Milligan v. Jacob

• Decision Date: 08 July 2019
• Docket Number: Civil Action No. 2:18-cv-00496
• Parties: RAMON L. MILLIGAN, Plaintiff, v. CORPORAL ALEX JACOB, CORPORAL ADAM CANDIOTO, OFFICER BRIAN PRUNTY, OFFICE ANDREW GUERRIERO, BOROUGH OF MOUNT OLIVER and MOUNT OLIVER POLICE DEPARTMENT Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

RAMON L. MILLIGAN, Plaintiff, v. CORPORAL ALEX JACOB, CORPORAL ADAM CANDIOTO,OFFICER BRIAN PRUNTY, OFFICE ANDREW GUERRIERO, BOROUGH OF MOUNT OLIVERand MOUNT OLIVER POLICE DEPARTMENT Defendants.

Civil Action No. 2:18-cv-00496

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

July 8, 2019

District Judge Bissoon / Magistrate Judge Lisa Pupo Lenihan

ECF No. 25

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS

I. RECOMMENDATION

For the reasons set forth herein, it is respectfully recommended that Defendants' Motion to Dismiss the Complaint (ECF No. 25) be granted. More specifically, it is recommended that pro se Plaintiff's Complaint, stating §1983 claims for Constitutional violations, including those of his First, Fourth, Fifth, and Fourteenth Amendment rights, and all claims under other allegedly applicable law, be dismissed with prejudice. In so recommending, the Court has thoroughly reviewed the parties' briefings and concluded, giving pro se Plaintiff all due consideration, that further amendment to Plaintiff's Amended Complaint, ECF No. 17, would be futile.

II. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT

A. Factual History

Plaintiff Ramon L. Milligan ("Milligan" or "Plaintiff"), an African American, filed this primarily civil rights action regarding his arrest for offenses related to his refusal to comply with a Borough police officer's directive to leave the scene of Plaintiff's verbal altercation with another individual. More specifically, as stated in relevant portions of Plaintiff's Amended Complaint, ECF No. 17:

Plaintiff was at a Port Authority Bus Stop located across from the Mount Oliver Police Department on Brownsville Road the mid-afternoon of March 28, 2018.¹ He overheard a Caucasian man use a racial expletive to a young African American man and objected. "The third-party and Plaintiff then began a verbal confrontation." ECF No. 17. Whereupon the four Defendant Mount Oliver police officers - Jacob (incorrectly named as "Jacob Alex" rather than "Alex Jacob", see Defendants' Concise Statement of Material Facts ("Defendants' CSMF"), ECF No. 26 at 1), Candioto, Prunty and Guerriero - separated both gentlemen and took their information. The third-party left the altercation area as directed. See ECF No. 17.

Unlike the other man involved, Plaintiff objected to leaving. Plaintiff and Corporal Jacob "went back and forth for some time as the Plaintiff informed [Jacob that Plaintiff] was waiting for a Port Authority bus;" and Jacob "continued his attempt to quiet the Plaintiff and get [him] moving." ECF No. 17. Plaintiff expressly reasserted his dis-inclination to comply with Jacob's directions to refrain from further verbal dispute and leave the area.² Jacob then cautioned Plaintiff with arrest to no avail. Plaintiff acknowledges his continued dispute and non-compliance with Jacob, and alleges that he was arrested when in the course of this conduct he asked for Jacob's badge number. Plaintiff was walked across the street to the Police Stationwhere he was charged with counts of Disorderly Conduct, Harassment and Possession (the latter added on Jacob's alleged discovery of marijuana residue in Plaintiff's keychain).³ Plaintiff remained in custody for 14 days. See ECF No. 17.

The record reflects a criminal disposition date of April 12, 2018 and Plaintiff's entry of summary offense guilty pleas to charges of Disorderly Conduct and Harassment for which costs were assessed. See ECF No. 26; 26-1 and 26-22

B. Procedural History

Plaintiff commenced this civil action on April 17, 2018, with the filing of his motion for leave to proceed in forma pauperis and an accompanying Complaint ECF No. 1; ECF No. 3. Defendants' Motion to Dismiss for Failure to State a Claim was filed June 19, 2018, ECF No. 11. Said Motion was rendered moot when Plaintiff was granted leave to file an Amended Complaint, which was docketed on July 26, 2018. ECF No. 17. See also ECF No. 18 (Order dismissing ECF No. 11 as moot). The pending Motion to Dismiss, together with Defendants' CSMF and Brief in Support, were filed on September 24, 2018. ECF No. 25, 26 and 27, respectively. Plaintiff's Response was filed on October 23, 2018. ECF No. 31. Accordingly, the issues raised in the Defendants' Motion are ripe for disposition.

C. Complaint - Overview

Plaintiff's Amended Complaint brings, with some duplication, fourteen pages of claims, including broad and sometimes vague claims of violations of the following Constitutional rights: Plaintiff's First Amendment Freedom of Speech, Fourth Amendment protection from Unlawful Search and Seizure, Fifth Amendment Right to Liberty, and Fourteenth Amendment Due Process. It also alleges discrimination in a place of public accommodation in violation of theCivil Rights Act of 1964, 42 U.S.C. § 2000(a); claims under Pennsylvania's Dragonetti Act, 42 Pa.C.S.A. §8351; and multiple claims under federal and state criminal statutes that, as discussed below, do not/were not intended to create a private right of action. In his Response, however, Plaintiff appears to express concurrence with dismissal of Defendant Mount Oliver Police Department as a party, and of claims for violation of the Fifth Amendment and 42 Pa.C.S.A. §8351. See ECF No. 31 at 2.

Plaintiff repeatedly distinguishes (1) the issuance of a summons to the gentleman who provided his information and left the scene of the altercation, in compliance with police officer directives, and (2) the initial issuance of a summons but subsequent arrest of Plaintiff who "refus[ed] to move from the bus stop and cease talking." ECF No. 17. Plaintiff premises his claims primarily on beliefs that (a) his conduct "was not subject to arrest," i.e., that it did not meet any probable cause standard for arrest by Jacob; and that (b) his subsequent guilty plea presents no obstacle to his current probable cause challenge. And he premises his claims against the additional police officer and Mount Oliver Defendants by extension, i.e., by allegations of deliberate indifference to his false arrest and by related unspecified deficiencies in hiring and/or training.⁴ However, pro se Plaintiff simply misapprehends the law. See, e.g., Whiting v. Bonazza, 545 Fed. Appx. 126, 128 (3d Cir. 2013) (finding police had probable cause to arrest for disorderly conduct under Pennsylvania law where §1983 plaintiff engaged in verbal altercation and continued verbal public unruliness rather than comply with officer's direction to leavescene). As explained below, the Court concludes that no further amendment could raise a cognizable claim under the facts as Plaintiff himself presents them.

III. STANDARD OF REVIEW

The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also

Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).

Thompson v. Real Estate Mortg. Network,

748 F.3d 142, 147 (3d Cir. 2014).

In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman,

38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) ("[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, andpublicly available records and transcripts from judicial proceedings 'in related or underlying cases which have a direct relation to the matters at issue.'") (citations omitted). More specifically, the Court may take judicial notice of the State court records without converting a 12(b)(6) motion to dismiss into a motion for summary judgment.

When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner,

404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must "apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also

Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges...