The opinion of the court was delivered by: Judge Conner
Presently before the court is a motion (Doc. 21), filed by defendants Anthony Fetrow ("Fetrow"), Mark L. Whitman ("Whitman"), and York City Police Department ("Police Department"), to dismiss the claims of plaintiff, Khalid Abdullah ("Abdullah"). For the reasons that follow, the motion will be granted in part and denied in part.
I. Statement of Facts*fn1
Abdullah is an "African-American, homosexual, disabled" male residing in York City, Pennsylvania. (Doc. 18 ¶ 6.) A prior gunshot victim, Abdullah suffers from post T12-L1 laminectomy and decompression of the conus medullaris, partial paralysis in his legs, depression, and bowel and urinary incontinence for which he must wear an adult diaper. (Doc. 18 ¶¶ 15, 16.)
Fetrow is employed as a police officer with the York City Police Department. (Doc. 18 ¶ 7.) In September 2002, Fetrow was contacted by Abdullah's sister, who reported that Abdullah was using her social security number to open several lines of credit and purchase various items. (Doc. 18 ¶ 10.) In June 2003 Fetrow obtained a warrant to search, inter alia, Abdullah's apartment and garage for a vehicle and certain credits cards allegedly acquired by Abdullah through the unlawful use of his sister's social security number. (Doc. 18 ¶ 13; Doc. 18, attach. 1.)
On June 4, 2003, Adbullah, while wearing an adult diaper and in bed with his life partner, was startled when Fetrow and other officers, unexpectedly and without knocking, entered Abdullah's apartment using a key obtained from the landlord. (Doc. 18 ¶¶ 12, 14-16.) Upon seeing Abdullah and his life partner in bed, Fetrow and unknown officers allegedly called Abdullah a "little baby faggot" and refused to allow Abdullah to dress. (Doc. 18 ¶ 16-17.) According to the complaint, the officers did not allow Abdullah to explain that his use of his sister's social security number was a mistake. Instead, they proceeded to conduct a search and to seize Abdullah's vehicle, documents relating to the financing of the vehicle, and various credit cards and credit card statements. (Doc. 18 ¶¶ 24, 27; Doc. 18, attach. 2.)
Fetrow then placed Abdullah into custody. Abdullah relayed that he suffered from a disability and requested that the officers handcuff his hands in front of his body. (Doc. 18 ¶ 21.) Fetrow refused, and the subsequent handcuffing of Abdullah's hands behind his back purportedly caused Abdullah pain and injury. (Doc. 18 ¶ 21.) The officers then transported Abdullah to the police station, and along the way allegedly questioned him about his homosexual lifestyle, the specifics of his relationship with his life partner, and why Abdullah did not like women. (Doc. 18 ¶ 18.)
Upon arriving at the police station, Abdullah requested that he be afforded a cell with a toilet to accommodate his disability. (Doc. 18 ¶ 22.) Fetrow refused, handcuffed Abdullah to a bench, and instructed him to yell for the officer if he needed to use the bathroom. (Doc. 18 ¶ 22.) Abdullah was allegedly handcuffed to the bench for one and a half hours. (Doc. 18 ¶ 23.) At some point he had to use the bathroom, and yelled for over twenty minutes before officers responded. (Doc. 18 ¶ 23.)
Fetrow subsequently charged Abdullah with identity theft and access device fraud pursuant to 18 PA. CON. STAT. §§ 4106, 4120. (Doc. 18 ¶ 25.) On October 30, 2003, the charges were dismissed by the prosecutor for lack of evidence. (Doc. 18 ¶ 20.)
The instant action was commenced on June 6, 2005. (See Doc. 1.) An amended complaint (Doc. 18) was filed on September 1, 2005, naming Fetrow in his individual capacity, York City Police Commissioner Whitman in his official capacity, and the Police Department as defendants. (See Doc. 18.) The search warrant, affidavit of probable cause, inventory list of items seized during the search, and state-court order dismissing the charges against Abdullah were appended to the amended complaint. (See Doc. 18.)
The amended complaint sets forth claims pursuant to 42 U.S.C. § 1983, for failure to train and supervise, and for deliberate indifference to, and violations of, Abdullah's First, Fifth, Fourth, and Fourteenth Amendment rights. (Doc. 18 at 1, 7-8, 10.) Specifically, the pleading alleges that Whitman and the Police Department failed to train and supervise Fetrow and the other officers "in the fundamentals of arrest procedure and matters of sensitivity when dealing with a person with a disability and with cultural and social differences," resulting in a deliberate indifference to the rights "of the citizens of York City." (Doc. 18 ¶¶ 37, 39-40.) The amended complaint avers that Whitman and the Police Department should have known of a history of Fetrow's "bias," "misbehavior," and "mistreating persons who are culturally and socially different." (Doc. 18 ¶ 41.) It states that the Police Department has a deliberately indifferent custom or policy that shielded Fetrow and other officers from citizens' complaints, of acquiescing to Fetrow's and others' unconstitutional practices, and of inadequately disciplining officers who violate citizens' rights. (Doc. 18 ¶¶ 46-49.) The amended complaint also alleges that Fetrow maliciously prosecuted Abdullah (Doc. 18 ¶¶ 51-52), and sets forth the state law claims of malicious abuse of process, assault and battery, intentional infliction of emotional distress, and "harassment." (Doc. 18 at 9-12.) The pleading requests compensatory and punitive damages in excess of $300,000, attorneys' fees and costs, and "any other fair and equitable remedy." (Doc. 18 ¶ 13.)
On September 16, 2005, defendants filed the instant motion to dismiss. (See Doc. 21.) Defendants argue that all claims against Whitman in his official capacity should be dismissed as they merge with the claims against the Police Department, and that the amended complaint does not set forth sufficient facts for First, Fourth, or Fifth Amendment claims, a malicious prosecution claim, or an abuse of process or harassment claim. (See Doc. 22 at 9.) Defendants further aver that any claims of discrimination based upon Abdullah's homosexuality should be dismissed because sexual orientation is not a "suspect class," and that defendants are officially immune from Abdullah's state law claims.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that fail to assert a basis upon which relief can be granted. FED. R. CIV. P. 12(b)(6).
In the context of a motion to dismiss under Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). Although the court is generally limited in its review to the face of the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice pleading rules do not require plaintiffs to allege affirmatively every aspect of their claims, but only to present sufficient facts to allow the opposing party to conduct discovery and prepare a defense. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Thus, courts should not dismiss a complaint for failure to state a claim unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id.; see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Under this liberal pleading policy, courts should generally grant plaintiffs leave ...