The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS
Pending before the Court is a Motion to Dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6) ("the Motion")(doc. 9) filed by Defendants City of York, York Mayor John S. Brenner, York Police Commissioner Mark L. Whitman, and York Sergeant Ronald Camacho on January 8, 2007.
For the reason that follow, the Motion shall be granted in part and denied in part.
FACTUAL BACKGROUND/PROCEDURAL HISTORY
Plaintiff Edward Snell ("Plaintiff" or "Snell") is a Christian, pro-life advocate who periodically appears at the Planned Parenthood of Central Pennsylvania facility in the City of York to demonstrate his anti-abortion views. (Complaint, ¶¶8-14). Plaintiff avers that there have been no physical confrontations or altercations between the anti-abortion activists and Planned Parenthood personnel at the facility in recent years. (Complaint, ¶15). The complaint asserts that despite the lack of violence, the City of York, its mayor and Police Chief have routinely dispatched police officers to Planned Parenthood at the request of the facility to serve as private security guards for Planned Parenthood. Plaintiff believes and therefore avers that Planned Parenthood pays for the police officers and directs their actions. (Complaint, ¶16).
On November 3, 2004, Plaintiff was present at Planned Parenthood with information to give to pregnant women attending the facility. (Complaint, ¶¶17-18). On that date Defendant Camacho warned Plaintiff at two separate times that Plaintiff could not be in Rose Alley. Plaintiff claims that Planned Parenthood staff were given unfettered access to Rose Alley. After the second warning, Plaintiff attempted to approach another pregnant woman in Rose Alley. (Complaint, ¶¶19-21). Defendant Camacho grabbed Plaintiff from behind and placed him under arrest. (Complaint, ¶21). Plaintiff claims that the handcuffs were too tight, cut off his circulation, and left his hands sore and bruised. (Complaint, ¶22). Plaintiff was taken to the York City Police Department and was issued a summary citation for disorderly conduct. (Complaint, ¶¶24-25). Following a hearing, District Justice Haskell found Plaintiff not guilty. (Complaint, ¶26). Plaintiff alleges that from that time continuing through the present, he is threatened with arrest if he enters Rose Alley for the purpose of speaking against abortion. (Complaint, ¶27).
Plaintiff initiated this civil action by filing a complaint (doc. 1) on October 31, 2006 seeking nominal, compensatory and punitive damages; a declaratory judgment; and temporary and permanent injunctive relief. The complaint attempts to assert civil rights claims pursuant to 42 U.S.C. § 1983 for violation of Plaintiff's First Amendment rights to free exercise of religion (Count I); peaceful assembly (Count II); free speech (Count III); unlawful arrest (Count IV); and excessive force (Count V). The complaint names the City of York, Brenner, Whitman and Camacho as Defendants. Defendants Brenner and Whitman are named in their official capacities only, and Defendant Camacho is being sued in his official and individual capacities.
On January 8, 2007, the Defendants filed the instant Motion. The Motion has been fully briefed by the parties and is therefore ripe for our 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.2d4 310 (3d Cir. 1986).
At the outset we note that the claims against Defendants Brenner and Whitman in their official capacities shall be dismissed because they merge, as a matter of law, with the §1983 claims asserted against the Defendant City of York, because suits against a municipal employee in his official capacity is in reality a suit against a government entity that the employee represents. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Courts within the Third Circuit have ruled that claims against an official in his or her official capacity are redundant with the claims against a municipality that employs the official, and should therefore be dismissed. Crane v. Cumberland County, PA, 2000 U.S. Dist Lexis 22489, *3 (M.D.Pa. June 16, 2000), aff'd 64 Fed. Appx. 838 (3d Cir. 2003). Accordingly, the §1983 official capacity claims against Defendants Brenner, Whitman and ...