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James Billman v. Tom Corbett

February 15, 2011


The opinion of the court was delivered by: Juan R. Sanchez, J.


Juan R. Sachez, J. February 15, 2011

Defendants Tom Corbett and Brian Westmoreland ask this Court to grant judgment on the pleadings in their favor on Plaintiff James Billman's claims Defendants violated his constitutional rights. Because Billman's complaint fails to allege a violation of his First or Fourth Amendment rights, Defendants' motion is granted.


Defendant Tom Corbett is the current Governor of Pennsylvania. On May 17, 2010, when Corbett held the position of Pennsylvania Attorney General and was running for Governor, he spoke at a public campaign meeting held at a hotel. Billman was present at the meeting and asked Corbett, "what are you going to do if the Kimmett case goes to trial?" Compl. ¶ 16. Receiving no response, Billman repeated his question. After Billman asked the question again, Corbett left the podium and approached him. Corbett "shook his finger angrily in Billman's face as Corbett's face became scarlet and the veins in his neck bulged out," causing Billman to feel threatened and intimidated. Compl. ¶ 20-21. Westmoreland, a man Billman believed to be Corbett's bodyguard*fn2 , also approached Billman, grabbed his arm, and attempted to pull him from the conference room. After Corbett walked away, a young woman asked Billman if he would leave, and he did so.

On June 21, 2010, Billman filed the instant case against Corbett and Westmoreland, asserting Fourth Amendment excessive force and First Amendment retaliation claims against both Defendants.


Defendants seek judgment on the pleadings in their favor on both of Billman's claims, pursuant to Federal Rule of Civil Procedure 12(c). A motion for judgment on the pleadings is analyzed under the same standards as a Rule 12(b)(6) motion to dismiss. Revell v. Port Auth., 598F.3d 128, 134 (3d Cir. 2010). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (internal quotation marks omitted). Judgment on the pleadings "will not be granted unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008) (citations omitted).

Billman brings his constitutional claims pursuant to 42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Revell, 598 F.3d at 134 (citing West v. Atkins, 487 U.S. 42, 48 (1988)).

To establish personal liability in a § 1983 action, "it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Hafer v. Melo, 502 U.S. 21, 25 (1991) (citation omitted).

Billman first claims Defendants violated his Fourth Amendment rights by using excessive force against him. "To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a 'seizure' occurred and that it was unreasonable." Curley v. Klem, 499 F.3d 199, 230 n.4 (3d Cir. 2007) (citation omitted). A seizure occurs "whenever [a governmental actor] restrains the freedom of a person to walk away." Id. (quoting Tenn. v. Garner, 471 U.S. 1, 7 (1985)) (internal alterations and quotation marks omitted). The use of force to effect a seizure is permissible as long as the defendant's actions are objectively reasonable in light of the facts and circumstances confronting him. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) .

Billman asserts Corbett "shook his finger angrily in Billman's face." Compl. ¶ 20. A Fourth Amendment seizure does not occur unless there has been "a governmental termination of freedom of movement through means intentionally applied." Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989); see also Terry v. Ohio, 392 U.S. 1, 19 (1968) (holding a seizure occurs when "by means of physical force or show of authority" a government actor has "in some way restrained the liberty of a citizen"). Because Billman has not alleged Corbett, by shaking his finger, restrained Billman's freedom of movement, his excessive force claim against Corbett fails on its face.

Next, Billman asserts Westmoreland "grabbed [him] by the left arm, and applying significant force, attempted to extricate him from the room." Compl. ¶ 19. Billman states Westmoreland's actions "did not cause excruciating pain but [were] very uncomfortable and intimidating." Pl.'s Resp. to Defs.' Mot. 2. At no point was Billman prevented from leaving or forced to stay at the campaign rally. Although temporarily grabbing a person's arm momentarily restrains the person's freedom to walk away, "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Graham v. Connor, 490 U.S. 386, 396 (1989) (citation omitted). Even assuming Westmoreland's actions were sufficient to constitute a seizure, because Billman's arm was grabbed only momentarily and, admittedly in a manner that was "uncomfortable," but not painful, Billman has failed to allege Westmoreland's actions were objectively unreasonable and has thus failed to state a plausible claim for relief on his excessive force claim against Westmoreland. See Iqbal, 129 S. Ct. at 1949-50 ("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.") (internal alterations and quotation marks omitted).

Moreover, even if Billman had stated an excessive force claim against Westmoreland, Westmoreland -- to the extent he is sued in his personal capacity*fn3 -- is entitled to personal immunity defenses, such as objectively reasonable reliance on existing law. See Graham, 473 U.S. at 166-67 (explaining a defendant sued in his personal capacity may assert personal immunity defenses which are unavailable to defendants in official-capacity suits). In the instant motion, Westmoreland asserts his entitlement to immunity, arguing his conduct did not violate clearly established statutory ...

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