Opinion
Civil Action No. 03-CV-03738.
April 30, 2004
ORDER
NOW, this 30th day of April, 2004, upon consideration of the Motion of Defendants West Pottsgrove Township, Steven Ziegler and Brian Cass to Dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) filed September 11, 2003; upon consideration of Plaintiffs' Response to the Motion to Dismiss the Amended Complaint by Defendants West Pottsgrove Township, Officers Steven Ziegler and Brian Cass filed September 24, 2004; upon consideration of the Motion of Defendants Upper Pottsgrove Township and Officer Barry Bertolet's Motion to Dismiss Plaintiffs' Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b) filed September 11, 2003; upon consideration of Plaintiffs' Response to the Motion to Dismiss the Amended Complaint by Defendants Upper Pottsgrove Township and Officers [sic] Barry Bertolet filed September 24, 2003; upon consideration of the Motion to Dismiss All Claims in Plaintiffs' Amended Complaint against Douglas Berks Township, Douglas Berks Township Police Department, Officer Dana Dotterer, Officer John Stasik (Deceased) and Officer John Henry, pursuant to Federal Rule of Civil Procedure 12(b)(6) filed September 12, 2003; upon consideration of Plaintiffs' Response to the Motion of Douglas Berks Township and Officers Dana Dotterer, John Stasik and John Henry to Dismiss the Amended Complaint filed September 25, 2003; Defendants, Amity Township, Amity Township Police Department and Mark Scherer's Motion to Dismiss filed September 30, 2003; upon consideration of Plaintiffs' Memorandum of Law in Opposition to the Motion to Dismiss the Amended Complaint by Defendants Amity Township and Mark Scherer filed October 9, 2003; and upon consideration of the Amended Complaint and Jury Trial Demand filed by plaintiffs on August 26, 2003,
IT IS ORDERED that the motions are granted in part and denied in part.
IT IS FURTHER ORDERED that defendants West Pottsgrove Police, Douglass Berks Police Department, North Coventry Police Department, Amity Township Police Department, and Upper Pottsgrove Police Department are dismissed from plaintiffs' amended complaint. IT IS FURTHER ORDERED that defendants Haas, Ziegler, Hollis, Henry, Dotterer, Stasik, Scherer, and Bertolet in their official capacities are dismissed from plaintiffs' amended complaint. IT IS FURTHER ORDERED that plaintiffs' claims in Counts I and II averring violations of their rights under the Fifth Amendment to the United States Constitution are dismissed from plaintiffs' amended complaint. IT IS FURTHER ORDERED that in all other respects defendants' motions to dismiss are denied.
Each of these defendants are sub-divisions of larger municipal entities. A suit against a sub-division of a municipality is actually a suit against the municipality. Because plaintiffs have asserted their claims against both the municipalities and the sub-divisions, the suits against the sub-divisions are unnecessarily redundant. See Johnson v. City of Erie, 834 F. Supp. 873 (W.D. Pa. 1993). Accordingly, we dismiss the sub-divisions from plaintiffs' amended complaint.
Plaintiffs attempt to sue the named governmental officials, in their official capacity, and the governmental entity itself. However, "a suit against a governmental officer `in his official capacity' is the same as a suit `against [the] entity of which [the] officer is an agent'", McMillian v. Monroe County, 520 U.S. 781, 785 n. 2, 117 S.Ct. 1734, 1737, 138 L.Ed.2d 1, 7 (1997) (internal citations omitted). Accordingly, because we conclude that it is unnecessarily redundant to retain the governmental officials in their official capacity, we dismiss all governmental officials in their official capacity from this action.
Plaintiffs' amended complaint avers causes of action against state actors. The protections of the Fifth Amendment, to the extent of plaintiffs' averments, are not applicable to plaintiffs. Rather, plaintiffs must invoke, and have invoked, the protections of the Fourteenth Amendment to the United States Constitution when they aver unconstitutional conduct by state actors.