United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before the Court is an Amended Complaint (Doc. 10) filed by
Plaintiffs Andreas and Caroline Plonka, proceeding in
forma pauperis. Because Plaintiffs are proceeding in
forma pauperis, the Court must screen the Amended
Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) to
assess whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may
be granted, or because it seeks monetary relief from a
defendant who is immune from such relief. For the reasons set
forth below, the Court concludes that the Amended Complaint
should be dismissed in its entirety.
Andreas and Caroline Plonka, through counsel, originally
filed this lawsuit on February 10, 2017. (Doc. 1.) The Court
granted Plaintiffs' application to proceed in forma
pauperis, dismissed the original Complaint in part
without prejudice pursuant to its screening obligation under
28 U.S.C. § 1915(e)(2)(B), and granted Plaintiffs leave
to file an amended complaint. (See Doc. 7.) On March
29, 2017, Plaintiffs filed an Amended Complaint, naming the
Borough of Susquehanna (the “Borough”) and
Susquehanna Borough Police Chief Robert Sweet (“Chief
Sweet”) as Defendants. (Doc. 10.) In their Amended
Complaint, Plaintiffs allege that a discussion between
Plaintiffs and the Susquehanna Borough Council during a
January 15, 2015 Council meeting became argumentative. In
response, councilmembers requested the Borough Police to
escort Plaintiffs out of the Susquehanna Borough Building.
Chief Sweet proceeded to grab Mr.
arm and twist it behind his back while physically pushing Mr.
Plonka toward the exit. Upon reaching the exit door, Chief
Sweet pushed Mr. Plonka into the door in an attempt to force
him out of the building. As a result of this collision, Mr.
Plonka suffered an open wound injury to his leg, which has
yet to heal completely and has required treatment from
multiple medical providers. Plaintiffs allege that Chief
Sweet has used excessive force in other unspecified matters
and that the Borough was aware of these prior incidents.
Plaintiffs further assert that the Borough failed to take any
action to implement proper training procedures in order to
eliminate the use of excessive force by the Borough police
assert a claim under 42 U.S.C. § 1983 alleging the use
of excessive force in violation of Mr. Plonka's Fourth
Amendment right against Chief Sweet in his official capacity
and the Borough, a failure-to-train claim against the
Borough, state-law claims for assault and battery against
Chief Sweet, and a state-law claim for loss of consortium
against Chief Sweet on behalf of Mrs. Plonka.
Court has an ongoing statutory obligation to conduct a
preliminary review of complaints filed by plaintiffs
proceeding in forma pauperis. An application to
proceed in forma pauperis is governed by 28
U.S.C. § 1915. This section provides,  in pertinent
(a)(1) Subject to subsection (b), any court of the Untied
States may authorize the commencement, prosecution or defense
of any suit, action or proceeding, civil or criminal, or
appeal therein, without prepayment of fees or security
therefor, by a person who submits an affidavit that includes
a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.
Such affidavit shall state the nature of the action, defense
or appeal and affiant's belief that the person is
entitled to redress.
. . . .
(e)(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss the
case at any time if the court determines that (A) the
allegation of poverty is untrue; or (B) the action or appeal
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
effectuate § 1915, the Third Circuit Court of Appeals
has established a two-step process for reviewing in forma
pauperis applications. See Deutsch v. United
States, 67 F.3d 1080, 1084 n.5 (3d Cir. 1995); see
also Garland v. U.S. Airways, Inc., No. 05-140, 2007 WL
895139, at *2 (W.D. Pa. Mar. 21, 2007) (noting that the
screening provisions of 28 U.S.C. § 1915(e)(2)
“appl[y] to both prisoner and non-prisoner in forma
pauperis complaints”). First, leave to proceed
in forma pauperis is based on a showing that the
litigant is unable to pay court costs and filing fees.
See Douris v. Middletown Twp., 293 Fed.Appx. 130,
132 (3d Cir. 2008). Second, if in forma
pauperis status is granted, the Court determines whether
the Complaint should be dismissed pursuant to §
1915(e)(2)(B). Id.; Garland, 2007 WL
895139, at *2.
the Court already granted Plaintiffs leave to proceed in
forma pauperis , the Court now turns to the second
step to assess whether the Amended Complaint should be