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Gera v. Commonwealth

August 2, 2007

JOHN M. GERA, PLAINTIFF,
v.
COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL, BOROUGH OF SHENANDOAH, JOSEPH L. PALUBINSKY, MICHAEL A. O'PAKE, MATTHEW R. NESTOR, JAMIE R. GENNARINI, AND FRANK R. CORI, FORMER DISTRICT ATTORNEY OF SCHUYKILL COUNTY, DEFENDANTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court for preliminary consideration is plaintiff's complaint (Doc. 1). Because plaintiff filed an application to proceed in forma pauperis with this court (Doc. 2), we give his filing a preliminary screening to determine whether we should allow the issuance of summons and service of the complaint.

Background*fn1

This case arises out of a dispute between the plaintiff and officials of the Borough of Shenandoah, Pennsylvania. On October 18, 2004, plaintiff attended a meeting of the Shenandoah Borough Council. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 12). At that meeting, he asked the council if he needed a permit to protest in the Borough. (Id.). Plaintiff repeated his questions at a Borough Council meeting on November 15, 2004. (Id. at ¶ 13). Plaintiff contends that he was "well behaved" at that meeting and was never asked "to be [quiet], to sit down or to leave." (Id. at ¶ 14). He also alleges that Borough Solicitor Michael O'Pake threatened to punch him in the face when the two had a verbal disagreement after the November 15, 2004 meeting. (Id. at ¶ 103). On December 10, 2004, a friend informed plaintiff that a newspaper story had reported he had been charged with two counts of "persistent disorderly conduct" and two counts of disrupting meetings. (Id. at ¶ 15). According to the newspaper, plaintiff had disrupted the Council meetings with "loud" and "belligerent" behavior towards officials. (Id. at ¶ 16). Police asserted that plaintiff continued to disrupt the meetings after warnings to stop. (Id.). These officials also claimed that plaintiff's behavior had "prevented the council from tending to borough business." (Id.). Plaintiff alleges that none of these claims by the police were true. (Id.).

On December 14, 2004, plaintiff received in the mail a criminal complaint charging him with disrupting public meetings and a summons to a preliminary hearing. (Id. at ¶ 18). Police never interviewed him before charging him. (Id. at ¶ 19). On December 29, 2004, plaintiff received notice that his hearing on the charges was continued. (Id. at ¶ 21). Over the next four months, plaintiff received four more such notices. (Id.). On April 14, 2005, plaintiff sent notice to the Borough of Shenandoah of his intent to sue. (Id. at ¶ 22). On May 4, 2005, plaintiff appeared at a preliminary hearing before Judge Joan K. Hausman.*fn2 (Id. at ¶ 23). All charges against him were withdrawn. (Id.).

On April 24, 2007, plaintiff filed a ten-count complaint in this court pursuant 42 U.S.C. § 1983 ("section 1983"). The complaint named as defendants the Attorney General of Pennsylvania; the Borough of Shenandoah; Joseph Paulbinsky, a city manager; Michael A. O'Pake, the Borough Solicitor; Matthew Nestor, the Borough's police chief; Borough Police Officer Jamie Gennarini; and Frank R. Cori, the former District Attorney of Schuylkill County, Pennsylvania. Only Count I alleges violations of federal law that would give this court jurisdiction. That count alleged that the Borough violated plaintiff's civil rights through a variety of means. Plaintiff contends that the Borough "knew or had reason to know" that Borough police officers had "rountinely engaged" in violations of citizens' constitutional rights. (Id. at ¶ 30). The Borough failed to provide training for these officers and did not investigate or discipline officers who violated rights. (Id. at ¶ 32). The Defendant Attorney General and District Attorney Cori "conspired, or at a minimum had knowledge of the conspiracy with Shenadnoah" to arrest the plaintiff without cause. (Id. at ¶ 33).

The remaining counts in the complaint allege state law violations, though we could also consider those claims as attempts to state a cause of action under Section 1983 for violating the plaintiff's federal rights. Court II contends that the Pennsylvania Attorney General, District Attorney Cori and the Borough conspired to arrest plaintiff falsely. (Id. at ¶ 40). Count III claims malicious prosecution against the Borough, insisting that Shenandoah brought charges against the plaintiff but knew that no grounds existed for them. (Id. at ¶¶ 48, 51-56). Count IV alleges harassment by the Borough against the plaintiff through the filing of the charges. (Id. at ¶ 64). Count V alleges negligence against Shenandoah for failing to investigate the case against plaintiff and failing to train police officers properly. (Id. at ¶¶ 72-73). In Count VI, plaintiff claims that defendants slandered and defamed him in statements to a newspaper that made him appear to be "a liar, crazy and that he may be a danger to the public." (Id. at ¶¶ 80, 82-84). Count VII alleges pain and suffering and Count VIII intentional infliction of emotional distress based on the Borough's charges against the plaintiff. (Id. at ¶¶ 90-94, 96-101). Plaintiff's final count, Count IX, accuses Borough Solicitor Michael O'Pake of making terroristic threats against the plaintiff after a council meeting. (Id. at 103). Plaintiff seeks damages of $100,000 as relief on each count. In addition to the complaint, plaintiff filed an application to proceed in forma pauperis.

Jurisdiction

Because plaintiff brings his complaint pursuant to 42 U.S.C. § 1983, we have jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

Under 28 U.S.C. § 1915(d), we are permitted "to consider whether an in forma pauperis complaint is frivolous or malicious before authorizing issuance of the summons and service of the complaint." Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). We may "dismiss as frivolous claims based on an indisputably meritless legal theory and whose factual contentions are clearly baseless." Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). We undertake such an evaluation before service of the complaint.

Discussion

A. Claims barred by the Statute of Limitations

Plaintiff raises several claims related to the conduct of individuals at or in the days immediately following the Borough Council meetings in late 2004; we will address them in turn. Several of plaintiff's claims are barred by the statute of limitations. Pennsylvania law requires that the plaintiff commence his action within two years of his injury. See 42 Pa. CONS. STAT .ANN. ยง5524(7) (establishing a two-year statute of limitations for "any . . . action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct"). Moreover, Pennsylvania courts have ruled that the statute of limitations begins to run in cases where an injury is ongoing "when the plaintiff knows, or ...


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