IN THE UNITED STATES DISTRICT COURT THE BOROUGH OF MALVERN PENNSYLVANIA ...

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

_____________________________________

RANDALL WINSLOW, On His Own

:

Behalf and For Those Similarly Situated :

Plaintiff,

:

:

v.

:

:

THE BOROUGH OF MALVERN

:

PENNSYLVANIA, CHIEF OF POLICE :

MICHAEL MCMAHON, POLICE

:

OFFICER, LLOYD DOUGLAS, THE

:

TOWNSHIP OF WILLISTOWN, CHIEF

OF POLICE JOHN NARCISE, OFFICER

STEPHEN J. JONES, Individually and in

Their Official Capacities As Police Officers

in the Borough of Malvern and the

Township of Willistown

Defendants.

_____________________________________

CIVIL ACTION NO. 08 - 1890

DuBOIS, J.

December 7, 2009

MEMORANDUM

I. INTRODUCTION

This is a civil rights case arising under 42 U.S.C. ? 1983 in which the plaintiff, Randall

Winslow, claims that the defendants both violated his constitutional rights under the Fourth, Fifth,

Eighth and Fourteenth Amendments and committed torts under Pennsylvania law. Presently before

the Court are two motions to dismiss. The first was filed by the Borough of Malvern and two of its

police officers, Chief Michael McMahon and Sgt. Lloyd Douglas; the second was filed by the Township of Willistown and two of its officers, Chief John Narcise and Officer Stephen J. Jones. For the reasons set forth below the Court dismisses Winslow's claims against all of the defendants except Douglas. As to Douglas the Court dismisses all of Winslow's claims except for the claims

of (1) battery, (2) violation of the Fourth Amendment protection against use of unreasonable force

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and (3) violation of the Fourth Amendment's protection against unreasonable search. II. BACKGROUND1

Winslow was inside his employer's house at 12 Callery Way Malvern, in Williston Township, at approximately 12:10 A.M. on April 16, 2006 when he heard someone knocking loudly at the door and breaking the door window lights. (Am. Compl. ? 17). Fearing further destruction of the property, Winslow answered the door to find Sergeant Lloyd Douglas of the Borough of Malvern police department. (Am. Compl. ? 18). Douglas placed his foot in the threshold of the house and began asking Winslow questions. (Am. Compl. ?? 18, 20). Winslow responded by asking Douglas if he had a warrant. (Am. Compl. ? 21). Douglas refused to respond, instead asking Winslow if he had been driving a Range Rover, if he had been drinking, and how long he had been inside the house. (Am. Compl. ?? 22, 25). Douglas then asked Winslow to open the garage door, which Winslow did "for fear of property damages or the charge of resisting arrest, or not cooperating with police." (Am. Compl. ? 26).

Winslow also avers that he was not given his Miranda warnings at "any proper time", that when his Miranda warnings were finally delivered, Douglas would not let Winslow use his glasses to see what he was signing, that the police tightly handcuffed and injured him when he was arrested, and that the police permitted a hospital employee to take his blood. (Am. Compl. ?? 28, 31, 32).

After his April 16, 2006 arrest on suspicion of drunk driving, Winslow pled guilty to driving under the influence of alcohol and disorderly conduct.2 Winslow later attempted to invalidate this plea under Pennsylvania's Post-Conviction Relief Act, but his petition was denied by the Court of

1 The facts are taken from the Amended Complaint, or are matters of public record, and presented in the light most favorable to the plaintiff.

2 Pennsylvania v. Winslow, No. CP-15-CR-0002374-2006, Docket entry of 9/12/2006 (Ct. Comm. Pleas, Chester Cty) ( Document No. 26, Exhibit B, filed June 19, 2009)

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Common Pleas of Chester County3 and the Superior Court of Pennsylvania affirmed the conviction.4 Winslow now seeks damages for the defendants' alleged violations of his constitutional

rights and state law. Liberally construed, his Amended Complaint raises seven claims: (1) common law battery, (2) intentional infliction of emotional distress, (3) a Monell claim alleging that the defendants have a policy or custom that caused a violation of his constitutional rights, and violations of the (4) Fourth, (5) Fifth, (6) Eighth, and (7) Fourteenth Amendments to the United States Constitution. Because Winslow's cause of action arises under a federal statute ? 42 U.S.C. ? 1983 ? this court has jurisdiction pursuant to 28 U.S.C. ?? 1331 and 1367. III. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . ." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).

"To survive a motion to dismiss, a civil plaintiff must allege facts that `raise a right to relief above the speculative level . . . .'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a

3 Pennsylvania v. Winslow, No. CP-15-CR-0002374-2006, Docket Entry of 2/06/2008 (Ct. Comm. Pleas, Chester Cty) (Document No. 26, Exhibit B, filed June 16, 2009)

4 Pennsylvania v. Winslow, No. 830 EDA 2008 (Pa. Sup. Ct. Apr. 7, 2009) (Document No. 18, filed 4/16/2009).

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sheer possibility." Id. "Where a complaint pleads facts that are `merely consistent with a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach" which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950. Under this approach, a district court first identifies those factual allegations which constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court then assesses "the `nub' of the plaintiff['s] complaint--the well-pleaded, nonconclusory factual allegation[s] . . . to determine" whether it states a plausible claim for relief. Id.

Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should read the submissions of pro se litigants generously and construe formally imperfect filings in accordance with the pro se litigant's substantive intent. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to "less stringent standards than formal pleadings drafted by lawyers"). The Supreme Court has ruled post-Twombly that dismissing a case on the basis that "allegations of harm [are] too conclusory to put these matters in issue" would violate the liberal pleading standard for pro se plaintiffs. Erickson v. Pardus, 551 U.S. 89, 94 (2007). IV. DISCUSSION

A. Defendants' Legal Defenses: Heck v. Humphrey and Qualified Immunity The defendants present two legal defenses to Winslow's constitutional claims. The first is that Winslow's claims are precluded by his guilty plea. The second is that the defendants are entitled to qualified immunity.

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1. Heck v. Humphrey Under Heck v. Humphrey, a plaintiff may not recover damages in an action under 42 U.S.C. ? 1983 for harms "caused by actions whose unlawfulness would render a conviction or sentence invalid." 512 U.S. 477, 486-87 (1994). Accordingly, this Court "must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his sentence or conviction; if it would, the complaint must be dismissed. . . ." Id. at 487. Winslow's guilty plea raises the Heck bar. See Justice v. Town of Cicero 577 F.3d 768, 773 (7th Cir. 2009) (citing Zhai v. Cedar Grove Municipality, 183 F. App'x 253, 255 (3d Cir. 2006)). The question presented is whether success on Winslow's constitutional claims would necessarily imply the invalidity of his convictions for driving under the influence and disorderly conduct. Winslow's claim that Malvern and Willistown have a custom or policy of "unlawfully and maliciously arresting, imprisoning, or prosecuting a citizen who was acting in accordance with his cinstitutional [sic] and statutory rights, privileges and immunities," is barred by Heck. (Am. Compl. ? 36(b)). Success on this malicious prosecution claim would require Winslow to establish that the criminal proceeding ended in his favor. See Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2002). This would necessarily imply the invalidity of his conviction and is expressly barred by Heck. Heck, 512 U.S. at 486 ("We think the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to ? 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution."); see also Donahue v. Gavin, 280 F.3d 371, 383 (3d Cir. 2002). The Court accordingly grants defendants' motions to dismiss the claim in paragraph 36(b) of Winslow's Amended Complaint. A number of Winslow's constitutional claims are based on the manner in which he was

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