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Palmer v. City of Harrisburg

November 8, 2007

SHAUN C. PALMER, PLAINTIFF
v.
CITY OF HARRISBURG, PA, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Plaintiff, Shaun C. Palmer, an inmate currently confined at the State Correctional Institution in Coal Township, Pennsylvania, commenced this action pro se on September 6, 2006, by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 (Doc. 1, Attach. #1) in the Dauphin County Court of Common Pleas in Harrisburg, Pennsylvania. Defendants removed the case to this court on October 5, 2006. Presently before the court are two separate motions to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) filed on behalf of Defendants City of Harrisburg ("City of Harrisburg") and Levell Jenkins ("Jenkins") (Doc. 2), and Defendants Michael Consiglio ("Consiglio") and Casey Shore ("Shore") (Doc. 4). The motions have been fully briefed and are ripe for disposition. For the reasons set forth below, the motions will be granted.

Also pending are Plaintiff's motion to strike Defendants' affirmative defenses (Doc. 37) and motions for leave to file an amended complaint (Docs. 57, 63). As discussed below, the motions will be denied.

I. Motions to Dismiss

A. Standard of Review

In rendering a decision on a motion to dismiss, the court must accept the Plaintiff's allegations as true. Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), the United States Court of Appeals for the Third Circuit added that, when considering a motion to dismiss, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Dismissal is warranted if a complaint does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above speculative level." Twombly, 127 S.Ct. at 1965. Also, in ruling on a motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6), the court may consider documents attached to the complaint as an exhibit. See Gomez v. Warden of the Otisville Correctional Facility, No. 99 Civ. 9954, 2000 WL 1480478, *1 (S.D.N.Y. Sept. 29, 2000) (citing Brass v. Am. Film Techs., Inc., 987 F.3d 142, 150 (2d Cir. 1993)).

This court will review the Defendants' motions in the context of the standards set forth above. Also, the court is mindful that, "however inartfully pleaded," the "allegations of [a] pro se complaint [are held] to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972).

B. Allegations of Complaint

On March 13, 2002, police officers employed by the City of Harrisburg Police Department, including Jenkins, executed a search warrant at a residential row home located at 1931 Forster Street, Harrisburg, Pennsylvania. (Doc. 1, Attach. #1, ¶ 8). Upon arrival at the home, Jenkins and the other police officers found Plaintiff lying unclothed in bed with the home's owner. (Id. at ¶ 11). One of the police officers, Officer William Jackson, retrieved Plaintiff's pants, searched the pockets of the pants, and discovered crack cocaine and cash in the front pockets of the pants. (Id. at ¶ 11 and Ex. "C").

After the cocaine was discovered, Jenkins observed a Chevrolet Tahoe Sport Utility Vehicle parked outside of the house and asked Plaintiff if the vehicle belonged to him, to which Plaintiff responded in the affirmative. (Id. at ¶ 12 and Ex. "C"). Plaintiff avers that he denied permission to search the vehicle, and therefore Jenkins had the vehicle towed to a secured area while he sought a warrant to search the vehicle. (Id. at ¶ 13 and Ex. "C"). Although Plaintiff does not state when his vehicle was searched, Jenkins testified at the preliminary hearing on April 30, 2002, that the search occurred before the hearing. (See Doc. 1, Attach. #1, Ex. D at 16, lines 11-13).*fn1

During the court proceedings that followed, Plaintiff alleges that Consiglio, a Dauphin County deputy district attorney, approached him in a Dauphin County courtroom on June 12, 2003, and told him that he would get his vehicle back if he paid $1,000. (Doc. 1, Attach. #1, ¶ 19). Subsequently, Plaintiff claims that Shore, a Dauphin County deputy district attorney, made phone calls to Plaintiff's mother "demanding" $1,000 for the return of the vehicle. (Id. at ¶ 21).

On July 3, 2002, the Dauphin County District Attorney's Office initiated a civil forfeiture action with respect to Plaintiff's vehicle at docket number 3001 CV 2002.*fn2

(See Doc. 1, Attach. #1, Ex. G at 14). In October 2003, while Plaintiff was at the district attorney's office on an unrelated matter, Shore approached him and advised that, if he did not pay the money soon, his vehicle would be forfeited. (Id. at ¶ 22). On November 25, 2003, Plaintiff's mother paid $1,000 for the return of Plaintiff's vehicle, and the Commonwealth discontinued the forfeiture action. (See Doc. 1, Attach. #1, at ¶ 23; Doc. 5 at 9).

After he regained possession of his vehicle, Plaintiff claims that he researched the law on forfeiture of property as set forth in the Controlled Substances Forfeiture Act ("Forfeiture Act"), 42 Pa. Cons. Stat. § § 6801-02, and discovered that his vehicle was improperly seized. (Id. at ¶ ¶ 24-25, 32 ). On September 2, 2004, he filed a motion for return of property in the Court of Common Pleas of Dauphin County seeking reimbursement of his $1,000. (Id. at ¶ 32). In dismissing Plaintiff's motion, following a hearing, Court of Common Pleas Judge Cherry found that on November 25, 2003, when Plaintiff's mother ...


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