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Dunn v. Graham

United States District Court, M.D. Pennsylvania

June 18, 2015

JEFFREY and ANNA DUNN, Plaintiffs,
v.
JAMES GRAHAM and PITTSTON TOWNSHIP, Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before me is Defendants' Motion to Dismiss Count II of Plaintiffs' Amended Complaint (Doc. 15) pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 16). In Count II, Plaintiffs Jeffrey and Anna Dunn ("the Dunns") claim that Defendants Pittston Township ("the township, " "Pittston") and Officer James Graham, a township police officer, violated Mr. Dunn's rights to procedural and substantive due process as protected by the United States Constitution's Fourth, Fifth, and Fourteenth amendments. Because the Amended Complaint fails to plausibly state a claim that Defendants violated the right to procedural and substantive due process, the Motion to Dismiss (Doc. 16) will be granted and Count II will be dismissed.

I. Background

A. Factual Background

The relevant facts as stated in the Amended Complaint (Doc. 15) are as follows:

Plaintiffs Jeffrey and Anna Dunn are married and reside in Pittston Township, Pennsylvania. (Doc. 15, ¶ 3.) Defendant James Graham was at all relevant times employed as a police officer by Defendant Pittston Township. ( Id., ¶ 4.) Plaintiffs assert that Defendant Graham was acting within the scope of his employment at all relevant times. (Id. )

The Dunns are owners in fee of real estate in Pittston Township. ( Id., 6.) Plaintiffs assert that this land is located in an Industrial District as set out by a township zoning ordinance. (Id. ) In March 2009, the township issued Plaintiffs a building permit for the construction of a garage on their property. ( Id., ¶ 7.) They built the garage and used it for industrial purposes. In July 2012, the garage burned down as the result of arson. ( Id., ¶ 8.) The Dunns immediately attempted to repair what remained of the building, the foundation and floor. ( Id., ¶ 9.) They began to rebuild the garage in the same location and with the same dimensions and materials. (Id. )

On September 7, 2012, Defendant Graham accompanied Pittston's Zoning Officer to serve the Dunns a "stop work order" issued against them. ( Id., ¶ 10.) This order was issued on the grounds that construction to rebuild the garage violated the Pennsylvania Uniform Code, and the original permit had been issued in error, as the land was in a Residential District. (Id. ) Plaintiffs assert that the order was erroneously issued, since it was based on the incorrect claim that the property is zoned for residential use, when in fact, they maintain it is zoned for industrial use. ( Id., ¶ 11.)

When the order was served, Mr. Dunn took out his cell phone to call the Pennsylvania State Police. ( Id., ¶ 12.) Plaintiffs allege that "without uttering a single word and without any provocation or cause, " Officer Graham "deliberately and in reckless disregard of Plaintiff Jeffrey Dunn's physical safety and rights, violently and brutally" and "with great force" punched and slammed Mr. Dunn's right arm, wrist, and hand, causing severe injuries. ( Id., ¶ 13.) This caused Mr. Dunn's phone to fall to ground with such force that it broke apart. (Id. ) Plaintiff was unarmed and made no furtive movements or gestures. ( Id., ¶ 14.)

B. Procedural Background

Based on the foregoing, Plaintiffs filed a Complaint on September 6, 2014 (Doc. 1). On December 19, 2014, Defendants filed a Motion to Dismiss (Doc. 6), which I granted in part and denied in part on February 18, 2015 (Doc. 14). I granted Plaintiffs leave to amend their complaint. (Id. ) On March 10, 2015, Plaintiffs filed an Amended Complaint (Doc. 15), which contains five (5) counts: Count I alleges assault and battery and the use of excessive force in violation of Mr. Dunn's "federally protected rights." ( Id., ¶¶ 15-26.) Count II alleges a violation of Mr. Dunn's right to Procedural and Substantive Due Process of Law under the Fourth, Fifth, and Fourteenth Amendments. ( Id., ¶¶ 27-37.) Count III alleges a violation of Plaintiffs' rights to the security and privacy of their home, pursuant to the Fourth Amendment. ( Id., ¶¶ 38-45.) Count IV alleges inadequate supervision and training by Pittston Township, in violation of 42 U.S.C. § 1983. ( Id., ¶¶ 46-52.) Count V alleges loss of consortium on the part of Anna Dunn. ( Id., ¶¶ 53-58.) Plaintiffs request compensatory and punitive damages, and attorneys' fees pursuant to 42 U.S.C. § 1988. ( Id., 11-12.)

On March 23, 2015 Defendants filed a Motion to Dismiss (Doc. 16), and a Brief in Support (Doc. 17). Defendants seek to dismiss Count II of the Complaint, which alleges a violation of Plaintiff Dunn's procedural and due process rights as protected by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. On April 6, Plaintiffs filed a Brief in Opposition (Doc. 18). Thus, this motion is fully briefed and ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering such a motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of his claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of ...


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