Free Memorandum Opinion - District Court of Delaware - Delaware

Case 1:05-cv—00527-SLR Document 29 Filed 06/09/2006 Page1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAVID S. YARNALL, )
)
Plaintiff, )
)
v. ) Civ. No. 05-527-SLR
)
CPL. ANTHONY MENDEZ, DELAWARE )
STATE POLICE TROOP 7, and )
MILLSBORO POLICE DEPARTMENT )
)
Defendants. )
David S. Yarnall, Botetourt County Jail, Fincastle, Virginia.
Pro se.
Michael W. Tupman, Esquire of the Delaware Department of Justice,
Dover, Delaware. Counsel for Defendants Cpl. Anthony Mendez and
Delaware State Police — Troop 7.
Bruce C. Herron, Esquire of Akin & Herron, P.A., Wilmington,
Delaware. Counsel for Defendant Millsboro Police Department.
MEMORANDUM OPINION
Dated: June 8, 2006
Wilmington, Delaware

Case 1:05-cv—00527-SLR Document 29 Filed 06/09/2006 Page 2 of 4
ROBINSON, Chief Judge
I. INTRODUCTION
Plaintiff David S. Yarnall (“plaintiff”) filed this 42
U.S.C. § 1983 action against Delaware State Trooper Anthony
Mendez (“Mendez”), the Delaware State Police Troop 7 (“Troop 7”),
and the Millsboro Police Department (“MPD") claiming a violation
of his civil rights in connection with his arrest. The court has
jurisdiction under 28 U.S.C. § 1331. Currently before the court
is MPD's motion to dismiss for failure to state a claim pursuant
to 12(b)(6) of the Federal Rules of Civil Procedure.l (D.I. 21}
II. BACKGROUND
Plaintiff's claim arises from an incident that occurred on
May 11, 2005. In his complaint, plaintiff alleges that, pursuant
to an arrest and after being handcuffed, Mendez struck him twice
on the head with a “Maglite" flashlight.2 (D.I. 2) Plaintiff
avers that this incident took place in a “grassy lot next to
Grotto's Pizza on Long Neck Road" in Millsboro, Delaware.3 (IQL)
After the incident, plaintiff states that he was taken to the
1Plaintiff failed to file responsive papers in accordance
with the court’s scheduling order. (D.I. 27)
2Plaintiff never states that any Millsboro police officers
were involved in the alleged incident. (D.I. 2)
3In their answer to the complaint, defendants admit that “in
trying to take the plaintiff into custody while plaintiff was
resisting arrest Corporal Mendez struck plaintiff twice in the
head with a flashlight in self-defense [using] a reasonable
amount of force under the circumstances to take plaintiff into
custody.” (D.I. 23)

Case 1:05-cv—00527-SLR Document 29 Filed 06/09/2006 Page 3 of 4
Beebe Medical Center in Lewes, Delaware, for a CAT scan and
received eleven staples in his scalp. (lgy)
III. STANDARD OF REVIEW
In analyzing a motion to dismiss pursuant to Rule 12(b)(6),
the court must accept as true all material allegations of the
complaint and it must construe the complaint in favor of the
plaintiff. eee Trump Hotels and Casino Resorts, Inc. v. Mirage
Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). “A complaint
should be dismissed only if, after accepting as true all of the
facts alleged in the complaint, and drawing all reasonable
inferences in the plaintiff’s favor, no relief could be granted
under any set of facts consistent with the allegations of the
complaint." LQ; Claims may be dismissed pursuant to a Rule
12(b)(6) motion only if the plaintiff cannot demonstrate any set
of facts that would entitle him to relief. gee Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Where the plaintiff is a pro se
litigant, the court has an obligation to construe the complaint
liberally. gee Haines v. Kerner, 404 U.S. 519, 520-521 (1972);
Gibbs v. Roman, 116 F.3d 83, 86 n.6 (3d Cir. 1997); Urrutia v.
Harrisburg County Police Dep’t., 91 F.3d 451, 456 (3d Cir. 1996).
The moving party has the burden of persuasion. §ee §eh;
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991).
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Case 1:05-cv—00527-SLR Document 29 Filed 06/09/2006 Page 4 of 4
IV. DISCUSSION
The purpose of a motion to dismiss is to test the
sufficiency of a complaint, not to resolve disputed facts or
decide the merits of the case. Kost v. Kozakiewicz, 1 F.3d 176,
183 (3d Cir. 1993). Construing the facts in the light most
favorable to the plaintiff, no claim is asserted against
defendant MPD upon which relief may be granted. Plaintiff
alleges that defendant Mendez struck him with a flashlight during
the incident. Plaintiff does not indicate that anyone other than
defendant Mendez was involved in the incident. Defendant MPD,
the local police, is an entirely different organization from
Troop 7 and would have no employment or agency relationship with
defendant Mendez, a Troop 7 member. Therefore, plaintiff’s claim
against MPD is dismissed for failure to state a claim under Fed.
R. Civ. P. 12(b) (6).
V. CONCLUSION
For the reasons stated above, the court will dismiss the 42
U.S.C. § 1983 claim against defendant MPD based on plaintiff's
failure to allege facts upon which relief could be granted. Fed.
R. Civ. P. 12(b)(6). An appropriate order shall issue.
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