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Revak v. Lieberum

November 10, 2008

FRANK REVAK, PLAINTIFF,
v.
NATHANIEL LIEBERUM, AND BRIAN BARNHART, AS INDIVIDUALS, DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER OF COURT SYNOPSIS

Pending before the Court is a Partial Motion to Dismiss Plaintiff's Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants, Pennsylvania State Police ("PSP") Trooper Nathaniel Lieberum ("Lieberum") and PSP Corporal Brian Barnhart ("Barnhart," or collectively as "Defendants"). (Docket No. 11). Plaintiff filed a response in opposition thereto. (Docket No. 14). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Motion to Dismiss (Docket No. 11) is granted in part and denied in part.

OPINION

I. Factual Background and Procedural History*fn1

In August 2002, Defendants initiated a traffic stop involving the Plaintiff, Frank Revak ("Revak" or "Plaintiff"), on his own property. After Revak stopped his vehicle, Trooper Lieberum approached, ordered Revak out of the vehicle, and requested that Revak empty his pockets.

Revak was carrying approximately $156.00 in his pocket. Lieberum inquired as to why Revak was carrying that amount of cash. In response, Revak asked what was inappropriate about having the money. At this point, Lieberum became irate and informed Revak that he was going to be taken into custody.

Barnhart attempted to place handcuffs on Revak's wrists but was unsuccessful because Revak's wrists were too large. Revak was not resisting or provoking the Defendants in any way, but they nevertheless applied pressure to Revak's thumb and applied pepper spray to his face. Despite pleas from a witness to stop the pepper spraying due to Revak's vision and breathing problems, the Defendants sprayed Revak twice more in the face with pepper spray. As Revak was being placed in the patrol car, he was having difficulty breathing, he was coughing, and his eyes were watering and swollen shut. At no point, either during the drive or at the police barracks was Revak provided medical attention.

On or about May 20, 2008, Plaintiff commenced this action by filing a Complaint against the Defendants in this Court. Plaintiff's Complaint sets forth three counts against Defendant: Count I - violations of Plaintiff's constitutional rights under 42 U.S.C. § 1983, specifically, (a) unreasonable search and seizure and/or excessive use of force, (b) deprivation of his life and liberty without due process of law, (c) violation of equal protection, and (d) conspiracy to violate his constitutional rights; Count II - intentional infliction of emotional distress and/or willful and wanton misconduct; and, Count III - assault and battery.

Defendants filed a Partial Motion to Dismiss for failure to state a claim against them and brief in support. (Docket Nos. 11, 12). Specifically, the Defendants seek dismissal of the due process, equal protection, and conspiracy portions of Count I, and Counts II and III in their entirety. Plaintiff has filed a brief in opposition to Defendant's motion. (Docket No. 14). The issues are now ripe for my review.

II. Legal Analysis

A. Standard of Review

In ruling on a 12(b)(6) motion for failure to state a claim, I must accept all factual allegations, and all reasonable inferences therefrom, as true and view them in the light most favorable to the plaintiff. Phillips v. County of Allegheny, 525 F.3d 224, 231 (3d Cir. 2008). Although a complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007); Phillips, 515 F.3d at 231. "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965 (internal citations omitted).

With this standard in mind, I now turn to the ...


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