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Davis v. Malitzki

October 27, 2009


The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge


Before the Court is the Motion of Defendants Stephen B. Malitzki, Jr. and Bethlehem Township ("Moving Defendants") to Dismiss portions of Plaintiff's Second Amended Complaint filed on July 7, 2009, and Plaintiff's Response to the Motion filed on July 24, 2009. For the reasons that follow, the Motion will be partially granted.


On June 15, 2006, Plaintiff and his friend, Kyle Johnston ("Johnston"), went to a party at which Plaintiff was the only African-American present. Second Am. Compl., ¶¶ 11, 15. At some point, Johnston was attacked by Edward Cipressi, Jr. ("Cipressi") and several of Cipressi's friends. Id., ¶¶ 17-19. At the same time that Johnston was assaulted, Plaintiff was attacked by Robert Morrison ("Morrison"). Id., ¶ 20. Morrison hit Plaintiff in the face with a beer bottle. Id., ¶ 21. Joseph Ballangee ("Ballangee") and approximately six to eight friends of Morrison and Ballangee joined the attack, and Plaintiff was thrown to the ground, kicked in the face, stomped on the face, punched in his face and body, and had his hair pulled out of his head. Id., ¶¶ 22, 24. Ballangee and others yelled racial slurs and epithets. Id., ¶ 25.

Plaintiff, fearing the apparent racial motivation behind the attack, defended himself. Id., ¶ 26. At some point, he was able to get a pocketknife free from his pocket. Id., ¶ 27. Holding the pocketknife in a defensive manner, Plaintiff fended off his attackers and he and Johnston fled the party.

Id., ¶ 28. Plaintiff and Johnston went to Johnston's apartment and Plaintiff later returned to New Jersey where he was employed. Id., ¶¶ 29-30. Plaintiff sought medical treatment in New Jersey for the injuries he sustained in the attack, including a concussion. Id., ¶ 31.

On or about the day following the attack, Plaintiff was contacted by Defendant Stephen B. Malitzki, Jr. ("Defendant Malitzki"), a Bethlehem Township detective, about the incident at the party. Id., ¶ 32. Plaintiff agreed to meet with Defendant Malitzki when he returned to the Bethlehem area on June 19, 2006. Id., ¶ 33. Plaintiff met with Defendant Malitzki to tell him about the unprovoked attack on himself and Johnston, but Defendant Malitzki refused review photographs of Plaintiff's injuries or to investigate Plaintiff's claims, instead focusing only on Plaintiff's actions on June 15, 2006. Id., ¶¶ 34, 35-36.

Defendant Malitzki arrested Plaintiff on June 21, 2006, and charged Plaintiff with seventeen offenses, including multiple counts of attempted homicide, aggravated assault, simple assault, and reckless endangerment of another person. Id., ¶ 37-38, 41. Because Plaintiff is African-American, Defendants focused on attempting to build or find evidence against Plaintiff rather than trying to determine the truth, that Plaintiff and Johnston were assaulted by multiple Caucasian individuals and acted in self-defense. Id., ¶ 39. Defendant Malitzki testified at Plaintiff's bail hearing that Plaintiff was a bail risk due to his job in New Jersey and Plaintiff's bail was set at $500,000 "straight" bail. Id., ¶ 43. Plaintiff was unable to pay the bail and was held in the Northampton County Prison for seventeen months pending trial. Id., ¶ 44, 47.

In November, 2007, after a jury trial that lasted one and one-half weeks, during which testimony characterizing Plaintiff as the aggressor during the June 15, 2006 attack was proffered from Cipressi, Morrison, Ballangee and others, Plaintiff was found not guilty of twelve criminal counts against him. Id., ¶ 50-52. The jury returned a hung verdict on the remaining five counts against Plaintiff, and those five counts were officially dropped on May 7, 2008, when a "nolle prosse" order was entered. Id., ¶ 52-53. Plaintiff filed a pro se Writ of Summons in the Northampton County Court of Common Pleas on June 13, 2008.*fn2 Id., ¶ 54.

Plaintiff's counsel filed a Complaint in this Court on February 20, 2009. The case was assigned to the Honorable Lawrence F. Stengel. On March 5, 2009, the Defendants filed their first motion to dismiss. On March 23, 2009, Plaintiff filed his First Amended Complaint, and Judge Stengel dismissed the first motion to dismiss as moot on March 31, 2009. On April 7, 2009, the Defendants filed a motion to dismiss the First Amended Complaint. On April 17, 2009, Plaintiff filed a motion for leave to file a second amended complaint and to stay response deadlines for the motion to dismiss. Northampton County, which was then a Defendant, filed a motion to dismiss on May 1, 2009. Judge Stengel held a telephonic conference which was not placed on the record on May 11, 2009. On May 12, 2009, Judge Stengel entered an order granting Plaintiff's motion for leave to file a second amended complaint and dismissing the pending motions to dismiss without prejudice as moot.*fn3

On May 26, 2009, Plaintiff filed a notice of filing his Second Amended Complaint. The consent and order executed by Judge Stengel referring this case to the undersigned to conduct all further proceedings pursuant to 28 U.S.C. § 636 (c) was also filed on May 26, 2009. On June 30, 2009, Plaintiff filed his Second Amended Complaint in which he omitted Defendants Bethlehem Township Police Department and Northampton County. Accordingly, both Bethlehem Township Police Department and Northampton County were terminated from this case on June 30, 2009. Plaintiff's Second Amended Complaint contains the following eight claims: (1) Civil Rights Violation - Malicious Prosecution against Defendant Malitzki (Count I); (2) Civil Rights Violation - Selective Prosecution against Defendant Malitzki (Count II); (3) Civil Rights Violation - False Arrest against Defendant Malitzki (Count III); (4) Civil Rights Violation - False Imprisonment against Defendant Malitzki (Count IV); (5) Civil Rights Violation -Monell against Defendant Bethlehem Township (Count V); (6) Civil Rights Violation - Conspiracy against All Defendants (Count VI); (7) State Law Claim - False Arrest/Imprisonment against Defendant Malitzki (Count VII); and (8) State Law Claim - Malicious Prosecution against Defendant Malitzki (Count VIII).

On July 7, 2009, the Moving Defendants filed the instant Motion to Dismiss. Plaintiff filed his Response to the Motion on July 24, 2009.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When considering a motion to dismiss, the court must accept as true all factual allegations in the Complaint and view all inferences to be drawn from the allegations in the complaint in the light most favorable to the non-moving party. Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). A court should grant a Rule 12(b)(6) motion only if it appears to a certainty that no relief could be granted under any set of facts that could be proved. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d. Cir. 2005)(quoting D.P. Enters., Inc., v. Bucks County Cmty., 725 F2d 943, 944 (3d Cir. 1984)). The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) sets forth the current standard for adequately pleading a claim. Under Twombly, a party must, in the complaint, "allege facts suggestive of the proscribed conduct" instead of alleging "mere elements of a cause of action." Phillips, 515 F.3d at 233 (quoting Twombly, 550 U.S. at 563 n.8).

The Supreme Court reaffirmed and clarified the Twombly standard in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The Court explained that although a plaintiff is not required to make "detailed factual allegations," Federal Rule 8 demands more than an "unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 1949. A complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Id. at 1949 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the plaintiff pleads sufficient factual content to allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ...

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