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Higgins v. Borough of Taylor

March 11, 2008


The opinion of the court was delivered by: Judge Munley


Before this court for disposition is the motion of Defendants Borough of Taylor, Borough of Taylor Police Department, Chief Stephen Derenick and Officer Edward Frescoln to dismiss the plaintiff's complaint. Having been fully briefed and argued, the matter is ripe for disposition.


The plaintiff, Robbie J. Higgins, brought this suit against his landlords, Carl F. Simininski and Mary Joyce Smininski, the Borough of Taylor, the Borough of Taylor Police Department, Police Officer Edward Frescoln, and Police Chief Stephen Derenick. The lawsuit grew out of an incident that occurred on January 9, 2005.

On January 9, 2005, at approximately 4:32 a.m., the plaintiff was taken into custody by Officer Frescoln of the Taylor Police Department. (Plaintiff's Complaint (Doc. 1-3) at ¶ 12).*fn1 Officer Frescoln arrested the plaintiff on the alleged charge of public drunkenness. (Id.). According to the Police Department's Initial Crime Report, officers attempted at headquarters to give the plaintiff a portable breathalyzer test. (Id. at ¶ 13). Plaintiff's intoxication prevented such testing. (Id.). At one point, while the officers were trying to administer the test, plaintiff fell forward out of his chair and onto the floor. (Id.). Officers present asked the plaintiff if he needed medical attention. (Id.). He declined. (Id.). After issuing the citation, Officer Frescoln transported the plaintiff to his apartment at 104 S. Main Street, Taylor, Pennsylvania. (Id. at ¶ 14). As Officer Frescoln escorted the plaintiff up the outside steps leading to the second floor, he fell and rolled off the second-floor porch, hitting the asphalt below head/face first. (Id.). Officer Frescoln checked the plaintiff for a pulse and notified Emergency Medical Services. (Id.). The plaintiff was transported to CMC Hospital in Scranton, Pennsylvania. (Id.). CMC transferred the plaintiff to the John Heinz Institute of Rehabilitation Medicine in Wilkes-Barre, Pennsylvania to continue his treatment. (Id. at ¶ 24).*fn2

On March 14, 2007, the plaintiff filed a complaint in the Court of Common Pleas of Lackawanna County, Pennsylvania. The plaintiff filed claims for negligence; failure to supervise; municipal liability; and negligence/breach of implied duty of habitability. Plaintiff seeks restitution in excess of $500,000 plus interest as well as all costs and fees, including reasonable attorney's fees. On April 2, 2007, the Defendants filed a Notice of Removal ( Doc. 1) pursuant to 28 U.S.C. §§ 1441(b) and 1443(2) requesting this action be moved to the United States District Court for the Middle District of Pennsylvania.*fn3 On April 9, 2007, Defendants Borough of Taylor, Borough of Taylor Police Department, Edward Frescoln and Stephen Denerick filed a motion to dismiss the case. (Doc. 2). On November 18, 2007, we denied plaintiff's motion to remand. (See Doc. 12). The court then ordered the plaintiff to file a brief in opposition to the motion to dismiss filed by the Borough, the Police Department and Defendants Frescoln and Denerick (Doc. 13). Plaintiff filed that brief (Doc. 14), bringing the case to its present posture.


This Court has jurisdiction pursuant to 28 U.S.C. § 1441(b) as the defendants in this action removed the case from the Lackawanna County Court of Common Pleas.


When analyzing a 12(b)(6) motion to dismiss, all well-pleaded allegations of the complainant must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-666 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985) (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994)(citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The complaint is properly dismissed "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-521 (1972)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


Defendants*fn4 raise several grounds for dismissing the complaint. We will address each in turn.

i. Plaintiff's Claim that Defendants Violated his Constitutional Rights

Defendants contend that plaintiff claims they violated his substantive due process rights under the Fourteenth Amendment to the United States Constitution, creating a claim under 42 U.S.C. ยง 1983. Plaintiff does not dispute that he raises such a claim, even though that action is not pled specifically in the complaint. The dispute in this case is over whether plaintiff's injuries were the result of a failure of the defendants to ...

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