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Brian Simpson v. Paul E. Henry

November 30, 2011


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly


KELLY, Magistrate Judge

Plaintiff, Brian Simpson ("Plaintiff" or "Simpson"), a pro se litigant, filed this action against Defendants Paul E. Henry ("Henry"), the Chief of the North Beaver Township Volunteer Fire Department ("the Fire Department"), and Wes Osbourne ("Osbourne"), the owner of an animal removal business (collectively, "Defendants"), alleging that Defendants violated his civil rights in responding to a fire that occurred on Plaintiff's property in March of 2009.

Both Defendants have filed motions to dismiss that are now ripe for review. For the following reasons, the Motion to Dismiss of Defendant Wes Osbourne, ECF No. 6, will be granted in part and denied in part, and Defendant Henry's Motion to Dismiss Pursuant to Rule 12(b)(6), ECF No. 8, will be granted in its entirety.


According to the Amended Complaint, a fire occurred on Plaintiff 's property ("the Property") located in New Castle, Pennsylvania, on March 5, 2009. ECF No. 20, ¶ 6. The Property allegedly consists of five acres of ground upon which sit three old brick buildings that were once a High School and Grade School complex. Id. Plaintiff contends that the fire was contained to a single classroom at the farthest end of the building at the rear of the Property. Id. Plaintiff also contends that the fire was put out shortly after Henry and other fire department personnel arrived at the scene and that the room where the fire started was the only room that suffered any major damage. Id. at ¶ 8.

Despite the fact that the fire was completely out, the smoke had dissipated and there was no more risk to the structure or contents of the building, Plaintiff alleges that Henry contacted an excavator to demolish the building. Id. at ¶ 9. Plaintiff contends that Henry intended to demolish the building solely to benefit the Fire Department, which had been interested in purchasing the Property, and not because the building was structurally unsound. Id. at ¶¶ 11, 15. It nevertheless appears that Plaintiff arrived at the scene with a State Police Assistant Fire Marshall and prevented the demolition from going forward. Id. at ¶ 12.

It should be noted that, according to Plaintiff, he and Henry had entered into negotiations a year or two earlier relative to the Fire Department purchasing the Property but the cost of raising the buildings, which was apparently Henry's intent, prevented the sale from being completed. Id. at ¶¶ 11, 13, 14.

Further, according to Plaintiff, it was not until after the excavator was ready to demolish the structure that Henry ordered the firemen to remove the animals Simpson kept in the building. Amongst the animals in residence were a number of rabbits, dogs, two cats, eight native Pennsylvania Aquatic Turtles ("the Turtles") and an alligator. Id. at ¶¶ 10, 11. Plaintiff contends that, except for a dog and two cats that were in the room where the fire started and perished as a result, all of the animals were in other rooms away from the fire and were not at risk, particularly as the fire had long since been extinguished when Henry ordered their removal. Id. at ¶¶ 10, 15. Plaintiff alleges that removing the animals not only made them less secure but subjected them to undue stress as evidenced by the fact that several of the rabbits were crippled by the unnecessary and rough handling by the firemen. Id. at ¶ 11.

It also appears from the Amended Complaint that in order to remove the alligator from the premises, Henry contacted Defendant Osbourne, the owner and operator of Crit-R-Done, a business that removes wild animals from homes and businesses.*fn1 Id. at ¶¶ 16, 17. Plaintiff contends that Osbourne unnecessarily hog tied the alligator and dragged it outside to put on public display for the television news crews that had arrived at the scene. Osbourne's actions, according to Simpson, not only put undue stress on the alligator but were designed to financially benefit his business by gaining publicity. Id. at ¶ 17.

With respect to the Turtles, Plaintiff alleges that they were not at risk because they were kept in a closed room approximately 120 feet from the location of the fire which had already been extinguished long before Osbourne arrived. Osbourne, who was also a part-time Pennsylvania Fish and Boat Commission Waterways Patrolman/Fish Warden, nevertheless entered the room where the Turtles were kept without a search warrant or permission from Plaintiff. Id. at ¶¶ 18-20. Plaintiff contends that Osbourne, as a part-time "Fish Warden," knew that private citizens were required to have a permit to keep certain species of Native Pennsylvania Turtles and only inspected the Turtles for that reason. Id. at ¶ 20. Following his inspection, Simpson alleges that Osbourne contacted other Fish Wardens who then obtained a warrant and, ten to twelve hours after the fire had been extinguished, seized Plaintiff's Turtles. Id. at ¶ 21.

Plaintiff filed a Complaint on March 2, 2011, ECF No. 1, which he amended on June 2, 2011 ("the Amended Complaint"). ECF No. 20. Defendants Henry and Osbourne filed Motions to Dismiss on May 2, 2011, and May 3, 2011, respectively, which are presently before the Court.*fn2 ECF Nos. 6, 8.


In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ("Twombly"), the United States Supreme Court held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In assessing the sufficiency of the complaint, the Court must accept as true all allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Public Employees' Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations; rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").


Plaintiff purports to bring this action under 42 U.S.C. §1983 ("Section 1983"), which provides that:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any state or Territory . . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the person injured in an action at state law, suit in equity, or other proper proceeding for redress.

Section 1983 does not create any new substantive rights but rather "provides a remedy for the violation of a federal constitutional or statutory right." Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005), citing Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). Thus, "[t]o establish valid claims under ยง 1983, the plaintiff must demonstrate that the defendants, while acting under color of state law, deprived him of a right secured by the ...

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