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KACHMAR v. CITY OF POTTSVILLE

October 13, 2005.

STEVEN KACHMAR, ESQUIRE, Plaintiff
v.
CITY OF POTTSVILLE, et al., Defendants.



The opinion of the court was delivered by: JOHN JONES III, District Judge

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss the Amended Complaint Pursuant to Federal Rule of Civil Procedure 12 (doc. 15) filed by Defendants City of Pottsville and Dennis Wiederhold on June 1, 2005. We also have before us a Motion to Dismiss filed by the remaining Defendant Pottsville Hospital and Warne Clinic (doc. 25) on July 28, 2005.

  For the reasons that follow, we will grant both Motions to Dismiss and close the file on this case.

  PROCEDURAL HISTORY:

  Plaintiff initiated this action by filing a complaint in the United States District Court for the Middle District of Pennsylvania on February 25, 2005. (See Rec. Doc. 1, ¶ 1). In accordance with our April 18, 2005 Order, on May 18, 2005, Plaintiff filed an amended complaint in the case sub judice in which he added the Pottsville Hospital and Warne Clinic as an additional named Defendant.

  On June 1, 2005, Defendants City of Pottsville and Dennis Wiederhold filed a Motion to Dismiss, which has been briefed by the parties. On July 28, 2005, Defendant Pottsville Hospital and Warne Clinic also filed a Motion to Dismiss, which has been fully briefed. The Motions are therefore ripe for disposition.

  STANDARD OF REVIEW:

  In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "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 claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). FACTUAL BACKGROUND:

  As we explained in our April 18, 2005 Order, Plaintiff Steven Kachmar ("Plaintiff" or "Kachmar"), an attorney who practices in Schuylkill, Northumberland, Carbon, and Upper Berks Counties, alleges that on February 22, 2005, he was driving alone near the Schuylkill County Courthouse to represent clients at a Meeting of Creditors scheduled pursuant to § 341 of the Bankruptcy Code before the appointed Trustee William G. Schwab. (See Am. Compl. ¶¶ 1-2, 7). Plaintiff asserts that as he was approaching Pottsville, he became disoriented while driving "for reasons not known to him and as he drove through the City streets he became dazed and not capable of controlling his physical function which would have allowed him to stop his vehicle." Id. ¶ 8. "Plaintiff was going in and out of consciousness during this time." Id. ¶ 9.

  Moreover, Plaintiff states that he is a kidney transplant recipient since 2003 and is required to take certain medication to preserve the integrity of the kidney's function. Id. ¶ 10. Plaintiff wears a medical alert bracelet on his left wrist, which advises others that he is a transplant patient and it contains his physician's contact information. Id. ¶ 20.

  Plaintiff further alleges that on February 22, 2005, as he approached the Schuylkill County Courthouse, he parked his vehicle on Second Street with the intention of taking his briefcase, containing client files, into the Courthouse; however, as he exited his vehicle, Defendant Dennis Wiederhold ("Officer Wiederhold"), a police officer for the Pottsville Police Department, approached Plaintiff and asked for his driver's license, insurance information, and vehicle registration. Id. ¶¶ 13-14. Plaintiff states that during the above-referenced period of time when he was conversing with Officer Wiederhold and four or five other police officers, he was in a dazed state in which he lacked balance and equilibrium. Id. ¶ 15. Officer Wiederhold asked Plaintiff twice if he had been drinking alcohol, allegedly based upon his observations of Plaintiff and the fact that Plaintiff was driving with a flat tire. Id. ¶¶ 16-17. Plaintiff responded that he does not drink and when asked if he had any medical problems advised Officer Wiederhold that he had a transplanted kidney. Id. ¶ 17. "Plaintiff advised defendant Wiederhold that the medication Plaintiff was currently taking should not effect his balance and equilibrium according to Defendant Wiederhold's report." Id. ¶ 19.

  Plaintiff alleges that according to Officer Wiederhold's police report, dexterity and counting tests were taken; however, Plaintiff has no memory of such tests. Id. ¶ 21. The police report further indicates that Officer Wiederhold advised Plaintiff that he was being detained for suspicion of driving while impaired and that he was being transported to the Pottsville Hospital for a blood test. Id. ¶ 22. Plaintiff asserts that Officer Wiederhold then put Plaintiff's hands behind his back, handcuffed him, and transported him to the Pottsville Hospital and Warne Clinic. Id. at ¶¶ 23, 27. Although Plaintiff alleges that he felt pain on his wrists from the tight handcuffs and began to suffer breathing problems while in the vehicle because of a heart condition, he did not "verbally complain because of being dazed and in a semi-conscious state." Id. ¶ 29. Subsequently, Plaintiff consented to a blood test, which was administered by Craig Wywadis, an employee of the Pottsville Hospital and Warne Clinic; however, Plaintiff has no memory of said consent. Id. ¶ 31. Plaintiff alleges that despite the fact that his mental condition continued to deteriorate, instead of offering treatment and/or refusing to treat Plaintiff, the Pottsville Hospital allowed Plaintiff to leave the facility by himself. Id. ¶¶ 32, 35. However, Plaintiff then avers that Officer Wiederhold offered to transport Plaintiff to a location of his choosing, but Plaintiff advised him that he would walk. Id. ¶ 36.

  Later that day, Plaintiff alleges that his office called Womer's Garage, the location to which Plaintiff's vehicle had been towed, to retrieve his briefcase, but he was advised that the vehicle and its contents were impounded and could not be released until a police officer approved the release. Id. ¶ 43. Plaintiff then allegedly left a message for Officer Wiederhold to ask if he could retrieve ...


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