The opinion of the court was delivered by: Jones II, J.
This matter arises out of an incident which occurred on December 24, 2007, during which Defendant arrested Plaintiff for shoplifting in Warminster, Bucks County, Pennsylvania. Plaintiff brings claims for excessive force in violation of the 14th Amendment and 42 U.S.C. § 1983, as well as a state law claim for negligent operation of a police motor vehicle. Having carefully considered the arguments advanced by counsel, the Court will grant the Motion without prejudice for the reasons set forth below.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed her original Complaint on December 21, 2009 (Dkt. No. 1), alleging that pursuant to her arrest, she was "placed in a police vehicle by Defendant[.] She had handcuffs on and a seatbelt was not used. Defendant then operated the motor vehicle in a very rough fashion causing injuries to Plaintiff including visible injuries." Compl. ¶ 7. Plaintiff then asserted a federal claim for excessive force in violation of the 14th Amendment and 42 U.S.C. § 1983, as well as state law claims of simple assault, reckless endangerment and negligent operation of a police motor vehicle. Compl. ¶ 6.
On January 20, 2010, Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff had not pled sufficient action by Defendant that would subject him to liability and had improperly pled her substantive due process claim under the Fourteenth Amendment (Dkt. No. 4 ("Def. 1st Motion to Dismiss")). Defendant also argued that no private cause of action exists to enforce Pennsylvania criminal statutes, that punitive damages are not available against municipal entities and defendants in their official capacities as a matter of law, and that Defendant is entitled to qualified immunity.
In response, on February 5, 2010, Plaintiff filed his Amended Complaint (Dkt. No. 7), alleging as follows:
On December 24, 2007, Defendant legally arrested the Plaintiff for shoplifting in Warminster, Bucks County, PA. The defendant handcuffed Plaintiff and placed her in a police vehicle. The Defendant did not seatbelt Plaintiff. The Defendant than drove Plaintiff in the police car. He operated the car very roughly and in a manner which he knew and or should have known was injuring the Plaintiff. He knew and or should have known that Plaintiff was being thrown about and was striking the car. He knew that Plaintiff was complaining and that Plaintiff was being injured and he ignored the complaints and continued to drive in the same manner. This included accelerating and deaccelearating suddenly and or turning suddenly.
Am. Compl. ¶ 4. Plaintiff's Amended Complaint withdrew her previous claims for simple assault and reckless endangerment but reiterated her federal claim for excessive force in violation of the 14th Amendment and 42 U.S.C. § 1983 and her state law claim of negligent operation of a police motor vehicle. Am. Compl. ¶¶ 10-16.
Defendant then filed a Motion to Dismiss Plaintiff's Amended Complaint on February 16, 2010 (Dkt. No. 8 ("Def. 2d Motion to Dismiss")), pressing the same arguments as in its previous Motion to Dismiss with regard to Plaintiff's remaining claims. Plaintiff responded on March 5, 2010 (Dkt. No. 9 ("Pl. Opp.")). Plaintiff and Defendant subsequently filed supplemental briefs as requested by the Court on April 23, 2010 (Dkt. No. 11) and April 26, 2010 (Dkt. No. 12), respectively.
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atl. Corp. v. Twombly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. 544, 555 (2007)). "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." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. See also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).
After Plaintiff sought to plead her § 1983 claim under the 14th Amendment in her original Complaint, Defendant protested that the 14th Amendment does not provide a basis for claiming excessive force during the course of an arrest. See Def. 1st Motion to Dismiss at 5. Plaintiff then amended her Complaint to withdraw two of her state law claims and elaborate upon her factual pleadings as set forth above, but did not otherwise alter her pleadings with regard to her excessive force claim. Am. Compl. ¶¶ 10-12.*fn1 Defendant now seeks again to dismiss Plaintiff's Amended Complaint, arguing anew that Plaintiff's excessive force claim remains improperly pled. See Def. 2d Motion to Dismiss at 4. In response, Plaintiff merely concludes that "a cursory review of the Amended Complaint shows that it clearly asserts a claim against the defendant police officer that he violated Plaintiff's civil rights pursuant to 42 U.S.C. section 1983 by using excessive force;" Plaintiff does not address Defendant's contention that the 14th Amendment cannot sustain Plaintiff's excessive force claim. See Pl. Opp. at 3.
When facts suggest no excessive force outside an arrest, a claim under substantive due process is not facially plausible. See McDonald v. Darby Borough, No. 07-4588, 2008 WL 4461912, at *6 (E.D. Pa. Oct. 2, 2008) (indicating that "any Fourteenth Amendment claim alleging a violation of substantive due process rights must be dismissed"); Zielinski v. City of Easton, No. 09-2812, 2009 WL 3081617, at *4 (E.D. Pa. Sept. 24, 2009) ("To the extent [Plaintiff] has attempted to plead a Fourteenth Amendment claim . . . it will be dismissed. Excessive force claims are [not] actionable ... under the substantive due process clause"); Rice v. District of Columbia, No. 09-310, 2010 WL 2264961, at *5 (D.D.C. June 7, 2010) (dismissing 14th Amendment claim for violation of substantive due process); Btesh v. Maitland, No. 10-71-Orl-19DAB, 2010 WL 883642, at *4 (M.D. Fla. Mar. 5, 2010) (dismissing plaintiff's excessive force claims under the 14th Amendment); Marotta v. Cortez, No. 08-2421, 2009 5491622, at *6 (D. Colo. Nov. 3, 2009) (where plaintiff's claims arose in the context of an arrest and alleged use of force, the ...