United States District Court, W.D. Pennsylvania
RAMON L. MILLIGAN, Plaintiff,
CORPORAL ALEX JACOB, CORPORAL ADAM CANDIOTO, OFFICER BRIAN PRUNTY, OFFICE ANDREW GUERRIERO, BOROUGH OF MOUNT OLIVER and MOUNT OLIVER POLICE DEPARTMENT Defendants.
Bissoon, District Judge.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
TO DISMISS ECF NO. 25
PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE.
reasons set forth herein, it is respectfully recommended that
Defendants' Motion to Dismiss the Complaint (ECF No. 25)
be granted. More specifically, it is recommended that pro se
Plaintiff's Complaint, stating §1983 claims for
Constitutional violations, including those of his First,
Fourth, Fifth, and Fourteenth Amendment rights, and all
claims under other allegedly applicable law, be dismissed
with prejudice. In so recommending, the Court has thoroughly
reviewed the parties' briefings and concluded, giving pro
se Plaintiff all due consideration, that further amendment to
Plaintiff's Amended Complaint, ECF No. 17, would be
FACTUAL AND PROCEDURAL HISTORY; COMPLAINT
Ramon L. Milligan (“Milligan” or
“Plaintiff”), an African American, filed this
primarily civil rights action regarding his arrest for
offenses related to his refusal to comply with a Borough
police officer's directive to leave the scene of
Plaintiff's verbal altercation with another individual.
More specifically, as stated in relevant portions of
Plaintiff's Amended Complaint, ECF No. 17:
Plaintiff was at a Port Authority Bus Stop located across
from the Mount Oliver Police Department on Brownsville Road
the mid-afternoon of March 28, 2018. He overheard a Caucasian man
use a racial expletive to a young African American man and
objected. “The third-party and Plaintiff then began a
verbal confrontation.” ECF No. 17. Whereupon the four
Defendant Mount Oliver police officers - Jacob (incorrectly
named as “Jacob Alex” rather than “Alex
Jacob”, see Defendants' Concise Statement
of Material Facts (“Defendants' CSMF”), ECF
No. 26 at 1), Candioto, Prunty and Guerriero - separated both
gentlemen and took their information. The third-party left
the altercation area as directed. See ECF No. 17.
the other man involved, Plaintiff objected to leaving.
Plaintiff and Corporal Jacob “went back and forth for
some time as the Plaintiff informed [Jacob that Plaintiff]
was waiting for a Port Authority bus;” and Jacob
“continued his attempt to quiet the Plaintiff and get
[him] moving.” ECF No. 17. Plaintiff expressly
reasserted his dis-inclination to comply with Jacob's
directions to refrain from further verbal dispute and leave
the area. Jacob then cautioned Plaintiff with arrest
to no avail. Plaintiff acknowledges his continued dispute and
non-compliance with Jacob, and alleges that he was arrested
when in the course of this conduct he asked for Jacob's
badge number. Plaintiff was walked across the street to the
Police Station where he was charged with counts of Disorderly
Conduct, Harassment and Possession (the latter added on
Jacob's alleged discovery of marijuana residue in
Plaintiff's keychain). Plaintiff remained in custody for 14
days. See ECF No. 17.
record reflects a criminal disposition date of April 12, 2018
and Plaintiff's entry of summary offense guilty pleas to
charges of Disorderly Conduct and Harassment for which costs
were assessed. See ECF No. 26; 26-1 and 26-22
commenced this civil action on April 17, 2018, with the
filing of his motion for leave to proceed in forma pauperis
and an accompanying Complaint ECF No. 1; ECF No. 3.
Defendants' Motion to Dismiss for Failure to State a
Claim was filed June 19, 2018, ECF No. 11. Said Motion was
rendered moot when Plaintiff was granted leave to file an
Amended Complaint, which was docketed on July 26, 2018. ECF
No. 17. See also ECF No. 18 (Order dismissing ECF
No. 11 as moot). The pending Motion to Dismiss, together with
Defendants' CSMF and Brief in Support, were filed on
September 24, 2018. ECF No. 25, 26 and 27, respectively.
Plaintiff's Response was filed on October 23, 2018. ECF
No. 31. Accordingly, the issues raised in the Defendants'
Motion are ripe for disposition.
Complaint - Overview
Amended Complaint brings, with some duplication, fourteen
pages of claims, including broad and sometimes vague claims
of violations of the following Constitutional rights:
Plaintiff's First Amendment Freedom of Speech, Fourth
Amendment protection from Unlawful Search and Seizure, Fifth
Amendment Right to Liberty, and Fourteenth Amendment Due
Process. It also alleges discrimination in a place of public
accommodation in violation of the Civil Rights Act of 1964,
42 U.S.C. § 2000(a); claims under Pennsylvania's
Dragonetti Act, 42 Pa.C.S.A. §8351; and multiple claims
under federal and state criminal statutes that, as discussed
below, do not/were not intended to create a private right of
action. In his Response, however, Plaintiff appears to
express concurrence with dismissal of Defendant Mount Oliver
Police Department as a party, and of claims for violation of
the Fifth Amendment and 42 Pa.C.S.A. §8351. See
ECF No. 31 at 2.
repeatedly distinguishes (1) the issuance of a summons to the
gentleman who provided his information and left the scene of
the altercation, in compliance with police officer
directives, and (2) the initial issuance of a summons but
subsequent arrest of Plaintiff who “refus[ed] to move
from the bus stop and cease talking.” ECF No. 17.
Plaintiff premises his claims primarily on beliefs that (a)
his conduct “was not subject to arrest, ” i.e.,
that it did not meet any probable cause standard for arrest
by Jacob; and that (b) his subsequent guilty plea presents no
obstacle to his current probable cause challenge. And he
premises his claims against the additional police officer and
Mount Oliver Defendants by extension, i.e., by allegations of
deliberate indifference to his false arrest and by related
unspecified deficiencies in hiring and/or
training. However, pro se Plaintiff simply
misapprehends the law. See, e.g., Whiting v.
Bonazza, 545 Fed.Appx. 126, 128 (3d Cir. 2013) (finding
police had probable cause to arrest for disorderly conduct
under Pennsylvania law where §1983 plaintiff engaged in
verbal altercation and continued verbal public unruliness
rather than comply with officer's direction to leave
scene). As explained below, the Court concludes that no
further amendment could raise a cognizable claim under the
facts as Plaintiff himself presents them.
STANDARD OF REVIEW
United States Court of Appeals for the Third Circuit
summarized the standard to be applied in deciding motions to
dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in
Rule 8 of the Federal Rules of Civil Procedure, a plaintiff
must come forward with “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” As explicated in Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009), a claimant must state a
“plausible” claim for relief, and “[a]
claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Although “[f]actual allegations must be
enough to raise a right to relief above the speculative
level, ” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff “need only put forth
allegations that raise a reasonable expectation that
discovery will reveal evidence of the necessary
element.” Fowler, 578 F.3d at 213 (quotation marks and
citations omitted); see also Covington v. Int'l
Ass'n of Approved Basketball Officials, 710 F.3d
114, 117-18 (3d Cir. 2013).
Thompson v. Real Estate Mortg. Network, 748 F.3d
142, 147 (3d Cir. 2014).
addition to the complaint, courts may consider matters of
public record and other matters of which a court may take
judicial notice, court orders, and exhibits attached to the
complaint when adjudicating a motion to dismiss under Rule
12(b)(6). Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A
Wright and Miller, Federal Practice and Procedure: Civil 2d,
§ 1357; Chester County Intermediate Unit v.
Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.
1990)). A court may also consider indisputably authentic
documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d
Cir. 2004); Pension Ben. Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993);
Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa.
2003) (“[C]ourts are permitted to consider matters of
which they may take judicial notice, including records and
reports of administrative bodies, and publicly available
records and transcripts from judicial proceedings ‘in
related or underlying cases which have a direct relation to
the matters at issue.'”) (citations omitted). More
specifically, the Court may take judicial notice of the State
court records without converting a 12(b)(6) motion to dismiss
into a motion for summary judgment.
considering pro se pleadings, a court must employ less
stringent standards than when judging the work product of an
attorney. Haines v. Kerner, 404 U.S. 519, 520
(1972). When presented with a pro se complaint, the court
should construe the complaint liberally and draw fair
inferences from what is not alleged as well as from what is
alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d
Cir. 2003). In a § 1983 action, the court must
“apply the applicable law, irrespective of whether the
pro se litigant has mentioned it by name.” Higgins
v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting
Holley v. Dep't of Veteran Affairs, 165 F.3d
244, 247-48 (3d Cir. 1999)). See also Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this
is a § 1983 action, the [pro se] plaintiffs are entitled
to relief if their complaint sufficiently alleges deprivation
of any right secured by the Constitution.”).
Notwithstanding this liberality, pro se litigants are not
relieved of their obligation to allege sufficient facts to
support a cognizable legal claim. See, e.g., Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir.
2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th
United States Court of Appeals for the Third Circuit in
Phillips v. County of Allegheny has ruled that if a
District Court is dismissing a claim pursuant to Fed.R.Civ.P.
12(b)(6) in a civil rights case, it must sua sponte
“permit a curative amendment unless such an amendment
would be inequitable or futile.” 515 F.3d 224, 245 (3d
to 42 U.S.C. § 1983, private citizens are afforded a
means to redress violations of federal law committed by state
actors. In pertinent part, § 1983 provides as follows:
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
Id. Section 1983 is not a source of substantive
rights, but merely a method for vindicating violations of
federal law. Gonzaga Univ. v. Doe, 536 U.S. 273,
284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204
(3d Cir.1996). To establish a Section 1983 claim, a plaintiff
must show a deprivation of a “right secured by the
Constitution and the laws of the United States ... by a
person acting under color of state law.” Id.
(quoting Mark v. Borough of Hatboro, 51 F.3d 1137,
1141 (3d Cir.1995)). Since there is no dispute that
Defendants were acting under color of state law at all times
relevant to this litigation, this Court's § 1983
analysis will focus on whether Plaintiff has alleged a
plausible violation of his federal rights.