Section 1983 Claims Against Commissioner Richard Neal
Plaintiff's complaint alleges civil rights violations, including claims under 42 U.S.C. § 1983, by Police Commissioner Neal in the form of Police Department policies or customs and conspiracies with the individual officers. "It is well settled that the doctrine of respondeat superior may not be employed to impose § 1983 liability on a supervisor for the conduct of a subordinate which violates a citizen's constitutional rights." Blanche Rd. Corp. v. Bensalem Township, 57 F.3d 253, 263 (3d Cir. 1995), citing Monell v. Dept. of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In order to hold the Commissioner individually liable for alleged civil rights violations by police officers, the plaintiff must show some affirmative conduct on the part of the Commissioner. Plaintiff must prove the Commissioner's "personal involvement in the alleged wrongs . . . . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
The reasoning related to Directive 128 discussed above applies equally to the claims against Commissioner Neal. Because the directive was "issued by command of the Police Commissioner," it creates a factual issue about the Commissioner's personal involvement in the alleged civil rights violation based on arrest without probable cause. Again, though, this is not the case as to the excessive force claim. Plaintiff has not adduced any sort of evidence tending to prove any personal involvement or affirmative conduct of Commissioner Neal with regard to the alleged constitutional deprivation suffered by the plaintiff due to the excessive force used by the arresting officers. Therefore, the § 1983 claim against him based on excessive force is dismissed with prejudice.
Immunity From State Law Tort Claims
Plaintiff's complaint includes pendent state law claims alleging common law torts of assault and battery, false arrest, and false imprisonment against Officers Young and Scott, and intentional infliction of emotional distress against Young, Scott, and Commissioner Neal. Defendants' motion claims that they are immunized against these tort claims by the Political Subdivision Tort Claims Act, 42 Pa. C.S.A. § 8541 et seq.
Section 8541 of the Act provides that "no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person," subject to exceptions for negligent acts by the agency or its employee within certain enumerated categories. Section 8545 extends the Act's immunity to an employee who causes injury while acting within the scope of his or her employment. An employee is not immune, though, if it is judicially determined that the act by the employee that caused the injury was "willful misconduct." § 8550. The Pennsylvania courts have in the past held the phrase "willful misconduct" to be synonymous with "intentional tort." See, e.g., King v. Breach, 115 Pa. Commw. 355, 540 A.2d 976, 981 (Pa. Commw. 1988). In Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293-94 (Pa. 1994), the Pennsylvania Supreme Court held that claims of assault and battery and false imprisonment in the context of police misconduct might but do not necessarily constitute "willful misconduct" under § 8550. Because each of the torts alleged is based on acts that might be willful misconduct, the defendants are not entitled to immunity for them, and these claims survive summary judgment. See Devivo v. Philadelphia Parking Auth., 1997 U.S. Dist. LEXIS 18031, 1997 WL 734002 at *3 (E.D. Pa. Nov. 6, 1997) (J. Pollak); see also DiJoseph v. City of Philadelphia, 947 F. Supp. 834, 843 (E.D. Pa. 1996).
BY THE COURT:
MARVIN KATZ, J.