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Vince Marino v. City of Pittsburgh

January 23, 2012

VINCE MARINO, PLAINTIFF,
v.
CITY OF PITTSBURGH,
DEFENDANT.



The opinion of the court was delivered by: Judge Cathy Bissoon

MEMORANDUM AND ORDER

I.MEMORANDUM

Pending before the Court is Defendant City of Pittsburgh's Motion to Dismiss (Doc. 43). For the reasons stated herein, the Court will grant in part and deny in part Defendant's motion.

BACKGROUND

A.Factual Background

Pro se Plaintiff Vince Marino alleges that on May 28, 2011, City of Pittsburgh Police Officer Shawn P. Gorman responded to an alleged assault complaint from one of Plaintiff's neighbors. 2d Am. Compl. ¶ 1 (Doc. 41). Apparently as a result of the May 28, 2011 incident, Plaintiff was charged with simple assault on June 12, 2011. Id. At a preliminary hearing on August 22, 2011, a Pennsylvania state court dismissed the simple assault charge. Id. A misdemeanor charge for disorderly conduct apparently was moved to the state court's "Non-Traffic" docket, where Plaintiff pled guilty and filed a summary appeal. See State Court Dockets (Docs. 43-1, 43-2, 43-3).*fn1 Plaintiff's appeal remains pending. See Mot. to Dismiss ¶ 10 (Doc. 43); Br. in Opp. to Mot. to Dismiss 1-2 (Doc. 56).

B.Procedural Background

Plaintiff filed his original complaint (Doc. 1-2) in a Pennsylvania Magisterial District Court on June 17, 2011. Defendants removed this action to this Court on July 7, 2011, by filing a Notice of Removal (Doc. 1). Plaintiff filed two amended complaints, and Defendant City of Pittsburgh is the only remaining Defendant. See 2d Am. Compl. (Doc. 41).

In his second amended complaint, Plaintiff asserts four counts under 42 U.S.C. § 1983:

(1) failure to train; (2) negligence; (3) violation of rights under the Fourteenth Amendment to the United States Constitution; and (4) violation of rights under the Fifth Amendment to the United States Constitution. 2d Am. Compl. (Doc. 41).

Defendant moved to dismiss, asserting four cursory arguments for dismissal:

(1) Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2) Plaintiff cannot prove Defendant's liability; (3) Plaintiff's negligence claim is barred by the Political Subdivision Tort Claims Act; and (4) Plaintiff's claims are barred by the doctrine of res judicata. Mot. to Dismiss (Doc. 43).

ANALYSIS

A.Heck v. ...


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