Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gloria Whiting v. Officer Larry A. Bonazza

January 30, 2012

GLORIA WHITING, PLAINTIFF,
v.
OFFICER LARRY A. BONAZZA, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM ORDER

I. Introduction

Pending before the court are two motions to dismiss the second amended complaint (ECF No. 67) filed by pro se plaintiff Gloria Whiting ("Whiting" or "Plaintiff"). On June 2, 2011, defendants Burgettstown Borough, Officer Amber Price, and Police Chief George Roberts filed a joint motion to dismiss the claims asserted against them in the second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(5) and 12(b)(6). (ECF No. 69.) On June 3, 2011, defendants Smith Township and Police Chief Bernie LaRue likewise filed a joint motion to dismiss the claims asserted against them in that complaint under Federal Rules of Civil Procedure 12(b)(2), 12(b)(5) and 12(b)(6). (ECF No. 72.)

Magisterial Judge Gary Havelka was originally joined as a defendant in this action, but all claims against him were dismissed by the court in a memorandum opinion and subsequent order on February 10, 2011. (ECF Nos. 49 & 50.) Likewise, Officer Larry Bonazza is joined as a defendant in this lawsuit, but neither of the motions to dismiss are filed on his behalf or concern claims against him. Although one of the motions to dismiss is captioned to indicate that it is filed on behalf of Officer Price (ECF No. 69), it does not concern any of the claims against her. Thus, the pending motions to dismiss concern only the claims asserted against Burgettstown Borough and Smith Township (collectively, the "municipal defendants") and Chiefs Roberts and LaRue (collectively, the "police chief defendants").

For the reasons set forth below, the defendants' motions will be granted and the claims asserted in the second amended complaint against the police chief defendants and the municipal defendants will be dismissed with prejudice.

II. Standard of Review

A 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986).) "Factual allegations must be enough to raise a right to relief above the speculative level" and "sufficient to state a claim for relief that is plausible on its face." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Id. at 1949 (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

Two working principles underlie Twombly. Id. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555.) Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 1950. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citing 490 F.3d at 157-58). "But 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 'show[n] - that the pleader is entitled to relief."' Id. (quoting FED. R. CIV. P. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions. "While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

Pro se plaintiffs are held to a less stringent standard than individuals represented by counsel. Federal Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) ("pro se litigants are held to a lesser pleading standard than other parties"). A pro se plaintiff, however, is still required to adhere to standard rules of civil procedure. See McNeil v. United States, 508 U.S. 106, 113 (1993); Haines v. Kerner, 404 U.S. 519, 520 (1972). While the court must accept as true all factual allegations in a complaint, it "need not credit a complaint's . . . legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Even though plaintiff is pro se, she must "set forth sufficient information to outline the elements of [her] claim." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citing 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (2d ed. 1990)). Thus, plaintiff is required to present enough factual allegations for the court, accepting those allegations as true, to determine whether there are plausible claims that defendants violated plaintiff's federal rights. Id.

III. Discussion

On August 21, 2009, plaintiff, proceeding in forma pauperis and pro se, filed her original complaint against defendants (ECF No. 2) arguably within the context of the Civil Rights Act of 1871, 42 U.S.C. § 1983. In plaintiff's original complaint, there were no factual allegations supporting her claims against defendants or demonstrating how plaintiff's rights were violated by any defendant. On July 2, 2010, the court issued a memorandum opinion and order granting defendants' motions to dismiss the complaint and granting plaintiff leave to amend the complaint. (ECF No. 34.) Subsequently, plaintiff filed an amended complaint (ECF No. 36). On February 10, 2011, the court dismissed all claims against the municipal defendants without prejudice, and dismissed without prejudice all claims against Officers Price and Bonazza, except for Fourth Amendment claims for excessive force and unlawful arrest.

On March 3, 2011, plaintiff filed a motion for leave to amend the first amended complaint. (ECF No. 54.) At a hearing on the motion, on April 19, 2011, the court denied the motion without prejudice, but granted plaintiff leave to file a second amended complaint. Plaintiff filed her second amended complaint on May 19, 2011. (ECF No. 67.) Plaintiff joined the municipal defendants in the second amended complaint, and for the first time included claims against the police chief defendants, who were not joined in any of her previous complaints. Plaintiff asserts false arrest and excessive force claims against all defendants named in the second amended complaint. (Id.) The motions to dismiss will be considered first with respect to the claims alleged against the police chiefs, and second with respect to the municipal defendants. Because of the limited nature of these motions to dismiss, the court will not recite the entire factual history of the case, but will provide factual details where necessary in the court's analysis of the issues presented.

A. The Police Chief Defendants

First, in the motions to dismiss (ECF Nos. 69 & 72) the relevant defendants argue that the claims against the police chief defendants must be dismissed because (1) the police chief defendants were never served with plaintiff's complaint, amended complaint, or second amended complaint; (2) the statute of limitations bars any action against the police chief defendants; (3) the court order allowing the plaintiff to file her second amended complaint did not permit the addition of parties; and (4) the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.