Agresta v. City of Philadelphia, Civ. A. No. 87-8308.

Decision Date23 August 1988
Docket NumberCiv. A. No. 87-8308.
Citation694 F. Supp. 117
PartiesStephen AGRESTA v. CITY OF PHILADELPHIA, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Joseph F. Lawless, Jr., Philadelphia, Pa., for plaintiff.

Ralph J. Teti, Chief Deputy City Sol., Philadelphia, Pa., for defendants.

MEMORANDUM AND ORDER

VAN ANTWERPEN, District Judge.

Before the court is the city defendants' motion to dismiss the complaint. In the introduction to the motion, the "city defendants" are said to be: Sambor, Tucker, Gillespie, Fitzpatrick, Doman, Baker, "several unknown police officers", the City of Philadelphia, and the Philadelphia Police Department. In the interest of clarity, we shall address seriatim those claims and those defendants whom these defendants seek to have dismissed from this action.

Dismissal of Claims Under 42 U.S.C. §§ 1986 and 1988 Against All Defendants

Since the plaintiff states that he is unopposed to such dismissal, the defendants' motion to dismiss is granted as to all defendants insofar as the motion pertains to the plaintiff's causes of action under 42 U.S.C. §§ 1986 and 1988.

Dismissal of Defendant Police Department of Philadelphia

The complaint is dismissed as to the named defendant, "The Police Department of the City of Philadelphia". The complaint shall be dismissed as to this defendant "because it does not have a separate corporate existence; suits against the Police department `shall be in the name of the City of Philadelphia.' Pa.Stat.Ann. tit. 53, § 16257 (Purdon 1957)." Baldi v. City of Philadelphia, 609 F.Supp. 162, 168 (E.D. Pa.1985).

Dismissal of "Unknown Police Officer Defendants"

With regard to the defendants' motion to dismiss as it pertains to "unknown police officer defendants", that part of the defendants' motion shall be granted because there are no such defendants in the case. "Unknown police officers" have not been named among the defendants in the title of the action found in the caption of the complaint, as required by Fed.R.Civ.P. 10(a).1

Dismissal of Claim Under 42 U.S.C. § 1983 Against Defendants Doman, Baker, Gillespie, Fitzpatrick, Sambor and Tucker

With regard to the defendants' motion to dismiss as it pertains to defendants Doman, Baker, Gillespie, Fitzpatrick, Sambor and Tucker, we wish to point out that the plaintiff in the instant case is Stephen Agresta. The focus, therefore, must be on who did what to Stephen Agresta and not to his deceased brother Samuel. The long complaint contains a mixture of allegations concerning alleged illegal conduct directed at both Stephen and Samuel Agresta. Stephen has standing only to seek redress of the harm directed at him. We shall, therefore, examine only those paragraphs where defendants Doman, Baker, Gillespie, Fitzpatrick, Sambor and Tucker are alleged to have engaged in illegal conduct towards Stephen Agresta.

Generally speaking, "a complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)." Iseley v. Bucks County, 549 F.Supp. 160, 168 (E.D.Pa.1982). When it comes to complaints arising from civil rights statutes, however, a higher degree of specificity has been required by the Third Circuit. It has been said that "vague and conclusory allegations in a civil rights complaint will not survive a motion to dismiss. Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978)." Id.

The following paragraphs contain relevant mention of either one or all of defendants Doman, Baker, Gillespie and Fitzpatrick by name: # 32, 34, 63, and 83. The following paragraphs refer to "the police defendants", "all defendants acting as Philadelphia police officers", or "all defendants", terms which by implication would include Doman, Baker, Gillespie and Fitzpatrick: # 31, 65, 66, 74, 86, 88, 89, 90, 93, 95, 97, 98, and 99. Unfortunately, all of these paragraphs are either vague, conclusory, or lump all the defendants together so that it is impossible to tell with specificity which defendants are responsible for which acts.

The following paragraph # 31 provides an example of vagueness:

"31. While in custody, Stephen Agresta heard several conversations between Spurka and the police defendants named herein wherein Spurka repeated his lies to the police regarding the `mafia' connections of Samuel and Stephen Agresta and their father, Samuel Agresta, Sr.; that Samuel Agresta, Sr. had a store in South Philadelphia next to Vento's and that the father and sons were `connected' (had `mafia connections'). Spurka told the police that they could never catch Samuel Agresta, that he was too fast and his father Samuel Agresta, Sr. was too `connected' for it to do any good. The police defendants stated to Spurka that they could catch Samuel Agresta, Jr. and that they could `take care' of the Agrestas."

The rest of the paragraphs are either conclusory or lack specificity as to particular defendants. Paragraph # 63 will provide an example of the conclusory nature of these paragraphs:

"63. Plaintiff avers on information and belief that the defendant Carroll and/or the Philadelphia Police Department and/or Baker and/or Fitzpatrick and/or Gillespie and/or Doman and/or other unknown police officers at the request and in conspiracy with all defendants, knowingly falsified the facts set forth in the affidavit of probable cause for the issuance of the arrest warrant and formally arrested Stephen Agresta in order to justify the wrongful arrest of Stephen Agresta and/or justify and/or cover up the wrongful shooting of Samuel Agresta, Jr."

Paragraph # 83 is an example of the lack of specificity as to particular defendants:

"83. As set forth herein, plaintiffs aver that Tucker, Sambor, Carroll, Doman, Gillespie, Fitzpatrick, Baker, Spurka, the City, Police Department and unknown police officers combined, conspired and agreed to violate and interfere with those rights secured Stephen Agresta by the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania and 42 U.S.C. §§ 1983, 1986 and 1988 and to intentionally interfere with those rights of plaintiff as set forth herein. In furtherance of the aforementioned conspiracy, the above defendants performed a number of overt acts, including but sic limited to
(a) wrongfully, maliciously and without probable cause arresting Stephen Agresta; threatening Stephen Agresta; physically striking Stephen Agresta at the scene of his arrest; wrongfully beating and striking Stephen Agresta while in police custody.
. . . . .
(j) wrongfully, maliciously and improperly arresting and prosecuting Stephen Agresta on charges known by all defendants to be false for the purposes of further covering up the wrongful and malicious arrest of Stephen Agresta and/or the wrongful and intentional shooting of Samuel Agresta, Jr. and/or to deter Stephen Agresta and/or the Agrestas from filing suit against all defendants."

We have already noted that vague and conclusory allegations in a civil rights complaint will not withstand a motion to dismiss. Iseley, 549 F.Supp. 160. In Negrich v. Hohn, 379 F.2d 213 (3d Cir.1967), the Third Circuit affirmed the district court's dismissal of a prisoner's action under 42 U.S.C. § 1983 because the complaint had alleged that all defendants — individuals ranging from the warden to a specifically named prison guard — had inflicted such injustices upon the plaintiff as putting him on bread and water for thirty days, repeatedly beating him and forcing him to sign a statement, denying him the right to see his attorney and placing false charges against him.

The Third Circuit found this complaint fatally defective:

"The complaint is insufficient because it is broad and conclusory. Its insufficiency lies in its failure to state facts in support of its conclusions. The charges of beatings and cruel and unusual punishment are made against the defendants generally and not against any particular defendant. It is apparent that all defendants could not have inflicted the beatings at the times and places indicated...."

Id. at 215 (footnote omitted).

So, in the instant case, is there a lack of specificity as to the particular acts of the particular defendants against the plaintiff, Stephen Agresta.2 Such lack of factual specificity is fatal even where liability is based upon allegations of conspiracy. In Shirey v. Bensalem Township, 501 F.Supp. 1138 (E.D.Pa.1980), appeal dismissed, 663 F.2d 472 (3d Cir.1981), the court found the allegations in the complaint insufficient because all of the defendants had been "lumped together" and the allegations of conspiracy appeared to be conclusory. Said the court in Shirey of these deficiencies in the complaint:

"It the complaint fails to identify specific acts of specific defendants. The specificity which exists in the complaint is limited to recitations of particular incidents of particular plaintiffs. The complaint is devoid of any allegations which would put individual defendants on notice of their alleged wrongdoing. All defendants are simply lumped together. Liability of municipalities, police chiefs and unknown police officers is based on unsupported allegations of conspiracy. The complaint fails to provide any underlying factual basis for the conspiracy allegation...."

Id. at 1143.

We believe that the complaint in the instant case suffers from these deficiencies as well. The defendants' motion to dismiss as it pertains to Doman, Baker,3 Gillespie and Fitzpatrick shall be granted.

With regard to the defendants' motion to dismiss as it pertains to former Police Commissioners Sambor and Tucker, these two defendants are given relevant mention by name in the following paragraphs: # 17 and 83. The following paragraphs relevantly refer to "the defendants", "all defendants" or "members of the Philadelphia...

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