Postie v. Frederick et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 3/17/15. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s))(bs)

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Only the Westlaw citation is currently available.
United States District Court,
W.D. Pennsylvania.
James L. LEVENTRY and Deborah A. Leventry, et al.,
Plaintiff,
v.
Matt WATTS, et al., Defendants.
Civil Action No. 06-193.
May 17, 2007.
James L. Leventry, Johnstown, PA, pro se.
Deborah A. Leventry, Johnstown, PA, pro se.
Paul D. Krepps, Scott G. Dunlop, Christian D. Marquis,
Marshall, Dennehey, Warner, Coleman & Goggin,
Pittsburgh, PA, for Defendants.
OPINION and ORDER OF COURT
AMBROSE, Chief District Judge.
SYNOPSIS
*1 A husband and wife bring suit against a variety of
Defendants for various constitutional transgressions under
42 U.S.C. § 1983 stemming from the arrest of the
husband, the seizure of his car and the subsequent search
and seizure of the bail money posted by the wife plaintiff.
The police officers and police department Defendants seek
the dismissal of all claims. The Motion is granted in part
and denied in part.
OPINION
On or about September 4, 2004, Plaintiff James L.
Leventry (“Leventry”) was driving through Southmont
Borough when Defendant Officer Matt Watts (“Watts”) of
the Defendant West Hills Regional Police Department
(“the Police Department”) stopped him. Leventry was
taken into custody and charged with possession of and
possession with intent to deliver marijuana; possession of
and possession with intent to deliver OxyContin; and

possession of and possession with intent to deliver
methadone. He was arraigned and bail was set at $100,000
or 10% cash. When Plaintiff Deborah Leventry arrived the
next evening with $10,000 cash, the bail money was
confiscated. The Leventrys were told that a search had
been performed by a drug dog and that the dog had alerted
to the presence of narcotics on the money. As a result of
the confiscation, James Leventry remained incarcerated
for a period of time.
The Leventrys have filed, pro se, claims under 42
U.S.C. § 1983 for violations of their 1st, 4th, 5th, 6th, 8th
and 14th Amendment rights. They also reference the right
to bail, the right to due process of law, and conspiracy.
These references are all made in the caption of the First
Amended Complaint.FN1 In addition to naming Watts and
the Police Department as Defendants, the Leventrys have
named Defendant George Musulin, who is alleged to have
participated in the events surrounding the arrest of James
Leventry and the confiscation of the bail money;
Defendant Chief Andrew Havas (“Havas”), the Chief of
Police; various municipal authorities and both the assistant
district attorney involved in James Leventry's criminal
case and the district attorney as well.
FN1. While the Leventrys also filed a Second
Amended Complaint (see Docket No. [43] ), that
document does not contain any substantive
allegations. Consequently, I will refer to the First
Amended Complaint when considering what
claims the Leventrys have asserted.
Defendants Watts, Musulin, Havas and the Police
Department have filed a dispositive Motion. See Docket
No. [64]. While titled a Motion for Summary Judgment, it
is clear from the supporting brief that the Defendants ask
this Court to convert a Rule 12(b)(6) Motion to Dismiss
into one for Summary Judgment under Rule 56 in order to
consider evidence submitted in conjunction with the
Motion. I decline to do so. The Leventrys are acting pro
se. The parties have not yet engaged in discovery. I think
it unfair and premature to consider the merits of the
Leventrys' claims based upon a consideration of only one
sides' submission of evidence. Accordingly, I will consider

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the Defendants' arguments in light of a Rule 12(b)(6)
standard.
STANDARD OF REVIEW
In deciding a Motion to Dismiss, all factual
allegations, and all reasonable inferences therefrom, must
be accepted as true and viewed in a light most favorable to
the plaintiff. Colburn v. Upper Darby Twp., 838 F.2d 663,
666 (3d Cir.1988), cert. denied, 489 U.S. 1065 (1988). I
may dismiss a complaint only if it appears beyond a
reasonable doubt that the plaintiff can prove no set of facts
in support of his claims which would entitle him to relief.
Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a
motion for failure to state a claim, I must look to “whether
sufficient facts are pleaded to determine that the complaint
is not frivolous, and to provide the defendants with
adequate notice to frame an answer.” Colburn, 838 F.2d
at 666.
*2 While a court will accept well-pleaded allegations
as true for the purposes of the motion, it will not accept
legal or unsupported conclusions, unwarranted inferences,
or sweeping legal conclusions cast in the form of factual
allegations. See Miree v. DeKalb County, Ga., 433 U.S.
25, 27 n. 2 (1977). Moreover, the plaintiff must set forth
sufficient information to outline the elements of his claims
or to permit inferences to be drawn that these elements
exist. See Fed.R.Civ.P. 8(2)(a) and Conley, 355 U.S. at
45-46. Matters outside the pleadings should not be
considered. This includes “any written or oral evidence in
support of or opposition to the pleadings that provides
some substantiation for and does not merely reiterate what
is said in the pleadings.” Charles A. Wright and Arthur R.
Miller, Federal Practice and Procedure, § 1366 (West
1990).
ANALYSIS
I. First Amendment Claim
In paragraph 40 of the First Amended Complaint, the
Leventrys contend that Watts violated, among other
things, James Leventry's First Amendment rights by
seizing his person, car and bail money. The First Amended
Complaint contains no further elaboration regarding the
substance of the First Amendment claim, and the
Defendants argue that the failure in this regard mandates

the dismissal of this claim. The First Amendment affords
many protections, such as free speech, freedom of
religion, the right to free assembly and the right to petition
the Government for redress of grievances. I cannot discern
from the allegations set forth in the First Amended
Complaint which of these protections the Leventrys allege
Watts violated. The allegations do not suggest that James
Leventry was denied the right to speak; or that he was
engaged in religious activity; or that he was attempting to
peaceably assemble or petition the Government for redress
of grievances. Accordingly, at this juncture, I agree with
the Defendants that the Leventrys have not articulated,
under 42 U.S.C. § 1983, a claim against Watts for a
violation of James Leventry's First Amendment rights.
That claim is, therefore, dismissed. The dismissal is
without prejudice to file an amendment curing this
deficiency, within the time frame set forth in the
accompanying Order.
2. Fifth Amendment Claim
The Leventrys also reference the Fifth Amendment
and contend that Watts, in particular, violated their Fifth
Amendment rights. The Fifth Amendment provides, in
part, that no person shall be “deprived of life, liberty, or
property without due process of law.” FN2 However, as the
Defendants urge, the Fifth Amendment restricts the actions
of federal officials, not state actors. See Nguyen v. U.S.
Cath. Conf., 719 F.2d 52, 54 (3d Cir.1983) and
Kopchinski v. Green, Civ. No. 5-6695, 2006 WL 2228864
at * 1 (E.D.Pa. Aug. 2, 2006). Here, the Defendants are
state actors, not federal officials. Accordingly, I agree with
the Defendants that the claim asserted against the
Defendants under 42 U.S.C. § 1983 for a violation of the
Fifth Amendment must be dismissed. Further, because
permitting an amendment of the claim would be futile,
such dismissal is with prejudice.FN3
FN2. While the Fifth Amendment also protects
the right against self-incrimination, the
allegations in the First Amended Complaint do
not suggest that the Leventrys are pursuing a
claim.
FN3. I do note that the due process rights
accorded under the Fifth Amendment are implied
under the Fourteenth Amendment. The Leventrys
do reference the Fourteenth Amendment in the

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First Amended Complaint. Consequently, I do
not mean to suggest, in ruling that they are
precluded from seeking relief under Section
1983 for violations of due process rights
accorded under the Fifth Amendment that they
may not be able to pursue such rights under the
Fourteenth Amendment.
3. Sixth Amendment Claim
*3 In paragraph 40 of the First Amended Complaint,
the Leventrys contend that Watts:
directly and substantially violated JAMES
LEVENTRYS 1st, 4th, 5th, 6th, 8th, 9th and 14th
Amendment rights by seizing his person and the car he
was driving as well as helping to seize the bail money
required for his release so that LEVENTRY could
better assist counsel in defending his case....
See Docket No. [42], ¶ 40 (emphasis added). Given
the reference to the Sixth Amendment, I can only presume
that the Leventrys intend to assert a Sixth Amendment
claim under 42 U.S.C. § 1983. The Sixth Amendment
protects, in part, the right of an accused to a speedy trial;
the right to the assistance of counsel; the right to confront
witnesses; and the right to be informed of the nature of
charges. Yet I agree with the Defendants that the First
Amended Complaint does not detail any sort of
deprivation by these Defendants of the right to counsel, or
of the right to a speedy trial, or of the right to confront
witnesses, or of the right to be informed of the nature of
charges against James Leventry. Because the First
Amended Complaint does not set forth a viable claim
under § 1983 for a violation of the Sixth Amendment, the
Motion to Dismiss is granted. The dismissal is, however,
without prejudice to file an amendment curing this
deficiency, within the time frame set forth in the
accompanying Order.
4. Eighth Amendment Claims
The Eighth Amendment protects against excessive
bail, excessive fines and against cruel and unusual
punishment. The Defendants contend that the cruel and
unusual punishment clause is inapplicable because it
applies only after conviction and sentence. See Kopchinski

v. Green, Civ. No. 5-6695, 2006 WL 2228864 (E.D.Pa.
Aug. 2, 2006) * 1 (stating that the protections of the
Eighth Amendment “ ‘do not attach until after conviction
and sentence.’ ”), quoting, Graham v. Connor, 490 U.S.
386, 392 (1989). I agree with the Defendants' contentions.
Moreover, a review of the First Amended Complaint and
the Leventrys' submissions to date do not suggest that they
are pursuing a cruel and unusual punishment claim.
Indeed, they make no reference to any type of punishment
which occurred after a conviction and sentence. Nor does
it appear that the Leventrys are seeking to invoke that
portion of the Eighth Amendment which protects against
excessive fines.
Instead, the Leventrys appear to be focusing upon the
excessive bail clause. The Defendants argue that the
excessive bail clause is inapplicable as to them because, in
Pennsylvania, the District Justice, rather than police
officers, sets the bail. See James v. York County Police
Dept., 160 Fed. Appx. 126, 133 (3d Cir.2005), citing, Pa.
R.Crim. P. 12d. I agree with them. These Defendants did
not have a hand in setting the bail. While they were
certainly involved in the confiscation of the bail money,
such actions do not give rise to an Eighth Amendment
claim. Consequently, I agree with the Defendants that the
First Amended Complaint fails to state a claim under 42
U.S.C. § 1983 against them for a violation of the Eighth
Amendment. Accordingly, the Motion to Dismiss the
claim asserted under § 1983 with respect to the Eighth
Amendment is granted. Further, because permitting the
amendment of the First Amended Complaint would be
futile under the law, the dismissal of the claim is with
prejudice.
5. Fourth Amendment
*4 The Leventrys contend that the Defendants
“seized” James Leventry himself, his car and the bail in
violation of § 1983 and the Fourth Amendment. The
Defendants seek summary judgment with respect to these
claims. I decline to consider the Defendants' arguments
with respect to the “seizure” of James Leventry and his
car, as those arguments rest upon the consideration of
documents which are not attached to the First Amended
Complaint, and, as stated above, the Leventrys are
proceeding pro se, and they have not yet engaged in any
discovery. Of course, the Defendants can challenge the

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viability of these claims at the conclusion of discovery.
Disposition of the claim relating to the search and
seizure of bail money, however, is ripe because it does not
rest on matters not contained in or attached to the First
Amended Complaint. Dismissal of this claim is warranted.
For the reasons set forth in the Opinion and Order
disposing of Defendant Tulowitzki's Motion to Dismiss,
there was no Fourth Amendment violation with respect to
the search and seizure of the bail money. Deborah
Leventry voluntarily relinquished the bail money and thus
had no legitimate privacy interest in it. Additionally, the
use of a drug sniffing dog does not constitute a search
under these circumstances. Moreover, once the dog alerted
to the presence of drugs on the money, the money was
appropriately seized.
In the alternative, even if a Fourth Amendment
violation did occur, the police officers acted in a manner
which was objectively reasonable given the situation
which they encountered. They had arrested an individual
known to be a long time drug user. He had been charged
with possession of and possession with intent to distribute
three different types of drugs. His wife was able to raise a
substantial amount of money in a short period of time on
a weekend day. The police were objectively reasonable in
their belief that the money may have been the proceeds of
drug related activity. Moreover, the officers were advised
by an assistant district attorney that the use of a drug
sniffing dog was appropriate. Accordingly, I find that it
was objectively reasonable under these circumstances for
the police to search and then confiscate the bail money.
Because it would not have been clear to reasonable
officers in Defendants Watts' and Musulin's position that
their conduct was unlawful, given the situation which they
encountered, I find that they are entitled to qualified
immunity.
Consequently, the Fourth Amendment claim premised
upon the search and seizure of the bail money which is
asserted under § 1983 is dismissed. Further, because
amendment would be futile, the dismissal is with
prejudice.
6. Ninth Amendment Claim
The Leventrys also reference the Ninth Amendment.

Yet, as the Defendants contend, the Ninth Amendment
does not confer any substantive rights. See Soder v.
Chenot, Civ. No. 6-1522, 2007 WL 1098970 at * 4 (M.D.
Pa. April 11, 2007) (stating that “[t]he Ninth Amendment
does not independently secure any substantive
constitutional rights, but rather has been interpreted to be
a rule of construction. ... A § 1983 civil rights claim
premised on the Ninth Amendment fails because there are
no constitutional rights secured by that amendment.”).
Consequently, the Motion to Dismiss this claim is granted.
Additionally, because amendment would be futile, the
dismissal is with prejudice.
7. Claims Against Havas
*5 The Defendants urge that there are no viable
claims against Havas because the First Amended
Complaint does not contain any allegations suggesting his
personal involvement. I disagree. Paragraph 28 of the First
Amended Complaint suggests that Havas had some
personal involvement. Additionally, a “letter” from James
Leventry attached to the First Amended Complaint states
that Havas filed the summary charges against him. See
Docket No. [42], p. 8-9. Consequently, dismissal of this
claim at this juncture is premature. The Motion is denied
without prejudice.
8. Claims Against West Hills Police Department
Finally, the Defendants seek the dismissal of the
claims against the Police Department on the grounds that
there are no surviving underlying constitutional claims
against the police officers. As set forth above, however,
certain of those claims have survived. Consequently, the
Police Department is not entitled to a dismissal of the
claims asserted against it.
ORDER OF COURT
AND NOW, this 17th day of May, 2007, after careful
consideration, and for the reasons set forth in the
accompanying Opinion, it is Ordered the Defendants'
Motion (Docket No. [64] is granted in part and denied in
part as follows. The Leventrys' claims asserted under 42
U.S.C. § 1983 for violations of their rights under the
Fourth Amendment with respect to the search and seizure
of the bail money are dismissed with prejudice; those
claims relating to the “seizure” of James Leventry and the
car will go forward at this juncture. The Leventrys' claims

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asserted under 42 U.S.C. § 1983 for violations of their
rights under the Fifth Amendment, the Eighth
Amendment, and the Ninth Amendment, are dismissed
with prejudice. The Leventrys' claims asserted under 42
U.S.C. § 1983 for violations of their rights under the First
Amendment and the Sixth Amendment are dismissed,
without prejudice to file a Third Amended Complaint,
curing the deficiencies noted in the accompanying Opinion
with respect to these claims. Any such Third Amended
Complaint must be filed no later than May 31, 2007.
Given the substantial delays already associated with this
case, no extensions will be permitted. The Motion is
denied with respect to its arguments regarding Defendants
Havas and the West Hills Regional Police Department.
W.D.Pa.,2007.
Leventry v. Watts
Not Reported in F.Supp.2d, 2007 WL 1469038 (W.D.Pa.)
END OF DOCUMENT

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