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Soder v. Chenot

January 18, 2007

JEFFREY DALE SODER, PLAINTIFF
v.
CHARLES FREDRIC CHENOT, III, ET. AL, DEFENDANTS



The opinion of the court was delivered by: Judge Jones

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss of Perry County Defendants (doc. 15)("the Motion") filed on November 17, 2006 by Defendants District Attorney Chenot, Lynne E. Chenot, Commissioner John J. Amsler, Jr., Alice Ann Amsler, Commissioner Warren R. Van Buskirk, Irene S. Van Buskirk, Commissioner Edward R. Kennedy and Nada B. Kennedy (collectively "Moving Defendants"). For the following reasons, the Motion will be granted.

PROCEDURAL HISTORY

Pro se Plaintiff Jeffrey Dale Soder ("Plaintiff") filed the instant civil rights action in this Court on August 7, 2006 (doc. 1), against numerous Defendants arising out of various alleged criminal actions by members of the Millerstown Borough Police Department that purportedly occurred in 2003 through the Spring of 2004. Plaintiff was granted in forma pauperis status and the United States Marshal was directed to serve the named Defendants.

As aforementioned, the instant Motion (doc. 15) was filed on November 17, 2006. The Moving Defendants filed a brief in support (doc. 17) of the Motion on December 4, 2006. Albeit untimely, Plaintiff filed a brief in opposition (doc. 21) to the Motion on December 28, 2006.*fn1 The Moving Defendants filed a reply brief (doc. 26) on January 9, 2007. The Motion is fully briefed and therefore ripe for our review.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), 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.2d3 310 (3d Cir. 1986).

STATEMENT OF FACTS

The instant civil rights action filed by Plaintiff against numerous Defendants arises out of alleged criminal actions by members of the Millerstown Borough Police Department that purportedly occurred in 2003 through the Spring of 2004.

Plaintiff's sole allegation against District Attorney Chenot is that in the Spring of 2003 through the Spring of 2004, Defendant Chenot "did nothing to protect the people in the community in which you took an Oath to protect." (Rec. Doc. 1 at ¶XVI.

Plaintiff's only allegations against Perry County Commissioners Amsler, Kennedy and Van Buskirk are those "[o]vert acts committed by Defendants Amsler, Kennedy . . . and Van Buskirk includes that complained of in the above paragraphs of this Complaint." (Rec. Doc. 1 at ¶XXI). Nevertheless, except to identify Defendants Amsler, Kennedy and Van Buskirk in Paragraph II of the Complaint, none of the prior or subsequent allegations of the Complaint specify any acts performed by Defendants Amsler, Kennedy or Van Buskirk with respect to Plaintiff. Instead, Plaintiff only asserts vague and general allegations regarding their actions in office and the "attempt to impose totalitarian Socialism upon the People." (Rec. Doc. 1 at ¶XXIII).

In Paragraph XXVII of the Complaint, Plaintiff further identified Defendants Lynne E. Chenot, Alice Ann Amsler, Irene S. Van Buskirk and Nada B. Kennedy as wives of the Perry County Public Officials and suggests in Paragraph XXVIII that they "failed, refused or ...


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