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Earl Kean and Linda Kean v. Kenneth Henry

February 28, 2012


The opinion of the court was delivered by: Jones, II, J.


Plaintiff Earl Kean ("Kean") and his wife Linda Kean (collectively, "Plaintiffs") have brought several claims in an Amended Complaint (Docket No. 27) against Defendants Police Officer Kenneth Henry ("Henry"), Chief of Police Charles Kraus, III ("Kraus"), Police Officer Michael Lyons, Sr. ("Lyons"), Corporal Gordon Berlin ("Berlin"), West Donegal Township ("West Donegal"), Mount Joy Township ("Mount Joy"), and Elizabethtown Borough ("Elizabethtown"). Presently before the Court are the Defendants' various Motions to Dismiss (Dkt. Nos. 28, 32, 33 and 36); Plaintiffs' Omnibus Response (Dkt. No. 37); Elizabethtown's Reply Brief (Dkt. No. 39); and Plaintiffs' Omnibus Sur-Reply Brief (Dkt. No. 44).*fn1 For the reasons set forth herein, Defendants' Motions will be granted.


For the purpose of deciding the instant Motions, the Court must take all alleged facts as true. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Plaintiffs make the following factual averments in the Amended Complaint:

In 2002, Kean retired as a Sergeant from the Pennsylvania State Police (¶ 16). In September 2003, as a private resident, Kean attended a West Donegal meeting during which West Donegal proffered a vote to merge the West Donegal and neighboring Mount Joy police departments into a regional authority to be known as the Northwest Regional Lancaster County Police Department ("Regional Police") (¶¶ 18- 19). While West Donegal promoted the merger as an opportunity to improve efficiency as well as preserve Township funds (¶ 20), Kean publicly contended that the true motivation behind the merger proposal was an increase in police officer pay (¶ 22); Kean then moved to postpone any vote on the merger while proposing an interim study as to its potential effects (¶ 21). Kean's motion to postpone was denied and West Donegal voted to approve the merger; Mount Joy subsequently followed suit (¶ 23-24). Thereafter, the West Donegal and Mount Joy police departments were formally merged into the Regional Police (¶ 25).

In August 2004, Kean contacted the Regional Police to request its assistance in removing a construction site nuisance; despite repeated calls, no officer responded (¶¶ 28-29). At the advice of the Pennsylvania Department of Transportation, Kean approached the construction site to report the nuisance to the general contractor; however, the general contractor then blocked Kean with his vehicle so that Plaintiff could not exit the construction site (¶¶ 30-31). Kean again contacted the Regional Police for assistance; instead, the Elizabethtown Police Department arrived to remove Kean from the contractor's blockade, but then turned the incident over to the Regional Police for a more formal response (¶ 32). Several days later, Officer Henry responded but took no action on Kean's complaint; the contractor's behavior continued unabated (¶ 33).

At the end of 2006, Kean discovered that the rate of the Regional Police's solved crimes ("clearance rate") had dropped significantly in comparison to the West Donegal Police Department's previous clearance rate (¶ 34). At a West Donegal Township meeting around that time, Kean claimed that the police department merger had failed to result in greater efficiency or saved fund and that, to the contrary, it had inured only to individual police officers' benefits (¶ 35); Officer Henry argued publicly with Kean on this point (¶ 36). After the meeting, Kean memorialized his concerns to the Regional Police Commission, as well as in local newspapers (¶ 37).

On February 7, 2007, while in his police car vehicle without his siren on, Officer Henry followed Kean's vehicle to Elizabethtown, outside Henry's jurisdiction, and stopped Kean (¶ 38). Upon Kean exiting his vehicle but prior to reviewing Kean's identification, Henry yelled, "Earl, get your cards out--Borough will be here in a minute." (¶ 40). Elizabethtown Police Officer Lyons and Corporal Berlin arrived shortly thereafter (¶ 41). Lyons refused to disclose to Kean the reason for his traffic stop despite Plaintiff's multiple requests; no traffic citation was issued (¶¶ 43, 45).

Kean thereafter complained to the Elizabethtown Chief of Police about the traffic stop, who informed Kean that Officer Henry had wanted, without justification, to charge Kean with fleeing and eluding police officers (¶ 46). The Elizabethtown Police Chief then told Kean "that Elizabethtown will not be used as a weapon for Henry" (¶ 47).

In March 2007, Kean attended a West Donegal Township meeting where a private citizen advised him that the local police officers "will do anything to prevent [Kean] from getting elected to West Donegal Township Supervisor" (¶ 48). Some time after, Kean received a traffic citation in the mail from Officer Lyons citing Plaintiff for careless driving (¶ 49).

In August 2007, an Elizabethtown police officer told Kean that Kean should have anticipated retaliation by police for Kean's public opposition to the department merger, since a defeat of the merger would have prevented increases in police officers' pay, and that there would be "retribution" against Kean as a result (¶¶ 54-55).


In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233 (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). "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." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) ( "All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted). 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." Fed. R. Civ. P. 8(a)(2); Iqbal, 129 S.Ct. at 1950.


Plaintiffs bring three Counts against Defendants.*fn2 First, Kean claims a violation of 28 U.S.C. § 1983 against West Donegal, Mount Joy and Elizabethtown, as well as individual Defendants Henry, Kraus, Berlin and Lyons in their official capacities, arising under the First, Fourth and 14th Amendments to the U.S. Constitution. Am. Compl. ¶¶ 60-68 (Count I). Second, Kean asserts state law claims against Henry, Kraus, Berlin and Lyons in their individual capacities for (a) intentional inflection of emotional distress; (b) conspiracy/aiding and abetting; (c) malicious prosecution; (d) false imprisonment; and (e) false arrest. Am. Compl. ¶ 69 (Count II). Third, Linda Kean brings a claim for loss of ...

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