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O'Malley v. Lukowich

November 7, 2008


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendant the Borough of Avoca's ("Avoca") Motion to Dismiss (Doc. 12.) the Amended Complaint (Doc. 8) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Avoca's motion to dismiss will be granted in part and denied in part. Because they are raised pursuant to federal law, Counts I, II, III, and IV will be dismissed to the extent they seek remedies under state law. All Counts (I through V) will be dismissed to the extent they seek punitive damages from Avoca. Plaintiff's claim in Count I for violation of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution will be dismissed. Avoca's motion will be denied in all other respects.

The case is brought under Title 42 of the United States Code, section 1983. Jurisdiction exists under section 1331 of Title 28 of the United States Code ("federal question").


The facts as alleged in Plaintiff's Complaint are as follows.

Plaintiff Ryan O'Malley presently resides in Luzerne County. (Am. Compl. ¶ 1, Doc. 8.) Defendants are Edward Lukowich, the former Police Chief of the Borough of Avoca and the Borough of Avoca. (Id. ¶ 2.) Avoca is a municipality of the Commonwealth of Pennsylvania. (Id. ¶ 3.)

On or about April 17, 2006, Defendant Edward Lukowich searched and seized Plaintiff and his car without his consent, and without probable cause. (Id. ¶ 5.) This search occurred because Lukowich wished to continue his pursuit of former Avoca Police Officer Michael Savokinas. (Id.) At the relevant time, Plaintiff was an employee of Savo's Pizza, which is owned by the family of Michael Savokinas. (Id. ¶ 6.) On the date in question, Police Chief Lukowich arranged for one of his informants to entice Plaintiff to a location where Lukowich would initiate a search and an arrest. (Id. ¶ 7.) Lukowich's sole reason was to lodge charges against Plaintiff so that he would implicate Savokinas in false drug dealing allegations. (Id. ¶ 8.) When Plaintiff entered the informant's car, Lukowich and other officers surrounded the car and thereafter handcuffed Plaintiff, searched Plaintiff and his car, and took him to Avoca Police Department where he was interrogated for three (3) hours. (Id. ¶¶ 9-13.) The purpose of these actions was to coerce Plaintiff into making drug dealing allegations against Savokinas. (Id. ¶¶ 10,13.) Plaintiff refused to make such allegations and told Lukowich they were not true. (Id. ¶¶ 14-15.) He was thereafter released from the Police Department. (Id. ¶ 16.) In the following days, Plaintiff received harassing telephone calls from an Avoca police officer at his home, pressuring him to make allegations against Savokinas. (Id. ¶¶ 17.) Because Plaintiff continued to refuse, Lukowich arrested him on or about May 10, 2006. (Id. ¶ 18.) Plaintiff alleges these charges were terminated in his favor. (Id.) Lukowich and the officer that called Plaintiff's home were later arrested for unsworn falsifications. (Id. ¶¶ 20-21.) Lukowich was also charged with criminal conspiracy and official oppression and subsequently retired from Avoca Police Department. (Id. ¶¶ 21-22.)

On April 10, 2008, Plaintiff filed a Complaint. (Doc. 1.) On May 16, 2008, the Court sua sponte dismissed the case for failure to properly plead jurisdiction. (Doc. 3.) On June 25, 2008, the Court granted Plaintiff's motion for reconsideration, and permitted the Plaintiff to file an Amended Complaint within twenty (20) days of the order. (Doc. 7.) Plaintiff filed his Amended Complaint on June 30, 2008. (Doc. 8.)

On July 24, 208, Avoca filed the present motion to dismiss the amended complaint. (Doc. 12.) This motion is fully briefed and ripe for disposition.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, Plaintiff has not plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. ----, 127 S.Ct. 1955, 1960, 167 L.Ed.2d 929 (2007), meaning, enough factual allegations "to raise a reasonable expectation that discovery will reveal evidence of" each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, --- U.S. ----, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L. Ed 2d 655 (1994). The Court need not assume that the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 (3d Cir. 1998), nor credit a complaint's "bald assertions" or "legal conclusions." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether the plaintiff is entitled to offer evidence in support of the claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed. 2d 90 (1974). The Court does not consider whether the plaintiff will ultimately prevail. Id. The defendant bears the burden of establishing that the plaintiff's complaint fails to state a claim upon which relief can be granted. Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


I. Pennsylvania Remedies for Federal Claims

Counts I, II, III, IV, and V of Plaintiff's complaint, alleging unlawful search and seizure, malicious prosecution, First Amendment retaliation, abuse of official power, and failure to train are raised under 42 U.S.C. § 1983. (Am. Compl. ¶¶ 28, 33, 40, 44, Doc. 8.) These are federal claims, but Plaintiff seeks remedies under Pennsylvania law for Counts I through IV. Because these are federal claims, Pennsylvania remedies are not applicable and the claims will be dismissed to the extent they seek state law remedies.

Even if Pennsylvania remedies were applicable, Avoca would be immune from liability for damages under the Pennsylvania's Political Subdivision Tort Claims Act ("PSTCA"). 42 PA. CONS. STAT. § 8541 (2008). The PSTCA provides that "[n]o local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person." Id. A local agency is "a government unit other than the Commonwealth government" Id. § 8501. The Borough of Avoca is a local agency. The statute includes eight (8) exceptions to local agency immunity, but none apply here. See id. § 8542(b) (exceptions include: vehicle liability; care, custody and control of personal property; real property; trees, traffic controls, and street lighting; utility service facilities; streets; sidewalks; and care, custody, or control of animals).

Plaintiff argues that there is a willful misconduct exception to PSTCA immunity. (Pl.'s Br. in Opp'n 10-11, Doc. 17.) It is true that a public official does not receive immunity when his action "constituted a crime, actual fraud, actual malice or wilful misconduct." Id. § 8550. However, even if an employee engages in willful misconduct, thus losing individual immunity, local agencies are not liable for their employee's willful misconduct. Debellis v. Kulp, 166 F. Supp. 2d 255, 278 (E.D. Pa. 2001). Therefore, the willful misconduct exception does not apply to Avoca.

I. Municipal Liability under Section 1983

Plaintiff brings claims for unlawful search and seizure, malicious prosecution, First Amendment retaliation, abuse of official power, and failure to train under 42 U.S.C. ยง 1983, which provides "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and ...

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