The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is defendants' Partial Motion to Dismiss filed on behalf of defendants Samuel Nassan and the Pennsylvania State Police. Plaintiff, who originally brought this § 1983 lawsuit in the Court of Common Pleas for Allegheny County, contended that these defendants violated his Fourth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983. See doc. no. 1-1, ¶¶ 27, 36, 45, 53, 59. Plaintiff also asserted a claim for battery against the individually named defendant Nassan. Id., ¶¶ 21-25.
After removing the case to this Court, defendants filed this Partial Motion to Dismiss suggesting that certain claims asserted against defendants Nassan and the Pennsylvania State Police should be dismissed. For the reasons set forth in greater detail below, the court will grant in part and deny in part the defendants' partial motion to dismiss.
In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds on which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
To survive a motion to dismiss, plaintiff must allege sufficient facts that, if accepted as true, state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 at 570)). A claim has facial plausibility when a plaintiff pleads facts that allow the court to draw the reasonable inference that the defendant may be liable for the misconduct alleged. Id. at 1949. However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Therefore, when deciding a motion to dismiss under Rule 12(b)(6), we apply the following rules. The facts alleged in the complaint, but not the legal conclusions, must be taken as true and all reasonable inferences must be drawn in favor of plaintiff. Iqbal, 129 S.Ct. at 1949; Twombly, 550 U.S. at 555. We may not dismiss a complaint merely because it appears unlikely or improbable that plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 556, 563 n.8. Instead, we must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. In short, the motion to dismiss should not be granted if plaintiff alleges facts which could, if established at trial, entitle him to relief. Id. at 563 n.8.
It is on this standard that the Court has reviewed defendants' Motion. Each of defendants' five basis for a partial dismissal will be discussed seriatim.
A. Plaintiff's Battery Claim and Defendant's Sovereign Immunity (Count I)
Defendant Nassan contends that 1 Pa.C.S.A. §2310 provides sovereign immunity for Commonwealth employees such as himself. Although there are nine (9) exceptions to this immunity defense, battery is not among them. However, the plaintiff's complaint impliedly suggests that the actions constituting a battery taken by defendant Nassan removed him from his scope of employment as a Commonwealth employee and thus, from the protection of sovereign immunity as codified by 1 Pa.C.S.A. §2310.
This Court takes note that the conduct of an employee is within the scope of employment only if: (1) it is of a kind that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is calculated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, it is not unexpected by the employer. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000), citing Restatement (Second) Agency § 228. This Court also notes that in Revak v. Lieberum, 2008 WL 4858291 (W.D. Pa., 2008), the Court determined that plaintiff's complaint specifically and repeatedly alleged that the individual defendant acted outside the scope of his employment and thus, plaintiff's battery claim survived a motion to dismiss.
Given that plaintiff's complaint in this case merely implies that defendant was acting outside the scope of his employment (see doc. no. 1-1, ¶22) and based on the above-cited law, we will grant defendant's motion as to this claim, but will allow ...