IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


Gerald Hordych and Lori Hordych, ) 

) 

Plaintiffs 	 ) 

) 

v. 	 ) Case No. 1O-16E 

) 

Borough of North East et al., ) 

) 

Defendants 	 ) 


) 


OPINION 

Pending before the Court is Defendants' "Motion to Dismiss Amended Complaint 

Pursuant to F.R.C.P. 12(b)(6)" ("Defendants' Motion to Dismiss"), brought with respect to the 

Amended Complaint filed against them by Plaintiffs Gerald and Lori Hordych ("Plaintiffs") 

[Doc. #9]. Plaintiffs' Amended Complaint against Defendants Borough ofNorth East, North East 

Police Department, Sylvain Cote, James Yanosko, and Charles Rosequist is brought pursuant to 

42 U.S.c. § 1983 ("Section 1983" or "§ 1983") and the Fourth and Fourteenth Amendments to 

the United States Constitution. Amended Complaint, ~ 1. For the reasons set forth below, 

Defendants' Motion to Dismiss is granted in part and denied in part. 

I. Standard of Review 

A complaint will be dismissed pursuant to Rule 12(b)( 6) ofthe Federal Rules of Civil 

Procedure if it does not allege sufficient facts to state a claim for relief that is plausible on its 

face. Ashcroft v. Igbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 

127 S.Ct. 1955, 1965-66 (2007)). "This 'does not impose a probability requirement at the 

pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that 

Case 1:10-cv-00016-MBC Document 15 Filed 04/27/10 Page 1 of 18
discovery will reveal evidence of the necessary element." Phillips v. County of Allegheny, 515 

F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965). 

Under this standard, factual allegations of a complaint "must be enough to raise a right to 

relief above the speculative level." Twombly, 127 S.Ct. at 1965. Thus, "a plaintiffs obligation 

to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, 

and a formulaic recitation ofthe elements of a cause of action will not do." Id. (citations 

omitted). 

II. Factual Allegations. 

The Amended Complaint alleges as follows: 

Plaintiffs are husband and wife who live in North East Pennsylvania. Amended 

Complaint, ~ 3. Defendant Borough ofNorth East ("Defendant Borough") is a municipal 

corporation and the public employer of the individual defendants. Id. at ~ 6. At all times 

relevant thereto, Defendants Sylvain Cote ("Officer Cote") and Defendant James Yanosko 

("Officer Yanosko") were duly appointed police officers ofthe Defendant Borough acting under 

color or law, to wit under color ofthe statutes, ordinances, regulations, customs and usages of the 

Commonwealth of Pennsylvania and the Borough of North East. Id. at ~ 4. At all times relevant 

thereto, Defendant Charles Rosequist ("Chief Rosequist") was duly appointed and acting as the 

Chief ofPolice ofthe Borough ofNorth East and acting under color of law, to wit, under color of 

the statutes, ordinances, regulations, policies, and customs ofthe Commonwealth of 

Pennsylvania and the Borough ofNorth East. Id. at ~15. 

On or about July 3,2008, Plaintiffs were hosting an event at their home in North East 

Borough for the purpose of obtaining items for the residents of the Soldiers and Sailors Home in 

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Erie Pennsylvania. Id. at ~ 7. Approximately 200 persons were at the party and a band was 

performing. Id. at ~ 8. At approximately 11:30 P.M., Officers Cote and Yanosko arrived at 

Plaintiffs' residence and alleged that they had received a complaint about loud noise. Id. at ~ 9. 

Almost immediately both officers became extremely rude and abusive toward Plaintiffs. Id. at 

~ 10. Officer Cote screamed at Plaintiff Gerald Hordych in front of his guests that "[h]e should 

get a life and if you do not have one, I'll give you one."Id. To emphasize his point, Officer Cote 

had his billy club in his hand in such a manner as to menace and threaten Plaintiffs. Id. Officer 

Yanosko began screaming to the band to stop playing. Id. at ~ 11. To emphasize his point, 

Officer Yanosko had his billy club in his hand in such a manner as to menace and threaten 

Plaintiffs. Id. Plaintiff Gerald Hordych turned and went into his residence, at which point, 

Officers Cote and Yanosko, without authority, entered Plaintiffs' home. Id. at ~ 12. At all times 

during these events, Officers Cote and Yanosko were engaged in ajoint venture. Id. at ~ 15. The 

individual officers assisted each other in performing the actions described and lent their physical 

presence and support and the authority of their office to each other during the events described. 

Id. 

Plaintiffs complained to ChiefRosequist, Officers Cote and Yanosko's immediate 

supervisor, about their rude, abusive, menacing and threatening conduct. Id. at ~ 13. An 

"investigation" was allegedly conducted by Chief Rosequist and the Defendant Borough; no 

action was taken against Officers Cote and Yanosko for their conduct with respect to Plaintiffs. 

Id. at ~ 14. 

Chief Rosequist at all times condoned and tolerated a practice of unreasonable, menacing, 

threatening and abusive behavior on the part ofthe officers ofthe North East Police Department. 

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Id. at , 16. Chief Rosequist also, through deliberate indifference, permitted and tolerated a 

pattern of unreasonable, menacing, threatening and abusive behavior by the officers of the North 

East Police Department. Id. at' 18. 

Defendant Borough also condoned and tolerated a pattern and practice of unreasonable, 

menacing, threatening, and abusive behavior on the part ofthe officers ofthe North East Police 

Department. Id. at , 17. Defendant Borough also, through deliberate indifference, permitted and 

tolerated a pattern of unreasonable, menacing, and threatening behavior by the officers ofthe 

North East Police Department and used practices and procedures that resulted in officers ofthe 

North East Police Department violating the constitutional rights ofthe residents ofNorth East 

and others. Id. at , 19. The acts, omissions, systematic flaws, and customs of Defendant Borough 

caused the police officers of the North East Police Department to believe that unreasonable, 

abusive, menacing and threatening behavior was appropriate, because their actions were tolerated 

by Chief Rosequist and Defendant Borough and would not be properly investigated by the 

appropriate officials ofNorth East, making it very likely that such behavior would continue into 

the future. Id. at, 20. 

III. Legal Analysis. 

The Amended Complaint allege claims against Defendants Cote, Yanosko, Rosequist and 

Borough ofNorth East brought pursuant to Section 1983 for violation of Plaintiffs' rights under 

Fourth and Fourteenth Amendments to the United States Constitution. Section 1983 provides in 

relevant part: 

Every person who, under color of any statute, ordinance, regulations, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen ofthe United States or other person within the 

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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 .... 

Id. "In any § 1983 action the initial inquiry must focus on whether the two essential elements to 

a § 1983 action are present: (1) whether the conduct complained of was committed by a person 

acting under color of state law; and (2) whether this conduct deprived a person ofrights, 

privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. 

Taylor, 451 U.S. 527,535,101 S.Ct. 1908,68 L.Ed.2d 420 (1981), overruled on other grounds 

by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Section 1983 "is 

not itself a source of substantive rights, but a method for vindicating federal rights elsewhere 

conferred." Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). 

Here unquestionably the conduct complained of was committed by persons acting under 

color of state law. See Monroe v. Pape, 365 U.S. 167, 187,81 S.Ct. 473, 5 L.Ed.2d 492 (1961), 

overruled on other grounds by Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 

L.Ed.2d 611 (1978). Our focus is on the second essential element-whether the Defendants' 

alleged conduct, iftrue, violated Plaintiffs' rights under the Fourth and Fourteenth Amendments 

to the United States Constitution. 

A. Plaintiffs' Section 1983 claim against Officers Cote and Yanosko individuaUy 

based upon their aUegedly entering Plaintiffs' home without authority to do so in violation 

ofthe Plaintiffs' rights under the Fourth Amendment. 

Defendants argue that to the extent Plaintiffs' Amended Complaint alleges a Section 1983 

claim against Officers Cote and Yanosko on the basis that they violated Plaintiffs' rights under 

the Fourth Amendment to the United States Constitution when they allegedly entered Plaintiffs' 

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home without authority to do so, said claim must be dismissed for failure to state a claim upon 

which relief can be granted. Defendants' Brief in Support of Motion to Dismiss Amended 

Complaint Pursuant to F.R.C.P. 12(b)(6) ("Defendants' Supporting Brief'), pp. 5-6. Plaintiffs 

disagree, arguing in opposition: "the physical entry of a private home is the 'chief evil' against 

which the Fourth Amendment is directed. The Fourth Amendment has drawn a firm line at the 

entrance to a house. When Officers Cote and Yanosko crossed that line they clearly and directly 

violated Plaintiffs rights under the Fourth Amendment." Plaintiffs' Brief in Opposition to 

Defendants' Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6) ("Plaintiffs' Opposition Brief'), p. 

6. 

It is well established that: 

"The right of the people to be secure in their ... houses ... shall not be violated." 

That language unequivocally establishes the proposition that "[a]t the very core 

[of the Fourth Amendment] stands the right ofa man to retreat into his own home 

and there be free from unreasonable governmental intrusion." ... Absent 

exigent circumstances, that threshold may not reasonably be crossed without a 

warrant. 

Payton v. New York, 445 U.S. 573, 589-90 (1980) (quotations omitted). See also U.S. v. 

Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074,3084 (1976) ("the sanctity of private 

dwellings (is) ordinarily afforded the most stringent Fourth Amendment protection."); U.S. v. 

U.S. Dist. Court for the Eastern Dist. of Mich.. Southern Division, 407 U.S. 297, 313, 92 S.Ct. 

2125, 2134 (1972) ("physical entry of the home is the chief evil against which the wording of the 

Fourth Amendment is directed ..."); Silverman v. U.S., 365 U.S. 505, 511, 81 S.Ct. 679,683 

(1961)("[at] the very core [of the Fourth Amendment] stands the right of a man to retreat into his 

own home and there be free from unreasonable (government) intrusion."); U.S. v. Williams, 612 

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F.2d 735, 738 (3d Cir. 1979), cert. den'd, 445 U.S. 934, 100 S.Ct. 1328 (1980) ("[i]n our 

Constitutional jurisprudence no subject has been so zealously protected from intrusion or seizure 

as the private dwelling place."). In their Amended Complaint, Plaintiffs allege that at some point 

after Officers Cote and Yanosko arrived at Plaintiffs' horne, Plaintiff Gerald Hordych turned and 

went into his residence, at which point, Officers Cote and Yanosko, without authority, entered 

Plaintiffs' horne. Amended Complaint, ~ 12. Iftrue, this constitutes a violation of Plaintiffs' 

rights under the Fourth Amendment. Defendants are incorrect when they argue Plaintiffs have 

not alleged a violation oftheir rights under the Fourth Amendment. Defendants' motion to 

dismiss Plaintiffs' Section 1983 claim against Defendants Cote and Yanosko individually to the 

extent it is premised upon a violation ofthe Plaintiffs' rights under the Fourth Amendment to the 

United States Constitution is denied. 

B. Plaintiffs' Section 1983 claim against Officers Cote and Yanosko individually 

based upon their allegedly verbally abusing Plaintiffs while threatening and menacing 

them with a billy club in violation of the Plaintiffs' rights under the Fourteenth 

Amendment. 

Defendants also argue that Plaintiffs' Section 1983 claim against Officers Cote and 

Yanosko must be dismissed for failure to state a claim upon which relief can be granted to the 

extent their Section 1983 claim is based upon the premise that the officers' conduct violated 

Plaintiffs' rights under the Fourteenth Amendment to the United States Constitution when they 

verbally abused them while threatening and menacing them with a billy club. Defendants' 

Supporting Brief, pp 3-5. 

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Plaintiffs argue in opposition that the officers violated their civil rights "when they 

verbally abused them and threatened and menaced them with their billy clubs" and cite in support 

thereof Northington v. Jackson, 973 F .2d 1518 (1oth Cir. 1992) and Douglas v. Marino, 684 

F.Supp. 395 (D.N.J. 1988). 

Defendants filed a reply brief with respect to this part of Plaintiffs' Section 1983 claim, 

contending that the facts in Northington and Douglas are distinguishable from the facts alleged in 

the instant matter: 

[b]oth cases cited by plaintiffs involve threats of murder, reinforced by physical 

acts with a lethal weapon. However, in their Amended Complaint, Plaintiffs do 

not complain of a specific physical threat at all, let alone the threat of murder 

involved in the two cases cited by Plaintiffs. Further, the "accompanying physical 

act" alleged by Plaintiffs is that the Officers had their "billy clubs" in their hands 

in a manner as to menace and threaten the Plaintiffs. Plaintiffs do not allege that 

the Officers were in close proximity to Plaintiffs at that time, nor that they 

actually touched the "billy clubs" to Plaintiffs as alleged in Northington. 

Defendants' Reply Brief in Support of Motion to Dismiss Amended Complaint Pursuant to 

F.R.C.P. 12(b)(6), p. 2. 

While Plaintiffs do not specifically articulate what aspect of their rights under the 

Fourteenth Amendment allegedly were violated by Officers Cote and Yanosko's conduct, we 

read the Amended Complaint to be alleging a violation of Plaintiff s liberty interest in personal 

security which is protected under the due process clause of the Fourteenth Amendments. In 

Ingraham v. Wright, 430 U.S. 651,97 S.Ct. 1401 (1977), the United States Supreme Court 

stated, "[a]mong the historic liberties [protected by the due process clause] was a right to be free 

from, and to obtain judicial relief for, unjustified intrusions on personal security." Id. at 673. 

Allegations of verbal abuse or harassment are generally not actionable under Section 

1983. For example, in Hopson v. Fredericksen, 961 F.2d 1374 (8th Cir. 1992), where an officer 

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had uttered a racial slur and threatened to "knock" (plaintiffs] remaining teeth out of his mouth" 

if he remained silent, the court held that said conduct "failed to rise to the level of a 'brutal' and 

'wanton act of cruelty' and so dismissed plaintiffs Section 1983 excessive force claim. Id. at 

1379. Courts have held, however, that a plaintiff may obtain relief under Section 1983 ifverbal 

threats are accompanied by a reinforcing act. For example, in Northington, supra., cited to by 

Plaintiffs, the 10'h Circuit court detennined that a pro se prisoner's allegation that a sheriffs 

deputy had put a service revolver to his head and threatened to shoot him stated a Section 1983 

claim under the rubric ofthe Eighth Amendment's prohibition against cruel and unusual 

punishment as applied to the states through the Fourteenth Amendment. Northington, 973 F.2d at 

1523. Similarly, in Douglas, supra., also cited to by Plaintiffs, the district court detennined that 

the plaintiff, a prisoner, had stated a viable Section 1983 claim for violations of the Eighth and/or 

Fourteenth Amendments against a prison employee who had sworn at him, pulled out a butcher 

knife, threatened to kill him, and told him to come into a storage room where he "would really 

f*** [the prisoner] up." Douglas, 684 F.Supp. at 395. 

We find that the allegations contained in Plaintiffs' Amended Complaint that Officer 

Yanosko "began screaming to the band to stop playing," while he "had his billy club in his hand 

in such a manner as to menace and threaten Plaintiffs," do not state a Section 1983 claim for 

violation oftheir rights under the Fourteenth Amendment upon which relief can be granted. 

Defendants' motion to dismiss the Section 1983 claim against Officer Yanosko based upon these 

allegations for failure to state a claim upon which relief can be granted is granted. This dismissal 

is without prejudice to file an amendment curing this deficiency, within the time frame set forth 

in the accompanying Order. 

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To the contrary, we find that the allegations contained in Plaintiffs' Amended Complaint 

that Officer Cote "screamed at Gerald Hordych in front of his guests that "[h]e should get a life 

and if you do not have one I'll give you one" while Officer Cote "had his billy club in his hand in 

such manner as to menace and threaten Plaintiffs," do state a Section 1983 claim for violation of 

Gerald Hordych's rights under the Fourteenth Amendment upon which relief can be granted. 

Defendants' motion to dismiss the Section 1983 claim against Officer Cote based upon these 

allegations is denied. 

C. Plaintiffs' Section 1983 claim against Defendant Chief Rosequist in his 

individual capacity. 

Defendants also move to dismiss Plaintiffs' Section 1983 claim against Chief Rosequist 

in his individual capacity. Defendants' Supporting Brief, pp. 9~ 1O. Defendants argue that 

"Plaintiffs do not, at any point in their Amended Complaint, make a single averment that Chief 

Rosequist acted in his individual capacity to deprive Plaintiffs of a Constitutional right. Plaintiffs 

do not allege that [he] was present during any ofthe incidents described in their Amended 

Complaint. Plaintiffs' allegations against Chief Rosequist are essentially Monell allegations, that 

Chief Rosequist (or the municipality) failed to train, supervise and monitor Officers Cote and 

Yanosko and failed to maintain appropriate policies and procedures. These allegations are 

duplicative of Plaintiffs' conclusory Monell allegations against the Borough ofNorth East in 

Count III ofPlaintiffs' Amended Complaint." Defendants' Supporting Brief, p. 10. Plaintiffs do 

not specifically address this argument in their Opposition Brief. 

Liability under Section 1983 is personal in nature. A defendant who supervised the 

wrongdoer but did not personally participate in the wrongful act is not liable under Section 1983 

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on a theory of respondeat superior unless he personally directed or had actual knowledge of, and 

acquiesced in, the deprivation. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 70 

L.Ed.2d 509 (1981) (citing Monell, 436 U.S. at 694). See also Evancho v. Fisher, 423 F.3d 347, 

353 (3d Cir.2005) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (explaining 

"[an individual government] defendant in a civil rights action must have personal involvement in 

the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat 

superior. Personal involvement can be shown through allegations of personal direction or of 

actual knowledge and acquiescence."). 

Reviewing the allegations contained in the Amended Complaint relevant to Chief 

Rosequist, Plaintiffs do not allege facts that, if proven, would show that Chief Rosequist 

personally directed or had actual knowledge of, and acquiesced in, the deprivation of Plaintiffs' 

constitutional rights. Accordingly, Defendants' motion to dismiss Plaintiffs' Section 1983 claim 

against Chief Rosequist in his individual capacity is granted and said claim dismissed. The 

dismissal is without prejudice to file an amendment curing this deficiency, within the time frame 

set forth in the accompanying Order. 

D. Plaintiffs' Section 1983 claim against Defendant North East Borough. 

Defendants also move to dismiss Plaintiffs' Section 1983 claim against Defendant 

Borough on multiple bases. First, they contend that the Section 1983 claim against Defendant 

Borough must be dismissed because Plaintiffs have failed to state a cause of action that either 

Officer Cote or Officer Yanosko caused a constitutional deprivation. Defendants' Supporting 

Brief, pp. 6-7. 

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With respect to this argument, we agree that to the extent that Plaintiffs' Section 1983 

municipal liability claim against Defendant Borough is based upon their allegations that Officer 

Yanosko threatened them, that part of Plaintiffs' Section 1983 claim against Defendant Borough 

must be dismissed for failure to state a claim upon which relief can be granted because we have 

held that this conduct, even iftrue, did not violate Plaintiffs' rights under the Constitution; absent 

an underlying constitutional violation, the municipality itself may not be held liable under §1983. 

See Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006) (holding that "in order for municipal 

liability to exist, there must still be a violation of the plaintiffs constitutional rights") (citation 

omitted). The dismissal is without prejudice to Plaintiffs to file an amendment curing this 

deficiency, within the time frame set forth in the accompanying Order. 

Second, Defendants argue that dismissal of the Section 1983 claim against Defendant 

Borough is mandated on the basis that: 

Plaintiffs have failed to identifY in their Amended Complaint any alleged 

municipal policy or custom that amounts to deliberate indifference to the rights of 

people with whom employees of the municipal defendant come into contact. ... 

Plaintiffs only generally allege that the conduct of the Officers was pursuant to the 

custom, practice and procedures ofthe North East Police Department and the 

deliberate indifference of Chief Rosequist. 

Defendants' Supporting Brief, pp. 7-8. See also Id. at p. 8 ("Plaintiffs here have alleged no past 

unlawful conduct, no pattern of unlawful conduct, no knowledge or notice on the part ofthe 

municipality, no failure by the municipality to take particular precautions, and no causation 

between said failures and any alleged injury. Plaintiffs only make conclusory allegations, not 

sufficient under the pleading standards of Twombly, supra. "). 

In response, Plaintiffs discuss generally when and how a municipality can be found liable 

under Section 1983 and conclude "[ilt can hardly be argued that failure to train officers about the 

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Fourth Amendment and its parameters will not result in constitutional violations." Plaintiffs' 

Opposition Brief, p. 7. 

In order to state a legally sufficient claim for municipal liability under Section 1983, a 

plaintiff must plead the existence of a municipal policy or custom and that said policy or custom 

caused the alleged constitutional violation. 42 U.S.C. §1983; Monell v. Dept. of Social Services 

of N.Y., 98 S.Ct. 2018,2035-36 (1978). A plaintiff can establish municipal liability in one of 

two ways: (1) by showing that a policy existed "'when a decision maker possessing final 

authority to establish municipal policy with respect to the action issues an official proclamation, 

policy or edict' ,"or (2) "'by showing that a given course of conduct, although not specifically 

endorsed or authorized by law, is so well-settled and permanent to virtually constitute law!. It 

Hayes v. Erie Cty. Office of Children and Youth, 497 F.Supp.2d 684, 702 (W.D. Pa. 2007) 

(guoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990». 

"Where, as here, the policy in question concerns a failure to train or supervise municipal 

employees, liability under Section 1983 requires a showing that the failure amounts to 'deliberate 

indifference' to the rights of persons with whom those employees will come into contact." Carter 

v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.), cert. den'd sub nom, 528 U.S. 1005, 120 

S.Ct. 499 (1999) (citing City of Canton v. Harris, 489 U.S. 378, 388,109 S.Ct. 1197 (1989». 

Moreover, "in order for a municipality's failure to train or supervise to amount to deliberate 

indifference, it must be shown that employee will confront a particular situation; (2) the situation 

involves a difficult choice or a history of employee mishandling; and (3) the wrong choice by an 

employee will frequently cause deprivation of constitutional rights. Id. (citing Walker v. City of 

New York, 974 F.2d 293, 297-98 (2d Cir.), cert. den'd, 507 U.S. 972 (1993) (footnote omitted). 

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Relevant to the Section 1983 claim against Defendant Borough, Plaintiffs allege the 

following in their Amended Complaint. First, Officer Cote "screamed at Gerald Hordych in front 

ofhis guests that '[h]e should get a life and if you do not have one I'll give you one[]''' while 

"[t]o emphasize his point Officer Cote had his billy club in his hand in such manner as to menace 

and threaten Plaintiffs."Amended Complaint, ~ 10. Second, "Gerald Hordych turned and went 

into his residence, at which point Officers Cote and Yanosko, without authority, unlawfully and 

in violation ofthe Fourth Amendment ofthe United States Constitution, entered Plaintiffs' 

home." Id. at ~ 12. Third, "North East Borough condoned and tolerated a pattern and practice of 

unreasonable, menacing, threatening and abusive behavior on the part ofthe officers ofthe North 

East Police Department." Id. at ~ 17. Fourth, "North East, through deliberate indifference, 

permitted and tolerated a pattern of unreasonable, menacing and threatening behavior by the 

officers of the North East Police Department and used practices and procedures that resulted in 

officers of the North East Police Department violating the constitutional rights ofthe residents of 

North East and others." Id. at ~ 19. Fifth, "[t]he acts, omissions, systematic flaws and customs of 

North East, caused the Police Officers ofthe North East Police Department to believe that 

unreasonable, abusive, menacing and threatening behavior was appropriate, because their actions 

were tolerated by Chief Rosequist and North West and would not be properly investigated by the 

appropriate officials of North East and make it very likely that such behavior would continue into 

the future." Id. at ~ 20. Sixth, "[p]rior to July 3, 2008, the Borough ofNorth East developed and 

maintained policies and customs exhibiting deliberate indifference to the constitutional rights of 

persons in North East, which caused the violation of Plaintiffs' rights." Id. at ~ 29. Seventh, "[i]t 

was the policy and/or custom of the Borough ofNorth East to inadequately and improperly 

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investigate citizens' complaints of police misconduct and acts of misconduct were instead 

tolerated." Id. at ~ 30. Eighth, "[i]t was the policy and/or custom of the Borough ofNorth East 

to inadequately supervise and train its police officers, including Officers Cote and Yanosko, 

thereby failing to discourage further constitutional violations of the part of its police officers." 

Id. at ~ 31. Ninth, "[a]s a result of the above-described policies and customs, police officers of 

the Borough of North East, including Officers Cote and Yanosko, believed that their actions 

would not be properly monitored by supervisory officers and that misconduct would not be 

investigated or sanctioned, but would be tolerated." Id. at ~ 32. Finally, "[t]he above described 

policies and customs demonstrated a deliberate indifference on the part of policymakers of the 

Borough of North East to the constitutional rights of persons within the Borough, and were the 

cause of the violations of Plaintiffs' rights alleged herein." Id. at ~ 33. 

Upon review of these allegations, we conclude that said allegations adequately apprise 

Defendant Borough of the nature ofthe constitutional violation at issue, Officer Cote's 

threatening conduct towards Gerald Hordych and Officers Cote and Yanosko's improper entry 

into the Plaintiffs' home, the injury suffered therefrom, and that the Defendant Borough's failure 

to train, supervise, or investigate citizen's complaints, instead tolerating such acts of misconduct 

were the cause of the constitutional violation. As such, Plaintiffs have adequately stated a 

Section 1983 claim against Defendant Borough. Defendants' Motion to Dismiss the Section 1983 

claim against Defendant Borough is denied. 

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E. Plaintiffs' Section 1983 claim against Chief Rosequist and Officers Cote and 

Yanosko in their official capacities. 

Defendants contend that to the extent Plaintiffs are suing ChiefRosequist and Officers 

Cote and Yanosko in their official capacities, said claim must be dismissed with prejudice 

because official-capacity actions against local government officials are redundant to actions 

against municipalities and Plaintiffs are already suing the Borough. Defendants' Supporting 

Brief, pp. 9-10. Plaintiffs do not respond to this argument. 

"Official-capacity suits ... 'generally represent only another way of pleading an action 

against an entity of which an officer is an agent.' "Kentucky v. Graham, 473 U.S. 159, 165, 105 

S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. Department of Social Services of Ciy of 

New York, 436 U.S. 658,690,98 S.Ct. 2018 (1978)). Such suits are, "in all respects other than 

name, to be treated as a suit against the entity. ld. at 166. They are "not a suit against the official 

personally, for the real party in interest is the entity." ld. (emphasis in original). Therefore, 

'" [w ]here a suit is brought against a public official in his [or her] official capacity, the suit is 

treated as if[it] were brought against the governmental entity of which he [or she] is an official.'" 

McGreeyy v. Stroup, 413 F.3d 359, 369 (3d Cir.2005) (citation omitted). 

While Defendants contend that dismissal ofthe suit against Chief Rosequist and Officers 

Cote and Yanosko is mandated, we disagree. The redundancy ofthe Section 1983 official 

capacity claims against Chief Rosequist and Officers Cote and Yanosko and the Section 1983 

claim against Defendant Borough does not necessarily require the Court to dismiss the official 

capacity claim against Chief Rosequist and Officers Cote and Yanosko. See Swendon v. 

Borough, 2008 WL 5051399, "'5 (W.D. Pa. Nov. 21, 2008) (Schwab, 1.) (citing Capresecco v. 

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Jenkintown Borough, 261 F.Supp.2d 319 (E.D.Pa.2003) (claims against manager and chief in 

their official capacities would not be dismissed as redundant where defendants had to answer 

charges against them in their individual capacities and so there was no laudable purpose to 

dismissal ofthe official capacity claims). That said, the Court will exercise its discretion to 

dismiss the redundant Section 1983 official capacity claims against Chief Rosequist and Officers 

Cote and Yanosko in this case because we find that the claims unnecessarily clutter the case, we 

have dismissed the Section 1983 claim against Chief Rosequist as an individual, and these claims 

are likely to be confusing to a jury called upon to sort out official versus individual liability with 

respect to Officers Cote and Yanosko. Defendants' motion to dismiss Plaintiffs' Section 1983 

claims against Chief Rosequist, Officer Cote and Officer Yanosko is granted with prejudice to 

the extent the claims have been brought against them in their official capacities as Chief of Police 

and police officers for Defendant Borough. 

F. Claims against Defendant North East Police Department. 

Finally, the Defendants argue that the North East Police Department is merely a sub-unit 

of the Borough ofNorth East and therefore the Police Department is not a proper party and 

should be dismissed with prejudice. Defendants' Supporting Brief, pp. 10-11. Again, Plaintiffs 

do not respond to this argument. 

Given that it is not disputed that the Borough ofNorth East Police Department is a 

sub-division of Defendant Borough, we find that it is not a proper defendant in this action and we 

will dismiss the Plaintiffs' Section 1983 claim against the Borough of North East Police 

Department with prejudice. See Martin v. Red Lion Police Dep't, 146 Fed. Appx. 558,562 n. (3d 

Cir.2005) (citing Johnson v. City of Erie, 834 F.Supp. 873,878-79 (W.D. Pa.l993»; Townsley v. 

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Case 1:10-cv-00016-MBC Document 15 Filed 04/27/10 Page 17 of 18
West Brandywine Tp., 2006 WL 1147267, *3 n. 1 (E.D. Pa. April 26, 2006). 

IV. Conclusion. 

Defendants' Motion to Dismiss is granted in part and denied in part. An appropriate 

Order follows. 

April 27, 2010 ~'I~ ~t..~.~. Maurice B. CohiIJ, Jr. 

Senior District Court Judge 

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