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.

Park v. Veasie

June 9, 2010

MICHAEL PARK AND BRANDY LEE PARK, INDIVIDUALLY AND AS PARENTS AND LEGAL GUARDIANS OF MINOR CHILDREN ERIE PARK, JOSHUA MICHAEL PARK, ELIZABETH MAE PARK, AND DESIREE MARIE TARANTINO, PLAINTIFFS
v.
GARY VEASIE, INDIVIDUALLY AND IN JUDGE SYLVIA H. RAMBO HIS OFFICIAL CAPACITY; OFFICER MICHAEL BOGART, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; OFFICER BRIAN MARKOCHIK, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; AND, THE BOROUGH OF WEATHERLY, DEFENDANTS



MEMORANDUM

Plaintiffs Michael and Brandy Park bring this civil rights case on their own behalf and on behalf of their minor children as a result of Defendants' search of their home on September 18, 2008. Before the court is Defendants' motion to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim. The parties have briefed the issues, and the matter is ripe for disposition.

I. Background

A. Parties

Plaintiffs Michael and Brandy Park are adult individuals residing at 422 2nd Street, Weatherly, Pennsylvania, and are the parents and legal guardians of minor children Joshua Michael Park (age 7), Erie Eugene Park (age 4), Elizabeth Mae Park (age 4), and Desiree Marie Tarantino (age 10). Defendant Gary Veasie is an adult individual and the chief of police for the Borough of Weatherly Police Department. Plaintiffs alleges that Veasie was the supervisor of all police activity, developed and implemented police policy, and was the ultimate authority within the Borough of Weatherly Police Department for the assignment of personnel. Defendants Michael Bogart and Brian Markochik are adult individuals and police officers with the Borough of Weatherly Police Department. The Borough of Weatherly is a municipal subdivision located within the Commonwealth of Pennsylvania.

B. Facts

The following facts are from Plaintiffs' Amended Complaint and are taken as true for purposes of Defendants' motion to dismiss. On September 18, 2008, Veasie responded to a call by the Weatherly Elementary School that suspected drug paraphernalia had been found near, on in the possession of, Joshua Park (age 7). Upon arrival, Defendant Veasie had Joshua Park brought to a conference room for the purpose of interviewing the child. At the time of the interview, Veasie was aware of his obligation to conduct the interview in the presence of a parent or other responsible adult, but nonetheless questioned the child regarding the possession of suspected drug paraphernalia without the presence of either of his parents.

Veasie enlisted the elementary school principal to assist in the interrogation of 7-year old Joshua Park. Veasie interrogated the child for approximately one-half hour, employing a series of suggestive questions, inviting the child to confirm the existence of criminal activity, including that similar drug paraphernalia was inside Plaintiffs' home. Veasie reported that he took a statement from the child, and later had the 7-year old read and sign the statement. After the interrogation, Veasie released the child back to his class and obtained a search warrant for Plaintiffs' residence based only on the information obtained from Joshua Park.

Veasie did not contact Michael or Brandy Park to further investigate the child's statements and did not conduct any additional investigation regarding the alleged drug activity. At the time of the interview, Veasie was familiar with Plaintiffs' family, and had personal animus toward Plaintiff Michael Park because of a prior police incident. The prior incident involved Michael Park defending his right to park and store vehicles within the borough on the basis that Veasie had done the same.

Veasie enlisted the assistance of Defendants Bogart and Markochik to conduct the raid of Plaintiffs' house. Veasie knew at the time he selected them that Bogart and Markochik had limited experience in executing search warrants. According to Plaintiffs, it violated standard police procedures to use inexperienced officers to conduct drug raids. At the time he conducted the raid, Veasie knew that small children lived at the house.

At approximately 4:45 p.m. on September 18, 2008,*fn1 Veasie, Bogart and Markochik approached the house with guns drawn. They did not announce their identity, authority or purpose, and instead broke into the front door of the home. The door was hit with such force that the door's window was completely broken. Veasie, Bogart and Markochik entered the house with handguns and shotguns pointed at the Plaintiff children and Brandy Park, and yelled for the occupants of the home to stay still. Veasie, Bogart and Markochik then pointed their guns at Plaintiff Brandy Park and attempted to handcuff her, but ultimately did not do so after she pleaded with Defendants not to handcuff her in front of the children. Eventually, Brandy Park was allowed to sit with the children on a couch in the family room while Defendants searched the house. The search lasted for five hours. During the entire search, an armed police officer guarded Brandy Park and her children.

During the search, Plaintiff Michael Park arrived home from work and was met by Veasie and the other Defendants who handcuffed him with flex cuffs and held him outside. Michael Park was held in full view of his neighbors by Defendants until the search was complete.

Despite employing the use of a drug detection dog, Defendants found no evidence of the presence of unlawful or controlled substances at the house, although they did find two small pipes approximately 2.5 inches long that could be used to smoke a controlled substance. These two pipes were taken by Defendants, but never submitted for laboratory testing.

As a result of the search, Michael Park was charged with possession of drug paraphernalia, but those charges were later dismissed by the Carbon County District Attorney. Shortly after the search and seizure, Veasie received information and a statement from the person who left the two pipes in the home. The individual admitted to owning the pipes and informed Veasie that she left them at Plaintiffs' house while she was a guest there, and that she had done so without the knowledge of either Michael or Brandy Park. As a result of the search, Plaintiffs moved from their home to stay with relatives because their children were terrified to remain there.

C. Procedural History

On October 20, 2009, Plaintiffs filed a complaint in the Court of Common Pleas of Carbon County, Pennsylvania, at Docket No. 09-CV-2782. That complaint asserted claims under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, as well as Pennsylvania common law. On November 6, 2009, Defendants filed a Notice of Removal with this court asserting that the court has original jurisdiction over the claims raised in Plaintiffs' complaint pursuant to 28 U.S.C. §§ 1331 and 1343, and that the action was removable pursuant to 28 U.S.C. § 1441. (Doc. 1.) After removal, Plaintiffs filed an Amended Complaint on December 3, 2009. (Doc. 4.)

In their Amended Complaint, Plaintiffs assert sixteen counts. In Counts I-XII, Plaintiffs assert federal causes of action by stating that Defendants violated Plaintiffs rights protected by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Specifically, in these counts, Plaintiffs assert that Defendants violated Plaintiffs rights of: (1) freedom from unlawful arrest and seizure; (2) freedom from prosecution without probable cause; (3) freedom from unreasonably, unjustifiable, and excessive use of force; (4) not to be deprived of liberty and property without due process; (5) freedom from summary punishment; (6) freedom from arbitrary governmental action; and (7) freedom from governmental retaliation against Plaintiffs' exercise of freedom of speech. In Counts XII - XVI, Plaintiffs asserted supplemental state law causes of action.

On December 22, 2009, Defendants filed a motion to dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action upon which relief can be granted, along with a supporting brief. (Docs. 7-8.) After receiving additional time to do so, on January 19, 2010, Plaintiffs filed their brief in opposition to Defendants' motion to dismiss. (Doc. 16.) No reply brief was filed. On May 3, 2010, this case was reassigned to the undersigned for all further proceedings due to the elevation of the Honorable Thomas I. Vanaskie from this court to the United States Court of Appeals for the Third Circuit. The motion is currently ripe for disposition.

II. Legal Standard

When presented with a motion to dismiss for failure to state a claim, the court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions," Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), and ultimately must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Ashcroft v. Iqbal, ___U.S.___, 129 S.Ct. 1937, 1950 (2009)).

The complaint must do more than allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Fowler, 578 F.3d at 211 (citations omitted). As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a) (alterations in original).) In other words, a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id.

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

Finally, in the Third Circuit, a court must grant leave to amend before dismissing a civil rights complaint that is merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III. Discussion

In their Amended Complaint, Plaintiffs bring both federal and state law claims. All of Plaintiffs' federal claims are brought pursuant to 42 U.S.C. ...


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.