The opinion of the court was delivered by: Stengel, J.
A car driven by Kevin Messinger struck a car driven by Daniel LaBar's wife, Jolene LaBar. Mrs. LaBar died at the scene. Mr. Messinger was being pursued by police officers from Palmer Township and Wilson Borough, who suspected Mr. Messinger of stealing a vacuum cleaner. Mr. Messinger, and the police cars chasing him, were traveling the wrong way on United States Route 22.
Mr. LaBar has filed twelve counts alleging federal constitutional violations, state constitutional violations, and state law causes of action against various municipal authorities from both Palmer Township and Wilson Township, the police departments and officials, and the police officers involved in the chase.
On December 4, 2009, Palmer Township, David Colver, Robert A. Lammi, K. Michael Mitchell, Ann-Marie Panella, Robert E. Smith, Bruce Fretz, James T. Alercia, Keith Border, Thomas Vogal, and Steven Steckel filed a partial motion to dismiss.*fn1 On May 7, 2010, the Borough of Wilson, Chief Richard Nace, Mayor David Purusso, Karen Lohrman, Officer Michael Potope, and John Does 1-10 filed a partial motion to dismiss.*fn2
On August 27, 2010, oral argument on the motions to dismiss was heard.*fn3 For the reasons set forth below, I will grant the motions to dismiss.
Daniel LaBar's pregnant wife, Jolene LaBar, was traveling home from work eastbound on United States Route 22.*fn4 At the same time, three police cars driven by Officer James T. Alercia, Officer Keith Borden, and Officer Thomas Vogel were in pursuit of Keven Messinger, who they suspected of stealing a vacuum cleaner. See Complaint at ¶¶ 24, 27, 29. Mr. Messinger merged onto the eastbound lanes of Route 22. Id. at ¶ 24. Mr. Messinger, however, was driving in the wrong direction. Id. The police cars followed Mr. Messinger onto the eastbound lanes of Route 22, also driving in the wrong direction. Id. at ¶ 28. During the police chase, Mr. Messinger attempted to exit Route 22. Id. at ¶ 56. Officers from both Palmer Township and Wilson Borough, however, blocked the exit. Id. Officer Michael Potope of Wilson Borough and another unidentified Wilson Borough police officer chased Mr. Messinger back onto Route 22. Id. at ¶ 58. Mr. Messinger continued his flight in the wrong direction on Route 22. Id. at ¶ 59. The chase ended when Mr. Messinger's car struck Mrs. LaBar's car. See Complaint at ¶ 59. Mrs. LaBar died from the injuries she sustained. Id. at ¶ 62.
Mr. LaBar alleges both Palmer and Wilson Police departments had a policy or practice of "Emergency Response Driving -- High Speed Motor Vehicle Pursuit." See Complaint at ¶ 64. This policy or practice addressed when officers may engage in high speed pursuit chases and required an evaluation of whether the value of the apprehension of a suspect outweighs the level of danger created by the pursuit. Id. at ¶ 65. In addition, he alleges the police officers were not adequately trained with respect to high speed chases. Id. at ¶ 69.
Mr. LaBar raises twelve counts alleging: (1) a section 1983 claim against all defendants; (2) a section 1983 claim against all defendants based on the Fourth Amendment and on the Fourteenth Amendment; (3) a section 1983 claim based on supervisory liability against the individual defendants; (4) a section 1983 claim based on municipal liability against the Township of Palmer; (5) a section 1983 claim based on municipal liability against the Borough of Wilson; (6) state constitutional claims against all defendants; (7) an assault and battery claim against defendants Officer Alercia, Officer Border, Officer Vogel, Officer Potope, and John Does 1-10; (8) a section 1983 civil conspiracy claim against all defendants; (9) a section 1983 non-supervisory failure to intervene claim against Officer Potope and John Doe officers 1-10; (10) a section 1983 wrongful death claim against all defendants; (11) a section 1983 survival action against all defendants; and (12) a loss of consortium claim against all defendants.
The Palmer defendants' motion to dismiss seeks dismissal of all counts against the Palmer Township Board of Supervisors Mr. Colver, Mr. Lammi, Mr. Mitchell, AnnMarie Panella, and Mr. Smith and dismissal of count I, count II, count III, count VI, count VII, count VIII, and count XII. The Wilson defendants' motion to dismiss seeks dismissal of count I, count II, count III, count VI, count VII, count VIII, count IX, and count XII.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty. Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Se. Pa. Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
Fowler, 578 F.3d at 210, provides a two-part test to determine whether a claim survives a motion to dismiss. "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1949). "Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. (quoting Iqbal, 129 S.Ct. at 1950). The plaintiff must show "the allegations of his or her complaints are plausible." Fowler, 578 F.3d at 211 (quoting Phillips, 515 F.3d at 234-35). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. (quoting Iqbal, 129 S.Ct. at 1949). This "'plausibility' determination will be 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Fowler, 578 F.3d at 211 (quoting Iqbal, 129 S.Ct. at 1949).
A. Count I -- Violation of § 1983
The Wilson Borough defendants allege count I of Mr. LaBar's complaint should be dismissed because 42 U.S.C. § 1983 does not establish an independent cause of action.*fn5
Count I of the complaint incorporates the proceeding paragraphs and states "[w]hile acting under the color of [s]tate [l]aw, the defendants deprived [p]laintiff's deceased wife of various Federal and Constitutional Rights." Complaint at ¶ 77. The count does not delineate the specific federal or constitutional right violated.
I will grant the Wilson defendants' motion to dismiss count I. Although the Palmer defendants did not raise this argument, count I also will be dismissed as to the Palmer defendants because it does not specify the constitutional right violated.
B. Count II -- Fourth Amendment and Fourteenth Amendment
Count II alleges the officers' conduct "was willful, reckless, grossly negligent, deliberately indifferent to the life and safety of [Mr. LaBar's] deceased wife and/or shocking to the conscience." Complaint at ¶ 80. The complaint alleges the conduct violated the Fourth and Fourteenth Amendments to the United States Constitution and Mr. LaBar's wife's "right to personal security, to life and liberty, and to be free from arbitrary government action which demonstrates a deliberate indifference to [her] life and which shocks the conscience." It alleges Mr. LaBar's wife was injured as a result of the conduct.
The Palmer defendants and Wilson defendants challenge this count on two grounds: (1) no seizure occurred pursuant to the Fourth Amendment and (2) Mr. LaBar failed to state a claim pursuant to the Fourteenth Amendment.
The Fourth Amendment only applies to searches and seizures. "A person is seized for Fourth Amendment purposes only if he is detained by means intentionally applied to terminate his freedom of movement. A seizure occurs even when an unintended person is the object of detention, so long as the means of detention are intentionally applied to that person." Berg v. Cnty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989)). "[I]f a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure." Id. If, however, ...