigation and
consultation with the District Attorney's Office. Morley states
that he subsequently went to the hospital to receive treatment
for the lumps and bruises located on the side of his head.
B. The Affidavits of Probable Cause and the Arrest Warrants
Caputo prepared an Affidavit of Probable Cause for the arrest
of Morley on March 23, 1999. (Defs.' Mot. Summ. J., Ex. 2, p. 39,
lines 10-13; Ex. 8). Caputo premised his Affidavit of Probable
Cause upon the statements given during the March 10, 1999
interviews of Susan Morley, Wigmore, Fox, Rand and Murphy.
(Id.). Caputo summarized the statements given by the witnesses
in the Affidavit of Probable Cause and proceeded to fax it to the
District Attorney's Office Charging Unit for review and approval
on March 23, 1999. (Id., Ex. 2, p. 40, lines 14-25). On that
same day, Assistant District Attorney Davis noted a question on
the Affidavit of Probable Cause and faxed it back to Caputo with
the direction that Caputo resubmit the Affidavit. (Id., Ex. 2,
p. 41, lines 11-21). Caputo resubmitted the Affidavit and it was
"approved" by Assistant District Attorney Alfano and faxed back
to Caputo on June 14, 1999. (Id., Ex. 8). On June 15, 1999,
Caputo swore out the Affidavit. (Id. ). On that same date, a
Warrant of Arrest, No. 244848, was issued by a bail commissioner
authorizing the arrest of Morley. (Id., Ex. 9). The Warrant
accused Morley of Recklessly Endangering Another Person and
Simple Assault.*fn3 (Id. ). On June 18, 1999, Morley
surrendered himself to the authorities at SDD. (Pl.'s Mem. Law
Supp. Answer and Cross-Mot. at 3). On December 10, 2001, during a
hearing in the Municipal Court of Philadelphia, the prosecution
against Morley was withdrawn because Wigmore, the complaining
witness, testified under oath that he wished to withdraw the
complaint against Morley. (Defs.' Mot. Summ. J., Ex. 10).
C. Revocation of Morley's Licence to Carry a Firearm
As explained earlier, Morley's gun was recovered and
confiscated by the police after the March 10, 1999 incident. On
May 14, 1999, Morley sent a letter to then-Police Commissioner
Timoney requesting the return of his license and handgun.
(Compl., ¶ 13). On June 15, 1999, Morley's License to Carry a
Firearm was revoked. (Id., ¶ 14). Morley appealed the
revocation of his License to the Department of Licenses and
Inspections. (Id., ¶ 17). On June 4, 2002, after a hearing, the
Board of License and Inspection Review affirmed the revocation of
Morley's License to Carry a Firearm. (Id., ¶ 19). On June 14,
2002, Morley appealed the Board of License and Inspection
Review's decision to the Court of Common Pleas, Philadelphia
County. (Id., ¶ 20). On December 9, 2002, the Court of Common
Pleas affirmed the revocation of Morley's license. (Id., ¶ 22).
Morley appealed the decision of the Court of Common Pleas to the
Commonwealth Court of Pennsylvania. (Id., ¶ 23). The appeal is
currently pending. (Id.). Morley also filed a petition for the
return of his handgun with the criminal division of the
Philadelphia County Court of Common Pleas. Morley's petition was
denied on May 7, 2003, following a full hearing before the
Philadelphia County Court of Common Pleas. Morley has appealed
D. Procedural History of Instant Action
Morley filed his pro se Complaint on February 13, 2003. (Doc.
No. 1). Morley's Complaint included the following three Counts:
deprivation of constitutional rights under 42 U.S.C. § 1983
(Count I); deprivation of the right to carry a firearm under
42 U.S.C. § 1983 (Count II); and a conspiracy claim under
42 U.S.C. § 1983 (Count II).*fn5 On March 28, 2003, an Order was
issued dismissing Morley's claim of deprivation of the right to
carry a firearm under 42 U.S.C. § 1983 (Count II). (Doc. No. 7).
As a result, the only remaining claims in this action are
Morley's claims asserted pursuant to 42 U.S.C. § 1983 regarding
the deprivation of his constitutional rights and
conspiracy.*fn6 Regarding these two claims, the Defendants
have moved for summary judgment arguing that the claims fail as a
matter of law. In Morley's response to the Defendants' Motion for
Summary Judgment, he moves to amend the Complaint seeking to add
various claims and make corrections. Each of the parties' Motions
will be addressed seriatim.
Pursuant to Federal Rule of Civil Procedure 56(c), summary
judgment is proper "if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a
matter of law." FED. R. CIV. P. 56(c). Essentially, the inquiry
is "whether the evidence presents a sufficient disagreement to
require submission to the jury or whether it is so one-sided that
one party must prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has
the initial burden of informing the court of the basis for the
motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is
genuine only if there is a sufficient evidentiary basis on which
a reasonable jury could find for the non-moving party.
Anderson, 477 U.S. at 249. A factual dispute is material only
if it might affect the outcome of the suit under governing law.
Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on
the pleadings, but rather that party must go beyond the pleadings
and present "specific facts showing that there is a genuine issue
for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving
party cannot rely on unsupported assertions, conclusory
allegations, or mere suspicions in attempting to survive a
summary judgment motion. Williams v. Borough of W. Chester,
891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325
(1986)). Further, the non-moving party has the burden of
producing evidence to establish prima facie each element of its
claim. Celotex, 477 U.S. at 322-23. If the court, in viewing
all reasonable inferences in favor of the non-moving party,
determines that there is no genuine issue of material fact, then
summary judgment is proper. Id. at 322; Wisniewski v.
Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
"Pleadings filed by pro se litigants are not held to as high
a pleading standard as pleadings filed by counsel, and the Court
will liberally construe pro se pleadings." Ryales v.
Phoenixville Sch. Dist., 177 F. Supp.2d 391, 395 (E.D.
Pa. 2001) (citations omitted). The liberal standard applied to pro
se pleadings, "does not mean . . . that the Court may infer
facts or legal arguments central to plaintiff's claims which are
not set forth in plaintiff's . . . Complaint." Lumumba v. Phila.
Dept. of Human Servs., No. 98-5195, 1999 WL 345501, at *2 (E.D.
Pa. May 21, 1999) (citation omitted). Thus, "[w]hile pro se
complaints are entitled to liberal construction, the ...