The opinion of the court was delivered by: Thomas M. Blewitt United States Magistrate Judge
(Magistrate Judge Blewitt)
REPORT AND RECOMMENDATION
Plaintiff, Raymond U. Brandt, filed the instant civil rights action, pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 1988, on April 11, 2008.*fn1 (Doc. 1). Plaintiff, who is proceeding pro se, paid the filing fee. As noted, Plaintiff essentially complains about his April 11, 2006 arrest in Palmyra. As Plaintiff recognizes, jurisdiction of this Court is found at 28 U.S.C. §§ 1331 and 1343(a). (Id., pp. 2-3). Plaintiff filed an amended cover page to his Complaint on April 11, 2008, which was incorrectly docketed by the Clerk of Court as an Amended Complaint. (Doc. 3). Since Doc. 3 is only a one-page cover sheet to his original Complaint, we refer to Plaintiff's Complaint herein as Doc. 1.
Plaintiff names as Defendants (5) the following: Borough of Palmyra Council Police Department, in its official capacity as the Borough of Palmyra;
Stanley J. Jasinski, Jr., individually and in his official capacity as Chief of the Borough of Palmyra Police Department;
James B. Hunt, Badge # 55, individually and in his official capacity as Lieutenant of the Borough of Palmyra Police Department;
Peter J. Matthews, Badge # 66, individually and in his official capacity as Officer of the Borough of Palmyra Police Department; and
David C. Williams, individually and in his official capacity as Captain of the Borough of Palmyra Fire Station. (Doc. 1, pp. 3-4).
The five Defendants were served with the Complaint and Summons on July 17, 2008. (Doc. 6). Defendant Williams is represented by his own counsel, and Defendants Palmyra, Jasinski, Hunt and Matthews are jointly represented by the same counsel. After being granted an extension of time, Defendant Williams filed a Rule 12(b)(6) Motion to Dismiss the Complaint, in its entirety, as against him, along with a support Brief on July 28, 2008. (Docs. 13 and 14). On August 11, 2008, Defendants Palmyra, Jasinski, Hunt and Matthews ("Defendants") jointly filed a Motion to Dismiss the Complaint as against them pursuant to Fed. R. Civ. P. 12(b)(6). Defendants Palmyra, Jasinski, Hunt and Matthews filed their support Brief on August 25, 2008. (Doc. 18). Plaintiff was granted extensions of time to respond to both Motions to Dismiss, and he filed his opposition Briefs and responses to both stated Motions. (Docs. 23-26 and 30). Defendant Williams filed a Reply Brief in support of his Motion on October 28, 2008. (Doc. 28).
The two Motions to Dismiss of Defendants are ripe for disposition. Defendant Williams's Motion (Doc. 13) was the subject of a recent Report and Recommendation. (Doc. 31). The present Report and Recommendation will be issued with respect to the pending Motion to Dismiss of Defendants Palmyra, Jasinski, Hunt and Matthews. (Doc. 15).*fn2
II. Motion to Dismiss Standard
The Court in O'Connell v. Sobina, 2008 WL 144199, *2 (W.D. Pa.), set forth the new standard to dismiss, as annunciated by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. ---, 127 S.Ct. 1955 (2007), as follows:
As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly,  U.S. -, 127 S.Ct. 1955, 167 L.Ed.2d 929 (May 21, 2007), a complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 1974 (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The court must accept as true all all allegations of the Complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp., 127 S.Ct. at 1965 (citing Papas an v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level."
Bell Atlantic Corp., 127 S.Ct. at 1965. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id at 1974.
See also Kokinda v. Breiner, 557 F. Supp. 2d 581, 588 (M.D. Pa. 2008).
III. Section 1983 Standard
In a § 1983 civil rights action, the Plaintiff must prove the following two essential elements:
(1) that the conduct complained of was committed by a person acting under color of state law; and
(2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527 (1981);
Kost v. Kozakiewicz, 1 F. 3d 176, 184 (3d Cir. 1993); See also Holocheck v. Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa.).*fn3
It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials, 1546 F.2d 1077, 1082 (3d Cir. 1976); Parratt, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which Plaintiff's claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998):
A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).
A civil rights complaint must state time, place, and responsible persons. Id. Courts have also held that an allegation seeking to impose liability on a defendant based on supervisory status, without more, will not subject the official to section 1983 liability. See Rode, 845 F.2d at 1208.*fn4
IV. Allegations of Plaintiff's Complaint
Plaintiff alleges that Defendant Williams was the Captain with Palmyra Fire Department on April 11, 2006, when a fire at Plaintiff's residence began. Plaintiff avers that he called the Fire Department, and that Defendant Captain Williams arrived within minutes since he was in walking distance from the fire. Plaintiff states that Defendant Williams saw him standing in a stairwell and spraying water on his residence with a water hose. Plaintiff avers that Defendant Williams claimed that he tried to make contact with Plaintiff while he was yelling at Plaintiff to stop spraying water onto the fire with the hose. Plaintiff states that he continued to spray the water from the hose to extinguish the fire on his own, and that Defendant Palmyra Police Officer ("PO") Matthews assaulted him "by throwing him to the ground kicking him, shoving him and punching him causing the Plaintiff to sustain multiple fractures ... ." Plaintiff states that Defendant PO Matthews caused serious injury to him and that Defendant Matthews "unlawfully assaulted the Plaintiff ... for no other reason other than because [Plaintiff] didn't stop hosing water onto the fire at his place of residence." (Doc. 1, pp. 6-8).*fn5
Plaintiff avers that at no time did he act or speak in an aggressive or threatening manner to Defendants, and that he did not attempt to interfere with or obstruct Defendants' police activities. Plaintiff alleges that Defendants could not have reasonably believed that they were at risk of physical harm from him, and that Defendants did not intervene to prevent the alleged assault on him by Defendant Matthews.
Plaintiff states that on April 11, 2006, Defendant Matthews unlawfully charged him with disorderly conduct and obstructing emergency services, and that the charges were bound over, seemingly after a preliminary hearing, for trial in Lebanon County Court of Common Pleas. Plaintiff avers that at trial he was found not guilty of both charges filed against him by Defendant Matthews. (Id., pp. 8-9).
In his Count I, specifically titled as asserted only against Defendant PO Matthews, Plaintiff claims that Defendant Matthews used excessive force against him on April 11, 2006, in violation of his Fourth Amendment rights. (Doc. 1, p. 10). Plaintiff also asserts several other claims against all of the Defendants in his Count I, notwithstanding its caption as being an excessive force claim only against Defendant Matthews. Specifically, Plaintiff avers that Defendants Matthews, Hunt, Jasinski and Williams violated his constitutional rights by: depriving him of his liberty; intentionally, recklessly or negligently*fn6 using force against him that was not required; intentionally, recklessly or negligently causing him physical and psychological injuries; intentionally, recklessly or negligently condoning, ratifying and participating in the use of excessive force; intentionally, recklessly or negligently giving false versions of the facts about his beating and arrest, including facts relating to the probable cause to arrest, and subjecting Plaintiff to false arrest and malicious prosecution; intentionally, recklessly or negligently conspiring to cover up the facts about his arrest and beating; and breaching their affirmative duty to prevent each other from violating Plaintiff's constitutional rights. (Id., pp. 10--12).
In Count I, Plaintiff also states specific allegations as against Defendant Palmyra Borough, including the Borough's Council and Police Department*fn7 , Defendant Matthews, and Defendant Jasinski. (Id., pp. 12-16). Plaintiff alleges that Defendant Palmyra Borough failed to train, supervise and discipline Defendants Hunt, Matthew and Jasinski, which caused his false arrest and malicious prosecution, that Defendant Palmyra Borough approved and acquiesced in his abuse, and that Defendant Palmyra Borough conspired and covered up or condoned the cover up of the facts about his false arrest and malicious prosecution. (Id., pp. 13-14). Plaintiff avers that Defendant Palmyra Borough had customs, polices and practices of negligently and inadequately hiring, training, supervising and retaining police officers. (Id., p. 15). Plaintiff also avers that Defendant Palmyra Borough had customs, polices and practices that discourage citizen allegations of police abuse and encourage "official lawlessness" among its police officers. (Id., pp. 15-16).
Plaintiff alleges that Defendant Matthews failed to inform him of his Miranda rights, which caused a "prolongation of the malicious prosecution." (Id., p. 14). Plaintiff alleges that Defendant Chief Jasinski had a custom, policy and practice of negligently and inadequately hiring, training, supervising and retaining police officers, particularly Defendant Matthews. (Id., p. 16).
In Count II, which is seemingly against all Defendants, Plaintiff claims that "Defendants" violated his First Amendment right to access to the courts "by fabricating malicious evidence and testimony for use against him," and that "Defendants conspired to deter Plaintiff from brining any claims against the Defendants for the violation of Plaintiff's rights and for injuries." Plaintiff also avers that Defendants violated his First Amendment rights "by filing baseless criminal charges and then testifying falsely and maliciously against the Plaintiff." (Id., p. 18).
Finally, in Count III, Plaintiff asserts a Fourth Amendment malicious prosecution claim against "Defendants," and he avers that "Defendants brought charges against Plaintiff alleging a criminal offense arising out of the April 11, 2006 incident, despite the fact that there was no probable cause upon which Plaintiff should be charged with any crime." (Id., p. 19).
Plaintiff sues all individual Defendants in both their individual (personal) and official capacities. (Doc. 1, p. 4). As relief, Plaintiff seeks a declaratory judgment that Defendants violated his constitutional rights, injunctive relief, as well as nominal, compensatory and punitive damages, and costs and attorney's fees under 42 U.S.C. § 1988.*fn8 (Doc. 1, pp. 16-17). As we stated in our prior R&R (Doc. 31), to the extent that Plaintiff is seeking monetary damages from Defendants, he can only sue the state actor Defendants in their individual or personal capacities. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); Meekins v. Beard, 2007 WL 675358, *3 (M.D. Pa.); Atwell v. Schweiker, 2007 WL 2900565 (3d Cir. 2007) (Non-Precedential).*fn9
Additionally, Plaintiff's claims as against Defendant Palmyra appear to brought pursuant to Monell v. New York Dept. Of Social Servs., 436 U.S. 658 (1978).*fn10 Thus, as Defendants point out (Doc. 18, p. 20), Plaintiff incorrectly seeks punitive damages as against Defendant Palmyra and as against the individual Defendants in their official capacities. (Doc. 1, pp. 12-16). Plaintiff can only seek punitive damages as against the four individual Defendants in their individual or personal capacities. See Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625 (1983). Therefore, we will recommend that to the extent Plaintiff seeks punitive damages against Defendant Palmyra and against the individual Defendants in their official capacities, this claim for relief be dismissed.
In all three Counts, Plaintiff also requests damages for pain and suffering, and emotional distress.
In addition to the constitutional claims raised by Plaintiff, we also find that Plaintiff has generally asserted four (4) supplemental state law tort claims in his Complaint, namely state law claims for assault and battery, malicious prosecution, false arrest, and for intentional infliction of emotional distress ("IIED"). (Doc. 1, p. 2 and p. 9, ¶32.). Defendants address the state law claims of Plaintiff in their Brief at Doc. 18, pp. 18-20. We find that, for the most part, Plaintiff's claims are United States Constitutional claims based on § 1983, § 1985(3) and § 1986. (Doc. 1, pp. 9-19). In fact, in the Statement of Claim and in the three Counts of the Complaint, Plaintiff only references violations of his United States Constitutional rights under § 1983. (Doc. 1, pp. 9-19). Plaintiff's Counts do not reference any state law claims. However, in his detailed and specific statement of this Court's jurisdictional bases with respect to his claims, Plaintiff does reference the supplemental jurisdiction of this Court and states that it is "invoked as to matters cognizable under the Constitution and laws of the [S]tate of Pennsylvania." As stated, we find that Plaintiff has only asserted this Court's supplemental jurisdiction under 28 U.S.C. § 1367 over pendent state law claims for assault and battery, malicious prosecution, false arrest, and for IIED. (Id., pp. 2-3 and p. 9, ¶32.).
Defendants also state that Plaintiff's claims, if any, for violation of the Pennsylvania Constitution, should be dismissed. We agree with this portion of Defendants' Brief (Doc. 18, pp. 13-14), but for slightly different reasons.
In Bowers v. City of Phila., 2008 WL 5210256, *8 (E. D. Pa.), the Court recently stated:
"To date, neither Pennsylvania statutory a authority nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution." Dillon v. Homeowner's Select, 957 A.2d 772, 780 n. 11 (Pa. Super. Ct. 2008) (quoting Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006), appeal denied, 589 Pa. 741, 909 A.2d 1291 (Pa. 2006)). Accordingly, we agree with Defendants' undisputed assertion that Plaintiff's claims for damages under the Pennsylvania Constitution fail as a matter of law. See Stockham Interests, LLC v. Borough of Morrisville, No. 08-3431, 2008 WL 4889023, at * 10 (E.D. Pa. Nov. 12, 2008) (holding that "there is no private cause of action for damages arising from violations of the Pennsylvania Constitution," and granting defendant's request "to deny any monetary relief arising out of violations of the Pennsylvania Constitution," and granting defendant's request "to deny any monetary relief arising out of violations of the Pennsylvania Constitution") (citations omitted); Alvarez v. City of Phila., No. 07-0493, 2008 WL 4347529, at * 13 (E.D. Pa. Sept. 23, 2008) (granting summary judgment in favor of defendant since "Pennsylvania does not recognize a private right of action for monetary damages for violation fo the Pennsylvania Constitution");
Douris v. Schweiker, 229 F.Supp.2d 391, 405 (E.D. Pa. 2002) (explaining that although Pennsylvania courts have not yet addressed the issue, federal courts have consistently held that no private cause of action for damages is available under the Pennsylvania Constitution); Kelleher v. City of Reading, No. 01-3386, 2001 WL 1132401, at * 3 (E.D. Pa. Sept. 24, 2001) (noting that "the federal courts in this Circuit . . . have concluded that there is no such private cause of action for damages under the Pennsylvania Constitution," and citing cases); Pendrell v. Chatham Coll., 386 F.Supp. 341, 344 (W.D. Pa. 1974) (rejecting Pennsylvania constitutional claim for damages and noting that plaintiff could cite no authority that implies such a cause of action).
Thus, any claim for damages that Plaintiff is deemed as making under the Pennsylvania Constitution should be dismissed as a matter of law. See Moeller v. Bradford Co., 444 F. Supp. 2d 316, 327 and note 13 (M.D. Pa.)("Pennsylvania has no statutory equivalent to 42 U.S.C. § 1983, which provides a private right of action for a federal constitutional violation.")(Citations omitted).
We shall now discuss the merits of the Motion to Dismiss of Defendants Borough of Palmyra, Matthews, Hunt and Jasinski.
At the outset, we incorporate by reference our recommendations made in our recently filed R&R addressing the Motion to Dismiss of Defendant Williams which we found applicable to all Defendants, namely that Plaintiff fails to state a First Amendment denial of access to courts claim against all Defendants*fn11 , that Plaintiff fails to state a conspiracy claim against all Defendants, and, as the present Defendants point out (Doc. 18, p. 16), that the individual Defendants are entitled to absolute immunity with respect to any testimony they gave against Plaintiff in the state court proceedings related to the criminal charges Defendant Matthews filed against Plaintiff. (See Doc. 31).
We now address Defendants' arguments seriatim.*fn12 Defendants state that Palmyra Borough Police Department is not an entity subject to suit in a civil rights action. (Doc. 18, pp. 4-5). Initially, as stated, we find that Plaintiff has only named the Borough of Palmyra as a Defendant. (Doc. 1, p. 1 & pp. 3-4, ¶9. a.). However, in Count I of the Complaint, Plaintiff states specific claims against Defendant Borough of Palmyra Council and Borough of Palmyra Police Department.
(Id., pp. 13-16). In any event, we agree with Defendants that the Borough of Palmyra Police Department as well as the Borough of Palmyra Council, as subunits of city government, are not proper party Defendants in this civil rights action. See D'Altilio v. Dover Twp., 2007 WL 2845073, *3(M.D. Pa.)("Defendant municipal police department is redundant of Defendant borough because department was merely the vehicle through which the borough conducts its police activities." "[A] Plaintiff cannot maintain a suit against both a local government and its constituent departments and agencies.")(citations omitted). Thus, "[f]or purposes of assessing civil liability, a subunit of a local government is identical to the local government itself." Id. (citations omitted).
Therefore, we find that the only proper governmental entity Defendant in this case is Palmyra Borough. To the extent that Plaintiff is deemed as naming the Borough of Palmyra Police Department and the Borough of Palmyra Council as Defendants herein, we will recommend that they be ...