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BORNSTAD v. HONEY BROOK TOWNSHIP

United States District Court, E.D. Pennsylvania


May 26, 2004.

KENNETH T. BORNSTAD, Administrator of the Estate of Keith B. Bornstad, deceased,
v.
HONEY BROOK TOWNSHIP, and HONEY BROOK TOWNSHIP POLICE DEPARTMENT; and WEST BRANDYWINE TOWNSHIP; and BRANDYWINE TOWNSHIP POLICE DEPART, and WIEEIAM BAXTER c/o HONEY BROOK TOWNSHIP POLICE DEPT.; and MICHAEE SASSO c/o HONEY BROOK TOWNSHIP POLICE DEPART.; JOHN COEDREN c/o WEST BRANDYWINE TOWNSHIP POLICE DEPT. and DENISE NOKE c/o WEST BRANDYWINE TOWNSHIP POLICE DEPT.; and DANIEE SHAPPELL c/o WEST BRANDYWINE TOWNSHIP POLICE DEPT

The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge

MEMORANDUM & ORDER

Presently before the Court is the Motion Of Defendants Honey Brook Township, Honey Brook Township Police Department, William Baxter and Michael Sasso To Dismiss Portions Of Plaintiffs Amended Complaint Pursuant To Federal Rule Of Civil Procedure 12(b)(6). (Doc. No. 16.) For the following reasons, Defendants' Motion will be granted in part and denied in part.

I. BACKGROUND AND PROCEDURAL HISTORY

  Plaintiff filed the Complaint on June 26, 2003. (Doc. No. 1.) On July 22, 2003, Defendants moved to dismiss the Complaint. (Doc. Nos. 5, 6.) Defendants' motions were denied without prejudice and Plaintiff was granted leave to amend the Complaint. (Doc. No. 14.) Plaintiff filed the Amended Complaint on December 10, 2003. (Doc. No. 15.) On December 22, 2003, several of the Defendants moved to dismiss the Amended Complaint. (Doc. No. 16.) The remaining Defendants answered the Amended Complaint on February 20, 2004. (Doc. No. 18.)

  In the Amended Complaint, Plaintiff alleges that he is the father of decedent, Keith Bryant Bornstad ("Decedent"). (Am. Compl. ¶ 1.) Defendants are Honey Brook Township, Honey Brook Township Police Department, West Brandywine Township, West Brandywine Township Police Department, William Baxter, Michael Sasso, Sgt. John Coldren, Denise Noke and Daniel Shappell. (Id. ¶¶ 3-11.) Baxter and Sasso are police officers with the Honey Brook Township Police Department. (Id. ¶¶ 3-4.) Coldren, Noke, and Shappell are police officers with the West Brandywine Township Police Department. (Id. ¶¶ 7-9.) The moving Defendants (hereinafter, "Defendants") are Honey Brook Township, Honey Brook Township Police Department, Baxter, and Sasso.

  Plaintiff alleges that the Defendant police officers arrested Decedent at his home on June 6, 2002. (Id. ¶ 17.) During the course of that arrest, the Defendant police officers, while acting within the course and scope of their employment, assaulted and battered Decedent, and used unreasonable, unnecessary, and excessive force and restraint on Decedent. (Id. ¶¶ 18-19.) Specifically, the Defendant police officers used a chemical spray, namely pepper spray, OC spray, and/or mace, in an excessive and improper manner on Decedent; used mechanical restraints, namely handcuffs and leg ties, in an excessive and improper manner; ignored Decedent's complaints of restricted and impeded ability to breathe; ignored and/or failed to recognize Decedent's grunting and flailing attempts to breathe; failed to properly call for timely and adequate backup; did not properly attempt to render proper medical care to Decedent; and employed restraint techniques and holds that caused Decedent to have difficulty breathing, which when coupled with the excessive application of pepper spray, caused compression asphyxia leading to Decedent's death. (Id. ¶¶ 21-27.) Plaintiff alleges that the Defendant police officers' conduct was unjustified, outrageous, callous, and exhibited a deliberate indifference to Decedent's rights and well-being. (Id. ¶ 29.) Plaintiff also alleges that Decedent was of mixed racial origin, and had a dark complexion similar to persons of Hispanic background. (Id. ¶ 14.) According to Plaintiff, the Defendant police officers' conduct was willful and/or intentional, and motivated by race or other class-based discriminatory animus. (Id. ¶¶ 30-31.)

  Plaintiff's federal claims arise under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983, 1985 and 1988. Plaintiff also asserts state claims for wrongful death and survival under 42 PA. CONS. STAT. §§ 8301 and 8302, 20 PA. CONS. STAT. §§ 3371 and 3373, and PA. R. CIV. P. 2202 and 213. Plaintiff seeks damages on behalf of Decedent and himself, as well as his attorney's fees and costs pursuant to 42 U.S.C. § 1988(b).

 II. LEGAL STANDARD

  A motion to dismiss for failure to state a claim will be granted if it appears to a certainty that no relief could be granted under any set of facts which could be proved. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). When considering a motion to dismiss, we must "accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them," Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990), but we need not assume the truth of legal conclusions, Papasan v. Allain, 478 U.S. 265, 286 (1986). The defendant bears the burden of persuading the Court that no claim has been stated. Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).

 III. ANALYSIS*fn1

  A. Defendants' Motion to Dismiss the Federal Claims Against Honey Brook Township Police Department

  Defendants move to dismiss Plaintiff's federal claims against Honey Brook Township Police Department on the grounds that police departments cannot be sued in conjunction with municipalities. It is well established that in § 1983 actions, police departments cannot be sued alongside municipalities. This is because the police department is merely an administrative arm of the local municipality, and not a separate legal entity. See, e.g., DeBellis v. Kulp, 166 F. Supp.2d 255, 264 (E.D. Pa. 2001) (collecting cases); see also Bonenberger v. Plymouth Township, 132 F.3d 20, 25 n.4 (3d Cir. 1997) ("[A] municipality and its police department [are] a single entity for purposes of section 1983 liability.") (citing Colburn v. Upper Darby Township, 838 F.2d 663, 671 n.7(3d Cir. 1988)).

  Plaintiff does not dispute this general principal, but argues that he is entitled to brief discovery to determine whether Honey Brook Township Police Department is merely an administrative arm of Honey Brook Township, or a separate legal entity. Plaintiff argues that while courts usually dismiss § 1983 claims against police departments when they are sued in conjunction with municipalities, they generally do so in response to motions for summary judgment. Plaintiff agrees that if discovery reveals that the Defendant police departments are merely the administrative arms of the Defendant townships, he will dismiss his claims against the police departments.

  There is no allegation in the Amended Complaint that the Defendant townships and police departments are separate legal entities. Absent such an allegation, we will not permit Plaintiff to maintain claims against both entities. In § 1983 cases, when there is no allegation that the defendant police department and township are separate legal entities, our courts dismiss the claims against the police departments. See, e.g., Mitros v. Cooke, 170 F. Supp.2d 504, 507 (E.D. Pa. 2001); Setchko v. Township of Lower Southampton, No. 00-3659, 2001 WL 229625, at *2 (E.D. Pa. Mar. 8, 2001); Smith v. City of Phila., No. 98-cv-3338, 1998 WL 966025, at *2 (E.D. Pa. Nov. 10, 1998). Accordingly, Plaintiff's federal claims against the Defendant police departments are dismissed.*fn2 We will, however, grant Plaintiff leave to amend the Complaint if Plaintiff deems it appropriate. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) ("[I]f a complaint is vulnerable to 12(b)(6) dismissal, a District Court must permit a curative amendment, unless an amendment would be inequitable or futile.").

  B. Defendants' Motion to Dismiss Claims Under 42 U.S.C. § 1985(3)

  To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States. Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (citing United Bhd. of Carpenters & Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). The federal notice pleading rule requires a complaint to include only "a short and plain statement of the claim showing that the pleader is entitled to relief. " Leatherman v. Terrant County Narcotics Unit, 507 U.S. 163, 168 (1993) (quoting FED. R. CIV. P. 8(a)); see also Alston, 363 F.3d at 233 (rejecting rule that civil rights plaintiffs must plead with factual specificity).

  A review of the Amended Complaint reveals that Plaintiff has sufficiently alleged three of the elements required to state a claim under § 1985(3), namely, (1) that Defendants were motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws, (Am. Compl. ¶ 30); (2) an act in furtherance of the conspiracy, (see, e.g., id. ¶¶ 21-27); and (3) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States, (see, e.g., id. ¶ 32). However, Plaintiff has failed to allege the existence of a conspiracy. Accordingly, we are compelled to dismiss Plaintiff's claims under § 1985(3).*fn3 Again, we will grant Plaintiff leave to amend the Complaint. See Alston, 363 F.3d at 235.

  C. Defendants' Motion to Dismiss the State Claims

  Defendants move to dismiss Plaintiffs claims under the Wrongful Death and Survival Acts. Both of these causes of action sound in tort and are governed by the Pennsylvania Political Subdivision Tort Claims Act, 42 PA. CONS. STAT. §§ 8501, 8541-8546 (the "Tort Claims Act"). See Lockwood v. City of Pittsburgh, 751 A.2d 1136, 1140 (Pa. 2000) (holding wrongful death and survival actions barred by the Tort Claims Act); Richardson v. City of Phila., No. 89-8901, 1992 WL 46899, at *10 (E.D. Pa. Mar. 6, 1992).

  The Tort Claims Act states that "[e]xcept as otherwise provided in this subchapter, 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." 42 PA. CONS. STAT. § 8541. The term "local agency" is defined as "a government unit other than the Commonwealth government." 42 PA. CONS. STAT. § 8501. Thus, Honey Brook Township, Honey Brook Township Police Department, West Brandywine Township, and West Brandywine Township Police Department are all local agencies under the Act. See Pahle v. Colebrookdale Township, 221 F. Supp.2d 361, 367 (E.D. Pa. 2002) (police departments and townships are political subdivisions and local agencies under the Tort Claims Act); DeBellis, 166 F. Supp.2d at 278 (same). Employees of local agencies that may otherwise be liable for acts within the scope of their office or duties "are liable only to the same extent as [the] employing local agency and subject to the limitations imposed by this subchapter." 42 PA. CONS. STAT. § 8545. Therefore, unless an exception to the Tort Claims Act applies, all of the Defendants are immune from Plaintiff's state claims.*fn4

  Among its exceptions, the Tort Claims Act states that employees of local agencies may be liable for "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. . . ." 42 PA. CONS. STAT. § 8550. In cases involving allegations of police misconduct, "willful misconduct" means that the police officers committed an intentional tort knowing that their conduct was tortious. See Renk v. City of Pittsburgh, 641 A.2d 289, 293-94 (Pa. 1994); see also DeBellis, 166 F. Supp.2d at 279 (construing Tort Claims Act) ("[I]n the context of police misconduct cases, it is improper to equate willful misconduct with the commission of an intentional tort. Instead, there must be a determination not only that the officer committed the acts in question, but that he willfully went beyond the bounds of the law."); In re City of Phila. Litig., 938 F. Supp. 1264, 1273 (E.D. Pa. 1996) (holding that in cases involving allegations of police misconduct, "willful misconduct" under the Tort Claims Act means "misconduct which the perpetrator recognized was misconduct and which was carried out with the intention of achieving exactly that wrongful purpose"), aff'd, 158 F.3d 723 (3d Cir. 1998). Although employees of local agencies are denied immunity under section 8550 for their "willful misconduct", section 8550 does not strip immunity from the agency itself. 42 PA. CONS. STAT. § 8542(a); see also Cooper v. City of Chester, 810 F. Supp. 618, 626 n.8 (E.D. Pa. 1992) (collecting cases).

  Applying the foregoing principals, we are compelled to conclude that Plaintiffs wrongful death and survival claims against Honey Brook Township, Honey Brook Township Police Department, West Brandywine Township, and West Brandywine Township Police Department are barred by the Tort Claims Act and must be dismissed.*fn5 Those claims against the individual police officers will not be dismissed. Viewing the allegations in the Amended Complaint in the light most favorable to Plaintiff, Plaintiff has alleged, among other things, that the Defendant police officers willfully used unreasonable, unnecessary, and excessive force while arresting Decedent and were motivated to do so by race or other class-based discriminatory animus. (Am. Compl. ¶¶ 30, 41-42.) If these allegations are proven true, such conduct would rise to the level of "willful misconduct" as that term is used in the Tort Claims Act. Accordingly, at this juncture, we cannot conclude that the Defendant police officers are entitled to immunity under the Act.

  An appropriate Order follows.

  ORDER

  AND NOW, this __ day of May, 2004, upon consideration of the Motion to Dismiss Plaintiff's Amended Complaint Filed by William Baxter, Honey Brook Township, Honey Brook Township Police Department, and Michael Sasso, (Doc. No. 16), and all papers filed in support thereof and opposition thereto, it is ORDERED the Motion to Dismiss is GRANTED in part and DENIED in part as follows:

1. Plaintiff's claims against all Defendants for violation of the Eighth Amendment are DISMISSED.
2. Plaintiff's federal claims against Honey Brook Township Police Department and West Brandywine Township Police Department are DISMISSED.
3. Plaintiff's claims against all Defendants for violation of 42 U.S.C. § 1985(3) are DISMISSED.
4. Plaintiff's state law claims against Honey Brook Township, Honey Brook Township Police Department, West Brandywine Township, and West Brandywine Township Police Department are DISMISSED.
5. In all other respects, Defendants' Motion to Dismiss is DENIED.
6. Plaintiff is granted leave to file an amended complaint within ten (10) days of the date hereof.
IT IS SO ORDERED.


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