The opinion of the court was delivered by: DuBOIS, J.
This is a civil rights case arising under 42 U.S.C. § 1983 in which plaintiffs, Adranih Ernay, Adrian Ernay, Wendell Wesley, Otis Ragland, Linda Faust, William Christy, and Denasia Christy allege that defendants, Chris Swatski and John Does #1-6, violated their constitutional rights under the Fourth Amendment during a search of plaintiffs' apartments. Plaintiffs Adrian Ernay, Wendell Wesley, and Otis Ragland also allege that defendant Swatski, John Doe #1, and John Doe #2 used excessive force during the search.
Presently before the Court is defendant Swatski's Motion To Dismiss In Part. For the reasons set forth below, the Court grants the motion in part and denies the motion in part. The motion is granted as it pertains to the claims against defendant Swatski in his official capacity, and the Fourth Amendment claim asserted by William and Denasia Christy in Count One. By agreement of the parties, the motion to dismiss plaintiffs' state law claim is marked withdrawn as erroneously included in the Complaint, and the motion to dismiss the excessive force claim in Count Three is denied without prejudice to defendant Swatski's right to raise the defense of qualified immunity (and any other appropriate defense) at a later stage in the case.
At approximately 5 a.m. on March 10, 2008, defendants, all Pennsylvania Board of Probation and Parole officers, arrived at plaintiffs' duplex apartment at 1004 Wagontown Road, Valley Township, Pennsylvania, to search for parole absconder Jesse James Keene. (Compl. ¶¶ 1-14, 36.) Plaintiff Faust and her children, William and Denasia Christy, live in Apartment A; Faust's cousin, plaintiff Adranih Ernay, her sons, plaintiffs Adrian Ernay and Wendell Wesley, and her nephew Otis Ragland live in Apartment B. (Id.) Keene's ex-girlfriend, Stephanie Leland, lived in Apartment A at that address for less than a year in 2004. (Id. ¶¶ 17, 18.)
Defendants assembled in front of the apartments and began pounding on the door marked "A." (Id. ¶¶ 39, 40.) Faust was awoken by the pounding and came downstairs to see who was at her door. (Id. ¶ 41.) Defendants identified themselves as the police and demanded that Faust open the door. (Id. ¶¶ 42, 43.) Faust complied and defendants pushed their way into the apartment. (Id. ¶ 43.) Once inside, defendants showed Faust a picture of Keene. (Id. ¶ 44.) In response Faust stated that she did not know Keene. (Id.) Defendants then "focused" on Adranih Ernay's door, the door to Apartment "B." (Id. ¶ 46.)
Faust offered to get Adranih Ernay herself if defendants agreed not to pound on Ernay's door. (Id. ¶¶ 47-48.) Defendants, without "true consent or invitation," followed Faust as she walked through her home and out her back door to the common area between Apartment A and B. (Id. ¶¶ 49, 50.) Adranih Ernay opened her door at Faust's request and defendants entered her home. (Id. ¶¶ 51-53.) Defendants showed Adranih Ernay a picture of Keene. (Id. ¶ 55.) Adranih Ernay thought the picture was of her boyfriend and screamed.*fn2 (Id. ¶ 55.)
Her scream awoke plaintiffs Adrian Ernay, Wendell Wesley, and Otis Ragland; barely clothed, the three young men ran out of an upstairs bedroom and to the top of stairs. (Id. ¶¶ 57, 58.) When they got to the top of the stairs, Officers John Doe #1 and John Doe #2 pointed guns at the men and instructed them to freeze. (Id. ¶ 59.) The men complied and came downstairs with their hands up. (Id. ¶¶ 60-62.) Although Adrian Ernay and Wesley challenged the defendants' presence, defendants proceeded to search Apartment B for Keene. (Id. ¶¶ 68-74.) Adranih Ernay, who was not wearing her glasses the first time she looked at Keene's photo, put on her glasses and looked at the picture again. (Id. ¶¶ 54, 77.) On second glance, Adranih Ernay realized that the man in the photo was not her boyfriend and so informed Swatski. (Id. ¶¶ 77-78.) Swatski apologized to plaintiffs and defendants left Apartment B. (Id. ¶ 81.)
In their Complaint plaintiffs seek damages for defendants' alleged violations of their Fourth Amendment rights. The Complaint avers three counts: Count One, unreasonable search and seizure on behalf of plaintiff Faust and her children against all defendants; Count Two, unreasonable search and seizure on behalf of plaintiffs Adranih Ernay, Adrian Ernay, Wesley, and Ragland against all defendants; and Count Three, excessive force by defendants Swatski, John Doe #1, and John Doe #2 on behalf of plaintiffs Adrian Ernay, Wesley, and Ragland.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff...." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).
"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level....'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." 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. (quoting Twombly, 550 U.S. at 557).
In Twombly, the Supreme Court utilized a "two-pronged approach" which it later formalized in Iqbal. Iqbal, 129 S.Ct. at 1950. Under this approach, a district court first identifies those factual allegations which constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S.Ct. at 1950. The court then assesses "the 'nub' of the plaintiff['s] ...