v. Formica, 1988 WL 124915 at *3 (E.D. Pa. 1988); but see, Buzzerd v. East Pikeland Township, 1990 WL 90109 at *5 (E.D. Pa. 1990).
The fact that many other courts have found such language to be too conclusory to support a § 1983 claim is instructive, but it does not end our inquiry. The ability of a civil rights complaint to meet the third circuit's enhanced pleading requirement must be determined on a case-by-case basis. Freedman, 853 F.2d at 1114; Frazier v. Southeastern Pennsylvania Transp. Authority, 785 F.2d 65, 68 (3rd Cir. 1986). The court must examine all of the allegations in the complaint and determine whether the conduct alleged, read in the light most favorable to the plaintiff, is "reasonably susceptible to falling within the conclusions alleged." Freedman, 853 F.2d at 1115.
The basis of plaintiff's claim against the individual police officers is the allegation that he was arrested without probable cause on August 16, 1990. "A policy cannot ordinarily be inferred from a single instance of illegality such as a first arrest without probable cause." Losch v. Parkesburg, 736 F.2d 903, 911 (3rd Cir. 1984) (citing Walters v. City of Ocean Springs, 626 F.2d 1317, 1323 (5th Cir. 1980); Turpin v. Mailet, 619 F.2d 196, 202 (2d Cir. 1980), cert. denied, 449 U.S. 1016, 66 L. Ed. 2d 475, 101 S. Ct. 577 (1982)). Therefore, this allegation, standing alone, does not supply the "modicum of factual specificity" needed to support plaintiff's claim that the deprivation of his rights resulted from a municipal policy, practice or custom. Plaintiff argues however, that a municipal policy, practice or custom can be inferred from this event taken in conjunction with his further allegation that "several years earlier he had been wrongfully arrested because his name was the same or similar to the criminal being sought." Complaint P 12.
Even if we assume that a policy, practice or custom can in principle be inferred from two illegal
arrests separated by "several years," the complaint is not pled specifically enough to survive a motion to dismiss. The complaint does not specify who made the previous illegal arrest of plaintiff. This omission alone is fatal to the complaint's specificity. If the previous arrest was not made by employees of the City of Chester, it provides no support for the conclusion that the more recent arrest arose from Chester's policy, practice or custom. Even if we were to assume that the previous arrest was by an employee of the City of Chester, the complaint does not allege that the previous illegal behavior was brought to the attention of supervisory personnel at the time it occurred. There is no indication if anyone was disciplined for the previous arrest. There is no assertion that the previous illegality was of the same type that allegedly led to the more recent arrest. In short, the complaint lacks the "modicum of factual specificity," Colburn, 838 F.2d at 666, that would allow the court to judge whether or not the facts alleged could reasonably support the conclusory claim that plaintiff's treatment resulted from a policy, practice or custom of the City of Chester. Therefore, the § 1983 claims against City of Chester must be dismissed.
The requirement that federal civil rights complaints be pled with specificity is intended to "weed out at an early stage frivolous claims and those that should be heard in state court" and to provide the defendants with adequate notice of the claims asserted to enable them to respond. Frazier, 785 F.2d at 67. The policy behind this heightened specificity requirement is considered to be especially pronounced when the defendant is a local government, since there is a public interest in protecting local governments from frivolous and unsubstantiated suits. United States v. Philadelphia, 644 F.2d 187, 206 (3rd Cir. 1980).
The third circuit has recognized that the heightened "specificity rule in civil rights cases may on the surface appear to be in tension with the liberal notice pleading approach of the Federal Rules of Civil Procedure." Freedman, 853 F.2d at 1114. However,
Closer examination shows that it represents a balance between the rights of local government officials not to be subjected to the burden of trial on claims that are legally insufficient, . . . and the rights of plaintiffs who have been injured as a result of actions or practices which the civil rights laws are designed to redress.
Id. To protect the rights of plaintiffs, the third circuit has "required the district courts to permit amendments in circumstances where more specific factual allegations may reveal that the conduct in question falls within the ambit of section 1983." Id. Accordingly, our dismissal of the § 1983 claims against City of Chester is without prejudice, and plaintiff is given thirty days leave in which to file an amendment to his complaint which pleads the claim against City of Chester with the requisite specificity.
IV. STATE TORT CLAIMS
The complaint's "second cause of action" alleges that the defendants' acts "constitute false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, invasion of privacy, negligence, gross negligence, and negligent hiring, retention and supervision under the laws of the Commonwealth of Pennsylvania." Complaint P 27.
Because we are dismissing all federal claims against the municipal defendants City of Chester and Township of Aston, we decline to hear the pendent state claims against those defendants. See Lovell Mfg., Div. of Patterson-Erie Corp. v. Export-Import Bank of United States, 843 F.2d 725, 735 (3rd Cir. 1988) (when all federal claims are dismissed prior to trial, a district court is powerless to hear remaining state law claims absent "extraordinary circumstances"). The state law claims against City of Chester and Township of Aston are therefore dismissed without prejudice.
Defendants Briscoe and Fontaine argue that they are immune from plaintiff's pendent state tort claims by virtue of the Political Subdivision Tort Claims Act ("PSTCA"), 42 Pa.C.S. § 8541 et seq., which grants broad immunity from tort suits to local agencies and their employees.
We agree with defendants that they are immune from suit as to all alleged negligent acts. However, they do not have immunity for their intentional torts.
PSTCA grants broad immunity from tort suit to local agencies and their employees. The general rule of the Act is that local agencies and their employees are immune from suit. 42 Pa.C.S. §§ 8541 & 8545. The only exceptions to this general grant of immunity are those which are specified in the Act. Id. These exceptions to the general rule of immunity are given in 42 Pa.C.S. §§ 8542 & 8550. Thus, defendants are immune from the pendent state claims in the instant case unless those claims fall into one of the categories enumerated in § 8542 or § 8550.
Section 8542 of PSTCA permits recovery against a local agency or its employee for negligent acts if the act falls into one of the following eight categories: (1) vehicle liability; (2) care, custody or control of personal property; (3) real property; (4) trees, traffic controls and street lighting; (5) utility service facilities; (6) streets; (7) sidewalks; (8) care, custody or control of animals. 42 Pa.C.S. § 8542(b). Because no alleged negligent act of any defendant falls into one of these eight categories, plaintiff's claims which are based in negligence must be dismissed as barred by PSTCA. Therefore, the claims of negligence, gross negligence, and negligent hiring, retention and supervision are dismissed.
See, e.g., Agresta, 694 F.Supp. at 123; Buskirk v Seiple 560 F. Supp. 247, 251-52 (E.D. Pa. 1983).
While PSTCA grants immunity from negligent acts except in the eight categories delineated above, the same broad immunity is not granted for intentional torts. Section 8550 of the Act provides:
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.
42 Pa.C.S. § 8550.
The second cause of action's claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, and invasion of privacy are intentional torts amounting to "actual malice" or "willful misconduct," and therefore fall within the ambit of § 8550. See, e.g., Agresta, 694 F.Supp. at 123-24; Buskirk, 560 F.Supp. at 251-52. Because defendants Briscoe and Fontaine are stripped of immunity from intentional tort claims by § 8550, the motion to dismiss these claims against them is denied.
The parties have agreed to dismiss the fictitiously named defendants, John Doe and Richard Roe, from the complaint.
The motion to dismiss the federal civil rights claims against Officers Briscoe and Fontaine is denied. Because Officers Fontaine and Briscoe are immune from suit for all the alleged pendent state torts which sound in negligence, the motion to dismiss these claims is granted. However, Briscoe and Fontaine are not immune from suit for intentional torts, so the motion to dismiss is denied as to those claims.
Because no employee of the Township of Aston is potentially liable for violations of 42 U.S.C. § 1983, the Township itself cannot be held liable under Monell, and federal civil rights claims must be dismissed as to Township of Aston. Accordingly, the pendent state claims against Township of Aston are dismissed without prejudice.
The 42 U.S.C. § 1983 claims against City of Chester are dismissed without prejudice because they are vague and conclusory. Because the only federal claims against Chester are dismissed, the pendent state claims are dismissed without prejudice. Plaintiff is give thirty days leave in which to file an amended complaint which pleads the federal claims against Chester with the requisite specificity.
An appropriate order follows.
AND NOW, this 9th day of December, 1992, upon consideration of defendants' motions to dismiss and plaintiff's responses thereto, it is hereby ORDERED:
1. The complaint is dismissed as to the fictitiously named defendants John Doe and Richard Roe.
2. The motion to dismiss the 42 U.S.C. § 1983 claims against defendants Briscoe and Fontaine is DENIED.
3. The motion to dismiss the claims of false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, and invasion of privacy against defendants Briscoe and Fontaine is DENIED.
4. The claims for negligence, gross negligence, and negligent hiring, retention and supervision are dismissed as to defendants Briscoe and Fontaine.
5. The complaint is dismissed as to defendant Township of Aston.
6. The complaint is dismissed without prejudice as to defendant City of Chester.
7. Plaintiff shall have thirty days leave in which to file an amended complaint. Any amendment filed shall be limited to pleading with more specificity the 42 U.S.C. § 1983 claims against defendant City of Chester.
BY THE COURT:
James T. Giles