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Smith v. Forester

United States District Court, D. Delaware

December 9, 2014

JERRY L. SMITH, SR., Plaintiff,
v.
PATRICK FORESTER, et al., Defendants.

Jerry L. Smith, Sr., Frankford, Delaware, Pro Se Plaintiff.

David G. Culley, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware, Counsel for Defendants.

MEMORANDUM OPINION

LEONARD P. STARK, District Judge.

I. INTRODUCTION

Plaintiff Jerry L. Smith, Sr. ("Plaintiff") filed this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights and raising supplemental State claims. (D.I. 1) He proceeds pro se and has paid the filing fee. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff amended the complaint (D.I. 4) on January 27, 2012, and Defendants moved to dismiss. The motion was granted in part, and Plaintiff was given leave to amend. Plaintiff filed a second amended complaint (D.I 27) on May 9, 2013. Defendants against moved to dismiss, the motion was granted in part, and Plaintiff was given leave to amend the 42 U.S.C. § 1985 claim. Plaintiff filed a third amended complaint (D.I. 34) on March 11, 2014. Presently before the Court is Defendants' partial motion to dismiss Plaintiff's third amended complaint (D.I. 35) and Plaintiff's opposition (D.I. 37) thereto. In addition, Plaintiff moves for leave to fIle electronically. (D.I. 38) For the reasons that follow, the Court will grant Defendants' motion and will deny without prejudice Plaintiff's motion for leave to file electronically.

II. BACKGROUND

While traveling in his vehicle on October 4, 2009, Plaintiff was stopped in Millsboro, Delaware. He was charged with violations under Delaware law for inattentive driving, must drive on the right side of the roadway, failure to have license in possession, failure to have registration card in possession, and failure to have insurance identification in violation. See 21 Del. C. §§ 2108, 2118, 2721, 4114, 4176(b). Two trials took place, and Plaintiff was acquitted of all charges.

The Third Amended Complaint contains counts that were dismissed by the Court, including Counts Three, Four, and Five as barred by the County and Municipal Tort Claims Act, 10 Del. C. §§ 4010-12. (See D.I. 34) As set forth in the February 10, 2014 order, this case currently proceeds on Counts One, the Count Two 42 U.S.C. § 1983 conspiracy claim, and Count Six. Amended Count Two alleges conspiracy pursuant to 42 U.S.C. § 1983, § 1985(3), and § 1986. Defendants move to dismiss the § 1985 claim on the grounds that it was not timely flied and fails to state a claim for conspiracy motivated by racial or class-based discriminatory animus.

III. LEGAL STANDARDS

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted). Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotation marks omitted).

However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that raise a right to relief above the speculative level on the assumption that the allegations in the complaint are true (even if doubtful in fact).'" 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 claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcoft v. Iqbal, 556 U.S. 662, 678 (2009). At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of [each] necessary element" of a plaintiff's claim. Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation marks omitted).

The Court not obligated to accept as true "bald assertions, " Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported conclusions and unwarranted inferences, " Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false, " Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).

IV. DISCUSSION

Plaintiff was given until within 21 days from February 12, 2014 to file a Third Amended Complaint. It was not filed until March 11, 2014, some seven days past that deadline. Amended Count Two, a portion of which Defendants move to dismiss, alleges that Defendants Millsboro Police Chief John Murphy ("Murphy") and Millsboro Police Officer Patrick Forester ("Forester") deprived Plaintiff of his "right to unaltered exculpatory evidence and ...


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