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Albert Dubas v. Olyphant Police Department

April 20, 2012


The opinion of the court was delivered by: (Judge Munley)


Plaintiff Albert Dubas initiated the instant action against Defendants Olyphant Police Department, Borough of Olyphant, Police Chief John Gilgallon, Officer Roland J. Alunni and Officer Lewis Kline (hereinafter "defendants") on July 28, 2011. (Doc. 1). Plaintiff Albert Dubas's complaint alleges civil rights claims pursuant to 42 U.S.C. § 1983 and the Pennsylvania common law. Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 7, 2011. (Doc. 6). For the following reasons, the court will grant defendants' motion in part and deny it in part.


On August 31, 2009 at approximately 3:30 p.m., Lackawana County Emergency Services received a call that a man brandished a handgun on Lemko Street, near Kimberly Circle, in the Borough of Olyphant. (Doc. 1, Compl. (hereinafter "Compl.") ¶¶ 13-14, 16). Defendant Police Chief John Gilgallon (hereinafter "Gilgallon"), a member of Defendant Olyphant Police Department (hereinafter "Olyphant PD"), responded to the call while on his way home.*fn1 (Id. ¶¶ 8, 15-16). Gilgallon was the first officer on the scene. (Id. ¶ 15). Gilgallon recognized plaintiff, who was sitting in his van with a female friend. (Id. ¶ 17). Plaintiff's van was parked on Lemko Street. (Id.)

Gilgallon allegedly approached the van, opened the driver's side door, grabbed plaintiff by the collar, and said, "Al we had a complaint of a guy waiving a gun, I hope the hell it ain't you, get out of the van." (Id. ¶¶ 18-19). Gilgallon told plaintiff that he "better not have a gun. This is the last straw." (Id. ¶ 19). Gilgallon then arrested plaintiff. (Id.)

Other Olyphant PD officers arrived, including Defendant Officer Roland J. Alunni (hereinafter "Alunni") and Defendant Officer Lewis Kline (hereinafter "Kline"). (Id. ¶ 20). Kline and Alunni transported plaintiff to the police station. (Id.) Without requesting plaintiff's consent, Gilgallon searched the van. (Id. ¶¶ 21-23). After a fifteen minute search, Gilgallon did not find any weapons in the van. (Id. ¶ 24). While he was conducting the search, plaintiff's friend told Gilgallon that "Al did not have a gun. Someone was pulling their chain." (Id.)

Gilgallon responded that "other people from his development are complaining about Al, therefore there must be some truth to the complaints." (Id.) Plaintiff alleges that prior to this incident, unidentified members of the Olyphant PD told plaintiff "that if he did not stop complaining about problems on his property near Kimberly Circle that he would be arrested for harassment" and that "if people in his development kept complaining he would be arrested for harassment." (Id. ¶¶ 34-35).

Defendants had plaintiff's car impounded and a subsequent search did not reveal a weapon. (Id. ¶ 26). The Olyphant PD held plaintiff for approximately five hours, after which time he was taken to a preliminary arraignment before Magisterial District Judge Robert G. Russell. (Id. ¶ 27; Doc. 7-2, Ex. 2, Crim. Doc. Sheet). Later, and with the advice of his attorney, plaintiff granted the Olyphant PD permission to search his home. (Compl. ¶ 28). Alunni went to plaintiff's home and found and seized a "blued" .22 caliber revolver on his counter-top. (Id. ¶ 29). Plaintiff's mother allegedly told Alunni that the gun remained in their home all day on August 31, 2009. (Id. ¶¶ 30-33). Plaintiff maintains that the "blued" gun found at his home does not match the eyewitnesses description of a silver handgun. (Id. ¶¶ 25, 37).

The Commonwealth of Pennsylvania charged plaintiff with simple assault and harassment, and his case was transferred to the Lackawanna County Court of Common Pleas on September 10, 2009 after a preliminary hearing before Magisterial District Judge John P. Pesota. (Doc. 7-2, Ex. 2, Crim. Doc. Sheet). Plaintiff filed a petition for a writ of habeas corpus on December 3, 2009, and Judge Michael Barrasse held a hearing on the petition on January 15, 2010. (Id.; Compl. ¶¶ 38-39). On February 17, 2010, Judge Barrasse ordered that the charges against plaintiff be nolle prossed for lack of prosecutorial evidence. (Doc. 1-1, Ex. A, Order Dated Feb. 17, 2010; Compl. ¶ 39). Plaintiff alleges that Kline, Gilgallon and Alunni misrepresented important exculpatory evidence when they testified against him at both his preliminary hearing and his hearing on the petition for habeas corpus. (Compl. ¶¶ 40-44).

The instant complaint contains five counts. In Count I, plaintiff alleges malicious prosecution claims under 42 U.S.C. § 1983 against Gilgallon, Alunni and Kline in their individual capacities. (Id. ¶¶ 50-58). In Count II, plaintiff alleges that he was subject to a search and seizure in violation of his Fourth Amendment rights and that Gilgallon, Alunni and Kline are liable under 42 U.S.C. § 1983 in their individual capacities. (Id. ¶¶ 59-64). In Count IV,*fn2 plaintiff asserts civil rights claims against all defendants pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978). (Id. ¶¶ 65-69). In Count V, plaintiff brings false arrest/imprisonment claims against Gilgallon, Alunni and Kline under Pennsylvania state law. (Id. ¶¶ 70-73). In Count VI, plaintiff alleges malicious prosecution claims against Gilgallon, Alunni and Kline under Pennsylvania state law. (Id. ¶¶ 74-78). For the following reasons, the court will grant defendants motion in part and deny it in part. Jurisdiction Plaintiff asserts civil rights claims under 42 U.S.C. § 1983(hereinafter "Section 1983"). The court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that "[t]he district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." The court has jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) ("[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.").

Legal Standard

Defendants brings this motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint are tested. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, "'under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' [each] necessary element" of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Twombly, 550 U.S. at 555-56). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "[T]he factual detail in a complaint [cannot be] so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232 (citation omitted).

The Supreme Court has counseled that a court examining a motion to dismiss should, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Next the court should make a context-specific inquiry into the "factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 681.


Defendants contend that plaintiff's complaint should be dismissed because it fails to state a claim for which relief can be granted. Defendants advance several arguments supporting this contention, specifically they argue that plaintiff's claims are either impermissible as a matter of law or clearly contradictory to the facts of the case. For the following reasons, defendants' motion will be granted in part and denied in part.

I. Monell Claims Against All Defendants

In Count IV of the complaint, plaintiff contends that all defendants are liable pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978) for alleged civil rights violations caused by official borough policies and customs. Defendants assert that plaintiff's Monell claims against Defendants Olyphant PD, Borough of Olyphant (hereinafter "the Borough"), Gilgallon, Kline and Alunni are defective as a matter of law and must be dismissed. The court will examine the legal sufficiency of plaintiff's claim against the Olyphant PD, plaintiff's official capacity claims against Gilgallon, Kline and Alunni, and plaintiff's claims against the Borough in turn.

A. Claims Against Defendant Olyphant Police Department

Plaintiff names the Olyphant PD as a defendant in the complaint and asserts that it is liable to plaintiff for its alleged civil rights violations. Plaintiff also alleges civil rights claims under Section 1983 against the Borough. Defendant contends that the Olyphant PD must be dismissed as a party because a municipality and its police department are treated as the same entity for the purposes of a Section 1983 action. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997) ("[W]e treat the municipality and its police department as a single entity for purposes of section 1983 liability."). Plaintiff concurs with defendants' assertion that the claims against the Olyphant PD should be dismissed. (Doc. 10, Pl.'s Mem. in Opp'n to Mot. to Dismiss at 4). Thus, the court will grant defendants' motion to dismiss with respect to the Olyphant PD.

B. Official Capacity Claims Against Officer Defendants

Defendants assert that the official capacity claims against Gilgallon, Kline and Alunni (collectively the "officer defendants") must be dismissed in light of plaintiff's claims against the Borough. Defendants argue that the official capacity claims against the officer defendants are duplicative of the claims against the Borough because official capacity claims are equivalent to claims against the municipality. The law is well established on this point, and courts sitting in the Third Circuit have dismissed defendants sued in their official capacity when the same claims are made against the municipality. See Whaumbush v. City of Phila., 747 F. Supp. 2d 505, 510 n.2 (E.D. Pa. 2010) (dismissing claims against defendants in their official capacity as duplicative of the civil rights claims against the municipality); Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 428 (M.D. Pa. 2009) (stating that an official capacity suit is "generally merely another way of pleading an action ...

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