The opinion of the court was delivered by: Judge Munley
Before the court are three motions for summary judgment filed by the defendants pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Docs. 40, 43, 46). The matter is ripe for disposition.
This case arises out of the November 18, 2006 arrest of Plaintiff Samuel Strickland ("Plaintiff"), his brother Craig Strickland, and James E. Rose, Jr. ("Rose") by police officers from the defendant municipalities. (Compl. at ¶ 27 (Doc. 1)). Plaintiff and Craig Strickland had spent that Saturday working to repair the floor of an Allentown nightclub owned by their friend Rose. (Id.) Sometime in the afternoon, Rose asked the Strickland brothers to help him return three dogs to the Carbon County home of Defendant Ralph Fahringer. (Id.) Plaintiff was tired, had been drinking at the club and had not slept much the previous night. (Id.)
Plaintiff fell asleep in the back of the truck on the way to Fahringer's home in Lehighton, Pennsylvania. (Id. at ¶ 30). He remained asleep in the truck when the three men arrived at the Fahringer's home. (Id. at ¶ 31). When Plaintiff woke up, he learned that Defendant Ralph Fahringer had confronted Rose and Craig Strickland with a shotgun and that Rose had dialed 911. (Id. at ¶ 31).
Police from several townships, told by the 911 operator that there was a man at the scene with a gun, responded to the call. (Compl. at ¶ 31; SUF #3 at ¶ 5). The police searched Plaintiff, his companions, and their vehicle for weapons. (Compl. at ¶ 37; SUF #3 at ¶ 6). The Plaintiff and his companions were detained while the police continued their investigation and questioning. (Compl. at ¶¶ 38 - 40; SUF #3 at ¶ 7). Officer Frank Buonaiuto ("Officer Buonaiuto") of the Franklin Township Police Department and Officer Audie Mertz ("Officer Mertz") of the Mahoning Township Police Department asked the Plaintiff to identify himself and Plaintiff provided the false name of "Michael Andrews." (Compl. at ¶ 41; SUF #3 at ¶ 8). When the police realized the name was false they arrested Plaintiff, handcuffed him, and placed him in the back of a police car. (SUF #3 at ¶ 9; Statement of Undisputed Facts of Defendants Franklin Township and Officer Frank Buonaiuto ("SUF #2") at ¶11 (Doc. 45)). Plaintiff admits that the police did not use excessive force. (SUF #2 at ¶ 4). Officer Mertz contacted Assistant District Attorney Greek who approved criminal charges against Plaintiff for providing false identification to a law enforcement officer pursuant to 18 PA. CONS. STAT. ANN. § 4914, false reporting to a law enforcement officer pursuant to 18 PA. CONS. STAT. ANN. § 4906, and criminal trespass pursuant to 18 PA. CONS. STAT. ANN. § 3503. (SUF #3 at ¶¶ 12, 13; Statement of Facts of Carbon County ("SUF #1") at ¶ 3 (Doc. 41)). Approval was also given to arrest and charge Rose. (SUF #3 at ¶ 14).
Plaintiff and Rose were jailed by the Mahoning Township Police. (Compl. at ¶¶ 68 - 72). Plaintiff was arraigned before a Pennsylvania District Court Magistrate who set bail at $1,000.00. (SUF #1 at ¶ 5). Because Plaintiff could not post bail he was taken to the Carbon County Correctional Facility ("CCCF") for incarceration on November 18, 2006 at 11:30 p.m. (Id. at ¶¶ 2, 6). A CCCF processing officer completed an intake form noting that Plaintiff was not taking any medication, was not injured, had no immediate medical needs, and was not in distress. (Id. at ¶¶ 9 - 10). Plaintiff was provided with prison clothing, bedding, and a hygiene kit. (Id. at ¶¶ 19 - 21).
Plaintiff was put in a cell with three other inmates. (Id. at ¶ 11). Plaintiff felt intimidated by these three cell-mates who directed racial slurs at him, but who did not make physical threats towards him. (Id. at ¶ 12). Plaintiff did not complain to CCCF staff about his cell-mates or the conditions of his confinement. (Id. at ¶¶ 13, 15). Plaintiff was served breakfast, lunch, and dinner in his cell and suffered no physical harm. (Id. at ¶¶ 14, 17). Plaintiff admits that no county employee made racists comments during his incarceration. (Id. at ¶ 16). Plaintiff was released on November 19, 2006 at 7:45 p.m. after posting bond, having spent twenty hours at the CCCF. (SUF #1 at ¶¶ 2, 18).
On February 2, 2007 Plaintiff pleaded guilty to providing false identification to a law enforcement officer pursuant to 18 PA. CONS. STAT. ANN. § 4914, a misdemeanor in the third degree. (Id. at ¶ 22). Plaintiff never challenged his guilty plea. (Id.)
On August 22, 2008, Plaintiff filed the instant complaint (Doc. 1) and a motion for leave to proceed in forma pauperis (Doc. 2) in this court. The complaint consists of three counts. Count I, brought pursuant to 42 U.S. §§ 1981, 1982 and 1983 against Defendants Officer Mertz, Officer Buonaiuto, Carbon County Mahoning Township, and Franklin Township, alleges that the defendants violated Plaintiff's constitutional rights. Count II, brought pursuant to 42 U.S.C. § 1985, alleges a conspiracy between Defendants Officer Mertz, Officer Buonaiuto, Carbon County, Franklin Township, Mahoning Township, Ralph Fahringer, and Jessica Fahringer to violate Plaintiff's constitutional rights. Count III alleges supervisory liability pursuant to 42 U.S.C. § 1986 against Defendants Mahoning Township, Carbon County, Franklin Township, and Chief Zenko.*fn1
On October 9, 2008, Defendant Carbon County filed a motion to dismiss the instant complaint. (Doc. 7). On November 7, 2008, the court granted the Plaintiff's motion to proceed in forma pauperis but dismissed Plaintiff's claims for false arrest and excessive bail, as well as his claims against certain defendants. (Doc. 11). The court granted Defendant Carbon County's motion to dismiss with respect to Plaintiff's claim for punitive damages and denied it in all other respects. (Id.) After the court issued this decision, Plaintiff served the complaint on the remaining defendants.
Defendants Mahoning Township, Mahoning Township Police Department, Officer Mertz and Chief Zenko then filed a motion to dismiss on December 5, 2008. (Doc. 15). On December 30, 2008 Defendant Carbon County filed motions to consolidate this action with 3:07cv1305 and 3:08cv1792.*fn2 (Docs. 18, 19). On February 16, 2009, Defendants Franklin Township and Frank Buonaiuto filed an answer to the complaint. (Doc. 27).
On July 8, 2009, this court entered an order (Doc. 33) granting, in part, and denying, in part, the motion to dismiss of December 5, 2008. The motion was granted with respect to Plaintiff's claims against the Mahoning Township Police Department, which was terminated as a party. The motion was granted with respect to Plaintiff's claims for punitive damages against Mahoning Township and against the individual defendants in their official capacities. The motion was granted with respect to Plaintiff's claims against the individual defendants in their official capacities. The motion was denied in all other respects. (Doc. 33).
On August 17, 2009, Plaintiff filed a motion to quash the deposition of James E. Rose. (Doc. 37). The court denied this motion on August 27, 2009. (Doc. 39). Defendant Carbon County filed its motion for summary judgment (Doc. 40) on November 17, 2009. Defendants Franklin Township and Officer Frank Buonaito filed their motion for summary judgment (Doc. 43) on November 24, 2009. Defendants Mahoning Township, Officer Audie Mertz, and Chief Mark Zenko filed their motion for summary judgment (Doc. 46) on November 29, 2009.
On January 25, 2010, the court granted Plaintiff a continuance to afford him an opportunity to meet with an attorney, directing Plaintiff to submit a status report by February 4, 2010 indicating whether or not he would respond to defendants' motions under penalty of having defendants' motions treated as unopposed. (Doc. 55). On February 3, 2010 Plaintiff filed a note stating that he had met with an attorney who was reviewing his case, but giving no indication as to whether briefs in opposition to defendants' motions would be forthcoming. (Doc. 56). Accordingly, this court, on February 5, 2010, ordered Plaintiff to submit briefs in opposition to defendants' motions by February 24, 2010 regardless of whether counsel had been retained, warning again that a failure to submit a brief would result in defendants' motions being treated as unopposed with all factual averments accepted as true. (Doc. 57). Plaintiff has not submitted a brief in opposition to any of defendants' motions for summary judgment ...