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Lindenbaum v. Erenius

June 9, 2010


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



This matter is before the Court on Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 5).Plaintiff filed a Brief in Opposition (Doc. No. 6) and the Court held a hearing on the Motion on May 19, 2010. Upon consideration of the parties' briefs, exhibits, and oral arguments, and after an independent review of the allegations in the Complaint, Defendants' Motion to Dismiss will be granted and Plaintiff's Complaint will be dismissed.


On January 22, 2010, Plaintiff filed a Complaint against Defendant Warminster Township (hereinafter "Defendant Township"), and Defendant David Erenius (hereinafter "Officer Erenius"), a Warminster Township Police Officer, alleging violations of Plaintiff's civil rights under 42 U.S.C. § 1983 and the Fourth Amendment to the United States Constitution.

Count One alleges that Officer Erenius violated Plaintiff's Fourth Amendment right not to be subject to unreasonable seizures. Plaintiff alleges that Officer Erenius drafted an affidavit of probable cause which led to his arrest, when, in fact, there was no probable cause. (Compl. ¶¶ 27-32.) Officer Erenius is sued in Count One only in his individual capacity. Count Two alleges that Defendant Township violated Plaintiff's Fourth Amendment rights by either (1) failing to train its police officers, or inadequately training its officers, on the proper legal standard applicable to affidavits of probable cause, or (2) inadequately supervising its officers which allowed them to continue to violate the rights of citizens despite any training afforded to them. (Id. at ¶ 36-39.)

The crux of this dispute centers upon an affidavit of probable cause drafted by Officer Erenius. This affidavit led to the issuance of an arrest warrant by a duly authorized magistrate for the arrest of Plaintiff for the crimes of terroristic threats (18 Pa.C.S. § 2706(a)(1)), harassment (18 Pa.C.S. § 2709(a)(4)), and criminal conspiracy to promote or facilitate the crime of terroristic threats (18 Pa.C.S. § 903).*fn1 (Id. at ¶ 20.)

The affidavit of probable cause, prepared by Officer Erenius, states in full:


On January 5, 2008 at approximately 2230 hrs, I was on duty and in full uniform operating a fully marked patrol vehicle. I was dispatched via Bucks County Radio Room to [an address in] Warminster Township, Bucks County, for the report of threats via phone by a know [sic] subject.

On scene I spoke with Michael Losse who stated he had two messages on his cell phone, in which he could hear both Andrew and Scott Lindenbaum's voice. He stated the messages were threatening in nature. I asked if he felt the Lindenbaum's [sic] would follow through with the threats and he stated he was afraid they would. Losse stated he was afraid they would show up at the fire house or his home. He told me some friends informed him Scott Lindenbaum had a hand gun he carried in his car.

I asked Losse if he knew why these messages were being left for him. He told me Scott Lindenbaum is dating his ex girl friend Ashley Hughes. Losse stated he had been trying to speak with Hughes and Lindenbaum was upset about that. At this point I listened to both messages.

Message #1 2231 hours, 1/5/08: Mike it would be, it would behove [sic] you to never say the name Scott Lindenbaum or Ashley Hughes again, (you f**king co*k sucker)*fn3 , Listen all I'm going to say is I don't know you, you don't know me but I know you. Alright listen, if you ever say the name Scott Lindenbaum or Ashley Hughes again it's not going to be in your best interest, (f**k you in the a*s in front of your mother you douche) f**king you in the a*s in front of your mother would be the best thing that could f**king happen to you. Don't f**king ever say the name Scott Lindenbaum or Ashley Hughes again, you hear me you f**king piece of sh*t. You want f**king say his name again your [sic] going f**king be sleeping on the ground tomorrow night you, you hear you piece of sh*t don't you f**king talk sh*t. Call ended.

Message #2 2232 hours, 1/5/08: Listen up dog, I don't f**king know you, but I already don't f**king like you mother f**ker. Alright your [sic] talking about my brother, I love my f**king brother. Alright you f**king call you f**k, go near my brother or his girlfriend or him, I'll f**king cut your balls off, cut your f**king neck open and pull your f**king tongue out like you were some f**king dirty hodge mother f**ker. Alright I've killed more people than you've had f**king birthdays mother f**ker. Alright, don't f**k with this sh*t alright. Don't f**k with this sh*t alright. I'll come to your house by my f**king self and (un audible) and all your f**king friends and rape your a*s mother f**ker. I'll f**k you in the a*s in front of your f**king mother, mother f**ker. Alright, try this sh*t, try this sh*t, it would behove [sic] you to shut the f**k up and go live up with your life mother f**ker. Alright move the f**k on bi*ch, some girl dumped you, mother f**ker, become a f**king man, cowboy the f**k up and go f**k some other bi*ch you pathetic mother f**ker. Call ended.

Investigation revealed message #1 was left by [Mr. Cherry]*fn4 and message #2 was left by Andrew Lindenbaum. [Mr. Cherry] reported to the Warminster Police department on 01/07/08 at approximately 2300 hours. I informed [Mr. Cherry] that he was speaking to me by his own free will and that he could leave at any time. He stated he understood. I played the first message for him and asked if he knew who left the message and he stated "I did." I then played the second message for him and asked if he knew who left that message and he stated it was Andrew Lindenbaum. (Def.'s Motion to Dismiss, Ex. 3 "Affidavit of Probable Cause.")*fn5

Thus, as stated in the affidavit of probable cause, the events giving rise to the Complaint began on January 5, 2008. (Compl.,¶ 7.) At approximately 10:30 p.m. that evening, Officer Erenius was dispatched toan address in Warminster Township where the resident, Michael Losse (hereinafter "the complainant") reported receiving the two threatening telephone messages transcribed above. (Id. at ¶¶ 7-8.) When Officer Erenius arrived at the scene, he listened to the messages. (Id. at ¶ 8.) The callers were men, but they did not identify themselves in the messages. (Id. at ¶ 11, 13.) The only names mentioned in the messages were those of the complainant, Plaintiff, and Plaintiff's girlfriend (Ashley Hughes), who had previously been the complainant's girlfriend.

At approximately 11:00 p.m., Officer Erenius called Plaintiff and asked him "what was going on," without informing Plaintiff about the existence of the threatening messages. (Id. at ΒΆ 14.) Plaintiff informed Officer Erenius that he did not know what the officer was referring to. (Id.) Officer Erenius began to argue with Plaintiff and told him he was just "some rich boy that thinks he can do whatever he wants." (Id.) Throughout this ...

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