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July 7, 2004.

JOHN H. MORLEY, JR., Plaintiff,

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.


  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 the arrest.

  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 sidewalk.

  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 this ruling.*fn4

  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 ...

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