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Vratoric v. Stowe Township

November 16, 2010

BRIAN VRATORIC AND ELLEN VRATORIC, PLAINTIFFS,
v.
STOWE TOWNSHIP, A MUNICIPALITY, STOWE TOWNSHIP POLICE DEPARTMENT, CHIEF FRANK MARCIW, OFFICER MOLLY A. CONNOLLY, AND OFFICER ERICA MILLER, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION AND ORDER OF COURT

I.Introduction

Plaintiffs Brian Vratoric ("Brian") and Ellen Vratoric ("Ellen"), Brian‟s mother, bring this eight-count Amended Complaint (doc. no. 33) against defendants Stowe Township*fn1 ("Stowe"), Stowe Township Chief of Police Frank Marciw ("Marciw"), Stowe Township Police Officer Molly A. Connolly ("Connolly"), and McKees Rock Police Officer Erica Miller ("Miller").*fn2 Plaintiffs allege the Stowe defendants retaliated against both of them for exercising their First Amendment rights to complain officially about police misconduct, deprived them of their constitutional and civil rights pursuant to a pattern and practice of harassment and abuse, conspired to violate their civil rights, that all defendants used excessive force and committed assault and battery against Brian, and intentionally inflicted emotional distress upon him. Plaintiffs seek equitable relief, compensatory damages, and punitive damages.*fn3

Defendant Miller has filed a Motion to Dismiss Plaintiffs‟ Amended Complaint in Part (doc. no. 40) ("Miller Motion to Dismiss") arguing that, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), plaintiff Brian‟s Fourth Amendment false arrest claim must be dismissed because the criminal charges brought against him as a result of the February 22, 2009 incident were not terminated favorably to him because he entered a plea of nolo contendere to those charges, and that plaintiffs‟ civil conspiracy to deny their civil rights claims fail as a matter of law.

Plaintiffs‟ Response to the Miller Motion to Dismiss (doc. no. 50) counters that both the Federal Rules of Evidence and Pennsylvania case law treat a nolo contendere plea as being an implied admission solely and exclusively for the purposes of the criminal indictment, having no further legal effect, and that plaintiff Brian‟s false arrest claim is but one of many incidents in a pattern and practice of harassment and police misconduct over a course of five years, including the false arrest but also including excessive force, retaliation for lodging official complaints, verbal and physical intimidation, and unjustified citations

Defendants Stowe, Marciw, and Connolly have filed a Motion to Partially Dismiss Plaintiffs‟ Amended Complaint Pursuant to Rule 12(b)(6) (doc. no. 42) ("Stowe Defendant‟s Motion to Dismiss"), arguing that plaintiff Brian‟s First Amendment retaliation and Fourth Amendment false arrest claims must be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), because the criminal charges brought against him as a result of the February 22, 2009 incident were not terminated favorably to him because of his nolo contendere plea, that his conspiracy charges fail as a matter of law, and that the retaliation and other claims brought by Ellen fail as a matter of law.

Plaintiffs‟ Response to the Stowe Defendant‟s Motion to Dismiss (doc. no. 51) is the same as their Response to the Miller Motion to Dismiss, namely that a plea of nolo contendere does not trigger the Heck bar plea, and that to the extent plaintiff Brian asserts a claim for false arrest arising from the February 22, 2009 incident, that incident was just one of a continuing and long standing pattern of police retaliation and misconduct for exercising their First Amendment rights.

After careful consideration of the Miller Motion to Dismiss (doc. no. 40) and the Stowe Defendant‟s Motion to Dismiss Motion to Partially Dismiss (doc. no. 42), plaintiffs‟ Responses thereto (docs. nos. 50-51), the Court will deny both motions to dismiss for the reasons that follow.

II.Factual Background

The Court must take the facts as averred in the Amended Complaint to be true, for purposes of a motion to dismiss, and assign all reasonable inferences from those facts to the plaintiffs. Viewed in that light, the Amended Complaint sets forth the events giving rise to plaintiffs‟ federal constitutional and state common law claims.

In 2004, plaintiff Ellen wrote to the Stowe‟s Chief of Police, Frank Marciw, complaining that he and his subordinates were harassing Brian and her when they falsely claimed Brian failed to stop at several stop signs. Amended Complaint (doc. no. 33), at ¶ 9. With Brian‟s authorization, his mother Ellen also wrote about the harassment to Governor Edward Rendell, the FBI, the Pennsylvania Attorney General, the Allegheny County District Attorney, and the Allegheny County Police. Amended Complaint, id. at ¶ 10. Plaintiffs allege the Stowe defendants responded to their official complaints by issuing "retaliatory and baseless citations" to Brian. Amended Complaint, id.

Plaintiffs claim that on June 6, 2005, Marciw and a Stowe police officer falsely arrested Brian and then "tortured and beat him" for two to two and a half hours at the Stowe police station, resulting in Brian sustaining a concussion and "permanent brain damage." Amended Complaint, id. Plaintiffs subsequently filed a federal civil rights lawsuit against Stowe, Marciw, and two other Stowe police officers, alleging excessive force, retaliation, false arrest and other claims. Vratoric v. Stowe Township, et al., (05-cv-1416). While defendants‟ summary judgment motion was pending, and three days before the scheduled Pretrial Conference, the Court was notified that the parties had reached a settlement, and that civil rights action was dismissed on November 29, 2006 pursuant to Fed.R.Civ.P. 41(a) and plaintiffs‟ Stipulation. Vratoric v. Stowe Township, et al., 05-cv-1416 (doc. no. 34). Plaintiffs now allege the harassment did not stop, but in fact escalated after the settlement. Amended Complaint (doc. no. 33) at ¶ 11.

Plaintiffs further allege that, in 2008, Brian was issued another citation from a Stowe police officer for not coming to a complete stop at a stop sign. Amended Complaint, id. After pleading not guilty to the charge, Brian‟s money (apparently seized at the time of the traffic stop and citation) was returned to him through the mail. Amended Complaint, id. Plaintiffs claim the Stowe police, on two additional occasions, stopped Brian and searched his vehicle, but ultimately let him go without citation. Amended Complaint, id. Plaintiffs assert numerous people have informed Brian that Marciw "wants him dead." Amended Complaint, id.

Furthermore, plaintiffs seek redress for another traffic incident on February 22, 2009, at approximately 9:30 a.m., while Brian was on his way to pick a friend up for breakfast; Brian that Brian "heard a siren and immediately pulled over." Amended Complaint id. at ¶ 12. After pulling Brian over, defendant Connelly "got out of her vehicle with her gun drawn," screaming at Brian to lie face down on the ground. Id. While Brian lay on the ground, Officer Miller, of the McKees Rocks Police Department, arrived as Connelly‟s backup. Id. Plaintiffs allege Connelly and Miller stood over Brian, handcuffed him, "lifted [Brian] a few inches up off the ground and then slammed his head into the cement." Id. Plaintiffs continue that Connelly and Miller lifted [Brian] up again, pushed him over to the police car, bashed his head into the police car then they lifted him off the ground trying to break his arm." Id. As defendants placed Brian in the Stowe police car, Brian was told he was going to the Allegheny County jail because he ran five stop signs. Id.

Plaintiffs allege William M. Coles ("Coles") witnessed the incident. Amended Complaint, id. at ¶ 13. Coles stated Connelly was "staying several car lengths behind Brian Vratoric and as soon as she turned on the siren he immediately pulled over." Amended Complaint, id. at ¶ 16. Coles also claims Connelly "was in an extreme rage, screaming and ready to shoot Brian Vratoric" when she got out of her vehicle. Id. at 13.Additionally, plaintiffs contend a second witness screamed "‟Rodney King all over‟" as the alleged incident unfolded. Id. Brian asserts Connelly and Miller were ...


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