Before the Court is Defendants' "Motion to Dismiss Portions of Plaintiff's Complaint" (Doc. No. 10). This is a civil rights action that arises out of a May 6, 2008 encounter between Franklin Vega, his two-year-old-son, Benjamin Vega, and two police officers from the Columbia Borough Police Department. For the following reasons, the Motion is granted in part and denied in part.
At approximately 10:30 p.m. on May 6, 2008, Plaintiff Franklin Vega ("Vega") heard someone knocking on the front door of his home in Columbia Borough. When Vega answered the door, two police officers from the Columbia Borough Police Department demanded that Vega identify himself and step outside to talk with them. Fearing for his safety, Vega refused to step outside but told the officers that he would speak with them through a first-floor window. The window was located in the Vega family's bedroom. Through the now-open, first-floor window, Vega questioned the police officers' purpose for appearing at his residence. The police officers did not reply. One of the police officers, Defendant Edgar L. Mann ("Mann"), would later testify*fn1 that he intended to cite Vega for harassment based on an encounter that Vega had with a neighbor earlier that evening.
The police officers continued to demand identification from Vega. In an attempt to comply, Vega reached into his pockets to retrieve his identification. Mann would later testify that he knew Vega was reaching for a telephone, not a gun or a weapon. Shortly thereafter, the officers threatened to go into the house if Vega would not step outside and speak with them. Unsatisfied with Vega's responses, Mann drew his taser gun, aimed it at Vega, and pushed the first-floor window fully open. Vega either placed both of his hands on an interior wall or raised them above his head. Vega told Mann that his identification was in his back pocket. By this time, Plaintiff Benjamin Vega, Vega's two-year-old son, had awoken from his sleep. He had been sleeping in the first-floor bedroom that contained the window through which Vega and the officers were speaking. Seeing his son awake, Franklin Vega scooped Benjamin up in his arms to get him out of Mann's taser gun's line of sight.
By this time, Defendant Officer Zimmerman ("Zimmerman") had crawled through the first-floor window and into the Vega family's bedroom, where both Vega and his two-year-old son were located. With Zimmerman inside the house, Mann trained his taser gun on Franklin Vega again and fired his gun through the window. The electric leads struck Franklin Vega. Franklin Vega was able to place Benjamin Vega on the floor before Franklin Vega collapsed onto the floor, convulsing in pain. After pulling the leads from his body, Franklin Vega righted himself only to be struck two more times by Mann's taser gun's electric leads. Shortly thereafter, Franklin Vega was placed under arrest for disorderly conduct, resisting arrest, and terroristic threats.*fn2 Later that evening, after the police officers failed to remove one of the electric leads from Franklin Vega's clavicle, Franklin Vega was taken to hospital where a physician removed the lead with the help of pliers.
Franklin Vega filed a seven-count Complaint on behalf of himself and Benjamin Vega, his two-year-old-son. Franklin Vega sued Officers Mann and Zimmerman in their official and individual capacities, the Columbia Borough Police Department, and Columbia Borough. The causes of action include the following: assault; battery; violations of the Fourth and Fourteenth Amendments, actionable here through Section 1983, based on an unconstitutional seizure, excessive force during an arrest, and malicious prosecution; declaratory judgment; the negligent infliction of emotional distress; and the intentional infliction of emotional distress.
Defendants filed the instant Motion to Dismiss. Defendants move that the Court dismiss all claims based on the Fourteenth Amendment, all claims against Columbia Borough and the Columbia Borough Police Department, the negligent infliction of emotional distress claim, and the malicious prosecution claim. Plaintiffs concede that the Fourteenth Amendment claims are improper as independent bases to sue through Section 1983 under these facts and do not object to their dismissal. (Plfs.' Resp. II.A.) Thus, the Court will limit counts two and three to violations of the Fourth Amendment*fn3 without any further analysis. The Plaintiffs also concede that the claims against the Columbia Borough Police Department are improper. (Plfs.' Resp. II.C.) Thus, the Court will dismiss all claims against the Columbia Borough Police Department without any further analysis. Lastly, the Plaintiffs also concede that they cannot sustain a claim for malicious prosecution. (Plfs.' Resp. II.D.) Thus, the Court will dismiss count four without any further analysis. Therefore, the only remaining issues raised by the instant Motion are (1) whether Columbia Borough is a proper defendant in this civil action and (2) whether the Plaintiffs' negligent infliction of emotional distress claim is viable under the facts alleged.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1951 (2009) (citations and quotations omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id."The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id.
A. Municipal Liability & Section 1983 - Counts Two and Three
The Court must determine whether Columbia Borough is a proper defendant in counts two and three. Counts two and three are based on violations of the Fourth Amendment, which is actionable here through Section 1983. Count two is based on an alleged illegal search and seizure. Count three is based on the alleged use of excessive force during the course of a seizure. Both counts are styled as Monell claims against Columbia Borough for the Borough's failure to train and instruct its officers.
Municipalities, like Columbia Borough, can be found liable under Section 1983 where the municipality itself caused the constitutional violations at issue. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (discussing Monell claims in the context of failure to train allegations). In City of Canton v. Harris, the Supreme Court held that municipal liability may exist where "[a] failure to train amounts to deliberate indifference to the rights of persons with whom the police came into contact," and that deliberate indifference was the moving force for the violation of the plaintiff's federally protected right. Canton, 489 U.S. at 387-92. Thus, City of Canton v. Harris stands for the proposition that a claim for municipal liability will lie where a plaintiff can identify a particular deficiency in training and prove that the specific deficiency was the factual and legal cause of his or her constitutional injury. See also Hall v. Raech, No. 08-5020, 2009 WL 811503, at *5 (E.D. Pa. Mar. 25, 2009) (denying motion to dismiss failure to train claim where plaintiff alleged that municipality failed to train officers in distinguishing between ...