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Walthour v. Miller

June 22, 2010

VICTOR JEROME WALTHOUR, SR., PLAINTIFF,
v.
GEORGE MILLER, ET AL., DEFENDANTS.



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

OPINION AND ORDER

I. INTRODUCTION

This case was instituted by pro se Plaintiff, Victor Jerome Walthour, Sr., on November 12, 2009 with the filing of a civil complaint alleging excessive use of force and a violation of his First Amendment right to freedom of speech by Defendants Delaware County Park Police Officer George Miller; Investigator Tom Worrilow (incorrectly captioned as "Tom Warlow"); G. Michael Green (incorrectly captioned as "G. Michael Greene")*fn1; the Delaware County Park Police; and the Honorable Walter Strohl, Judge of Pennsylvania Magisterial District Court 32-2-48. On February 18, 2010, Plaintiff filed a "Preacipe to Amend" and "Preacipe to Issue Alias Summons" (Doc. No. 2), which supplements the Complaint with additional factual allegations.*fn2

On April 13, 2010, upon Plaintiff's Motion (Doc. No. 13), Defendant Green was voluntarily dismissed from this suit. (See Dismissal Order at Doc. No. 14.)

Currently before the Court are two Motions to Dismiss on behalf of all of the remaining Defendants. The first Motion to Dismiss (Doc. No. 7) was filed on behalf of Defendants Miller, Worrilow, and Delaware County (on behalf of the Delaware County Park Police). The second Motion to Dismiss (Doc. No. 10) was filed on behalf of Defendant Judge Strohl.

Plaintiff filed a Motion (Doc. No. 12) in response to the Motions to Dismiss (hereinafter "Plaintiff's Response in Opposition"), which states in full:

We the people would like to withdraw request for admission, it is not needed to find guilty of crime. We the people would like to deny any further request for dismissal. Attorney's [sic] for Defendants overlooking criminal charges. (Pl.'s Response in Opposition, 1.) The Court will construe this filing as Plaintiff's opposition to Defendants' Motions to Dismiss.

For the reasons that follow, the Court will deny the Motion to Dismiss as to Defendant Miller, and grant the Motions to Dismiss as to all remaining Defendants.

II. FACTUAL BACKGROUND

According to the Complaint, on June 2, 2009, Defendant Miller arrested Plaintiff for using vulgar language and for being loud and disruptive in the hallway of a Delaware County courthouse. (Compl., 7.) Plaintiff allegedly stated "aint this some sh*t" or "this is bullsh*t." Id. Defendant Miller is alleged to have lied in his police complaint by stating that he had to push and shove Plaintiff out of the courthouse because Plaintiff was being unruly. (Id.) The Complaint also states that Defendant Miller used excessive force when he choked Plaintiff and shoved Plaintiff against a wall during the arrest and even when Plaintiff was handcuffed. (Id. at 6-7.) According to the Complaint, Defendant Miller also unsuccessfully attempted to trip Plaintiff so that he would fall down three or four steps while Plaintiff remained handcuffed. (Id. at 7.)

Plaintiff also alleges that Defendant Worrilow assisted Defendant Miller in preparing the complaint against Plaintiff and that Judge Strohl was assigned to preside over the criminal proceedings resulting from Plaintiff's arrest. (Id. at 6 and Exhibits 1-3.) Plaintiff further avers that Defendants Miller and Judge Strohl are racists, but he does not elaborate on or explain this conclusory allegation. (Id. at 7.)

III. MOTION TO DISMISS STANDARD

Under Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), it is clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice" in defeating a motion to dismiss. Id. at 1949; see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In other words, a complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Phillips v. County of Allegheny 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where 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 'shown'-- 'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950. This "plausibility" determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

In this case, the allegations contained in Plaintiff's Complaint are liberally construed, as pleadings filed by pro se plaintiffs are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Fed. R. Civ. P. 8(e) ("[p]leadings must be construed so as to do justice").

IV. DISCUSSION

Plaintiff has asserted constitutional claims for (1) a violation of his First Amendment right to freedom of speech, and (2) use of excessive force in violation of the Fourth Amendment. Such claims may be brought under the civil rights statute, 42 U.S.C. § 1983, which provides a remedy for deprivation of a right established under the Constitution and federal law. Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d Cir. 2003).

Section 1983 provides in pertinent part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

Thus, in order to properly plead a constitutional claim under Section 1983, Plaintiff must allege (1) conduct by a person, (2) who acted under color of state law, (3) which caused a deprivation of a federally protected right. West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff appears to assert the same claims, i.e., First and Fourth Amendment violations, against each of the ...


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