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Binder v. Kenderski

September 4, 2009

SHIRLEY BINDER, PLAINTIFF
v.
MICHAEL T. KENDERSKI, ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Pro se plaintiff Shirley Binder alleges she was injured and suffered a violation of her civil rights when Allentown Police Officer Michael Kenderski arrested her for driving under the influence. Based on this event, Binder filed a complaint containing claims of false imprisonment and unreasonable seizure against Kenderski and the City of Allentown (City). The City filed a motion to dismiss (Document #7) the counts brought against it. For the following reasons, I will grant the motion.

I. Background*fn1

On or about January 11, 2007, Officer Kenderski was on-duty when he responded to an emergency call from a 7-11 convenience store on South Fourth Street in Allentown, Pennsylvania. (Compl. ¶ 6.) Upon arriving the scene, Officer Kenderski found Shirley Binder who was complaining of being assaulted by a patron at another establishment on Fourth Street. (Id.) Binder alleges she had a two inch laceration above her left eye and had fresh blood on her hands, face and clothes. (Id.)

Kenderski allegedly ignored these potential signs on injury and asked whether Binder had been consuming alcohol. (Id.) He did not call emergency services or attempt to apprehend the alleged assaulter. (Id.) Instead, he left Binder at the scene and told her not to drive home. (Id.)

After waiting for ten minutes, Binder decided to drive to her residence at 628 Skyline Drive in Allentown. (Id.) Officer Kenderski was waiting for her in the parking lot. (Id.) When Binder exited her vehicle, Kenderski exited his and immediately arrested her for driving under the influence. (Id.) Binder spent one night in the Lehigh County Prison. (Id.)

Binder was charged with driving under the influence and public drunkenness. (Id. ¶ 7.) These charges were later withdrawn at the preliminary hearing. (Id. ¶ 8.) Because Binder had refused to submit to chemical testing of blood alcohol concentration, her driver's license was suspended in accordance with Pennsylvania law. (Id. ¶ 9.)

Binder filed her complaint on January 9, 2009, and it contains four counts: (I) false imprisonment against Officer Kenderski; (II) Section 1983 claim against Kenderski; (III) respondeat superior claim against the City; and (IV) a non-specific claim brought against any other individuals who played a role in the events in question and whose identities are currently unknown. (Id. ¶¶ 25--45.) The City of Allentown filed the instant motion to dismiss (Document #7) on March 4, 2009.

Binder is proceeding pro se. On April 29, 2009, the court held a telephonic status conference with the plaintiff and counsel to discuss the request to withdraw submitted by Scott M. Wilhelm, Esquire, counsel for the plaintiff. A follow-up conference was scheduled for June 15, 2009, to discuss the request to withdraw; Binder was told there was a possibility she would be required to proceed pro se, if she was unable to retain new counsel by that date.

During the June 15, 2009 conference, Binder informed the court she had not yet acquired new counsel. Upon consideration of this information and Mr. Wilhelm's formal motion to withdraw, the court granted the motion and stated that Binder would be considered to be proceeding pro se. On June 18, 2009, Ms. Binder was directed to respond to the pending motion by July 15, 2009, the response already being more than ninety days late. As of this date, no response was filed.

II. Standard of review

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 US 544, 127 S.Ct. 1955, 1965 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id. See also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 127 S.Ct. at 1969. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or ...


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