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Luck v. Mount Airy No. # 1, LLC

United States District Court, M.D. Pennsylvania

October 4, 2012

Peter C. LUCK and Kenneth N. Wynder, Jr., Plaintiffs
MOUNT AIRY # 1, LLC; Lianne R. Asbury; Trevor Tasetano; Pennsylvania State Police; Joseph J. Kulick, Jr.; and Mark A. Kaye, Defendants.

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Kathleen E. Walters, The Higgins Law Office, Stroudsburg, PA, for Plaintiffs.

Michael F. Frisbie, Hendrzak & Lloyd, Center Valley, PA, Lucy E. Fritz, Office of Attorney General, Civil Litigation Section, Harrisburg, PA, for Defendants.


JAMES M. MUNLEY, District Judge.

Before the court for disposition are the defendants' motions to dismiss the complaint (Docs. 14, 15) pursuant to Federal Rule of Civil Procedure 12(b)(6). The motions have been fully briefed and are ripe for disposition.


On May 2, 2011, Plaintiffs Peter Luck and Kenneth Wynder (collectively " plaintiffs" ) entered Mount Airy Casino located in Mount Pocono, Pennsylvania, and spoke with casino security guards. (Doc. 1, Compl. ¶ 17). Defendant Trevor Tasetano (hereinafter " Defendant Tasetano" ), a Mount Airy Casino security supervisor, asked plaintiffs to leave because they were talking about unions and making the security guards nervous. ( Id. ) Plaintiffs voluntarily left the casino. ( Id. ) They were never notified that they could not return to the premises. ( Id. )

On or about May 14, 2011, plaintiffs again went to Mount Airy Casino. ( Id. ¶ 14). Plaintiffs sat and played slot machines. ( Id. ) They were on the premises for approximately one hour when security responded to a nearby scuffle involving other patrons. ( Id. ) Three security guards surrounded plaintiffs. ( Id. ) Defendant Tasetano demanded identification from plaintiffs. ( Id. ¶¶ 5, 14). Plaintiffs asked why they were being questioned. ( Id. ¶ 14). Defendant Tasetano told them that they were not permitted on the premises because of an incident that occurred on May 2, 2011. ( Id. )

Plaintiffs stated that they did not want any trouble and would voluntarily leave. ( Id. ¶ 14). Defendant Tasetano said they could not leave and that he was calling the Pennsylvania State Police. ( Id. ) Security escorted plaintiffs through the casino area in front of the other patrons. ( Id. ¶ 15). They proceeded to the front of the casino and met with Defendants Pennsylvania State Trooper Mark A. Kaye (hereinafter " Defendant Kaye" ) and Trooper Joseph J. Kulick, Jr. (hereinafter " Defendant Kulick" ). ( Id. ¶¶ 8, 15). The troopers escorted plaintiffs to an upstairs office. ( Id. ¶ 15). Defendant Lianne R. Asbury, Director of Casino Security, (hereinafter " Defendant Asbury" ) and Defendant Tasetano prompted the troopers to arrest plaintiffs. ( Id. ) Defendants Kaye and Kulick arrested plaintiffs and issued them citations for criminal trespass. ( Id. ) Plaintiffs were released and escorted out of the casino by security and the troopers. ( Id. )

Upon exiting the casino, plaintiffs encountered Plaintiff Wynder's friend and friend's wife, with whom Plaintiff Luck was also familiar. ( Id. ¶ 16). They greeted plaintiffs and invited them into the casino. ( Id. ) Plaintiffs explained that they could not go into the casino because they were arrested and told not to return. ( Id. )

On or about June 7, 2011, following a trial on the criminal trespass charges, plaintiffs were found not guilty. ( Id. ¶ 22). All the charges were dismissed or terminated in their favor. ( Id. )

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Plaintiffs claim that Mount Airy Casino had the ability and opportunity to notify plaintiffs that they were no longer permitted on the premises after the incident on May 2, 2011. ( Id. ¶ 18). Plaintiffs are members of the Casino Player's Club, therefore the casino possessed their addresses and could have sent them written notices of the restriction. ( Id. ) Mount Airy Casino failed to do so. ( Id. )

Plaintiffs continue to be prohibited from entering Mount Airy Casino. ( Id. ¶ 23). Such prohibition prevents Plaintiff Luck from participating in several golf events which involve his private advertising business. ( Id. ) His participation generates approximately $5,000 in advertising revenue each year. ( Id. ) Plaintiff Wynder is the President of the Law Enforcement Employees Benevolent Association. Plaintiff Luck is also a member. ( Id. ¶ 24). As a result of their prohibition from Mount Airy Casino, they have suffered stigmatizing affects regarding their positions. ( Id. )

On May 11, 2012, plaintiffs filed their complaint. (Doc. 1). Plaintiffs name the following defendants: the Pennsylvania State Police, Trooper Kaye, Trooper Kulick, Mount Airy Casino, Asbury and Tasetano. Plaintiffs' complaint contains three counts pursuant to 42 U.S.C. § 1983 and § 1988 against all of the defendants: Count I, false arrest and false imprisonment; Count II, malicious prosecution; and Count III, conspiracy. Plaintiffs assert Count IV, failure to train and supervise, against the Pennsylvania State Police pursuant to 42 U.S.C. § 1983 and § 1988. Additionally, plaintiffs assert four state law claims against all of the defendants: Count V, a state constitutional claim for false arrest and false imprisonment pursuant to Article I, Section 8 of the Pennsylvania Constitution; Count VI, false arrest and false imprisonment; Count VII, malicious prosecution; and Count VIII, intentional infliction of emotional distress.

On July 16, 2012, Defendants Pennsylvania State Police, Kaye and Kulick (collectively " Commonwealth Defendants" ) filed a motion to dismiss plaintiffs' complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 14). Also on July 16, 2012, Defendants Mount Airy Casino, Asbury and Tasetano (collectively " Casino Defendants" ) filed a motion to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6). (Doc. 15). The parties briefed the issues, bringing the case to its present posture.


The court has federal question jurisdiction over this case brought under 42 U.S.C. § 1983 (hereinafter " Section 1983" ) and 42 U.S.C. § 1988 (hereinafter " Section 1988" ) for violation of plaintiffs' constitutional rights. See 28 U.S.C. § 1331 (" The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." ); 28 U.S.C. §§ 1343(a)(3), (4) (granting district courts jurisdiction over civil actions brought to redress deprivations of constitutional or statutory rights by way of damages or equitable relief).

The court has supplemental jurisdiction over plaintiffs' 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

A Rule 12(b)(6) motion tests the sufficiency of a complaint's allegations. Granting the motion is appropriate if, accepting

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as true all the facts alleged in the complaint, the plaintiff has not pleaded " enough facts to state a claim to relief that is plausible on its face," or put another way, " nudged [his or her] claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Third Circuit interprets Twombly to require the plaintiff to 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 Twombly, 550 U.S. at 556, 127 S.Ct. 1955). 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 relation to Federal Rule of Civil Procedure 8(a)(2), the complaint need only provide " ‘ a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘ give the defendant fair notice of what the ... claim is and the grounds upon which it rests,’ " Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). " [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). " Rule 8(a)(2) requires a ‘ showing’ rather than a blanket assertion of an entitlement to relief." Id.

The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). However, " we are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted).

To determine the sufficiency of a complaint, the court should identify the allegations that, " because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. " 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. Generally, a court should consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).


The Commonwealth Defendants and the Casino Defendants filed two separate motions to dismiss the plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 14, 15). Collectively, they challenge all of the counts in the complaint except Count VIII, which asserts an intentional infliction of emotional distress claim against all the defendants under Pennsylvania law. Plaintiffs brings their federal law claims against all defendants pursuant to Section 1983, therefore we will briefly address that statute.

Section 1983 does not, by its own terms, create substantive rights. Rather, it provides remedies for deprivations of rights established elsewhere in the Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). Section 1983 states in pertinent part:

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Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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 party injured in an action at law, suit in equity or other proper proceeding for redress....

42 U.S.C. § 1983. Thus, to establish a claim under Section 1983, two criteria must be met. First, the conduct complained of must have been committed by a person acting under color of state law. Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.1998). Second, the conduct must deprive the plaintiff of rights secured under the Constitution or federal law. Id.

Defendants assert several grounds to support their motions to dismiss plaintiffs' complaint. We will address each motion separately.

A. Commonwealth Defendants' Motion to Dismiss

Commonwealth Defendants assert the following arguments: (1) the complaint fails to state a cause of action for false arrest, false imprisonment or malicious prosecution; (2) Commonwealth Defendants are entitled to qualified immunity; (3) plaintiffs' claims against the Commonwealth Defendants in their official capacities are barred by Eleventh Amendment immunity; (4) plaintiffs' claims for compensatory and punitive damages against the Commonwealth Defendants in their official capacities should be dismissed with prejudice; (5) plaintiffs' claim under Article I, Section 8 of the Pennsylvania Constitution should be dismissed because no private cause of action exists under Pennsylvania law; (6) the complaint fails to state a cause of action for conspiracy; and (7) ...

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