Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shotko v. City of Wilkes-Barre

May 11, 2009

KURT J. SHOTKO, PLAINTIFF
v.
THE CITY OF WILKES-BARRE, PENNSYLVANIA, GERRY DESSOYE, THOMAS LEIGHTON, MAYOR, JOHN J. MURPHY, CITY ADMINISTRATOR, THE POLICE DEPARTMENT OF THE CITY OF WILKES-BARRE, CAPTAIN DONALD CRANE, OFFICER ALBERT RODRIGUEZ, OFFICER DWAYNE PRICE, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court is defendants' motion to dismiss the instant complaint. Having been fully briefed, the matter is ripe for disposition.

Background

This case arises out plaintiff's March 10, 2005 arrest during the St. Patrick's Day Parade held in Wilkes-Barre, Pennsylvania. (Complaint (hereinafter "Complt.") (Doc. 1) at ¶ 2). On that day, plaintiff arrived at the scene of the Wilkes-Barre parade and proceeded to protest peacefully the policies of then-president George W. Bush. (Id. at ¶ 2, p. 3, ¶ 1). When plaintiff first encountered Captain Donald Crane of the Wilkes-Barre Police, Crane gave him a "thumbs up" sign but ordered plaintiff to keep moving along the sidewalk. (Id. at p. 3, ¶ 1). Crane informed plaintiff that if he failed to keep moving he would violate the law by obstructing a sidewalk. (Id.).

Defendant John J. Murhpy soon approached plaintiff to demand that he stop walking along the sidewalk towards the parade reviewing stand. (Id. at p. 3, ¶ 2). When plaintiff demanded that Murphy explain his authority to prohibit plaintiff from walking along the sidewalk, Murphy refused and instead made a cell phone call, simultaneously refusing to allow the plaintiff to continue on his walk. (Id.).

About one minute later, Defendants Police Officer Al Rodriguez and Police Officer Dwayne Price appeared on the scene. (Id. at p. 3, ¶ 3). Instead of discussing the situation with the plaintiff, the two officers pushed the plaintiff to the ground, breaking the sign he was carrying. (Id.). Officer Price then pushed plaintiff into a large glass window, even as plaintiff shouted "I am not resisting you." (Id. at p. 3 ¶ 4). The officers then took plaintiff to the station, "for processing and harassment," and then released him. (Id.). The police report apparently indicated that plaintiff "was carrying signs critical of the Bush administration" when arrested. (Id. at p. 3, ¶ 5).

Plaintiff filed the instant pro se complaint and motion to proceed in forma pauperis on April 7, 2008. The complaint does not set out specific causes of action, but alleges that defendants "engaged in content and viewpoint discrimination by placing plaintiff under false arrest." (Id. at ¶ 2). Plaintiff contends that this action violated his First Amendment rights. His complaint seeks a permanent injunction barring the City of Wilkes-Barre from arresting peaceful protestors and compensatory and punitive damages.

Jurisdiction

As this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Legal Standard When analyzing a 12(b)(6) motion to dismiss, all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-666 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994)(citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The complaint is properly dismissed "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-521 (1972)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

Discussion

Defendants raise several grounds for dismissing the complaint. The court will address each in turn, as appropriate. As an initial matter, the court concludes that the complaint attempts to state a claim pursuant to 42 U.S.C. § 1983 for a violation of plaintiff's First Amendment rights, as well as a claim for false arrest and malicious prosecution. Because the plaintiff is proceeding pro se, the court has read the complaint broadly in an attempt to do substantial justice.

a. Statute of Limitations

i. First Amendment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.