WARDELL v. CITY OF ERIE et al, No. 1:2013cv00201 - Document 25 (W.D. Pa. 2014)

Court Description: MEMORANDUM OPINION & ORDER that Plaintiff file a Second Amended Complaint in accordance with this Memorandum Opinion before August 15, 2014. This will be Plaintiff's final opportunity to amend his complaint. In the event that Plaintiff fails to file a Second Amended Complaint before August 15, 2014, this action may be dismissed for failure to prosecute. Following the filing of the Second Amended Complaint, Defendants will have the opportunity to file or renew their motions to dismiss or fil e an answer. IT IS FURTHER ORDERED that the following motions are dismissed without prejudice in light of this Order directing of the filing of a Second Amended Complaint: The motion to dismiss or motion for more definite statement filed by the City Defendants 15 ; The motion to dismiss filed by the County Defendants 18 ; and The motion for summary judgment filed by Plaintiff 22 . IT IS FURTHER ORDERED that the Clerk of Courts is directed to terminate the City of Erie and Sheriffs Dept from the docket. Signed by Magistrate Judge Susan Paradise Baxter on 7/24/14. (lrw)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MICHAEL D. WARDELL, Plaintiff, v. CITY OF ERIE, et al, Defendants. ) ) ) ) ) ) ) Civil Action No. 13-201Erie District Judge McVerry Magistrate Judge Baxter MEMORANDUM OPINION AND ORDER 16 17 Plaintiff, acting pro se, filed this civil rights action on July 8, 2013, along with another 18 similar civil rights action, filed at Civil Action No. 13-202E. The two cases were consolidated as 19 they were based on the same facts. Thereafter, Plaintiff was directed to file an Amended 20 Complaint at this case number in order to combine the claims in the two cases and to more fully 21 state his claims. Because the Original Complaint filed at each of the case numbers was vague as 22 to the acts alleged against each Defendants, this Court specifically directed that the Amended 23 Complaint contain all of Plaintiff s allegations against every named Defendant and that 24 Plaintiff must explain how each Defendant violated his civil rights. ECF No. 13. 25 The operative complaint in this action is filed at ECF No. 14. In the Amended Complaint, 26 Plaintiff characterizes his case as a civil rights action brought under U.S.C. § § 1983-1985 and 27 raising supplemental state law claims concerning the actions of Defendant Erie County Sheriff s 28 Dept. and Erie Police s [sic] Dept. in an unlawfully [sic] arrest, maliciously prosecuting [sic], 29 and using excessive and unreasonable force against the Plaintiff Michael D. Wardell. This 30 violating the Plaintiff s constitutional rights under the United States. ECF No. 14, page 1. 1 31 Plaintiff s Amended Complaint is bare-bones, but seems to raise constitutional and state tort 32 claims arising out of a false arrest situation. This Court liberally construes 1 the Amended 33 Complaint as raising legal claims of false arrest/imprisonment, malicious prosecution and 34 excessive force. 35 As Defendants to this action, Plaintiff names the following: City of Erie Officers 36 Kaschalk, Janus, Williams, and Russell and Erie County Sheriffs Deputies Habursky, David Orr, 37 Jeremy Markham, and Doug Kubiak. 2 Although all these Defendants are named in the caption of 38 the Amended Complaint 3, only Kaschalk and Habursky are mentioned within the body of the 39 pleading. Plaintiff identifies the named parties alleging that all Defendants acted in conspiracy. 40 Erie City Officers came to agreement with four Erie County Deputies to be a witness in a 41 criminal proceeding against the Plaintiff. ECF No. 14, page 1. Here, this Court liberally 42 construes this allegation as attempting to state a claim of conspiracy. Pro se pleadings, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read with a measure of tolerance ); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Dep t of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate. 1 The docket reflects that the City of Erie and Sheriff s Dept are named as entityDefendants. The Amended Complaint does not name either entity as a Defendant to this action or state any claim against either of them. Accordingly, these entities should be terminated from the docket by the Clerk of Court. 2 The Amended Complaint lists Attorney for Defendants as a party in the caption. However, there are no factual or legal allegations upon which to base any claim against the attorneys in this case, and they have not been listed on the docket. 3 2 Both the City of Erie Defendants and the County Defendants have filed motions to 43 44 dismiss and Plaintiff has filed an Opposition Brief thereto. See ECF Nos. 15, 18, and 21 45 (captioned as Opposing Affidavits Motion for Summary Judgment ). The City Defendants also 46 move for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). Plaintiff 47 has also filed a motion for summary judgment and both sets of Defendants have filed a Response 48 thereto. See ECF Nos. 22, 23, and 24. Plaintiff s Amended Complaint is deficient in several ways. While the Amended 49 50 Complaint is full of legal conclusions, it is short on facts. Plaintiff has not provided the basic 51 factual allegations as to what each Defendant did to violate his rights. 4 Indeed, only Kaschalk 52 and Habursky are even mentioned in the Amended Complaint. Besides lacking basic factual specifics as to what each named Defendant did, the 53 54 Amended Complaint is lacking in several other respects. The Amended Complaint does not 55 indicate the date or place of the incident, the charges that were filed against Plaintiff, how the 56 charges were resolved or how each of the Defendants acted to advance the alleged conspiracy 57 against him. Plaintiff has not laid out enough facts to adequately allege a claim of false 58 arrest/imprisonment 5, malicious prosecution 6, excessive force 7 or conspiracy 8. Liability can only be imposed if that official played an affirmative part in the complained-of misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986). A supervisor must be personally involved in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1958, 1207 (3d Cir.1988). Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) quoting Rode, 845 F.2d at 1207. 4 To state a claim for false arrest, a plaintiff must allege: 1) that there was an arrest; and 2) that the arrest was made without probable cause. Dennis v. City of Bridgeton, 2006 WL 3359712, at *2 (D.N.J. 2006). A warrantless arrest of an individual in a public place for a felony is consistent with the Fourth Amendment if the arrest is supported by probable cause. Maryland v. Pringle, 540 U.S. 366, 368 (2003) citing United States v. Watson, 423 U.S. 411, 424 (1976). [P]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts [.] Pringle, 540 U.S. at 371, quoting Illinois v. Gates, 462 U.S. 213, 232 (1983). To determine 5 3 whether a law enforcement officer had probable cause to arrest, the district court must necessarily examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause[.] Pringle, 540 U.S. at 371, quoting Ornelas v. United States, 517 U.S. 690, 696 (1996). To establish a claim for false imprisonment, a plaintiff is required to show that: 1) he was detained; and 2) the detention was unlawful. Gwynn v. City of Philadelphia, 719 F.3d 295, 304 n.4 (3d Cir. 2013) citing Renk v. City of Pittsburgh, 537 Pa. 68 (1994). See also Wallace v. Kato, 549 U.S. 384, 389 (2007) ( the sort of unlawful detention remediable by the tort of false imprisonment is detention with legal process. ). A false imprisonment claim under § 1983 which is based on an arrest made without probable cause is grounded in the Fourth Amendment's guarantee against unreasonable seizures. Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (citations omitted). The general rule is that a seizure is unreasonable if the police lack probable cause. U.S. v. Davis, 726 F.3d 434, 439 (3d Cir. 2013). In order [t]o prove malicious prosecution under section 1983, a plaintiff must show that: 1) the defendants initiated a criminal proceeding; 2) the criminal proceeding ended in plaintiff's favor; 3) the proceeding was initiated without probable cause; 4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and 5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. McKenna v. City of Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009) citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). 6 An excessive use of force claim will be analyzed under the same standard whether it is brought by a pretrial detainee under the Due Process Clause of the Fourteenth Amendment or by a prisoner under the Eighth Amendment. See Fuentes v. Wagner, 206 F.3d 335, 346-47 (3d Cir. 2000). In determining whether excessive force was used, courts look to several factors including: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by reasonable officials on the basis of the facts known to them; and (5) any efforts made to temper the severity of a forceful response. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) quoting Whitley v. Albers, 475 U.S. 312, 321 (1986). 7 In order to sufficiently allege a claim of a civil rights conspiracy, the complaint must specifically set forth: (1) the conduct that violated the plaintiff's rights; (2) the time and the place of the conduct; and (3) the identity of the officials responsible for the conduct. See Oatess v. Soboletitch, 914 F.2d 428, 431 n.8 (3d Cir. 1990) citing Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988). Furthermore, the allegations of conspiracy must be grounded firmly in facts; they cannot be conclusory nor can they hinge on bare suspicions and foundationless speculation. See Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991). Conspiracy claims must be pled with sufficient particularity to provide the defendants with fair notice of the claims against them. Loftus v. Southeastern Pa. Transp. Autho., 843 F.Supp. 981, 986 (E.D. Pa. 1994). 8 4 Although Plaintiff s Opposition Brief provides a few factual details that flesh out the 59 60 Amended Complaint, they are not enough to satisfy the notice pleading requirements of the 61 Federal Rules of Civil Procedure (both because the allegations are not contained within a 62 complaint and because they do not provide the required notice of a short and plain statement of 63 the claim. ). 9 At this early stage of the pleadings, this Court cannot say that further amendment of the 64 65 complaint is futile. Fed.R.Civ.P. 15(a)(1)(B)(2) ( the court should freely give leave when justice 66 so requires. ). Accordingly, Plaintiff will be given an opportunity to file a Second Amended 67 Complaint to fully lay out the factual allegations underlying the arguments raised in his 68 Opposition Brief. The Second Amended Complaint must include all the claims against all the Defendants, 69 70 fully explaining which individual Defendant took what action and when that action was taken. 71 See In re Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 267-77 (3d Cir. 2006) (a plaintiff 72 must assert all the essential factual background that would accompany the first paragraph of 73 any newspaper story that is, the who, what, when, where and how of the event at issue. ). In addition to a few more factual details about the facts underlying the allegedly false arrest incident, in his filing Plaintiff expands his list of legal claims to include: 9 1 2 3 4 5 6 7 8 9 10 unlawful search in violation of Fourth Amendment based upon lack of probable cause; unlawful seizure in violation of Fourth Amendment based upon arrest; false imprisonment in violation of Fourth Amendment based upon arrest; malicious prosecution in violation of Fourth Amendment based upon arrest; harm to liberty interest in violation of the Due Process Clause of the Fourteenth Amendment; state law claim of false arrest/false imprisonment; state law claim of abuse of process; state law claim of intentional infliction of emotional distress; conspire to do harm through legal system ; and state law claim of defamation. ECF No. 21. 5 74 The Second Amended Complaint must be a single stand-alone document that does not 75 incorporate or reference either the Original Complaint or the First Amended Complaint. In the 76 interests of fairness to the Defendants who have now filed two dispositive motions, this will be 77 Plaintiff s final opportunity to amend his complaint. 78 79 An appropriate Order follows. 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 6 102 103 104 105 106 107 108 109 110 111 112 113 114 115 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MICHAEL D. WARDELL, Plaintiff, ) ) ) ) ) ) ) v. CITY OF ERIE, et al, Defendants. Civil Action No. 13-201Erie District Judge McVerry Magistrate Judge Baxter ORDER 116 117 24th AND NOW, this ___ day of July, 2014; 118 IT IS HEREBY ORDERED that Plaintiff file a Second Amended Complaint in 119 accordance with this Memorandum Opinion before August 15, 2014. This will be Plaintiff s final 120 opportunity to amend his complaint. In the event that Plaintiff fails to file a Second Amended 121 Complaint before August 15, 2014, this action may be dismissed for failure to prosecute. 122 Following the filing of the Second Amended Complaint, Defendants will have the opportunity to 123 file or renew their motions to dismiss or file an answer. 124 125 IT IS FURTHER ORDERED that the following motions are dismissed without prejudice in light of this Order directing of the filing of a Second Amended Complaint: 126 127 128 129 - The motion to dismiss or motion for more definite statement filed by the City Defendants [ECF No. 15]; - The motion to dismiss filed by the County Defendants [ECF No. 18]; and 130 - The motion for summary judgment filed by Plaintiff [ECF No. 22]. 131 132 IT IS FURTHER ORDERED that the Clerk of Courts is directed to terminate the City of Erie and Sheriff s Dept from the docket. 133 7 134 In accordance with Federal Rule of Civil Procedure 72, the parties are allowed fourteen 135 (14) days from the date of service to file written objections to this Order. Failure to file timely 136 objections may constitute a waiver of rights. 137 138 139 140 141 /s/ Susan Paradise Baxter SUSAN PARADISE BAXTER United States Magistrate Judge 142 8

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