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Perez v. Borough of Berwick

April 28, 2009


The opinion of the court was delivered by: (Judge McClure)



On December 19, 2007, plaintiffs, Elvis Perez and Rosa Perez, individually, and on behalf of minors William Perez and Larry Perez, instituted this civil action by filing a complaint. On September 2, 2008, plaintiffs filed an amended complaint. Defendants are the Borough of Berwick, Columbia County, Heather Rood, Troy Maneval, Roger Bodwalk, Steve Levan, Greg Martin, Christopher Wilson, Tiffany Panetta, Patrick Cawley, Kimberly Mullings, David Christino, and two John Doe Agents of the Bureau of Immigration and Customs Enforcement ("ICE").

Plaintiffs allege in their complaint Illegal Entry in violation of 42 U.S.C. § 1983 against all defendants (Count I), Illegal Search in violation of 42 U.S.C. § 1983 against all defendants (Count II), Illegal Seizure in violation of 42 U.S.C. § 1983 against all defendants (Count III), Due Process violation of 42 U.S.C. § 1983 against all defendants (Count IV), violation of 42 U.S.C. § 1983 against all defendants (Count V), violation of 42 U.S.C. § 1981 against all defendants (Count VI), violation of 42 U.S.C. § 1985(3) against all defendants (Count VII), violation of 42 U.S.C. § 1986 against all defendants (Count VIII), violation of 42 U.S.C. § 1982 against all defendants (Count IX), a Bivens claim against defendants Cawley, Mullings, Christino, John Doe 1 and John Doe 2 (Count X), a Monell claim against the Borough of Berwick (Count XI), and a Monell claim against Columbia County (Count XII).

On November 10, 2008 defendants Columbia County and Tiffany Panetta filed a Motion to Dismiss the Amended Complaint as to them. (Rec. Doc. No. 26). They filed their supporting brief on November 20, 2008. (Rec. Doc. No. 30). Plaintiffs were granted an extension of time to file their opposing brief, which was then timely filed on January 5, 2009. (Rec. Doc. No. 34). Defendants filed their reply brief on January 14, 2009 (Rec. Doc. No. 35); thus the matter is ripe for disposition.

Now therefore, for the following reasons, we will deny defendant Panetta's motion to dismiss and will deny without prejudice defendant Columbia County's motion to dismiss. We will grant plaintiffs leave to amend their amended complaint as to their Monell claim.


I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007).

In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the.claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965.

The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.

II. Allegations in the First Amended Complaint

Taking as true all of the allegations in the first amended complaint, the facts are as follows. Rosa Perez, Elvis Perez, and Rosa's two children, William Perez and Larry Perez were residing at 1207 Fourth Avenue, Berwick on March 21, 2007. William and Larry are minors; Larry has cerebral palsy. At four a.m. Rosa and Elvis were awakened by the sound of pounding at the front door. Rosa opened the door slightly, and was pushed aside by some of the defendants who swarmed the living room. Twelve law enforcement officers entered the home, all but three of whom wore black masks covering their faces. No plaintiff gave consent to enter, search or seize persons or property in the home.

Elvis asked if the officers had a search warrant. Defendants did not answer the question, and no search warrant was produced. Elvis was handcuffed and was asked to produce his green card. Elvis told the officers he is a United States citizen. The officers asked for proof, and Elvis provided a birth certificate and social security card, which were taken by an ICE agent, and have yet to be returned. A police officer told Elvis that there were two outstanding bench warrants for his arrest for traffic violations from August 2006. Elvis was never shown a bench warrant.

A police officer asked the other plaintiffs for their green cards, and an ICE agent told plaintiffs ICE had received a tip that there were illegal aliens residing at that residence. Defendants were asking for Eric and Luis Meniogia [sic]*fn1 . The Perez's explained that they did not know the Meniogias and the Meniogias had never lived there. A police officer also asked Elvis if Elvis's brother, Jose, had immigration papers, and instructed Elvis to tell Jose, who was not present during the raid, to bring his immigration papers to the police station for review. Defendants ransacked the house and damaged property during their search.

Larry, Rosa's child with cerebral palsy, was very upset by the defendants. He was in his bed crying, and officers refused Rosa's first request to move to comfort her son. Larry has suffered from emotional distress because of these events. His teacher reported that he was very upset the next day at school. Larry also is now frightened of uniformed law enforcement officers and anyone knocking on the front door.

Elvis Perez was taken into custody, detained, and questioned. Apparently, Elvis was not in Pennsylvania at the time of the traffic violations, had no knowledge of them, and has since been acquitted of the charges.

III. Analysis

Defendants Columbia County and Tiffany Panetta, a parole officer with the Columbia County Probation Department, filed the instant motion to dismiss. These defendants assert that a bench warrant for arrest was issued by a Court of Common Pleas Judge for Erik Mayorga, who was listed as living at 1207 Fourth Avenue, Berwick - the same address as the plaintiffs. The bench warrant was issued because Mayorga failed to appear for an Advanced [sic] Rehabilitative Disposition ("ARD") revocation hearing. Defendants further assert that while at the home, after discovering the identity of Elvis Perez, they ran a search and found two outstanding bench warrants for traffic violations.

Defendants' motion to dismiss asserts that Panetta is entitled to absolute, quasi-judicial immunity and qualified immunity. Defendants assert that the 42 U.S.C. § 1986 claim is barred by the statute of limitations. Defendants further assert that plaintiffs failed to state a claim of conspiracy, and failed to state a Monell claim against defendant Columbia County. Defendants also moved in the alternative for a more specific complaint.

1. Absolute, Quasi-Judicial Immunity

The Supreme Court has been "quite sparing" in recognizing absolute immunity; it is only justified when the danger of the officials' being deflected from effective performance of their duties is very great. See Burns v. Reed, 500 U.S. 478, 487 (1991), see also Forrester v. White, 484 U.S. 219, 230. The Supreme Court has refused to extend absolute immunity "any further than its justification would warrant." Burns, 500 U.S. at 487. "The immunities for judges, prosecutors, and witnesses established by [case law] have firm roots in the common law." Mitchell v. Forsyth, 472 U.S. 511, 521 (1985) (holding that the United States Attorney General is not absolutely immune from suit for damages arising out of allegedly unconstitutional conduct in performing national security functions). "[T]he mere threat of litigation may significantly affect the . . . performance of duty by actors in the judicial process." Id. at 522. "[M]ost of the officials who are entitled to absolute immunity from liability for damages are subject to other checks that help prevent abuses of authority from going unredressed." Id. at 523.

There is a long standing history in common law of granting absolute immunity to judges, prosecutors, legislators, and jurors when acting within the scope of their duties. See Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009). "The presumption is that qualified, rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." Burns, 500 U.S. at 486-487. The Supreme Court has "refused to extend [absolute immunity] any further than its justification would warrant." Id. "Absent a tradition of immunity comparable to the ...

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