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Bane v. City of Philadelphia

June 18, 2010

MICHAEL BANE, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS.



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

OPINION

Plaintiff Michael Bane brings this civil rights action against fifteen (15) Defendants, including the City of Philadelphia. Presently before this Court are Defendants' Motions to Dismiss. For the reasons that follow, Defendants' Motions will be granted in part and denied in part.

I. BACKGROUND AND PROCEDURAL HISTORY

On June 22, 2009, pro se Plaintiff Michael Bane commenced this civil rights action under 42 U.S.C. § 1983 alleging violations of the Second and Fourth Amendments of the United States Constitution; the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 ("RICO"); several provisions of the Pennsylvania Constitution; and the Pennsylvania common law. Defendants are, among others, the City of Philadelphia, Police Commissioner Charles H. Ramsey, Chief Inspector Anthony Dilacqua, Lieutenant Lisa King, Officer David Pinkerton, and Officer Richard Brehant (hereinafter, "City Defendants"). The individual Defendants are sued in their official and personal capacity.

Plaintiff also brought this action under § 1983, RICO and the Pennsylvania Constitution against Commonwealth of Pennsylvania Attorney General Thomas W. Corbett, Jr., Pennsylvania State Police Commissioner Frank Pawlowski, and Special Agents Charles Meissner and Eileen Bonner of the Pennsylvania State Police (hereinafter, "Commonwealth Defendants") in their official and personal capacity. (Doc No. 1). Plaintiff seeks money damages and injunctive relief in the form of the return of his firearms.

On July 17, 2009, Plaintiff filed an Amended Complaint, changing the name of Defendant "Philadelphia Police Department" to "City of Philadelphia Police Department." (Doc. No. 4).*fn1

Thereafter, City Defendants filed an Answer with Affirmative Defenses (Doc. No. 8). On August 25, 2009, Commonwealth Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 9). Plaintiff filed a Response in Opposition to Commonwealth Defendants' Motion to Dismiss the Amended Complaint (Doc. No. 10). On December 2, 2009, the Court held a hearing on Commonwealth Defendants' Motion.

On January 5, 2010, Plaintiff filed a Motion for Leave to File a Second Amended Complaint to Join Additional Defendants (Doc. No. 19). Neither the Commonwealth Defendants nor the City Defendants opposed this Motion (Doc. No. 20). On January 26, 2010, the Court granted Plaintiff's Motion and ordered Plaintiff to file a Second Amended Complaint within twenty-one (21) days (Doc. No. 23). The Court also ordered Defendants to move or otherwise respond to Plaintiff's Second Amended Complaint within fourteen (14) days of service of the amended pleading (Doc. No. 23).

On February 12, 2010, Plaintiff filed a Second Amended Complaint naming as additional City Defendants Philadelphia Police Department employees Sergeant Benjamin Frazier, Detective Robert Zielinski, Captain David Harte, Inspector Jeanette Lake Dooley and Officer Daniel Gorman. These individual Defendants are also sued in their official and personal capacity (Doc. No. 28). After the Second Amended Complaint was filed, the Court denied as moot Commonwealth Defendants' Motion to Dismiss the First Amended Complaint (Doc. No. 31).

On March 2, 2010, City Defendants filed a Motion to Dismiss portions of Plaintiff's Second Amended Complaint under Fed. R. Civ. P. 12(b)(6) (Doc. No. 29)*fn2 as well as an Answer to the Second Amended Complaint with Affirmative Defenses (Doc. No. 30). By March 15, 2010, Commonwealth Defendants failed to move or otherwise respond to Plaintiff's Second Amended Complaint. On that day, Plaintiff filed a Request For Default to be entered against Commonwealth Defendants for failure to respond (Doc. No. 33). The next day, however, Commonwealth Defendants filed a Motion to Dismiss Plaintiff's Second Amended Complaint in its entirety (Doc. No. 34). Commonwealth Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint is nearly identical to Commonwealth Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. On March 24, 2010, the Court denied Plaintiff's request to enter default against Commonwealth Defendants in view of their filing of the Motion to Dismiss (Doc. No. 38).

In addition, on March 21, 2010, Plaintiff filed a Motion to Strike Commonwealth Defendants' Motion to Dismiss as untimely filed (Doc. No. 36). On March 29, 2010, Commonwealth Defendants filed a Response in Opposition to the Motion to Strike (Doc. No. 40), to which Plaintiff filed a Reply (Doc. No. 41). On April 5, 2010, the Court denied Plaintiff's Motion to Strike Commonwealth Defendants' Motion to Dismiss (Doc. No. 43).*fn3

Currently before the Court are Motions to Dismiss Plaintiff Michael Bane's Second Amended Complaint filed by City Defendants (Doc. No. 29) and by Commonwealth Defendants (Doc. No. 34). Both Motions to Dismiss were filed pursuant to Fed. R. Civ. P. 12(b)(6). On March 8, 2010, Plaintiff filed a Response in Opposition to City Defendants' Motion to Dismiss (Doc. No. 32). On March 28, 2010, Plaintiff filed a Response in Opposition to Commonwealth Defendants' Motion to Dismiss (Doc. No. 39). For the reasons that follow, the Court will grant in part and deny in part City Defendants' Motion to Dismiss (Doc. No. 29) and will grant in its entirety Commonwealth Defendants' Motion to Dismiss (Doc. No. 34).

II. STATEMENT OF FACTS

A. June 24, 2008 Arrest

Plaintiff's claims stem from an incident with his neighbors and law enforcement officials on June 24, 2008, and shortly thereafter. On that date, Plaintiff, a Philadelphia resident, asserts he was placed in a state of anxiety and fear because of an impending assault by his next-door neighbor, Angel Quinones. (Pl. Sec. Am. Compl., ¶¶28-34.) Plaintiff and Quinones have a history of engaging in neighborly altercations regarding, inter alia, a shared porch and Quinones' dog. (Id., ¶29.) On June 24, 2008, after one such confrontation, Plaintiff alleges he heard and saw Quinones and another individual peering through Plaintiff's window, as if they were about to break into the house "for the purpose of assaulting" Plaintiff. (Id., ¶¶30-31.) To confront the two men, Plaintiff opened the inside door in the back of his house, while keeping the screen door closed and locked. (Id., ¶32.) At that time, the two men threw an unknown red liquid on Plaintiff. (Id.) Fearing that the two men intended to seriously injure him, Plaintiff brandished his alleged lawfully-owned handgun. (Id.) Quinones and his companion then retreated to Quinones' home next-door. (Id.)

Defendants Philadelphia Police Officers David Pinkerton and Daniel Gorman arrived at Plaintiff's home after Quinones' mother called the authorities. (Id., ¶34.) The Officers entered Plaintiff's home and asked for his version of the incident with Quinones. (Id.) Thereafter, the Officers removed Plaintiff from his home, seized Plaintiff's handgun, ammunition and two speed loaders, and transported him to the Fifteenth District police station. (Id., ¶¶35, 40.) Once at the police station, Defendant Police Detective Robert Zielinski spoke with Officers Pinkerton and Gorman and charged Plaintiff with aggravated assault, simple assault, reckless endangerment, terroristic threats, possession of an instrument of crime, carrying a concealed firearm without a license, carrying a firearm on a public street in Philadelphia, and criminal trespass. (Id., ¶36.) The criminal complaint against Plaintiff was eventually dismissed after Quinones failed to appear at several preliminary hearings. (Id., ¶4.)

While in police custody, Plaintiff was approached by Defendants Special Agents Charles Meissner and Eileen Bonner of the Philadelphia Gun Violence Task Force, a unit of the Pennsylvania Office of the Attorney General. Plaintiff agreed to surrender a second gun and seven boxes of .38 special ammunition. (Id., ¶47.) Plaintiff signed a consent form allowing Special Agents Meissner and Bonner to search Plaintiff's house and seize these items. (Id.)

On December 3, 2008, Plaintiff wrote a letter to Defendant Police Commissioner Charles Ramsey asking for the second gun to be returned. Defendant Police Lieutenant Lisa King responded to Plaintiff's letter informing him that an investigation would be conducted and that all future inquiries should be directed to Defendant Police Officer Richard Brehant. (Id., ¶50.) On February 17, 2009, Defendant Lieutenant King wrote a letter to Plaintiff informing him that the City of Philadelphia would not return the firearm and ammunition. (Id.)

On December 17, 2008, Plaintiff filed Philadelphia Police Internal Affairs Complaint No. 08-666, accusing Officer Pinkerton of aggravated assault, kidnapping, official oppression and theft of a handgun. (Id., ¶42.) On February 19, 2009, Plaintiff amended the Internal Affairs Complaint, accusing Lieutenant King and Officer Brehant of stealing Plaintiff's firearm and ammunition. (Id., ¶51.) On April 20, 2009, Defendant Philadelphia Police Inspector Anthony DiLacqua "exonerated Pinkerton of any wrongdoing" and informed Plaintiff of the decision. (Id.) In the Second Amended Complaint, Plaintiff names as Defendants Philadelphia Police Sergeant Benjamin Frazier, Inspector Jeanette Lake Dooley, and Captain David Harte, all of whom allegedly aided Inspector DiLacqua in making his decision regarding Plaintiff's complaint against Officer Pinkerton. (Id., ¶44.)

B. Plaintiff's Second Amended Complaint

In the Second Amended Complaint, Plaintiff brings claims set forth in nineteen (19) counts against fifteen (15) named Defendants. City Defendants move to dismiss Counts Two, Three, Six, Nine, Eighteen, and Nineteen of Plaintiff's Second Amended Complaint, and all claims for monetary relief under the Pennsylvania Constitution. Commonwealth Defendants move to dismiss all claims against them, i.e., Counts Two (Fourth Amendment Claim), Three (Second Amendment Claim), Five (Pa. Constitution Article 1, §1 Claim), Six (RICO Claim), Sixteen (Interference with Real Property Claim), Seventeen (Gun Registry claim under 18 Pa.C.S.A. § 6111.4), and Nineteen (Punitive Damages). The Court, in turn, will describe only the Counts currently at issue.*fn4

In Count Two, Plaintiff alleges against all individual Defendants except Defendant Pawlowski a violation of the Fourth Amendment to the United States Constitution and Article 1, §8 of the Pennsylvania Constitution. Plaintiff claims that these Defendants committed an "unreasonable seizure" of Plaintiff because Defendants detained, arrested, and charged Plaintiff despite Plaintiff's alleged innocence. Furthermore, Plaintiff claims that individual Defendants failed to return his property in violation of the same sections of the United States and Pennsylvania Constitutions.

In Count Three, Plaintiff alleges a violation of the Second Amendment to the United States Constitution and Article 1, §21 of the Pennsylvania Constitution against all individual Defendants except Defendant Pawlowski. Plaintiff alleges that Defendants violated his right to bear arms when they unlawfully seized Plaintiff's handgun, speed loaders and ammunition. (Id., ¶81.) Under Count Three, Plaintiff explains his theory that individual Defendants were motivated by "their personal opposition to the private ownership of firearms." (Id., ¶82.)

In Count Four, Plaintiff alleges a violation of Article 1, § 26 of the Pennsylvania Constitution against Defendants Pinkerton, Frazier, and Ramsey for discriminating against Plaintiff based on his race. In Count Five, Plaintiff alleges a violation of Article 1, § 1 of the Pennsylvania Constitution against all Defendants for depriving Plaintiff of his freedom, property, reputation, and enjoyment of life's pleasures. (Id., ¶92.)

In Count Six, Plaintiff alleges a violation of RICO, 18 U.S.C. § 1962, against all individual Defendants for conducting a pattern of racketeering activity that affected interstate commerce. (Id., ¶94.) Plaintiff lists as predicate offenses, inter alia, kidnapping and theft. Plaintiff asserts that Officers Pinkerton and Gorman committed robbery against Plaintiff because they seized Plaintiff's property illegally through the use of force. (Id., ¶40.) Plaintiff alleges that Officers Pinkerton and Gorman intentionally, willfully, and maliciously failed to give Plaintiff a property receipt after they seized the weapons in order to "frustrate any efforts on the part of Plaintiff to regain possession of the property." (Id.)

In Count Nine, Plaintiff brings a claim of kidnapping in violation of Pennsylvania common law. (Id., ¶¶99-104; 111-114.) In Count Seventeen, Plaintiff alleges that Commonwealth Defendants maintained and used an illegal gun registry which led to the unlawful seizure of Plaintiff's second handgun, speed loaders and ammunition. (Id., ¶¶ 120-121.) Plaintiff claims that Defendant Pennsylvania State Police Commander Frank Pawlowski and Defendant Pennsylvania Attorney General Thomas Corbett, Jr., controlled and supervised the gun registry. (Id.)

In Count Eighteen, Plaintiff asserts that individual Defendants are subject to personal liability pursuant to the Pennsylvania Subdivision Tort Claims Act, 42 Pa.C.S. § 8550. In this Count, Plaintiff argues that Defendants may not be shielded by the doctrines of sovereign and qualified immunity because their conduct was willful. In Count Nineteen, Plaintiff asserts a claim of punitive damages against all Defendants.

For the reasons that follow, the Court will grant City Defendants' Motion to Dismiss Counts Two, Three, Four, Five, Six, Nine, and Eighteen, and will deny City Defendants' Motion to Dismiss Count Nineteen (in part). The Court will grant Commonwealth Defendants' Motion to Dismiss in its ...


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