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Scott R. Swaney and Charlene v. Nicholas Jordan and Melinda Citero

April 19, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer



Plaintiffs Scott R. Swaney and Charlene Swaney (collectively, "Plaintiffs"; individually, "Mr. Swaney" or "Mrs. Swaney") brought this action against Defendants Nicholas Jordan and Melinda Citero (collectively, "Defendants"; individually, "Jordan" or "Citero"), in their individual capacities, for alleged constitutional violations of the Fourth and Fourteenth Amendments of the United States Constitution, along with pendent state law tort claims, related to conduct that occurred on May 25, 2009. (See Docket No. 15). Currently pending before the Court is a Partial Motion to Dismiss filed by Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docket No. 19). For the reasons that follow, that Motion is denied.


Since this matter comes before the Court on a motion to dismiss, the factual allegations

contained in Plaintiffs' Amended Complaint are assumed to be true. Hemi Group, LLC v. City of N.Y., 130 S.Ct. 983, 986-87 (2010) (citing Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993)). According to the Amended Complaint, Plaintiffs are adult individuals who reside in Fairchance, Pennsylvania. (Docket No. 15 at ¶¶ 4, 5). Defendants are officers of the Pennsylvania State Police who are based in Fayette County, Pennsylvania. (Id. at ¶¶ 6, 7).

On the evening of May 25, 2009, Defendants arrived at the home of Tim Pechatsko, who is one of Plaintiffs' neighbors. (Id. at ¶¶ 12, 13). At that time, Plaintiffs were outside on their front porch and observed Defendants proceed to the rear entrance of Mr. Pechatsko's home. (Id. at ¶ 13). Shortly thereafter, Plaintiffs heard Jordan screaming and also heard a scuffle. (Id.). Plaintiffs then watched as Defendants escorted Mr. Pechatsko out of his home in handcuffs. (Id.).

While Mr. Pechatsko was in handcuffs, Plaintiffs witnessed Jordan deliberately choke the already restrained man. (Id. at ¶ 14). To this, Mr. Swaney told Jordan that "I saw what you did to him," and advised Mr. Pechatsko that he would testify for him. (Id. at ¶ 15). In response, Jordan yelled at Plaintiffs to go inside and further instructed them that they did not see a "fucking thing." (Id. at ¶ 16). Mr. Swaney complied with Jordan's initial demand and went into the home. (Id.). Following this exchange, Citero went to Plaintiffs' home for the purpose of ascertaining their respective names. (Id. at ¶ 18). In fear that she was being harassed, Mrs. Swaney followed her husband into the home to call a superior officer. (Id.).

After placing Mr. Pechatsko into his police vehicle, Jordan drove to Plaintiffs' home. (Id. at ¶ 18). While exiting his vehicle, he yelled to the Plaintiffs that "you are going to fucking jail." (Id. at ¶ 18). He then attempted to open a latched gate.*fn1 (Id. at ¶ 19). Because the gate was latched, Jordan reached over the gate and ripped the telephone from Mrs. Swaney's hand, disconnecting the line in the process. (Id.) Jordan then threw the phone across the porch. (Id.).

While screaming that he could "do whatever I want," Jordan grabbed Mrs. Swaney by the arm and attempted to physically pull her over the gate. (Id. at ¶ 20). Jordan then discharged his taser gun in the direction of Mr. Swaney. (Id. at ¶ 21). The first probe hit Mr. Swaney in the forehead, while the second probe hit him in the chest. (Id.). Mr. Swaney attempted to reach for the phone to call for help, but was stopped from doing so when Jordan jumped the fence and climbed on to the porch. (Id. at ¶ 22). At that point, Jordan shot Mr. Swaney for a second time with his taser gun. (Id. at ¶ 23). The probes entered his left hand and his left arm. (Id.). In total, Jordan attempted to his discharge his taser gun on four occasions; however, a malfunction prevented the taser gun from working more than twice. (Id. at ¶ 26).

After he had been shot with the taser gun, Jordan struck Mr. Swaney on the head with his club or stick, which knocked him to the ground and caused him to lose consciousness. (Id. at ¶ 27). Thereafter, Jordan drew his service revolver and pointed it at Mrs. Swaney's face. (Id. at ¶ 28). Jordan pushed Mrs. Swaney to the floor of the porch, where she was then handcuffed by Citero. (Id. at ¶¶ 28, 29).

Around this time, Mr. Swaney began to regain consciousness and was bleeding profusely. (Id. at ¶ 30). Mrs. Swaney informed Defendants that her husband suffered from cancer and, as such, needed immediate medical attention. (Id.). In response, Jordan, still pointing his service revolver at Mrs. Swaney, placed his boot on top of her head, pushing it further onto the porch floor while shouting "shut up you fucking dumb bitch, he is tough, he can take it." (Id. at ¶ 31). Jordan then grabbed Mr. Swaney from the floor and threw him into a chair on the porch. (Id. at ¶ 32). He told Plaintiffs that "I am no longer an officer," and that the situation was "fucking personal." (Id. at ¶ 32).

Finally, other police officers arrived on the scene. (Id. at ¶ 33). The other officers called for a paramedic and Mr. Swaney was placed into an ambulance. (Id.). Mrs. Swaney repeatedly requested to speak to a superior officer regarding Defendants' conduct. (Id. at ¶ 34). Specifically, she asked to speak with a corporal in the police department, who had arrived on the scene. (See Id.). This request was denied by Jordan. (Id.).

Mrs. Swaney, while still in handcuffs, was initially placed in the back of Citero's police car. (Id. at ¶ 36). She was then asked to sign a document and was released from the vehicle. (Id.). Thereafter, Jordan told Mrs. Swaney that if he saw her at the hospital, he would arrest her. (Id. at ¶ 37). Jordan ...

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