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Gale v. Storti

March 19, 2009


The opinion of the court was delivered by: Anita B. Brody, J.



On October 10, 2008, plaintiff Kurt Gale ("Gale") brought this action against defendants Robert J. Storti ("Storti") and Diane Storti (together the "Stortis"), the Borough of Conshohocken, (the "Borough"), the Conshohocken Borough Police Department (the "Department"), Police Chief James Dougherty ("Dougherty"), and Police Officer Shawn Malloy ("Malloy") in the Court of Common Pleas of Montgomery County alleging damages arising out of an altercation on July 31, 2006. On November 12, 2008, the defendants removed this case to the district court. On November 14, 2008, the Borough, the Department, Dougherty, and Malloy (collectively, the "moving defendants") moved to dismiss the claims against them under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for a more definite statement under Federal Rule of Civil Procedure 12(e) (Doc. #3).


On July 31, 2006, Gale was removing his possessions from E.Y. Toads (the "premises"), a restaurant in Conshohocken, Pennsylvania, that he had leased from the Stortis. A lease extension agreement provided that if Gale did not vacate the premises by midnight on July 31, 2006, Storti could "immediately re-enter the premises, change locks, and take possession without any court intervention." (Moving defendants' Motion to Dismiss, Exhibit B, ¶ 5). Robert Storti informed Dougherty of the potential for a dispute with Gale and gave Dougherty documents regarding Storti's authority to evict Gale. Dougherty directed Malloy and two other police officers to accompany Storti to the premises around midnight on July 31, 2006. Malloy, Storti, and the two officers entered the premises without Gale's consent and shortly after midnight ordered Gale to stop removing his belongings and to vacate the premises immediately. When Gale continued to carry his computer away from the premises, Storti blocked his path and asked for assistance from Malloy and the officers. Gale told Storti and Malloy that he was almost finished removing his belongings and would leave within a half an hour to forty-five minutes. Malloy then stood very close to Gale and said loudly that Gale was making him angry and that Gale must leave immediately or he would be arrested for trespass. Storti changed the locks on the premises while Malloy and the other officers watched. Gale vacated the premises without all of his property. Gale never received his property, worth $50,000, from the premises. Gale seeks both punitive and compensatory damages in this action.


According to Fed. R. Civ. P. 12(b)(6), a court must grant a motion to dismiss if the plaintiff fails "to state a claim upon which relief can be granted." In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true the well-pleaded allegations of the complaint and draw all reasonable inferences in the plaintiff's favor. Brown v. Card Serv. Ctr., 464 F.3d 450, 452 (3d Cir. 2006). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss 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) (internal quotations omitted). Some of the claims are brought under 42 U.S.C. § 1983, therefore this Court has jurisdictionunder 28 U.S.C. § 1331.


Under 42 U.S.C. § 1983 ("§ 1983"), a plaintiff may sue any person acting under color of state law who deprives the plaintiff of a constitutional right. Couden v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006). "Although not an agent of the state, a private party who willfully participates in a joint conspiracy with state officials to deprive a person of a constitutional right acts 'under color of state law' for purposes of § 1983." Abbott v. Latshaw 164 F.3d 141, 147 (3d Cir. 1998). Gale concedes that the Department should be dismissed as a defendant and that all claims for punitive damages against the Borough should be dismissed. (Response to Motion to Dismiss, p. 23-24).

A. Count I: Illegal Entry*fn2

Gale claims that the defendants, pursuant to the customs, policies, and practices of the Department and Borough, acted under the color of state law in depriving Gale of "the right to be free from illegal entries, the right to be free from assault, and the right to remove his personal property from the premises, all of which violated the Plaintiff's rights under the Fourth and Fourteenth Amendments to the Constitution of the United States... in violation of § 1983." (Complaint, ¶ 50). In his response to moving defendants' Motion to Dismiss, Gale clarifies that the Fourth Amendment violations alleged are "a seizure of person and property" and that moving defendants allegedly violated Gale's due process rights under the Fourteenth Amendment. Even though Gale did not use the terms "seizure" or "due process" in the complaint when describing the alleged constitutional violations under the Fourth and Fourteenth Amendments, he states in his response that the allegations should have been clear. They were not.

i. Seizure of Person - Fourth Amendment

The Fourth Amendment protects people's right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... " Brown v. Muhlenberg Tp. 269 F.3d 205, 209 (3d Cir. 2001). A person is "seized" under the Fourth Amendment if he or she does not feel free to leave. Shuman ex rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141, 147 (3d Cir. 2005). A seizure occurs whenever a police officer restrains a person's freedom and prevents him or her from walking away. Couden, 446 F.3d at 494 (citing Terry v. Ohio, 392 U.S. 1, 16 (1968)). Here, Gale does not allege that he was not free to leave. Gale asserts that because he did not want to leave the premises, but was forced to, moving defendants seized his person in violation of the Fourth Amendment. Restricting a person's ability ...

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