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Shuey v. Schwab

February 4, 2010


The opinion of the court was delivered by: Richard Caputo United States District Judge



Presently before the Court is Defendants William Schwab, Eastern Penn Township, Brian Horos, and Alan Beishline's Motion to Dismiss (Doc. 4) Plaintiffs Susan and John Shuey's Complaint (Doc. 1.). The motion will be granted in part and denied in part for the reasons discussed below.This Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331 ("federal question jurisdiction"), and over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367 ("supplemental jurisdiction").


The allegations in Plaintiff's Complaint are as follows:

I. Factual Background

Plaintiffs are Susan Shuey ("Mrs. Shuey") and her husband John Shuey ("Mr. Shuey"). (Compl. ¶¶ 4-5.)*fn1 Defendant East Penn Townshipis a municipal corporation duly organized under the laws of the Commonwealth of Pennsylvania. (Compl. ¶ 7.)Defendant William Schwab ("Schwab") was at all relevant times a Supervisor of East Penn Township. (Id. ¶ 6.) Schwab was responsible for the formation and implementation of the polices, practices, and procedures of the East Penn Township Police Department. (Id. ¶ 6.) Defendants Officer Brian Horos ("Horos") and Officer Alvin Beishline ("Beishline") were at all relevant times a sworn officers of the East Penn Township Police Department. (Id. ¶¶ 8-9.)

A. Police Department Policies

East Penn Township purchased electronic incapacitation devices, otherwise known as tasers, in April 2006. (Compl. ¶ 57.) The Township sent Horos to train in their use in May 2006. (Id. ¶ 57.) Horos then allegedly trained Beishline and others in the use of tasers. (Id. ¶ 58.) Beishline was not, however, qualified to use a taser during the time period relevant to this action. (Id. ¶ 59.)

Schwab conceived and directed a plan for the East Penn Township Police Department to "cite as many motorists in the Township as possible in order to create a revenue stream resulting from the fines imposed." (Compl. ¶ 12.) The plan was to cite drivers for violations of 75 PA. CONS. STAT. § 3111, which imposes fines and costs in the amount of $106.50, but assesses no points against an offender's licence. (Compl. ¶ 21.) This would generate easy income for the township because those cited would often not hire legal counsel or otherwise defend against a citation without license implications. (Id.¶ 22.)

Under Pennsylvania law, all causes of action survive the death of a party. 42 PA. CONS. STAT. § 8302. Even assuming that John Shuey is deceased, his claims would survive and pass to his estate or other predecessor in interest.

B. June 23, 2006 Incident

On June 23, 2006, Plaintiffs parked their vehicle safely off the side of Lizard Creek Road in East Penn Township and approached Officer Horos to discuss a traffic citation given to their son earlier that day. (Compl. ¶¶ 10-11.) At that time, Horos was in the process of issuing a traffic citation to a motorist he had stopped. (Id. ¶ 10.) On three (3) separate occasions Horos asked the Plaintiffs what they wanted, and they responded that they would wait until he completed his business. (Id. ¶ 15.) At all times the Plaintiffs remained a safe distance behind Horos' police vehicle and off the roadway. (Id. ¶ 16.) Plaintiffs ultimately informed Horos that they wished to discuss the traffic citation given to their son. (Id. ¶ 17.) Officer Beishline then arrived in a separate police cruiser, and Horos told the Plaintiffs that it was Beishline who had issued the citation. (Id. ¶ 18.) Beishline rolled down his driver's side window and spoke to Mr. Shuey. (Id. ¶ 19.) At no time during this discussion did Beishline exit his vehicle. (Id. ¶ 20.) Mrs. Shuey pointed out to Beishline that the citations under § 3111 did not assess points against an offender's license, and in response Beishline became upset and told her in the future he would "increase the charge and tell all offenders to thank her." (Id. ¶ 21.)

Mrs. Shuey terminated the conversation and began walking back towards her car. (Compl. ¶ 23.) Beishline remained in his vehicle talking with Mr. Shuey. (Id. ¶ 23.) As Mrs. Shuey crossed the roadway diagonally, she necessarily had to pass Horos. (Id. ¶ 24.) As she walked away from the area venting, Horos yelled to her "if you raise your voice I'm going to arrest you." (Id. ¶ 25.) Upon hearing this, Mrs. Shuey looked over her shoulder and asked, "[i]f I raise my voice, you're going to arrest me?" (Id. ¶ 27.) She continued walking away from Horos. (Id. ¶ 27.) Horos responded by again threatening to arrest Mrs. Shuey. (Id. ¶ 28.) As she continued to walk away from Horos, across the grass berm and off the roadway, Horos violently grabbed her arm from behind and spun her around. (Id. ¶ 30.) Horos picked her off her feet and slammed her to the ground, landing on top of her. (Id. ¶ 32.) One of the officers threatened to pepper spray Mrs. Shuey as she lay trapped on the ground. (Id. ¶ 36.) Beishline then proceeded to taser Mrs. Shuey two (2) times while she was pinned on the ground. (Id. ¶ 39.) Beishline and Horos handcuffed Mrs. Shuey's hands behind her back. (Id. ¶ 42.) Before being grabbed by Horos, Mrs. Shuey was never told that she was under arrest. (Id. ¶ 53.) At no time did she resist or assault either officer. (Id.¶ 54.) During the incident, Mrs. Shuey could hear her husband asking the officers to stop and calling out for someone to film the incident. (Id. ¶ 42.) When Mr. Shuey asked Horos and Beishline to stop, they threatened to arrest him. (Id. ¶ 44.)

Mrs. Shuey was transported to the police station and placed in a chair with her hand still cuffed behind her back. (Compl. ¶ 45.) She requested that Horos loosen the handcuffs, but he refused and mocked her. (Id. ¶ 46.) Papers were thrown in her face, but she could not read them because her glasses had been broken. (Id. ¶ 48.) While being transported for arraignment, Horos and Beishline berated her and often used profanity. (Id. ¶ 49.) During the process Mrs. Shuey was so terrified that she defecated and urinated in her clothing. (Id. ¶ 51.)

II. Procedural Background

Plaintiffs filed their Complaint in the United States District Court for the Middle District of Pennsylvania on June 23, 2008. (Doc. 1.) Defendants filed a Motion to Dismiss the Plaintiffs' Complaint on July 14, 2008. (Doc. 4.) After Plaintiffs failed to respond to this motion and this Court's order to respond, the motion was granted as unopposed on September 9, 2008. (Doc. 12.) After appeal to the Third Circuit Court of Appeals, this Court granted Plaintiffs' Motion for Reconsideration and permitted time to respond. (Doc. 23.) Plaintiffs filed a Brief in Opposition, along with a Suggestion of Death as to Mr. Shuey, on January 6, 2010. (Docs. 24-25.) The Defendants' Motion to Dismiss has now been fully briefed by both parties, and is ripe for disposition.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).


I. Federal Causes of Action

A. Section 1983 - Excessive Force (Count II)

At Count II the Plaintiffs allege that Horos and Beishline used excessive force against both Plaintiffs in violation of their Fourth Amendment rights. The Fourth Amendment protects individuals against unreasonable search and seizure by the government. U.S. Const. amend IV. "Use of excessive force by a law enforcement officer is considered a 'seizure' under the Fourth Amendment . . . ." Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). To make out an excessive force claim under the Fourth Amendment, a plaintiff must show that an unreasonable seizure occurred. Curley v. Klem, 499 F.3d 199, 203 n. 4 (3d Cir. 2007). A seizure is reasonable under the Fourth Amendment if, under the totality of the circumstances, "the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivations." Graham v. Connor, 490 U.S. 386, 397 (1989). Factors to consider in making a determination of reasonableness include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he actively is resisting arrest ...

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