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Revak v. Lieberum

January 23, 2009

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 Amended Complaint filed by Defendants, Pennsylvania State Police ("PSP") Trooper Nathaniel Lieberum ("Lieberum") and PSP Corporal Brian Barnhart ("Barnhart," or collectively as "Defendants"). (Docket No. 25). Plaintiff filed a response in opposition thereto. (Docket No. 30). After a careful review of the submissions by the parties and for the reasons discussed in this Opinion, the Partial Motion to Dismiss (Docket No. 25) is granted.

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. (Doc. No. 11). Thereafter, I granted in part and denied in part the Partial Motion as follows:

1. Defendant's Motion to Dismiss as to the due process claim in Count I is denied as moot as Plaintiff has withdrawn this claim;

2. Defendant's Motion to Dismiss as to the equal protection claim in Count I is granted;

3. Defendant's Motion to Dismiss as to the conspiracy claim in Count I is denied; and

4. Defendant's Motion to Dismiss as to the state law tort claims in Counts II and III is denied.

It is further ordered that Plaintiff is to file an Amended Complaint withdrawing his due process claim in Count I and may make curative amendments to ...


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