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Gera v. Commonwealth

October 19, 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 James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court is plaintiff's motion for reconsideration (Doc. 9) of this court's memorandum and order (Doc. 8) dismissing his in forma pauperis (IFP) 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.

Pursuant to 28 U.S.C. § 1915(e), we gave the plaintiff's complaint a preliminary screening to determine whether process should issue. On August 2, 2007, we issued a memorandum and order dismissing the plaintiff's complaint as frivolous (Doc. 8). On August 16, 2007, plaintiff filed a motion for reconsideration of that decision (Doc. 9), bringing the case to its present posture.

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

"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 799 F.2d 906, 909 (3d Cir.1985); Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). The movant must demonstrate one of three grounds for such a motion to be granted: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct a clear error of law or to prevent manifest injustice. Max's Seafood Cafe, 176 F.3d at 677. A motion for reconsideration is not a proper vehicle to attempt to convince the court to rethink a decision it has already made. Glendon Energy Co. v. Borough of Glendon, 836 F. Supp.1109, 1122 (E.D. Pa. 1993). Such motions also may not be used to give a dissatisfied party a chance to "[change] theories and try again," obtaining a "'second bite at the apple.'" Bhatnagar v. Surrendra Overseas Ltd., 52 F.3d 1220, 1231 (3d Cir. 1995); see also Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002) (finding that "The simple fact that Ogden is unhappy with the result of the April 19, 2001 opinion is an insufficient basis to grant her relief.").

Discussion

The plaintiff does not point to any intervening change in controlling law or new evidence previously unavailable in the case. Instead, he contends that the court made clear errors of law in finding that his complaint should be dismissed. He also argues that the preliminary screening undertaken by this court, which led to dismissal of his complaint before the ...


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