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Whiting v. Bonazza

July 2, 2010


The opinion of the court was delivered by: Conti, District Judge



Pending before this court are three motions to dismiss the complaint of pro se plaintiff Gloria Whiting ("Whiting" or "plaintiff"). (Docket No. 2.) On, September 30, 2009, a motion to dismiss was filed by defendant Gary Havelka ("Havelka") pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). (Docket No. 9.) On December 4, 2009, defendants Larry A. Bonazza ("Bonazza") and Smith Township also filed a motion to dismiss Whiting's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No.18.) On December 14, 2009, defendants Amber Price ("Price") and Burgettstown Borough together filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (Docket No. 24.) Also pending is plaintiff's motion requesting a case management conference. (Docket No. 32.) For the reasons set forth below, the motions to dismiss are granted, and the complaint is dismissed without prejudice. The court will grant plaintiff leave to amend the complaint. Plaintiff's motion requesting a case management conference is denied as moot.


Plaintiff, proceeding in forma pauperis and pro se, filed a complaint against defendants (Docket No. 2.) possibly pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983.*fn2 In plaintiff's complaint, there are no factual allegations to support her claims against defendants, plaintiff's one-page complaint lists monetary demands with respect to each defendant, and there are no factual allegations with respect to how plaintiff's rights were violated by any defendant.

In her one-page complaint, with respect to all defendants, plaintiff alleges a violation of her constitutional rights. (Pl.'s Compl. ¶ 1.) Plaintiff's claims against Bonazza are: "intentional false arrest, intentional infliction of severe emotional stress, intentional fabrication of evidence, malicious prosecution, harm to reputation, humiliation, excessive force, pain and suffering and violation of [her] constitutional rights." (Id. ¶ 2.) Plaintiff's allegations against Price are: "excessive force, violated [her] rights, humiliation, pain and suffering, and emotional stress." (Id. ¶ 3.) Plaintiff's charges against Havelka are: "violated [her] constitutional rights, ethical misconduct, intentional fabrication of evidence, intentional infliction of emotional stress, malicious prosecution, discriminatory treatment, not addressing citizen's complaint, failure to protect, and causing intentional pain and suffering." (Id. ¶ 4.) Plaintiff alleges Smith Township and Burgettstown Borough "violated [her] rights, failed to discipline police officers, ignored complaints, and [caused] pain and suffering." (Id. ¶¶ 5-6.)

Plaintiff's complaint indicates that she is seeking damages from each defendant. (Id.) From Bonazza, plaintiff seeks $750,000 in damages. (Id.) Plaintiff seeks $500, 000 in damages from each of Price, Smith Township, and Burgettstown Borough. (Id.) Finally, plaintiff seeks $1,000,000 in damages from Havelka. (Id.)

Plaintiff presented minimal facts and conclusory allegations in her motion requesting denial of the motion for extension of time to answer filed by Price and Burgettstown Borough. (Docket No. 26.) In this document, plaintiff alleged that on June 16, 2008, she was falsely arrested and was injured when being placed in a police car by Price and Bonazza. (Id. ¶ 3.) Plaintiff asserted that Price and Bonazza used excessive force which caused injuries. (Id.) Plaintiff alleged she complained to Burgettstown Borough, but no action was taken to investigate the actions of the police officers. (Id. ¶ 4.) These allegations are conclusory in nature and were not alleged in the complaint.

Similarly, in Whiting's brief in support of her motion requesting a case management conference, she sets forth conclusory allegations with respect to Havelka. (Docket No. 33.) Plaintiff alleges Havelka violated the Code of Judicial Conduct and "treat[ed] litigants [sic] in an egregious and hostile manner." (Id. ¶ 2.) These allegations are not set forth in plaintiff's complaint.

Standard of Review

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. V. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Id. "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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of "entitlement to relief.'"

Id. at 1949 (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

Two working principles underlie Twombly. Id. First, with respect to mere conclusory statements, a court need not accept as true all of the allegations contained in a complaint. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 1950. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 ...

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