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Burke v. TWP. of Cheltenham

October 5, 2010

FRANCIS M. BURKE
v.
TWP. OF CHELTENHAM, ET AL.



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

MEMORANDUM

Plaintiff Francis W. Burke ("Burke") sues defendants --consisting of the Township of Cheltenham ("Township") and a group of police officers working for the Township -- on an array of federal civil rights and pendent state tort claims arising out of Burke's April 6, 2008 arrest for public drunkenness and disorderly conduct. Burke alleges that he was unnecessarily restrained, strip searched, and physically assaulted in the course of his arrest, and then charged, without basis, with further criminal offenses in retaliation for filing a complaint about the April 6 incident.

Burke brings suit against varying combinations of defendants for (1) unlawful search and seizure, (2) false arrest and false imprisonment, (3) use of excessive force, (4) malicious prosecution, (5) retaliation in violation of the First Amendment, and (6) failure to supervise -- all under 42 U.S.C. § 1983 -- as well as for (7) assault and battery and (8) intentional infliction of emotional distress under Pennsylvania tort law.

Defendants move for partial dismissal of Burke's claims under Federal Rule of Civil Procedure 12(b)(6), arguing that (1) certain of Burke's civil rights claims are barred by his ultimate conviction on the charge of disorderly conduct, (2) his Fourteenth Amendment claims are subsumed by his Fourth Amendment claims, (3) his prayer for punitive damages may not be granted against a governmental entity, (4) he has failed to identify a custom, practice, or policy justifying municipal liability, and (5) the individual defendants are entitled to qualified immunity. For the reasons set forth below, we will grant the defendants' motion in part and deny it in part.

I. Factual Background

When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court should, at the threshold, "accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). As will be seen, Burke proffers no lack of detail for the "short and plain" statements that Fed. R. Civ. P. 8(a)(2) requires.

According to Burke's amended complaint, on April 6, 2008, around 9:30 P.M., he was working on his car in the driveway of his home and listening to music from the car. Am. Compl. at ¶¶ 12-13. Burke's ex-wife, Dawn Welch ("Welch"), who was also present at his home, asked him to turn down the music. It is unclear from his complaint whether Burke did so. What the complaint does make clear is that Welch ultimately telephoned the Cheltenham Police Department, which promptly sent three officers to the scene. Am. Compl. at ¶¶ 14-15.

Officers Michael Corbo ("Corbo") and Chiofolo ("Chiofolo") -- the complaint fails to supply the latter officer's first name -- approached Burke and ordered him to turn off or turn down his car radio and remove his keys from the car's ignition. Burke allegedly complied with both requests. Am. Compl. at ¶¶ 16-20. Chiofolo asked Burke if he had been drinking alcohol, and Burke responded that he had consumed a beer many hours before, during the afternoon. Am. Compl. at ¶ 21.

Chiofolo told Burke that "I ought to arrest you for driving under the influence," and ordered Burke to place his hands behind his back, but when Burke hesitated Chiofolo repeated his order, informing Burke that he was being handcuffed "for safety purposes." Am. Compl. at ¶¶ 22-25. As Chiofolo placed the handcuffs on Burke, the plaintiff told him that he had nerve damage in his left arm, as well as a weakened knee. Am. Compl. at ¶ 26. Burke claims that Chiofolo nonetheless unnecessarily tightened the handcuffs, causing him intense pain. Am. Compl. at ¶ 27.

The officers then ordered Burke to sit on the curb by the side of the road -- a request with which Burke allegedly complied -- returned to their cars for a time, then approached Burke and attempted to further interrogate him. This attempt proved unsuccessful because Burke had decided to stop answering the officers' questions. Am. Compl. at ¶¶ 28-30. The complaint asserts that this decision so agitated the officers that they ordered Burke to disrobe, which he began to do once they removed his handcuffs. Am. Compl. at ¶¶ 31-35. The officers demanded that Burke remove his shoes as well, and as Burke reached down to unlace his shoes he asked the officers why he had to undress in front of his neighbors. Am. Compl. at ¶¶ 36-37. The officers allegedly offered no response. Instead, Corbo and Chiofolo are said to have grabbed Burke by his upper arms and shoulders; they then violently threw him to the asphalt street where Burke's head and face hit the ground, causing him severe pain. Am. Compl. at ¶¶ 37-39.

There ensued an "unlawful assault" on a "non-resistant and defenseless Burke," as Burke puts it. Am. Compl. at ¶¶ 46, 40. The complaint avers that an officer pushed Burke's face into the asphalt and held it there while two other officers began violently ripping off Burke's clothing and removing his shoes, in the process intentionally gouging Burke's torso with their fingernails and/or other sharp objects. Am. Compl. at ¶¶ 41-43. Officer O'Neil ("O'Neil") -- again, the complaint supplies no first name -- intentionally and forcefully dropped his knee into the right side of Burke's face, striking him and causing him more intense pain, and the Complaint further depicts Burke being kicked in his injured left leg and repeatedly punched in his upper arms, chest, and shoulders. Am. Compl. at ¶¶ 44-45.

As Burke remained on the ground, still partially naked and said to be writhing in pain, the police allegedly instructed him to get dressed. He was then re-handcuffed, forced to his feet, and dragged to a police cruiser, where the complaint claims the defendant officers intentionally battered Burke's head on the hood of the police cruiser before depositing him in the cruiser. Am. Compl. at ¶¶ 46-49. Corbo then took Burke to the Cheltenham Police station and, rather than booking him, the three officers allegedly took him to the juvenile holding area. Am. Compl. at ¶¶ 50-51.

As Burke waited in the holding area, Officer Baskins ("Baskins") -- again left mononymic in the complaint --approached him and allegedly again ordered him to disrobe. Am. Compl. at ¶ 52. When Burke questioned the request, the complaint avers that Baskins picked Burke up by his shoulders and proceeded forcefully to slam him into a stone/concrete wall inside the juvenile holding area, which induced Burke, out of fear and intimidation, to strip off all his clothing, leaving only a silver St. Jude medallion hanging around his neck. Am. Compl. at ¶¶ 53-59. Baskins allegedly demanded that Burke remove the medallion, but Burke protested that he could not do so due to the injuries he had sustained in his arrest at his house. Am. Compl. at ¶¶ 59-60. In response, Baskins yanked the metal chain forward and snapped it off the back of plaintiff's neck, causing him severe pain. Am. Compl. at ¶¶ 61-62.

"After this last of humiliations," the complaint asserts that the police allowed Burke to dress himself. He was then processed and ultimately charged with public drunkenness and disorderly conduct. Am. Compl. at ¶¶ 63-64. Burke was acquitted on the former charge but pled guilty to the latter. Am. Compl. at ¶¶ 66-68.

On April 9, 2008, Burke filed a complaint with the Internal Affairs unit at the Cheltenham Police Department, which is headed by Lieutenant John Salmon ("Salmon"). Am. Compl. at ¶¶ 69-70. In this complaint, Burke alleged wrongful conduct by Corbo, Chiofolo, O'Neil, and Baskins. Burke was interviewed, and returned to the Police station on May 19, 2008 to review a typed copy of the interview. Am. Compl. at ¶¶ 70-74. On August 21, 2008, Burke learned that the Cheltenham Police Department had charged him with eight crimes: two counts of "Unsworn Falsification to Authorities," two counts of "Statement Under Penalty," two counts of "False Report - False Incrimination of Another," and two counts of "Obstruction of Administration of Law/Other Government Function." Am. Compl. at ¶¶ 76, 78. Burke claims that these charges were retaliatory. Am. Compl. at ¶ 77. Two of the charges were withdrawn prior to trial and Burke was acquitted of the remaining charges at a bench trial on March 8, 2010. Am. Compl. at ¶¶ 79-81.

II. Analysis

As noted, Burke alleges eight distinct claims against some or all of the defendants, and defendants move, on a variety of grounds, for dismissal of some of them under Fed. R. Civ. P. 12(b)(6).

In recent years, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). A pleading may not simply offer "labels and conclusions," Bell Atlantic 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." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Moreover, "only a complaint that states a plausible claim for relief survives a motion to dismiss," giving rise to a "context-specific" inquiry that "requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. This standard is not as demanding as a "probability requirement," but it does oblige a plaintiff to allege facts sufficient to show that there is "more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (internal quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level," Twombly, 550 U.S. at 555, though plaintiffs need only "nudge[] their claims across the line from conceivable to plausible." Id. at 569.

In deciding a Rule 12(b)(6) motion, courts "consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Brown v. Daniels, 128 Fed. Appx. 910, 913 (3d Cir. 2005) (quoting Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)) (internal quotation marks omitted). A document forms the basis of a claim if it is "integral to or explicitly relied upon in the complaint." Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) (emphasis omitted).

A. Official Capacity

Burke asserts some of his claims against Corbo, Salmon, and John Norris (Chief of Police of Cheltenham Township) in their official capacities. "[O]fficial capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent," Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978), and a court should treat such suits against public officers as if they were brought against the governmental entities for which they work. See, e.g., Mitros v. Cooke, 170 F. Supp. 2d 504, 506 (E.D. Pa. 2001). Given that each of Burke's claims against Corbo, Salmon, and Norris in their official capacities is also asserted against the Township, we serve little purpose by retaining these claims against the named police officers. Thus, we will dismiss Count IV -- alleging malicious prosecution -- with respect to Corbo, Salmon, and Norris in their official capacities, and Count V --alleging retaliation in violation of the First Amendment -- with respect to Norris in his official capacity, while retaining these claims against the Township of Cheltenham.

B. Heck v. Humphrey and Counts I, II, and III

Defendants argue that "certain of Plaintiff's claims for violation of his civil rights, related to his April 6, 2008 arrest, are barred by the Supreme Court's ruling in Heck v. Humphrey." Defs.' Mot. to Dismiss at 4. In Heck v. Humphrey, 512 U.S. 477 (1994), that Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a ยง 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87 (footnote omitted). While defendants do not specify which counts of the amended complaint this argument addresses, we will take it to challenge Counts I and II -- against Corbo, Chiofolo, and O'Neil ("the arresting officers") and Baskins in their ...


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