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Shawn Miller v. Cory Harcha; Lee Meyers; and Jordan Seese

May 6, 2011

SHAWN MILLER, PLAINTIFF,
v.
CORY HARCHA; LEE MEYERS; AND JORDAN SEESE, DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lenihan

Re: ECF No. 33

MEMORANDUM OPINION

Presently before the Court is the Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendants (ECF No. 33). For the reasons discussed below, the motion will be granted, however Plaintiff will be granted leave to amend the Complaint as further set forth in this Opinion*fn1 .

AVERMENTS OF THE COMPLAINT

On August 18, 2009, Plaintiff, Shawn Miller ("Miller" or "Plaintiff") and his friend were "pulled over by Pittsburgh Police for allegedly failing to stop at a stop sign." (Complaint, ECF No. 3 at ¶ 1 (hereinafter "ECF No. 3 at __").) The friend indicated to Plaintiff that he was in possession of contraband, so Plaintiff decided to drive off so the friend could get rid of the contraband. (ECF No. 3 at ¶ 1.) Plaintiff also drove off because he did not want to violate the conditions of his probation. (ECF No. 3 at ¶ 2.) The police pursued Plaintiff at high rates of speed. (ECF No. 3 at ¶ 3.) The Complaint is somewhat unclear as to what happened next. The Plaintiff suggests in his Complaint that the police stopped pursuing him, and that Plaintiff pulled over and got out of his car. Plaintiff then began shouting at his friend for riding with contraband in Plaintiff‟s car. (ECF No. 3 at ¶ 3.) In his brief in response to Defendants‟ motion, however, Plaintiff states that he was outside of the car "in a position of giving up or surrendering." (Plaintiff‟s Brief in Response to Defendants‟ Motion to Dismiss, ECF No. 37 at ¶ 2.)

Plaintiff next avers that several minutes later, uniformed police officer, Defendant Corey Harcha ("Defendant Harcha") pulled up in his patrol car, and without warning, got out of his patrol car with his gun in hand, and began firing at Plaintiff. (ECF No. 3 at ¶ 4.) Plaintiff then jumped back into his car in an effort to get away from the shots being fired at him by Defendant Harcha. According to Plaintiff, Defendant Harcha then placed his arm inside the passenger window of Plaintiff‟s car and continued firing his gun, shooting Plaintiff in the back of his neck. (ECF No. 3 at ¶ 5.) At this point Defendant Officers Lee Myers ("Defendant Myers") and Jordan Seese ("Defendant Seese") arrived at the scene. Plaintiff avers that, fearing for his life, he attempted to drive off, and all three Defendant Officers fired their guns at Plaintiff‟s car. Plaintiff was shot in his right shoulder from behind. (ECF No. 3 at ¶ 6.)

Plaintiff avers that, again fearing for his life, he drove off, and suggests that he was pursued by police, although the averments are unclear as to whether it was the Defendant Officers who pursued him at this point. Plaintiff states that his "run-for-it" ended "when he crashed into a utility pole while being unconscious. At this time Pittsburgh police pulled Plaintiff from his vehicle and repeatedly beat on him." (ECF No. 3 at ¶¶ 7-8.)

Plaintiff lists the Fifth, Eighth, and Fourteenth Amendments as those provisions of federal law that he claims were violated by Defendants. (ECF No. 3 at 3.)

Plaintiff seeks declaratory judgment that Defendants‟ actions violated his rights, compensatory damages exceeding $10,000, and punitive damages exceeding $100,000 from each Defendant, and a restraining order to prevent Defendants (and their agents, successors, and employees) from retaliating against Plaintiff.

LEGAL STANDARD PRO SE PLEADINGS

The Court must liberally construe the factual allegations of the Complaint because pleadings filed by pro se plaintiffs are held to a less stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Therefore, if the Court "can reasonably read [the] pleadings to state a valid claim on which [Plaintiff] could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or [Plaintiff‟s] unfamiliarity with pleading requirements." Wilberger v. Ziegler, No. 08-54, 2009 WL 734728 at *3 (W.D. Pa. March 19, 2009) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam).

MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b) (6)

A motion to dismiss pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A complaint must be dismissed for failure to state a claim if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 129 S. Ct.1937, 1949 (May 18, 2009) (citing Twombly, 550 U.S. at 555-57). "A claim has facial ...


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