DEC v. PENNSYLVANIA STATE POLICE-TROOP D et al
Filing
10
OPINION. Many of the claims and arguments presented by Mr. Dec appear to be fantastical. Still, he has properly alleged a specific event, being pepper sprayed by the police while being chained to a bench, without necessity or adequate legal justifica tion, for which Trooper Berger might be liable under 42 U.S.C. § 1983. For the reasons stated within, all claims against Defendants Trooper Jenkins, Trooper Mifsob, Trooper Driscoll, Pennsylvania State Police Troop D, Butler County Sheriff Mike Slupe, Butler County ADA Bosco, Butler County District Attorney's Office, Butler County Public Defender Charles Nedz, Butler County Public Defender's Office, and Butler County are DISMISSED WITH PREJUDICE. All claims against Trooper Berger are DISMISSED WITH PREJUDICE except for Plaintiffs (a) 42 U.S.C. § 1983 Fourth Amendment excessive force claim, (b) § 1983 First Amendment retaliation claim, and (c) § 1983 Fourteenth Amendment due process claim, all arising out of the alleged pepper spraying incident. An appropriate order will follow. Signed by Judge Mark R. Hornak on 12/7/12. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MATTHEW P. DEC,
Plaintiff,
v.
PENNSYL VANIA STATE POLICE,
TROOP D, et al.
Defendants.
)
)
)
)
)
)
)
)
Civil Action No.2: 12-cv-565
Judge Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
This is a § 1983 case involving a series of events between 2008 to 2010, in which pro se
Plaintiff Matthew Dec alleges that various officials and legal officers of Butler County and the
Commonwealth of Pennsylvania violated his Federal constitutional rights and committed state
law torts. Pending before the Court are two motions to dismiss, the first filed by Defendants
Butler County, Butler County Sheriff Michael Slupe, Butler County Public Defender's Office,
Butler County District Attorney's Office, Butler County Public Defender Charles Nedz, and
Butler County "Assistant District Attorney Bosco"j (collectively, "Butler County Defendants"),
ECF No.4; and the second filed by Defendants Pennsylvania State Police Troop D, "Trooper
Jenkins," "Trooper Mifsob," "Trooper Driscoll," and "Trooper Berger" (collectively,
"Commonwealth Defendants"), ECF No.7. Defendants seek to have all claims dismissed except
1 Neither Plaintiff nor Defendants have identified ADA Bosco by first and last name, nor have they done so for the
Defendant State Troopers. However, based on the filings before the Court, there is no reason to doubt that the
individuals named in quotation marks are actual natural persons. Additionally, ADA Bosco and Mr. Nedz were not
named as Defendants in the Complaint, and thus were not parties to the case at the time of the filing of the Butler
County Defendants' Motion to Dismiss. However, anticipating (correctly) that Mr. Dec would seek to amend his
Complaint to include those two individuals, Defendants also addressed the potential claims Mr. Dec might have
against them in the same Motion, and they are therefore addressed in this opinion. See ECF No.5 at 9, 12; ECF No.
9 at 9-10.
a single § 1983 count predicated on the use of excessive force in violation of the Fourth
Amendment allegedly committed by Trooper Berger. Having considered the pro se Plaintiff s
Complaint, ECF No.1; the Defendants' Motions to Dismiss, ECF Nos. 4, 7, and respective
Briefs in Support, ECF Nos. 6, 8; and Plaintiffs Response, ECF No.9, the County Defendants'
Motion is granted, and the Commonwealth Defendants' Motion is granted in part.
I. BACKGROUND AND FACTS
When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must
accept as true the factual allegations in the Complaint and draw all reasonable inferences in the
Plaintiffs favor. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
In his Response, Mr.
Dec has alleged a small number of novel facts, and has purported to amend his complaint to
include charges against ADA Bosco and Mr. Nedz.
Ordinarily, a plaintiff is not permitted to rely on new facts alleged in response to a motion
to dismiss in order to defeat the motion. See Flaig v. Aladdin Food Mgmt. Services, LLC, CIV.
A. NO. 2:12-CV-00839, 2012 WL 5288716, at *4 n.1 (W.D. Pa. Oct. 23, 2012). However,
mindful that the Court has the "obligation to liberally construe a pro se litigant's pleadings,"
Higgs v. Atty Gen. of the Us., 655 F.3d 333, 339 (3d Cir. 2011), which are held to "less
stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519,
520 (1972), and because the Court's consideration of a small number of alleged facts falling
outside the Complaint does not alter its disposition in any way that is prejudicial to any
Defendant, it will consider those novel facts as if properly pled in the Complaint.
Similarly, a plaintiff is not ordinarily permitted to amend his pleadings to assert claims
against a new party by way of a response to a Motion. However, out of the same solicitousness
for liberally construing a pro se plaintiffs pleadings, given that the County Defendants did take
2
the opportunity in their Motion to Dismiss to address potential claims against ADA Bosco and
Mr. Nedz, and out of the well-founded assumption that the Complaint might be construed to
include them as defendants, the Court will consider Mr. Nedz and ADA Bosco to be parties to
this case for purposes of resolving the pending Motions.
Even considering Plaintiffs Response, however, many of the facts that form the basis of
his allegations are difficult to discern, being presented in an often incoherent manner. As best
the Court can tell, for the purposes of the disposition of Defendant's Motion, the essential facts,
based on the facts alleged in the Complaint, and viewed in the light most favorable to the
Plaintiff, are as follows.
A. 2008 Events
Sometime in August 2008, Mr. Dec became embroiled in a dispute with the landlord or
property manager of his wife's apartment (it is difficult to tell which), Jill Double, which
ultimately resulted in Ms. Double summoning the police to have Mr. Dec removed from the
premises when he refused to leave voluntarily. See Compl. at 5 ~~ 7-19. 2 Trooper Jenkins arrived
on the scene, and although he initially "informed Plaintiff that he was not going to charge him"
for criminal trespass, Trooper Jenkins later charged him when he "was ordered by said [property]
manager" to do so. Id. at 6
~~
20-21; see also Butler Cty. Comm. PIs. Ct., Dkt. Nos. CP-10
MD-0000039-2009, CP-10-MD-0000404-2009 (Mr. Dec charged with "Criminal Trespass"
for events transpiring in August 2008).3 A hearing was conducted on the criminal trespass
Because several paragraphs throughout the Complaint repeat numbers, and some are without numbers at all, this
Opinion will reference paragraphs in the Complaint by both their page number and paragraph number, if provided.
2
The Court takes judicial notice of these state court dockets. See Dec v. Double, CIV. A. 10-301, 2010 WL
2471678, at *2 n.l (W.D. Pa. June 15, 2010); Kalomiris v. Monroe County Syndicate, CIV. A. 1:08-0539, 2009 WL
73785, at *2 n. 8 (M.D. Pa. Jan. 8, 2009). A state court docket is a "public record" that the Court may consider at
the motion to dismiss stage. See Pension Ben. Guar. Corp. v. White Consolo Indus., Inc., 998 F.2d 1192, 1196-97
(3d Cir. 1993).
3
3
charges before District Magistrate Judge Louis Stoughton, at which Plaintiff "raised grievance
after hearing [the] Magistrate conspiring with State Troopers ex parte to find him guilty before
trial began." Compl. at 6 ~~ 23-24.
Sometime thereafter, Plaintiff instituted civil proceedings against Ms. Double and the
property management company. Id. at ~ 31. A hearing in that case was held on February 4, 2010
before District Magistrate Judge Sue Haggerty. There, Judge Haggerty allegedly violated Mr.
Dec's rights when she initially stated that she "lacked jurisdiction" to hear the case, but later
"behind closed doors ... 'dismissed [the case] with prejudice' ... thereby tampering with public
records." Id. Sheriff Slupe was allegedly a "witness" of this action, id., and "privy to the 'cover
up,'" as to which trooper Driscoll at some point "under oath testified." Resp.
~~
6A-B, ECF No.
9.
Although he does not reference it in his Complaint, Plaintiff filed suit in this Court on
March 5, 2010 against Ms. Double, T&R Properties, Pennsylvania State Police, District
Magistrate Haggerty, District Magistrate William Shaffer, District Magistrate Thomas Doerr, the
"U.S. Attorney's Office," and the Federal Bureau of Investigation, alleging that private and state
actors violated his constitutional rights in the events surrounding the same grievances as above.
See Dec v. Double, CIV. A. 10-301,2010 WL 2471678 (W.D. Pa. June 15,2010) (Ambrose, J.).
That lawsuit was dismissed under Fed. R. Civ. P. 41(b) for failure to prosecute. See id. 4
B. 2010 Events
On May 13, 2010, while that prior case was ongoing, Mr. Dec called the state police to
"press charges against District Magistrate Sue Haggerty." Compl. at l3
~
1; compare id. with
The Court takes judicial notice of Judge Ambrose's opinion and of the Dec v. Double docket. On a motion to
dismiss, a Court "may take notice of another court's opinion - not for the truth of the facts recited therein, but for
the existence of the opinion ..." S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181 F.3d 410,
426 (3d Cir. 1999). The portion of Mr. Dec's Complaint that describes the 2008 events and counts is largely
identical to his Complaint in that case. See Dkt. No. 10-cv-301, ECF No.2.
4
4
2010 WL 2471678, at *1 (internal marks omitted).
Mr. Dec was criminally charged with
"Terroristic Threats" and "Harassment" in "retaliation" for that phone call and was arrested by
"State Police." Compi. at 13
~
3. In Dec v. Double, Mr. Dec filed briefing alleging that part of
the reason for which he was unable to timely file his requisite briefing was his arrest and
detention for these charges. See 2010 WL 2471678, at * 1.
Sometime after Mr. Dec was taken to the police station, "State Police" chained him to a
metal bench. When Mr. Dec protested and asked, '''All this because you refuse to file charges
with Haggerty for tampering with public records, what happened to your oath of office to
provide equal protection under the law?', Trooper Berger approached Plaintiff, took out his
pepper spray, emptied it in Plaintiffs eyes, and said, 'Here's your equal f**king protection under
the law asshole!" Compi. at 13
~
5. Mr. Dec's eyes were flushed by a prison nurse and he was
placed in solitary confinement for three days. Id.
~
7. Later, in jail, another inmate allegedly told
Mr. Dec that he had heard the "same State cops ... laughing about you trying to charge [District
Magistrate Haggerty] and said they would do nothing." Id.
~
8.
At some point in the proceedings surrounding this charge, Mr. Dec became acquainted
with his Public Defender, Charles Nedz, and ADA Bosco. Mr. Nedz allegedly "buried" the story
Mr. Dec had heard from the inmates about the police talking and laughing about him, id., and
"engaged in a pattern of conspiracy with" ADA Bosco and Sheriff Slupe in "covering up" the
injustices Mr. Dec suffered. Resp.
~
8C. Also, ADA Bosco, when told by Mr. Dec that he
wanted a jury trial for his charges, reduced them to summary offenses in order to deprive him of
a jury trial. Id.
~
11. Mr. Dec allegedly suffered other wrongs surrounding ensuing proceedings,
but none of them relate to any Defendants here named.
5
Mr. Dec filed suit in the Court of Common Pleas of Butler County on March 19, 2012
against the above-named Defendants, who timely removed to this Court. 28 U.S.c. § 1441(a).
Mr. Dec uses 42 U.S.C. § 1983 to bring this suit against Defendants in their official and
individual capacities, alleging that they violated his First, Fourth, Fifth, Eighth, Ninth, and
Fourteenth Amendment rights, and under various state tort causes of action, and seeking $2.5
million in damages. CompI. at 1_2. 5 He does not specify against whom each of his claims is
lodged.
II. LEGAL STANDARD
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must allege
"enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements" do not meet that standard. Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009). The Third Circuit has laid out a three step process for the Rule 12(b)(6)
analysis:
First, the Court must "take[] note of the elements a plaintiff must plead to state a
claim." Second, the Court should identify allegations that, "because they are no
more than conclusions, are not entitled to the assumption of truth." Third,
"whe[n] there are well-pleaded factual allegations, a Court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
relief." This means that our inquiry is normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of
the complaint and evaluating whether all of the elements identified in part one of
the inquiry are sufficiently alleged.
5 The Complaint lists 22 counts of "violations" committed by Defendants. Compl. at 3. Counts 1-6 name
amendments to the federal Constitution. Count 13 names § 1983. Counts 14-22 name state law torts. Id. Counts 7
8 cite to the Fair Housing Act and the Landlord-Tenant Act of 1951, statutes that have no bearing on the facts
presented to this Court, as related to defendants to this suit. See infra section III.A.I. Counts 9-12 cite to federal
criminal statutes that are wholly inapplicable to this civil suit. Even viewed in the light most generous to Plaintiff,
Counts 7-12 are pure legal conclusions that have no grounding in fact related to any of the Defendants here, and thus
do not survive the Twombly/ Iqbal standard. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (collectively known as "Twiqbal," see RHJ Med. Ctr., Inc. v. City of DuBois, 754 F.
Supp. 2d 723, 730-31 (W.O. Pa. 2010»; see also Part II infra.
6
Malleus, 641 FJd at 563 (quoting Iqbal, 556 U.S. at 675,679) (internal citations omitted).
The third step of the sequential evaluation requires this Court to consider the specific
nature of the claim(s) presented and to determine whether the facts pled to substantiate the
claims are sufficient to show a "plausible claim for relief." See Iqbal, 556 U.S. at 679. In short, a
motion to dismiss should be granted if a party does not allege facts which could, if established at
trial, entitle him to relief. See Fowler v. UPMC Shadyside, 578 F.3d 203,213 (3d Cir. 2009).
III.
DISCUSSION
Section 1983 provides a vehicle to assert claims for violation of an individual's federal
constitutional rights. Dique v. NJ State Police, 603 F.3d 181, 185 (3d Cir. 2010).
When
analyzing a § 1983 claim, the court's initial inquiry must focus on two essential elements: "(1)
whether the conduct complained of was committed by a person acting under color of state law;
and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the
Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527,535 (1981); see also
Harvey v. Plains Twp. Police Dep 't., 421 F Jd 185, 189 (3d Cir. 2005). With regards to the first
prong, it is essential that the Plaintiff establish that the conduct complained of was committed by
a "person" for purposes of § 1983. See Parratt, 451 U.S. at 535.
A. Commonwealth Defendants - § 1983 Claims
1. 2008 Events
Mr. Dec describes a number of events that occurred in 2008, and as best can be
discerned, bases at least part of the allegations in his Complaint on them. The only defendant
who is named in the 2008 sequence of events is Trooper Jenkins, whose only alleged act is that
he charged Mr. Dec with criminal trespass when "ordered by [the property] manager." CompI. at
6 ~~ 20-21. Read in the light most favorable to Plaintiff, Trooper Jenkins also is one of the state
7
police officers who conspired to find Mr. Dec guilty before his criminal trespass trial began. See
id.
~
24. These events would have occurred sometime before September 10, 2008, the date of the
criminal hearing. See id. at ~ 23. Even if these allegations could state a cause of action for which
relief could be granted, any such action is facially barred by the statute of limitations.
Normally, the appropriate avenue for a defendant to bring a statute of limitations defense
is the Answer, as contemplated in Fed. R. Civ. P. 8(c). See Robinson v. Johnson, 313 F.3d 128,
135 (3d Cir. 2002). However, under the so-called "Third Circuit Rule," a limitations defense may
be raised by a motion pursuant to Rule 12(b)(6), if "the time alleged in the statement shows that
the cause of action has not been brought within the statute of limitations." Id. (internal citation
omitted). The untimeliness must be "apparent on the face of the complaint." Id. (internal citation
omitted).
It is well established that a state's statute of limitations for personal injury actions applies
to all actions brought under 42 U.S.C. § 1983, though its accrual time may vary based on the
type of injury alleged. See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Sameric Corp. of Del.,
Inc. v. City ofPhila., 142 FJd 582, 599 (3d Cir. 1998). In Pennsylvania, the statute of limitations
for personal injury action, and thus a § 1983 claim, is two years. See Kach v. Hose, 589 F Jd 626,
634 (3d Cir. 2009); 42 Pa. Cons. Stat. Ann. § 5524 (West 2012). For a § 1983 claim seeking
damages for a false arrest and false imprisonment in violation of the Fourth Amendment, the
statute of limitations begins to run "at the time the claimant becomes detained pursuant to the
legal process." Wallace, 549 U.S. at 397. Mr. Dec alleges that there was a hearing before Judge
Stoughton on September 10, 2008, at which time he would have been detained pursuant to legal
process, marking the accrual trigger for the statute of limitations. See id.
8
For a claim seeking damages for malicious prosecution, for which one of the elements is
the resolution of the underlying criminal proceedings in the Plaintiffs favor, the statute of
limitations begins to run from the date of the favorable termination of the proceedings. Rose v.
Bartle, 871 F.2d 331, 349 (3d Cir. 1989). Mr. Dec's bare-bones complaint does not specifically
allege that the criminal proceedings were resolved in his favor at alL But even if they were
resolved in his favor, however, a review of the Butler County Court of Common Pleas dockets
for cases CP-I0-MD-0000039-2009 and CP-I0-MD-0000404-2009, reveals that the cases were
marked "Closed" on December 11,2009 and January 15,2009, respectively. Mr. Dec did not file
the instant suit until March 19,2012, outside the two-year window for any of his potential claims
against Trooper Jenkins. Thus, his claims against Trooper Jenkins are time-barred, and are
dismissed with prejudice. 6
2. Pennsylvania State Police, Troop D; Police Officers in their Official
Capacity
Plaintiffs claims against the Pennsylvania State Police, Troop D are barred because it is
not a proper "person" under § 1983, and it is immune from suit under the Eleventh Amendment.
It is well established that states and state agencies are not "persons" for the purposes of § 1983.
Will v. Mich. Dep't of State Police, 491
u.s.
58, 70, 71 (1989). This includes a State Police
Department. Id. For the same reason, a suit against a police officer in his official capacity is "no
different from a suit against the State itself," and is also prohibited. Id. at 71. Thus, all federal
claims against the Pennsylvania State Police, Troop D and the State Troopers in their official
capacities are dismissed.
The same reasoning applies to any claims Mr. Dec might have against any other individuals resulting from the
2008 events, though none can be discerned other than the Pennsylvania State Police, Troop D, who are already
immune from suit under the Eleventh Amendment, see infra, and against whom suit would already be barred under
the doctrine of res judicata based on the dismissal of Mr. Dec's suit against the Pennsylvania State Police in Dec v.
Double, 2010 WL 2471678.
6
9
3. Police Officers in their Individual Capacity
Even when sued in his individual capacity, "[a] defendant in a civil rights action must
have personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(citing Parratt, 451 U.S. at 537 n.3). Here, Plaintiff names as defendants Troopers Jenkins,
Mifsob, Driscoll, and Berger. As noted above, the only reference to Trooper Jenkins is with
regards to events that occurred outside the statute of limitations. The Court cannot find reference
to Trooper Mifsob anywhere in Plaintiffs Complaint or Response, and therefore Plaintiff has
failed to state a claim against him.
The only mention of Trooper Driscoll is in Plaintiffs Response: "Trooper Driscoll under
oath testified that Sheriff Mike Slupe was privy to the 'cover up' at triaL" Resp.
~
6(B). Because
all Mr. Dec alleges regarding Trooper Driscoll is that he testified that another person was part of
a "cover up," he has not sufficiently alleged the personal involvement of Trooper Driscoll in any
of the alleged wrongs under § 1983 and the standards of Twiqbal. Moreover, trial witnesses
enjoy absolute immunity from suit, including a § 1983 suit, with respect to any claim based on
their testimony. Briscoe v. LaHue, 460 U.S. 325, 332-333 (1983). This applies to testimony at
trial, id., at pre-trial proceedings, including depositions, Williams v. Hepting, 844 F.2d 138, 142
(3d Cir. 1988), and before a grand jury, Rehberg v. Paulk, 132 S. Ct. 1497, 1510 (2012).
Therefore, at whatever stage and before whatever tribunal Trooper Driscoll "under oath
testified," he is immune from liability allegedly flowing from such testimony. Thus, the federal
claims against Troopers Mifsob and Driscoll are dismissed with prejudice.
This leaves a remaining potential claim against Trooper Berger in his individual capacity.
When Mr. Dec was brought in to the police station on charges of harassment and terroristic
10
threats in May 2010, he alleges that he was chained to a metal bench, where he was pepper
sprayed by Trooper Berger who stated, "Here's your equal f**king protection, asshole!" Compl.
at 13-14
~
5. This happened before Mr. Dec's bail was set, and thus assumedly before his initial
appearance. Id.
~
6. The Commonwealth Defendants in their Motion to Dismiss ask that the
Court dismiss all claims except "the 20 10 4th Amendment excessive force claim lodged against
Trooper Berger." Proposed Order, ECF No.7 Ex. 1.7
However, Mr. Dec's Complaint does not contain a specific "Fourth Amendment
excessive force claim," but rather broadly alleges violations of his First, Fourth, Fifth, Eighth,
Ninth, and Fourteenth Amendment rights.
While the Commonwealth Defendants' motion
correctly argued that Mr. Dec's Fifth Amendment count cannot stand because the Fifth
Amendment's due process clause applies only to the actions of the federal government, see B &
G Constr. Co. v. Dir., Office of Workers' Compo Programs, 662 F.3d 233, 246 n.14 (3d Cir.
2011), it failed to address the applicability of any of the other Amendments. Because the Ninth
Amendment, standing alone, does not confer any substantive rights that can form the basis of a
constitutional claim in a § 1983 suit, Nicolette v. Caruso, 315 F. Supp. 2d 710,718 (W.D. Pa.
2003), that count also cannot stand. 8 This leaves Mr. Dec's First, Fourth, Eighth, and Fourteenth
Amendment claims.
a. Fourth and Eighth Amendments
The Fourth Amendment's protection against unreasonable searches and seizures protects
individuals from the use of excessive force by law enforcement officials in the course of arrest,
7 Defendants did not, for example, argue that Trooper Berger's actions did not constitute a violation of a
constitutional right, or were protected under the doctrine of qualified immunity, see Wilson V. Layne, 526 U.S. 603,
609 (l999), and thus the Court does not address such defenses here.
The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to
deny or disparage others retained by the people." U.S. Const. amend. IX.
8
11
investigatory stop, or other "seizure" of the person. Graham v. Connor, 490 U.S. 386, 395
(1989). Neither the Supreme Court nor the Third Circuit has definitively stated at what point the
protections of the Fourth Amendment cease. See id. at 395 n.10; Schneyder v. Smith, 653 F.3d
313,321-22 (3d Cir. 2011) (citing Gallo v. City ofPhila., 161 F.3d 217,222-24 (3d Cir. 1998)).
However, our Court of Appeals has affirmed that it views the proper test for the duration
of that protection to be the "continuing seizure" interpretation of Justice Ginsburg's concurrence
in Albright v. Oliver, 510 U.S. 266, 277-80 (1994) (Ginsburg, 1., concurring). See Schneyder,
653 F.3d at 221-22. Under that test, a Fourth Amendment seizure occurs "[w]hen a state places
constitutionally significant restrictions on a person's freedom of movement for the purpose of
obtaining his presence at a judicial proceeding," id., which lasts at least until "commitment has
been ordered," id. at 322 n.9. Mr. Dec's allegations of being chained to a bench and pepper
sprayed in the eyes before his bail was set thus states a claim for the use of excessive force by a
law enforcement official in violation of the Fourth Amendment. 9 Therefore, the Court agrees
with the Commonwealth Defendants that such a claim should not be dismissed.
Additionally, the Eighth Amendment's protections against cruel and unusual punishment
do not attach until an individual has been both convicted and sentenced for his crimes, Bistrian v.
Levi, 696 F.3d 352, 367 (3d Cir. 2012) (citing Graham, 490 U.S. at 392 n.6)), and therefore are
inapplicable here. Mr. Dec's Eight Amendment claim is dismissed with prejudice.
b. Fourteenth Amendment
The Supreme Court has consistently held that a "pretrial detainee" enjoys the protections
of the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535
(1979) ("a detainee may not be punished prior to an adjudication of guilt in accordance with due
Whether the Fourth Amendment's protections continue after bail has been set, the Court need not here decide. See
n.IO infra.
9
12
process of law."). This includes protecting "a pretrial detainee from the use of excessive force
that amounts to punishment," Graham, 490 U.S. at 395 n.10, as well as from "conditions and
restrictions of pretrial detainment" that amount to punishment, Bell, 441 U.S. at 533. See also
Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000) (discussing various constitutional protections
for treatment of pretrial detainee). It is entirely possible from the facts alleged that Mr. Dec
could have been considered a "pretrial detainee" at the time in which he was allegedly chained to
the bench and pepper sprayed, and the incident may well have occurred at that elusive "point at
which arrest ends and pretrial detention begins." Graham, 490 U.S. at 395 n.l O.
While over time, the courts have appeared to waver as to whether certain of the abovementioned Fourth and Fourteenth Amendment rights necessarily exclude each other, and as to
the precise time at which each right attaches and detaches,1O this Court need not resolve such
questions at this juncture. It is sufficient that Mr. Dec has alleged a violation of his Fourteenth
Amendment Due Process rights, by being chained to a bench and being pepper sprayed in the
eyes for no alleged reason other than spite while in police custody. Therefore, Mr. Dec may
proceed with his § 1983 claims alleging that the pepper spraying incident constituted a violation
of his Fourth Amendment right, made applicable to the states by the Fourteenth Amendment, as
well as a violation of his rights under the Due Process Clause of the Fourteenth Amendment.
\0 Compare Schneyder, 653 F.3d at 320 ("A government-imposed restriction on a person's liberty is a seizure
govemed by the Fourth Amendment if its purpose is to ensure that he appears in court. In contrast, if a pre-trial
detainee suffers a deprivation amounting to punishment, his claim is governed by the Due Process Clause")
(emphasis added) with Albright, 510 U.S. at 280 (Ginsburg, l, concurring) (defendant "remained effectively
'seized' for trial so long as the prosecution against him remained pending"); see also Bistrian, 696 F.3d at 374
(holding that the Bell test for punishment of a pretrial detainee does not "apply to the use of excessive force against a
pretrial detainee in the context of a prison disturbance," but instead the standards of the Eight Amendment as
promulgated in Whitley v. Abers, 475 U.S. 312 (1986» (emphasis omitted). Especially given this complex state of
the law, the lack of briefing from either side on the matter, the lack of developed record evidence as to the timing of
the events, and the reality that all the claims discussed in this section arise from the same single factual event and
thus the resolution of anyone of them will not alter the trajectory of the litigation at this time, the Court finds it
unnecessary to opine at this juncture as to whether Mr. Dec's claims can fall under only one of the legal rubrics of
procedural due process, substantive due process, or any other right embodied in the Fourteenth Amendment, or the
Fourth Amendment.
13
c. First Amendment Retaliation
Mr. Dec also asserts a violation of his First Amendment rights and "retaliation," CompI.
at 3, assumedly because of the alleged fact that when he called the police station to seek the
filing of charges against Judge Haggerty, he was arrested under the "false charges" of
"Terroristic Threats" and "Harassment," id. at 13
~~
1-3; and suffered the pepper spraying
incident. He also describes that he was pepper sprayed after asking, "All this because you refuse
to file charges with Haggerty for tampering with public records, what happened to your oath of
office to provide equal protection under the law?", with Trooper Berger responding, "Here's
your equal f**king protection under the law asshole!" CompI. at 13-14 ~5.
In order to state a § 1983 claim for First Amendment retaliation, a plaintiff must allege
"(1) that [he] engaged in a protected activity, (2) that defendants' retaliatory action was sufficient
to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a
causal connection between the protected activity and the retaliatory action." Lauren W. ex rei.
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In establishing causation, the plaintiff
must allege that the retaliatory action would not have been taken but for the plaintiffs protected
speech. Hartman v. Moore, 547 U.S. 250, 260 (2006). An arrest and prosecution can constitute
an adverse action, City ofHouston v. Hill, 482 U.S. 451, 461-63 (1987), as can other less formal
adverse actions taken by police, if they would deter a person of ordinary firmness from
exercising his or her rights, see Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)
(allegation of "campaign of harassment and intimidation"); Keating v. City of Miami, 598 F.3d
753, 765 (lIth Cir. 2010) (police use of less-than-Iethal weapons to disperse peaceful crowd).
"The effect of the alleged conduct on the [plaintiff s] freedom of speech need not be great in
14
order to be actionable, but it must be more than de minimis." McKee v. Hart, 436 F.3d 165, 170
(3d Cir. 2006) (internal citation omitted),
Here, Mr. Dec alleges two possible instances of speech which, viewed in the light most
favorable to him, could have been the "but for" cause for the pepper spraying incident: (1) his
statements on the phone for which he was arrested; and (2) his statements made to Trooper
Berger immediately before the pepper spraying.
It is plausible that Trooper Berger's
mistreatment of Mr. Dec could have been in retaliation for the statements that Mr. Dec made on
the phone and for which he was arrested. The temporal proximity before those events is still
certainly close enough for a causal link to exist. See Estate ofSmith v. Marasco, 318 F .3d 497,
512 (3d Cir. 2003). It is also plausible that Trooper Berger acted in retaliation for Mr. Dec's
verbal protestations, which might be supported by the allegation that Trooper Berger used many
of Mr. Dec's non-profane words back at him while in the act of pepper spraying him. Chaining a
person to a bench and pepper spraying him is plainly beyond de minimis harm, and especially
given the extreme pain likely caused by the pepper spray, the Court has no difficulty in
concluding that its use would deter a person of ordinary firmness from speaking. Finally, at least
on the facts as alleged, Mr. Dec engaged in protected speech, namely, (l) criticism of Judge
Haggerty, and (2) his protests to his mistreatment by the police itself. See Arnett v. Myers, 281
F.3d 552, 560 (6th Cir. 2002) ("It is well-settled that the freedom to criticize public officials and
expose their wrongdoing is a fundamental First Amendment value ... ").11 Therefore, Mr. Dec
II The Court does note that in Dec v. Double, Mr. Dec provided to the Court a statement in which he detailed his
statements to the police in a way that he did not in his Complaint, namely that he "having [drunk] half a case of
beer" told the police that "what you worthless idiots need to do is go parade about outside until someone takes a
high powered rifle and shoots your worthless commie asses." 2010 WL 2471678, at * 1. While those vulgar and
threatening statements may weIl be central to this litigation at a later stage, because they are not part of the record
before the Court at the motion to dismiss stage, they do not alter the Court's determination on this point at this stage
of the proceedings.
15
is able to state a claim that his treatment by Officer Berger constituted retaliation in violation of
his First Amendment rights. 12
B. Butler County Defendants - § 1983 Claims
1. Butler County SheriffSlupe
Mr. Dec does not sufficiently allege any wrong personally committed by Sheriff Slupe
for which relief can be granted. The only mention of Sheriff Slupe in the Complaint and
Response is the following: (1) that he was a "witness" to the civil proceeding before District
Magistrate Judge Haggerty on February 4, 2010, in which the Judge allegedly wrongly
"dismissed with prejudice" Mr. Dec's civil case against Manager Double and T &R Properties,
and in which the Judge "tamper[ed] with public records," Compl. at 6
~
31, (2) that he was
"privy to the 'cover up' at [the February 4] trial; by doing nothing," as testified by Trooper
Driscoll, Resp.
~
6A, and (3) that he "engage[d] in a pattern of conspiracy with Nedz and [ADA
Bosco] to cover up said falsifications, Constitutional violations, and criminal violations," id at ~
8C.
It is difficult to discern what factual historical events Mr. Dec is actually talking about,
let alone how a § 1983 claim could be crafted out of them. It appears that, at worst, Sheriff Slupe
witnessed an event that Mr. Dec perceived to be an injustice, and then helped or conspired with
others in some fashion to "cover [it] up," by failing to act in some way that Mr. Dec believes he
should have. But Mr. Dec has not described in a non-conclusory fashion how any action taken by
Sheriff Slupe deprived him of any federal statutory or constitutional right for which he has a
12 Mr. Dec does not name any officer who was either on the phone with him, or arrested him, but rather only refers
to "State Police." CompJ. at 13. Similarly, Mr. Dec names no other individual who was involved in the pepper
spraying incident except for Trooper Berger. Thus, because the State Police are immune from suit under § 1983,
there are no other defendants who are liable for that event under any cause of action. As for Trooper Berger,
because the only mention of him is with regards to the pepper spraying incident, the First Amendment claim against
him is limited to that incident alone, and does not encompass Mr. Dec's arrest and detention.
16
cause of action under § 1983, let alone demonstrate that such a scenario is a plausible one. As
such, his federal claims against Sheriff Slupe cannot survive the Twiqbal standard, and must be
dismissed with prejudice.
2. Butler County Public Defender Charles Nedz, Butler County Public
Defender's Office
Courts in this Circuit have held that a County Public Defender's Office is not a "person"
that can be sued under § 1983. Simpson v. City of Coatesville, Cry. A. 10-0100, 2010 WL
3155307, at *24 (E.D. Pa. July 28,2010) (collecting cases); Santos v. Smith, cry. 08-3846, 2008
WL 4922207, at *3 (D.N.J. Nov. 12, 2008) (citing Will, 491 U.S. at 71). Moreover, Mr. Dec's
only basis of liability for the Public Defender's Office is based on the actions of Mr. Nedz - he
does not allege any wrongs perpetrated by the Office itself. This type of respondeat superior
liability is not permitted under § 1983. Tankersley v. Morris, 2:08-CV-1653, 2009 WL 499264,
at *5 (W.D. Pa. Feb. 26, 2009) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir.l981)). Therefore, the federal claims against the Public Defender's Office and Mr. Nedz are
dismissed with prejudice.
Also, for purposes of § 1983, "a public defender does not act under color of state law
when performing a lawyer's traditional functions as counsel to a defendant in a criminal
proceeding," Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981), because in that function "counsel
will [necessarily] be free of state control, id. at 322 .. Mr. Dec has alleged that Mr. Nedz "buried"
Mr. Dec's report from other prison inmates that the police were "laughing about [Dec] trying to
charge [Judge Haggerty.]" Compi. at 14
"conspiracy" against him, Resp.
of those inmates, id.
~
~
~
8. He alleges that Mr. Nedz was part of the
8C, that he destroyed a copy of a letter written to him by one
6, and that he did not make a legal argument on appeal that Mr. Dec
believes he should have, id.
~
10. Because all of the allegations against Mr. Nedz involve a
17
public defender performing a lawyer's traditional functions as counsel to a defendant in a
criminal proceeding, they did not take place under color of state law.
While a public defender may be liable under 42 U.S.C. § 1985(3) for intentional
misconduct if he conspires with state officials to deprive his clients of substantial rights, Tower
v. Glover, 467 U.S. 914, 923 (1984), Mr. Dec offers no facts in support, either directly or by way
of inference, of his conclusory allegation that Mr. Nedz "engage[d] in a pattern of conspiracy"
with ADA Bosco and Sheriff Slupe. See Stankowski v. Farley, 251 F. App'x 743, 747 (3d Cir.
2007) (vague allegation of conspiracy, where only factual basis was a sidebar with counsel
during sentencing, insufficient to state claim for conspiracy). Therefore, Mr. Dec has failed to
state a claim under federal law against Mr. Nedz, and all such claims are dismissed with
prejudice.
3. Butler County District Attorney's Office, Butler County Assistant District
Attorney Bosco
A County District Attorney's Office is not a legal entity for purposes of § 1983, and
therefore cannot be sued. Reitz v. County of Bucks, 125 F.3d 139, 148 (3d Cir. 1997).
Additionally, District Attorneys have absolute immunity from suit for prosecutorial duties
"intimately associated with the judicial process." Imbler v. Pachtman, 424 U.S. 409, 430 (1976).
"The decision to initiate a prosecution is at the core of a prosecutor's judicial role. A prosecutor
is absolutely immune when making this decision, even where he acts without a good faith belief
that any wrongdoing has occurred." Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992)
(internal citations omitted). This immunity also extends to the decision to dispose of a case by
plea. Davis v. Grusemeyer, 996 F.2d 617, 629-30 (3d Cir. 1993), overruled on other grounds by
Rolo v. City Investing Co. Liquidating Trust, 155 F .3d 644 (3d Cir. 1998).
18
Here, Mr. Dec alleges that ADA Bosco, while knowing that Mr. Dec was innocent of a
crime, reduced the charges against him to summary offenses in order to deprive him of a jury
triaL CompL at 14
~
11. Because the decision to charge a defendant is at the core of the
prosecutorial function, ADA Bosco enjoyed absolute immunity when he acted regardless of
whether he acted in good faith, and all federal claims against him must be dismissed with
prejudice.
4. Butler County
Mr. Dec also brings suit against Butler County. In doing so, he takes on a daunting task.
In order to sue a municipality under § 1983, a plaintiff "must prove that 'action pursuant to
official municipal policy' caused [his] injury. Official municipal policy includes the decisions of
a government's lawmakers, the acts of its policymaking officials, and practices so persistent and
widespread as to practically have the force oflaw." Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011)(quotingMonellv. NYC. Dep 't ofSoc. Servs., 436 U.S. 658, 691 (1978)).
To establish liability based on a municipal policy or custom, the plaintiff must
demonstrate the municipality was "the 'moving force' behind the injury alleged"
by showing that there was a "direct causal link between the municipal action and
the deprivation of federal rights." Bd. ofCnty. Comm'rs v. Brown, 520 U.S. 397,
404 (1997). A plaintiff must also establish that the municipal decision "reflects
deliberate indifference to the risk that a violation of a particular constitutional or
statutory right will follow the decision." Id. at 411, [Connick,] 117 S. Ct. 1382.
This is a "stringent standard of fault" that "requir[es] proof that a municipal actor
disregarded a known or obvious consequence of his action." Id. at 410, 117 S. Ct.
1382.
Stanley v. City of Pittsburgh, 467 F. App'x 132, 133 (3d Cir. 2012); see also City of Canton,
Ohio v. Harris, 489 U.S. 378, 391 (1989).
Here, Mr. Dec has not sufficiently alleged either the existence of such a policy, or that it
was the proximate cause of any injuries he suffered. But even if he could, the Complaint is
absolutely silent as to any policy of constitutional violations on the part of the County, and his
19
Response only asserts one in the broadest of terms: "multiple actors within the same county
system evince[d] a design to obstruct justice for the sake of one of their own," Resp. ,-r 7, Butler
County is "a massive living organism of Constitutional violations of Monell Proportions," id ,-r
11. There are no underlying facts with which Mr. Dec can support this claim
as noted above,
he has made only threadbare allegations that he was wronged by Sheriff Slupe, ADA Bosco, and
Mr. Nedz, who "conspired" against him, and cites only those wrongs as evidence of the County's
custom of "deliberate indifference." Because Mr. Dec's alleged federal claim against the County
consists entirely of '''bald assertions' regarding a lack of appropriate procedures [that] will not
suffice" in a § 1983 suit, it must be dismissed with prejudice. Barkley v. Westmoreland Cnty.
Children's Bureau, 853 F. Supp. 2d 522,531 (W.D. Pa. 2012).
C. State Law Clairns 13
1. Commonwealth Defendants
Plaintiff also lodges certain state law tort claims against Defendants arising out of the
same panoply of alleged events. 14
Pennsylvania has a comprehensive tort claims act that
provides sovereign immunity for "the Commonwealth and its officials and employees acting
within the scope of their duties." 1 Pa. Cons. Stat. Ann. § 2310 (West 2012). This sovereign
immunity applies even to intentional torts committed by Commonwealth defendants acting in
their individual capacity. 42 Pa. Cons. Stat. Ann. § 8545 (West 2012); see Story v. Mechling, 412
13 The Court's jurisdiction over such claims arises from the grant of supplemental jurisdiction provided by statute,
28 U.S.c. § 1367(a). Because (1) the federal § 1983 claims have substance sufficient to confer subject matter
jurisdiction on this Court, (2) the federal and state claims in the Complaint arise from a common nucleus of
operative facts, and (3) the federal and state claims in the Complaint are so deeply entangled one with the other that
they would ordinarily be expected to be tried in one judicial proceeding, the Court believes, in the exercise of
discretion, that it is proper to resolve the state claims also. See Lyon v. Whisman, 45 F.3d 758, 759-60 (3d Cir.
1995); United Mine Workers v. Gibbs, 383 U.S. 7]5,725 (1966).
14 These claims include: false arrest, false imprisonment, obstruction of justice, intentional infliction of emotional
distress, "falsifying records," "police brutality/excessive force," malicious prosecution, gross negligence, and
"retaliation." Compl. at 3-4.
20
F. Supp. 2d 509,518 (W.D. Pa. 2006), aff'd, 214 F. App'x 161 (3rd Cir. 2007); Maute v. Frank,
657 A.2d 985, 986 (Pa. Super. Ct. 1995).
"Under Pennsylvania law, an action falls within the scope of employment if it: (1)
is the kind that the employee is employed to perform; (2) occurs substantially
within the job's authorized time and space limits; (3) is motivated at least in part
by a desire to serve the employer; and (4) if force was used by the employee
against another, the use of force is not unexpectable by the employer." Willful
misconduct does not vitiate a Commonwealth employee's immunity if the
employee is acting within the scope of his employment, including intentional acts
which cause emotional distress.
Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D. Pa. 2010) (internal citations omitted).
All of the alleged acts committed by Troopers Jenkins, Mifsob, Driscoll, and Berger (to
the extent that any acts are alleged at all) occurred within the scope of their employment as
police officers. They occurred when the officers were in uniform, in their capacity as state
troopers, and thus even if the officers committed intentional torts while so acting, they are
immune. See id. To the extent that Trooper Driscoll's testimony may be considered to have
been offered in a different capacity, he would also enjoy absolute immunity under Pennsylvania
law from liability allegedly flowing from such testimony. See LLMD ofMich., Inc. v. JacksonCross Co., 740 A2d 186, 189 (Pa. 1999) (citing Binder v. Triangle Publ 'ns, Inc., 275 A2d 53
(Pa. 1971 )).
There are nine (9) specifically delineated exceptions to this sovereign immunity. They
are: (1) vehicle liability; (2) medical/professional liability; (3) care, custody, or control of
personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and
other dangerous conditions; (6) care, custody, and control of animals; (7) liquor store sales; (8)
National Guard activities; and (9) toxoid and vaccines. 42 Pa. Cons. Stat. Ann. §8522(b)(1 )-(9)
(West 2012); Story, 412 F.Supp.2d at 518. None of these apply here. Therefore, the
21
Commonwealth Defendants are immune from suit from Plaintiffs state law tort claims, and all
such claims are dismissed with prejudice. IS
Furthermore, the claims against Trooper Jenkins must also be dismissed because they lie
outside Pennsylvania's two year statute of limitations, 42 Pa. Cons. Stat. Ann. § 5524, as must
the claims against Trooper Mifsob because he is not mentioned in Plaintiffs filings.
2. County Defendants
The County Defendants in their Motion to Dismiss did not address Plaintiff s state law
claims. Even so, all are either immune from suit, or Plaintiff has failed to state a claim against
any of them for which relief can be granted. The County and the County District Attorney's
Office, as municipal agencies, are completely immune from liability for state tort claims under
Pennsylvania's Political Subdivisions Tort Claims Act ("PSTCA"). 42 Pa. Cons. Stat. Ann. §
8541 (West 2012); see Schneyder v. Smith, CrV.A. 06-4986, 2007 WL 119955, at *6 (E.D. Pa.
Jan. 9,2007), rev'd on other grounds sub nom. Odd v. Malone, 538 F.3d 202 (3d Cir. 2008). Nor
do the actions here fall within any of the eight enumerated exceptions in 42 Pa. Cons. Stat. Ann.
§ 8542(b) (West 2012),16 which mirror those of § 8552.
ADA Bosco is entitled to immunity for his actions because an assistant district attorney is
a "high public official" with absolute immunity from suit under Pennsylvania common law. See
Durham v. McElynn, 772 A.2d 68, 69 (Pa. 2001) (prosecutorial immunity for even malicious
The Court's inquiry would be different if the Officers were employees of the County, and not the Commonwealth.
W. Manchester Twp. Police Dep't, 604 F. Supp. 2d 739, 754 (M.D. Pa. 2009). While County employees
enjoy qualified state law immunity that does not extend to intentional torts taken that involve "actual malice or
willful misconduct," see 42 Pa. Cons. Stat. Ann. § 8550 (West 2012), Commonwealth employees' immunity for
intentional actions taken in the scope of their employment is absolute, except for the limited categories noted above.
See Mitchell, 680 F. Supp. 2d at 682.
15
Cf Dull v.
16 These exceptions are: (1) vehicle liability; (2) the care, custody and control of personal property; (3) the care,
custody and control of real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6)
streets; (7) sidewalks; and (8) the care, custody and control of animals. 42 Pa. Cons. Stat. Ann. § 8542(b).
22
actions of ADA as long as they are "taken in the course of the official's duties or powers and
within the scope of his authority"); 17 Gregg v. Pettit, CIV A 07-1544, 2009 WL 57118, at *7
(W.D. Pa. Jan. 8, 2009) (applying Durham in dismissing state law claims alleged alongside
§ 1983 claims against ADAs).
As noted above, the only allegations against Mr. Nedz are that he "buried" a story related
to him by Plaintiff that the police were laughing about Plaintiff, including by "destroying" a
letter, and that he "conspired" with the ADA against Plaintiff. Compi. at 14 4j[ 8; Resp. 4j[ 6C. As
with Plaintiffs federal claims, such vague and conclusory statements do not meet the Twiqbal
pleading standard. Similarly, as for Sheriff Slupe, the only allegations against him are that he
was "privy to" an alleged cover-up, and for the same reason that Plaintiffs conclusory
allegations fail to make out a claim for relief under federal law, they fail to make out a claim for
the violation of any state tort under the Twiqbal standard. IS In other words, there is simply not a
single state law tort allegedly committed by Sheriff Slupe or Mr. Nedz that can be fashioned into
a plausible claim for relief based on Plaintiffs laundry list of perceived wrongs. As such, all
state law claims against ADA Bosco, Mr. Nedz, and Sheriff Slupe are also dismissed with
prejudice.
IV. CONCLUSION
Many of the claims and arguments presented by Mr. Dec appear to be fantasticaI. l9 Still,
he has properly alleged a specific event, being pepper sprayed by the police while being chained
17 This absolute immunity existed before the enactment of the PSTCA, and was not abrogated by it. See Durham,
772 A.2d at 165.
18 By dismissing the claims against Sheriff Slupe under the Twiqbal standard and not under "high public official"
immunity, the Court makes no suggestion as to whether under Pennsylvania law, a county sheriff is a "high public
official."
19 See, e.g., Resp. ~ 9 ("the uneducated ignoramuses that work for county and state had falsely charged and
imprisoned Plaintiff); ~ 11 ("To keep counties from becoming 'massive living organisms of Constitutional
23
to a bench, without necessity or adequate legal justification, for which Trooper Berger might be
liable under 42 U.S.C. § 1983.
For the reasons stated above, all claims against Defendants Trooper Jenkins, Trooper
Mifsob, Trooper Driscoll, Pennsylvania State Police Troop D, Butler County Sheriff Mike Slupe,
Butler County ADA Bosco, Butler County District Attorney's Office, Butler County Public
Defender Charles Nedz, Butler County Public Defender's Office, and Butler County are
dismissed with prejudice. All claims against Trooper Berger are dismissed with prejudice except
for Plaintiffs (a) 42 U.S.C. § 1983 Fourth Amendment excessive force claim, (b) § 1983 First
Amendment retaliation claim, and (c) § 1983 Fourteenth Amendment due process claim, all
arising out of the alleged pepper spraying incident. An appropriate order will follow.
United States District Judge
Dated: DecemberL,2012
cc:
All counsel of record
Mr. Matthew P. Dec,pro se
corruption' via conspiratorial parties such as the KKK, the Free Mason, or the localized Good 01' Boys mafia
cliques as exemplified by the true story of Buford Pusser which was turned into a motion picture entitled Walking
Tall, Congress enacted what is known as 'under color of law' crimes codes"); ~ 13 ("Indeed, if a country run by
'KKK' or 'Masons' that hate the family unit protected by the Fourteenth Amendment's familial intimate association
is not subject to Constitutional protection under 'civil Monell' nor 'criminal under color of law'; then both remedies
are but snake oiL"); see also Dec v. Double, 2010 WL 2471678, at *3. Given the nature of these and other
allegations in the Complaint, and Mr. Dec's willingness to already have raised new matters in his Response brief
(which this Court has considered), the Court finds and concludes that there is no basis to allow Mr. Dec to amend his
dismissed claims, and that any effort to do so would be fruitless. See Credico v. CEO Idaho Nat'/ Lab., 461 F.
App'x 78, 79 (3d Cir. 2012) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002)).
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?