Douris v. Dougherty, Civ.A. 01-CV-5757.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation192 F.Supp.2d 358
Docket NumberNo. Civ.A. 01-CV-5757.,Civ.A. 01-CV-5757.
PartiesJames George DOURIS and Helene Douris v. John DOUGHERTY, Joseph Kissel, William Doucette, Doylestown Borough, James C. Donnelly, Ruth Ann Eynon, and Bertha Skerle.
Decision Date15 March 2002

Law Offices of Brian Puricelli, Newtown, PA, for Brian M. Puricelli, plaintiffs.

Begley, Carlin & Mandio, Langhorne, PA, for James A. Downey, III, defendant John F. Dougherty.

Marshall, Dennehey, Warner, Coleman & Goggin, Norristown, PA, for Joseph J. Santarone, Jr., defendants Joseph Kissel, et al.


JOYNER, District Judge.

This civil rights matter is now before the Court on motion of Defendants Kissel Doucette, Donnelly, Skerle and the Borough of Doylestown to dismiss the plaintiff's complaint. For the reasons set forth below, the motion shall be granted in part and denied in part.

Factual Background

According to the complaint, on November 18, 1999, Plaintiff James Douris was inside the building located at 50 Main Street in Doylestown Borough, which apparently houses the Bucks County Department of Weights and Measures and the Federal E.M.A. ("FEMA"), to obtain various public records which he intended to use in defending a summary parking meter violation action. (Complaint, ¶ s12-15). Plaintiffs aver that on that date, Mr. Douris asked John Dougherty, the Director of Emergency Services for Bucks County, how Bucks County used its FEMA money. (Complaint, ¶ 16). Mr. Dougherty then purportedly informed Defendants Joseph Kissel and William Doucette of the Doylestown Borough Police Department that Plaintiff was trespassing by being in a restricted area of the building. Plaintiffs' complaint goes on to allege that Officers Kissel and Doucette then "physically seized, arrested, handcuffed, searched and violently dragged Plaintiff out of the public building, for trespassing, and in doing so injured him." (Complaint, ¶ s17-19). Given that this arrest was allegedly without "a reasonable basis, warrant, consent or authority," Plaintiffs aver in Count I of their complaint that it was in violation of Mr. Douris' "federally secured rights, immunities and privileges to liberty, free speech, unreasonable search and seizure, equal protection, procedural due process and substantive due process as secured by the United States Constitution under the First, Fourth, Ninth and Fourteenth Amendments" and is thus actionable under 42 U.S.C. § 1983.

In addition, Plaintiffs contend that Defendants Eynon and Skerle, who are parking enforcement officers for the Borough of Doylestown, prosecuted them for parking at expired meters despite purportedly "knowing the parking enforcement policy and practice was contrary to clearly established state law," and that Defendants Donnelly and Doylestown Borough should be held liable for their alleged failure to properly train and/or supervise its police and parking enforcement officers. (Complaint, ¶ s30-47).

Standards Applicable to Rule 12(b)(6) Motions

In resolving a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir.1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985).


As noted above, Plaintiffs seek to hold Defendants liable under 42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

The purpose of Section 1983 is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state. Del Signore v. McKeesport, 680 F.Supp. 200, 203 (W.D.Pa.1988). Section 1983 does not create a cause of action in and of itself; rather it provides redress for certain violations of rights arising under the federal constitution or laws of the United States which are caused by persons acting under color of state law. Lee v. Gateway Institute & Clinic, Inc., 732 F.Supp. 572, 575 (W.D.Pa.1989), citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).

To make out a claim under Section 1983, a plaintiff must demonstrate that the conduct of which he is complaining has been committed under color of state or territorial law and that it operated to deny him a right or rights secured by the Constitution and laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1988); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995), cert. denied, 516 U.S. 858, 116 S.Ct. 165, 133 L.Ed.2d 107 (1995). The plaintiff must also establish that it was the acts of the defendant which caused the constitutional deprivation. See: Rizzo v. Goode, 423 U.S. 362, 370-371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976); Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977).

The traditional definition of action under color of state law requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998). To act "under color of" state law for § 1983 purposes does not necessarily require that the defendant be an officer of the State. Rather, it is enough that the defendant is a willful participant in joint action with the State or its agents. Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980). A person may therefore be found to be a state actor when (1) he is a state official, (2) he has acted together with or has obtained significant aid from state officials, or (3) his conduct is, by its nature, chargeable to the state. Angelico v. Lehigh Valley Hospital, 184 F.3d 268, 277 (3d Cir.1999).

A. Plaintiffs' claims against the officer and parking enforcement officer defendants.

In the case at bar, the plaintiff alleges that by arresting and commencing "a malicious or abusive criminal prosecution against him," the police officer defendants Kissel and Doucette and the parking enforcement defendants Skerle and Eynon, "while acting under color of state law deprived [them] of [their] federally secured rights, immunities and privileges to liberty, free speech, unreasonable search and seizure, equal protection, procedural due process, and substantive due process as secured by the United States Constitution under the First, Fourth, Ninth and Fourteenth Amendments," in violation of 42 U.S.C. § 1983. Plaintiffs also aver that "Defendant Kissel and Dougherty, while acting in concert and/or individually agreed to and/or did commence state criminal process against Plaintiff G. Douris for engaging in First Amendment protected activities, to wit, seeking to obtain public records to show the Doylestown Borough parking meters violated federal and state law, and thus the parking violation prosecution was illegal, and for seeking information on how federal FEMA money is being used by Bucks County and the Bucks County Emergency Service Department." (Complaint, Counts I and II).

Accepting these averments and the inferences reasonably deducible therefrom as true, we must conclude that Plaintiff has adequately pled a § 1983 claim under the First and Fourth Amendments only against Officers Doucette and Kissel. To be sure, the First Amendment protects an individual's rights to the free exercise of religion, free speech, and to peaceably assemble and petition for a redress of grievances. To establish a § 1983 claim of retaliation for the exercise of free speech, Plaintiffs must prove that: (1) Defendants were acting under color of state law; (2) Plaintiffs' speech activities were protected under the First Amendment; and (3) Plaintiffs' exercise of their protected right was a substantial or motivating factor in Defendants's actions. See: Merkle v. Upper Dublin School District, 211 F.3d 782, 793 (3d Cir.2000); Harrington v. Harris, 118 F.3d 359, 364 (5th Cir.1997); Bernheim v. Litt, 79 F.3d 318, 324 (2d Cir. 1996); Keenan v. City of Philadelphia, 983 F.2d 459, 466 (3d Cir.1992).

The Fourth Amendment, in turn, protects against unreasonable searches and seizures while the Fourteenth dictates that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any...

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