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Leventry v. Watts

May 17, 2007


The opinion of the court was delivered by: Ambrose, Chief District Judge



A husband and wife bring suit against a variety of Defendants for various constitutional transgressions under 42 U.S.C. § 1983 stemming from the arrest of the husband, the seizure of his car and the subsequent search and seizure of the bail money posted by the wife plaintiff. The police officers and police department Defendants seek the dismissal of all claims. The Motion is granted in part and denied in part.


On or about September 4, 2004, Plaintiff James L. Leventry ("Leventry") was driving through Southmont Borough when Defendant Officer Matt Watts ("Watts") of the Defendant West Hills Regional Police Department ("the Police Department") stopped him. Leventry was taken into custody and charged with possession of and possession with intent to deliver marijuana; possession of and possession with intent to deliver OxyContin; and possession of and possession with intent to deliver methadone. He was arraigned and bail was set at $100,000 or 10% cash. When Plaintiff Deborah Leventry arrived the next evening with $10,000 cash, the bail money was confiscated. The Leventrys were told that a search had been performed by a drug dog and that the dog had alerted to the presence of narcotics on the money. As a result of the confiscation, James Leventry remained incarcerated for a period of time.

The Leventrys have filed, pro se, claims under 42 U.S.C. § 1983 for violations of their 1st, 4th, 5th, 6th, 8th and 14th Amendment rights. They also reference the right to bail, the right to due process of law, and conspiracy. These references are all made in the caption of the First Amended Complaint.*fn1 In addition to naming Watts and the Police Department as Defendants, the Leventrys have named Defendant George Musulin, who is alleged to have participated in the events surrounding the arrest of James Leventry and the confiscation of the bail money; Defendant Chief Andrew Havas ("Havas"), the Chief of Police; various municipal authorities and both the assistant district attorney involved in James Leventry's criminal case and the district attorney as well.

Defendants Watts, Musulin, Havas and the Police Department have filed a dispositive Motion. See Docket No. [64]. While titled a Motion for Summary Judgment, it is clear from the supporting brief that the Defendants ask this Court to convert a Rule 12(b)(6) Motion to Dismiss into one for Summary Judgment under Rule 56 in order to consider evidence submitted in conjunction with the Motion. I decline to do so. The Leventrys are acting pro se. The parties have not yet engaged in discovery. I think it unfair and premature to consider the merits of the Leventrys' claims based upon a consideration of only one sides' submission of evidence. Accordingly, I will consider the Defendants' arguments in light of a Rule 12(b)(6) standard.


In deciding a Motion to Dismiss, all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1988). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a motion for failure to state a claim, I must look to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide the defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666.

While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n.2 (1977). Moreover, the plaintiff must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See Fed. R. Civ. P. 8(2)(a) and Conley, 355 U.S. at 45-46. Matters outside the pleadings should not be considered. This includes "any written or oral evidence in support of or opposition to the pleadings that provides some substantiation for and does not merely reiterate what is said in the pleadings." Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 1366 (West 1990).


I. First Amendment Claim

In paragraph 40 of the First Amended Complaint, the Leventrys contend that Watts violated, among other things, James Leventry's First Amendment rights by seizing his person, car and bail money. The First Amended Complaint contains no further elaboration regarding the substance of the First Amendment claim, and the Defendants argue that the failure in this regard mandates the dismissal of this claim. The First Amendment affords many protections, such as free speech, freedom of religion, the right to free assembly and the right to petition the Government for redress of grievances. I cannot discern from the allegations set forth in the First Amended Complaint which of these protections the Leventrys allege Watts violated. The allegations do not suggest that James Leventry was denied the right to speak; or that he was engaged in religious activity; or that he was attempting to peaceably assemble or petition the Government for redress of grievances. Accordingly, at this juncture, I agree with the Defendants that the Leventrys have not articulated, under 42 U.S.C. ...

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