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Gloria Whiting v. Officer Larry A. Bonazza

February 10, 2011

GLORIA WHITING, PLAINTIFF,
v.
OFFICER LARRY A. BONAZZA, OFFICER AMBER PRICE, GARY HAVELKA, SMITH TOWNSHIP AND BURGETTSTOWN BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: Joy Flowers Conti United States District Judge

MEMORANDUM OPINION CONTI, District Judge.

I. Introduction

Pending before the court are two motions to dismiss the amended complaint of pro se plaintiff Gloria Whiting ("Whiting" or "plaintiff"). *fn1 (ECF No. 36.) On September 10, 2010, defendants Amber Price ("Price") and Burgettstown Borough jointly filed a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)") (ECF No. 39), and defendants Larry A. Bonazza ("Bonazza") and Smith Township jointly filed a motion to dismiss Whiting‟s amended complaint pursuant to Rule 12(b)(6). *fn2 (ECF No. 43.) For the reasons set forth below, the motions to dismiss are granted in part and denied in part.

II. Background

On August 21, 2009, plaintiff, proceeding in forma pauperis and pro se, filed her original complaint against defendants (ECF No. 2) possibly pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"). In plaintiff‟s original complaint, there were no factual allegations supporting her claims against defendants or demonstrating how plaintiff‟s rights were violated by any defendant. On July 2, 2010, the court entered a memorandum opinion and order granting defendants‟ motions to dismiss the complaint and permitting plaintiff leave to amend the complaint. (ECF No. 34.) The amended complaint is the subject of the present motions to dismiss.

A. Facts

1. Incidents concerning the officers and municipal defendants

The following undisputed facts are gathered from plaintiff‟s amended complaint. Plaintiff is a sixty-six-year-old disabled female of African American parentage who resides at 21 Colony Road, Burgettstown, Pennsylvania. (Am. Compl. at 2.) Bonazza is a police officer for Smith Township in Washington County, Pennsylvania and Price is a police officer for Burgettstown Borough in Burgettstown, Pennsylvania. (Id.)

On July 16, 2008, plaintiff asked unidentified individuals at the Smith Township office to enforce a ten o‟clock curfew on a playground basketball court adjacent to her property. (Id.) Later that day, plaintiff was in her yard when a teenager named Bryan King ("King"), an individual who had given plaintiff trouble for several years, called plaintiff names, threatened her, and yelled "there will be no curfew." (Id. at 2-3.) Plaintiff contends King discovered she had asked the Smith Township office to enforce the curfew. (Id. at 3.) As a result of King‟s threats, plaintiff called 9-1-1 and Bonazza responded to the call. (Id.) Plaintiff alleges that at the time Bonazza responded to her call, she was in her yard and not on the playground. (Id.) During his response to the call, Bonazza allowed other people to enter onto plaintiff‟s property to complain that they did not want a curfew. (Id.) Plaintiff contends these individuals threated her, and one woman yelled at her and threatened to "beat [her] ass." (Id.) Plaintiff requested Bonazza to instruct the individuals to leave her property, but he responded "I think you are the problem here," while laughing, and then told plaintiff he was going to cite her. (Id.) Bonazza told plaintiff to go into her house and plaintiff responded by again requesting the individuals to leave her property, at which point Bonazza said to plaintiff, "No I think I‟ll arrest you." (Id.)

Bonazza called for Price, who arrived on the scene and grabbed plaintiff by her right arm, turned her around, pushed her hard against the police vehicle, tightly placing handcuffs on her. (Id.) Plaintiff asserts that Price‟s physical maneuvers hurt plaintiff‟s artificial knee, left knee, back, and right arm. (Id.) Plaintiff became visibly upset, started crying, and asked the officers to stop the arrest. (Id. at 4.) Plaintiff asked the officers to refrain from putting her in the backseat of the vehicle because she had a panic and anxiety disorder. (Id.)*fn3 Plaintiff asked the officers to telephone her doctor and the officers declined and stated "We Don‟t Have a Limosene [sic] to ride You In." (Id.)

Bonazza pushed plaintiff‟s head down and pushed her into the backseat of the police vehicle. (Id.) The officers took plaintiff to the Smith Township police department. (Id.)

Because of her legs, plaintiff had a difficult time keeping up with the pace of the officers. (Id.) Bonazza told plaintiff to "move" when she was handcuffed to a chair at the police department. (Id.) The officers decided to transport plaintiff from the Smith Township police department to the Hanover police department for her arraignment. (Id.) Police Chief Bernie LaRue ("LaRue") instructed the officers over the telephone to handcuff plaintiff in the front of her body and to place her in the backseat of the police vehicle. (Id.) Bonazza drove fast on the way to the Hanover station and plaintiff became upset and asked him to slow down, but he refused her request. (Id. at 5.) Plaintiff asserts that Bonazza was laughing at her during the arraignment and that the officers and their friends harassed plaintiff for not pleading guilty to the charge of disorderly conduct. (Id.)

2. Incidents concerning Havelka

Havelka is a magisterial district judge in Washington County, Pennsylvania. (Havelka‟s Mot. to Dismiss (ECF No. 9) at 1.) Plaintiff alleges that Havelka was the "moving force" in her case of disorderly conduct. (Am. Compl. at 8.) After plaintiff‟s arrest and arraignment, Havelka allegedly falsified court documents related to the charges against plaintiff. (Id.) Plaintiff asserts Havelka falsified papers by (1) placing an incorrect name, address, and date on preliminary documents; (2) sending a false citation to plaintiff in the mail; and (3) adding "engaged in fighting" as an extra charge on the criminal complaint. (Id. at 8-9.)

Plaintiff contends Havelka threatened her with more criminal complaints if she did not plead guilty to the charge of disorderly conduct. (Id. at 8.) Plaintiff asked Havelka if her son could help her at a hearing and Havelka denied her request. (Id. at 9.) Havelka sent plaintiff‟s case to a state court judge in Cecil, Pennsylvania and plaintiff‟s final hearing was held on June 8, 2009, where she was found not guilty on the charge of disorderly conduct. (Id. at 9-10.)

III. 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 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 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 (2nd Cir. 2007)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions. "While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

Pro se plaintiffs are held to a less stringent standard than individuals represented by counsel. Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) ("pro se litigants are held to a lesser pleading standard than other parties"). A pro se plaintiff, however, is still required to adhere to standard rules of civil procedure. See McNeil v. United States, 508 U.S. 106, 113 (1993); Haines v. Kerner, 404 U.S. 519, 520 (1972). While the court must accept as true all factual allegations in a complaint, it "need not credit a complaint‟s . . . legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Even though plaintiff is pro se, she must "set forth sufficient information to outline the elements of [her] claim." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citing 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990)). Thus, plaintiff is required to present enough factual allegations for the court, accepting those allegations as true, to determine whether there is a plausible claim that defendants violated plaintiff‟s federal rights. Id.

If a complaint does not comply with the rules of civil procedure, courts are to notify plaintiffs that they have leave to amend their complaints unless the amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (reversing district court for failing to grant plaintiff right to amend when the district court did not specifically find that granting leave to amend would be inequitable or futile). Allowing for amendment is consistent with Rule 15(a) of the Federal Rules of Civil Procedure, which provides "leave [to amend] shall be freely given when justice so requires." A court, however, may decide to deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and futility. In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). The standard of legal sufficiency set forth in Federal Rule of Civil Procedure 12(b)(6) determines whether a proposed amendment would be futile. In re Burlington Coat Factory Litig., 114 F.3d at 1434. An amendment is futile where the complaint, as amended, would fail to state a claim upon which relief could be granted. Id.; see Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001) (noting that failure to overcome the time bar of a statute of limitations renders a proposed amendment futile).

IV. Discussion

Plaintiff brings her host of claims against defendants pursuant to § 1983. *fn4 To successfully establish a claim under § 1983, a plaintiff must demonstrate that a person or entity intentionally deprived her of a federally protected right. See Bd. of the Cnty. Comm‟rs of Bryant Cnty. v. Brown, 520 U.S. 397, 404 (1997). A plaintiff is required to establish two prongs to prevail on a claim under § 1983: (1) deprivation of a federal right and (2) "that the person who has deprived [her] of that right acted under color of state or territorial law." See Gomez v. Toledo, 446 U.S. 635, 640 (1980).

Plaintiff brought the following claims against various defendants alleging deprivations of several constitutional rights: (1) excessive force against Price and Bonazza in violation of the Fourth Amendment; (2) false arrest against Price and Bonazza in violation of the Fourth Amendment; (3) malicious prosecution against Bonazza in violation of the Fourth Amendment; (4) conspiracy against defendants pursuant to ยง 1983; (5) deliberate indifference against Price and Bonazza under the Eighth Amendment; (6) due process violations against defendants in violation of the Fifth and Fourteenth Amendments; and (7) various claims against Havelka. Plaintiff also averred a state law claim for intentional infliction of emotional distress against Bonazza. The court will separately address each ...


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