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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CAROL SHILLING, : Case No.: 4:05cv871

:

Plaintiff : Judge Jones

:

v :

:

ERIC P. BRUSH, et al., :

:

Defendants :

MEMORANDUM AND ORDER

August 26, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Dismiss The Montrose Police

Department pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion”) (doc.

7) filed by Defendant The Montrose Police Department (“Police Department”) on

July 1, 2005. For the reasons that follow, the Motion shall be granted.

FACTUAL BACKGROUND/PROCEDURAL HISTORY:

The plaintiff, Carol Shilling (“Plaintiff” or “Shilling”) initiated this action by

filing a complaint pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against

Defendants Eric P. Brush, John Walker, Chief of Police Bruce Korty, and the

Police Department (collectively “Defendants”) in the United States District Court

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for the Middle District of Pennsylvania on April 29, 2005. 

In the complaint, Plaintiff alleges that on May 2, 2003, at approximately

5:30 p.m., she was driving north on Chenago Street and came to a stop sign at

“Prospect” in the Borough of Montrose. (See Compl. ¶ 11). At the

aforementioned time and place, a Montrose police car reached the stop sign

traveling east on Prospect Street. Plaintiff motioned for the police officer to

proceed; however, he did not. Id. ¶¶ 12-13. Plaintiff subsequently made a left turn

onto Prospect Street and the police car then made a u-turn and stopped her. Id. ¶¶

14-15. Plaintiff alleges that the police officer was Defendant Eric P. Brush

(“Defendant Brush”) who approached “in a menacing way with extremely

threatening body language, one hand on his gun and the other in a clinched fist.” 

Id. ¶ 16. Plaintiff further asserts that Defendant Brush has a reputation in the

community for intimidation and use of excessive force. Id. ¶ 17. 

Plaintiff provided documentation requested by Defendant Brush who told

her he wanted her to exit her truck. Plaintiff alleges that having had a previous

confrontation with Defendant Brush, Plaintiff feared for her safety and drove away

at a safe speed. Id. ¶ 18. Plaintiff drove to her home obeying all traffic rules. Id. ¶

19. Defendant John Walker (“Defendant Walker”) arrived at the scene in a

personal vehicle, while off duty, and twice attempted to force Plaintiff off the road

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with his vehicle on a curve. Upon reaching her residence, Plaintiff ran into the

house and called the state police. Id. ¶¶ 20-21. Defendant Brush “threw open

[Plaintiff’s] storm door pounding on the door and broke the storm door.” Id. ¶ 22. 

Plaintiff exited her house with her hands up at which time Defendant Brush

grabbed Plaintiff’s left arm and twisted it so severely behind her back that the back

of her hand hit the back of her head. Plaintiff then alleges that Defendant Brush

slammed her into her truck bruising her ribs and handcuffed her behind the back. 

Defendant Brush pushed Plaintiff into the police car, went to the truck, and

removed documentation which has never been returned to Plaintiff. Id. ¶¶ 23-26. 

Plaintiff requested that she be handcuffed in front, which Defendant Walker

proceeded to do. Plaintiff was arrested and taken to the Montrose Police Station. 

Id. ¶¶ 27-29. Plaintiff was released without charges being made at that time;

however, two weeks later charges were filed. Id. ¶¶ 30-31.

Plaintiff has asserted 42 U.S.C. §§ 1983, 1985, and 1986 claims against the

Police Department in the complaint. 

STANDARD OF REVIEW:

In considering a motion to dismiss, a court must accept the veracity of a

plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also

White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d

Case 4:05-cv-00871-JEJ Document 16 Filed 08/26/05 Page 3 of 9
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63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in

considering a motion to dismiss based on a failure to state a claim argument, a

court should "not inquire whether the plaintiffs will ultimately prevail, only

whether they are entitled to offer evidence to support their claims." Furthermore,

"a complaint should not be dismissed for failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957);

see also District Council 47 v. Bradley, 795 F.2d4 310 (3d Cir. 1986). 

DISCUSSION:

In the Motion, the Police Department argues that Plaintiff does not have a

civil rights cause of action against a police department because a police department

is not a separate legal entity that can be sued. The Police Department cites two

cases from the United States District Court for the Eastern District of

Pennsylvania, Regalbuto v. City of Philadelphia, 937 F. Supp. 374 (E.D. Pa. 1995),

aff’d, 91 F.3d 125 (3d Cir. 1996) and Fullman v. Philadelphia Int’l Airport, 49

F.Supp.2d 434 (E.D. Pa. 1999), which held that the Philadelphia Police

Department, the Philadelphia Fire Department, and the Philadelphia International

Airport are not separate legal entities from the City of Philadelphia and cannot

therefore be sued. The Police Department asserts that like the Philadelphia Police

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 53 Pa. Cons. Stat. § 16257 provides, in pertinent part, as follows:

All bonds, contracts and obligations heretofore executed, judgments entered, claims filed,

and suits now pending in the name of any department of said city, formerly having had a

corporation existence, are declared to be good and valid, and to inure to the use of the

city; but no such department shall be taken to have had, since the passage of the act to

which is a supplement, a separate corporate existence, and hereafter all suits growing out

of their transactions, and all claims to be filed for removing nuisances, together with all

bonds, contracts and obligations, hereafter to be entered into or received by the said

departments, shall be in the name of the city of Philadelphia. 

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Department and the Philadelphia International Airport, it is not a separate legal

entity that is capable of being sued for civil rights claims such as those asserted by

Plaintiff in the case sub judice. Finally, the Police Department cites to federal

court cases from multiple other states in support of the rule that a police

department is not a suable entity.

In response, Plaintiff maintains that a specific law, 53 Pa. Cons. Stat. §

16257, applies to the City of Philadelphia and requires that actions against an

entity of the City of Philadelphia be in the name of the City of Philadelphia.1

Plaintiff argues that the Police Department does not cite a similar statute for any

municipality outside the City of Philadelphia and asserts that in the complaint,

Plaintiff identifies the Police Department as an agency of the Borough of

Montrose. “As an agency of the municipality, it is part of a local government and

as such can be sued in its own name as part of that municipality, unless otherwise

excluded by law. In essence, the police department is the municipality.” (Pl.’s Br.

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Opp. Def.’s Mot. Dismiss at 4-5).

After a careful review of the record and applicable case law, we are in

agreement with Defendant Police Department that police departments are not

“persons” within the meaning of 42 U.S.C. § 1983 (“§ 1983") and are merely

subunits of the city, as opposed to separate corporate entities. Police departments

are therefore not suable entities in § 1983 actions. Stokes v. The Chester County

Sheriff’s Dept., 1994 U.S. Dist. LEXIS 16895 (E.D. Pa. 1994) (citing Britton v.

Philadelphia Police Dept., 69 F.R.D. 449, 450 (E.D. Pa. 1975); Dean v. Barber,

951 F.2d 1210, 1214-15 (11th Cir. 1992); Chan v. City of Chicago, 777 F. Supp.

1437, 1442 (N.D. Ill. 1991); Stump v. Gates, 777 F. Supp. 808, 815 (D. Colo.

1991). In Johnson v. City of Erie, 834 F. Supp. 873 (W.D. Pa. 1993), the United

States District Court for the Western District of Pennsylvania is instructive in that

regard. There, Judge Glenn E. Mencer stated, in relevant part, as follows:

While Monell [v. Dept. of Social Services, 436 U.S. 658 (1978)]

clearly holds that a local government is a person subject to suit, we

reject plaintiffs’ argument that each governmental sub-unit or

department is a person distinct from the government at large. The

City of Erie Police Department is a sub-unit of the city government

and, as such, is merely a vehicle through which the city fulfills its

policing functions. . . The numerous courts that have considered the

question of whether a municipal police department is a proper

defendant in a section 1983 action have unanimously reached the

conclusion that it is not. As a sub-unit of the City of Erie government,

we find the police department an improper and unnecessary party to

this action and will grant the motion to dismiss the department. 

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Id. at 878-89 (internal citations omitted). 

We find that Plaintiff’s allegations regarding the Police Department in the

complaint reveal that the Police Department is a subunit of the Borough of

Montrose, as opposed to a separate corporate entity. Consider, for example, that as

Plaintiff points out in her submission, she alleges that “The Defendant, Montrose

Police Department is an agency of the Borough of Montrose with a principle place

of business at P.O. Box 216 in the Borough of Montrose, County of Susquehanna

and Commonwealth of Pennsylvania.” (See Compl. ¶ 10). As such, the Police

Department is not a suable entity in Plaintiff’s § 1983 action as we previously

explained. 

In addition, as Defendant Police Department submits, Federal Rule 17(b)

explicitly refers to individuals, corporations, partnerships, and unincorporated

associations that have the capacity to sue or be sued either as a plaintiff or as a

defendant. Federal Rule 17(b) provides, in pertinent part, as follows:

(b) Capacity to Sue or be Sued. The capacity of an individual, other

than one acting in a representative capacity, to sue or be sued shall be

determined by the law of the individual’s domicile. The capacity of a

corporation to sue or be sued shall be determined by the law under

which it was organized. In all other cases capacity to sue or be used

shall be determined by the law of the state in which the district court

is held, except (1) that a partnership or other unincorporated

association, which has no such capacity by the law of such state, may

sue or be sued in its common name for the purpose of enforcing for or

against it a substantive right existing under the Constitution or laws of

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 We note that Defendant Police Department appears to argue that the statute of

limitations on Plaintiff’s claims ran on May 2, 2005 and accordingly, it acts as a bar to any claim

now raised against the Borough of Montrose. It is premature at this juncture to address the

Police Department’s statute of limitations argument. Defendants are free to raise this affirmative

defense if and when Plaintiff amends her complaint in this action. 

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the United States[.] 

Fed.R.Civ.P. 17(b). The Police Department does not fall into any of the

aforementioned categories delineated concerning capacity to sue or be sued as it is

not an individual, corporation, partnership, or unincorporated association. Finally,

we do not find it necessary that a specific Pennsylvania statute similar to the

above-referenced Philadelphia statute state that a suit against the Montrose Police

Department is not the same as a suit against the Borough of Montrose. 

The Montrose Police Department shall therefore be dismissed as a defendant

in this action. The Borough of Montrose is the proper suable party under Federal

Rule 17 and applicable case law, as Defendant Police Department submits. As

Plaintiff has not named the Borough of Montrose as a defendant in the case sub

judice, we will provide Plaintiff with twenty (20) days to amend her complaint in

compliance with this Order.2

 

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NOW, THEREFORE, IT IS ORDERED THAT:

1. The Motion to Dismiss The Montrose Police Department (doc. 7) is

GRANTED.

2. The Montrose Police Department is dismissed as a defendant in this

action.

3. Plaintiff may amend her complaint within twenty (20) days of the date

of this Order to be in compliance therewith.

4. If Plaintiff files an amended complaint with the Court, Defendants

shall answer or otherwise respond to it in accordance with the Federal

Rules of Civil Procedure

s/ John E. Jones III

John E. Jones III

United States District Judge

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