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Kelly M. Schor v. North Braddock Borough; North Braddock Borough Police Department

July 12, 2011

KELLY M. SCHOR, PLAINTIFF,
v.
NORTH BRADDOCK BOROUGH; NORTH BRADDOCK BOROUGH POLICE DEPARTMENT; BOARD OF SUPERVISORS OF NORTH BRADDOCK BOROUGH; DEAN BAZZONE, INDIVIDUALLY AND AS CHIEF OF POLICE OF NORTH BRADDOCK BOROUGH; AND MAX WITTLINGER, INDIVIDUALLY AND/OR AS POLICE OFFICER OF NORTH BRADDOCK BOROUGH, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Pending before the Court are DEFENDANTS‟ PARTIAL MOTION TO DISMISS

COMPLAINT PURSUANT TO RULE 12(b)(6) (Document No. 6) with brief in support (Document No. 7), and Plaintiff‟s MEMORANDUM IN OPPOSITION TO DEFENDANTS‟ PARTIAL MOTION TO DISMISS COMPLAINT PURSUANT TO RULE 12(b)(6) (Document No. 10). Accordingly, the motion is now fully briefed and ripe for disposition.

II. Background

As the law requires, all disputed facts and inferences are resolved in favor of Plaintiff, the non-moving party. The following background is drawn from the Complaint and the factual allegations therein are accepted as true for the purpose of this Opinion.

The instant case arises from an event which occurred on or about October 14, 2010, in a residential area near 833 Locust Street, North Braddock Borough, Pennsylvania, 15124. (Compl. at ¶ 9). Sadie, a six (6) year old brown pit bull dog and family pet with no history of biting or attacking, was owned by Plaintiff, Kelly M. Schor. (Compl. at ¶ 10). At approximately 2:00 or 2:15 p.m., Sadie got out of Plaintiff‟s home and jumped the fence surrounding Plaintiff‟s yard. (Compl. at ¶¶ 10-11). After running down the street, Sadie encountered a male in his thirties who was walking down the sidewalk listening to his headphones. (Compl. at ¶ 12). Sadie circled the man, never barking or growling. (Compl. at ¶ 12). Sadie subsequently ran into a wooded area in the direction of Locust Street. (Compl. at ¶ 12-13). Upon reaching Locust Street, Sadie ran towards a dead end where a group of tree cutters were working. (Compl. at ¶ 15.). One of the tree cutters stopped working to pet Sadie. (Compl. at ¶ 15).

Upon realizing that Sadie had escaped, Plaintiff and her sister pursued Sadie onto Locust Street. (Compl. at ¶ 14). At about that same time, Defendant, Officer Max Wittlinger of the North Braddock Borough Police Department, who was completing his 7:00 a.m. to 3:00 p.m. shift, received a dispatch regarding a loose brown pit bull. (Compl. at ¶ 16). Officer Wittlinger was the first to arrive at 833 Locust Street, and was soon joined by Patrolman Joseph Brown. (Compl. at ¶ 17). At this time, Sadie reappeared on Locust Street with Plaintiff and her sister running towards her. (Compl. at ¶ 18).

Plaintiff‟s sister yelled "that‟s our dog," to Officer Wittlinger two or three times, with no response from Officer Wittlinger. (Compl. at ¶ 19). Officer Wittlinger subsequently pulled out his gun. (Compl. at ¶ 19). Patrolman Brown was a short distance behind Officer Wittlinger, and Plaintiff and her sister were approaching Sadie from Officer Wittlinger‟s left. (Compl. at ¶ 19). Sadie displayed no signs of aggression. (Compl. at ¶ 20). She did not growl, bark, or snarl, and at no time during the encounter did Sadie attack Officer Wittlinger. (Compl. at ¶ 20, 23). However, Officer Wittlinger discharged four rounds into Sadie, killing her while Plaintiff and her sister were ten (10) to fifteen (15) feet away from Sadie, attempting to retrieve her. (Compl. at ¶ 24).

After Sadie was killed, one of the tree cutters that Sadie had approached earlier yelled to Officer Wittlinger, "why did you shoot [Sadie]?" (Compl. at ¶ 27). Patrolman Brown responded, telling the tree cutter that if he did not disburse, he would be cited for inciting a riot. (Compl. at ¶ 27).

The Complaint reflects that Officer Wittlinger had previous encounters with dogs similar to the instant incident. Specifically, six months prior to the instant event, Officer Wittlinger shot another pit bull (Compl. at ¶ 28), putting the Borough on notice in regard to Officer Wittlinger‟s violent propensities toward dogs. (Compl. at ¶ 29). However, Officer Wittlinger was never disciplined in any way for this prior shooting. (Compl. at ¶ 30). Plaintiff also contends that Officer Wittlinger unreasonably delayed the preparation of the police report of the incident (Compl. at ¶ 31), which alleged a number of false statements such as Officer Wittlinger had yelled out a number of times prior to his shooting of Sadie and that she had acted aggressively towards him. (Compl. at ¶ 32).

Plaintiff originally filed her twelve count complaint in the Court of Common Pleas of Allegheny County on February 22, 2011, with four counts alleging claims under federal law against all Defendants. The remaining eight counts allege claims under various theories of Pennsylvania statutory and common law, three of which are alleged solely against Defendant Officer Wittlinger, with the others being alleged against all of the Defendants collectively. On March 25, 2011, Defendants removed the action to this Court. See Doc. No. 1.

III. Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiency of the complaint. The United States Supreme Court has held that "[a] plaintiff‟s obligation to provide the "grounds‟ of his "entitle[ment] to relief‟ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (207) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alterations in original).

The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Twombly, the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that only a complaint that states a plausibleclaim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (emphasis added).

Thus, after Iqbal, a district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the Court must separate the factual and legal elements of the claim. Id. Although the Court "must accept all of the complaint‟s well-pleaded facts as true, [it] may disregard any legal conclusions." Id. at 210-211. Second, the Court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟ In other words, a complaint must do more than allege the plaintiff‟s entitlement to relief. A complaint has to "show‟ such an entitlement with its facts." Id. at 211 (citing Iqbal 129 S. Ct. at 1949). The determination for "plausibility" will be ""a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.‟" Id. at 211 (quoting Iqbal 129 S. Ct. at 1950).

As a result, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Id. at 211. That is, "all civil complaints must now set out "sufficient factual matter‟ to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‟" Id. at 210 (quoting Iqbal, 129 S. Ct. at 1948).

However, nothing in Twombly or Iqbal changed the other pleading standards for a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and the requirements of Fed. R. Civ. P. 8 must still be met. See Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations omitted). Fed. R. Civ. P. 8 requires a showing, rather than a blanket assertion, of entitlement to relief, and "contemplates the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader‟s bare averment that he wants relief and is entitled to it." Twombly, 550 U.S. at 555 n.3 (internal citations and quotations omitted). Additionally, the Supreme Court did not abolish the Fed. R. Civ. P. 12(b)(6) requirement that "the facts must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on those merits." Phillips, 515 F.3d at 231(citing Twombly, 550 U.S. at 553).

IV. Legal Analysis

Defendants‟ partial motion to dismiss presents a number of challenges to the counts raised in Plaintiff‟s complaint; challenges that range from contending that certain Defendants should be dismissed outright to challenges reducing the capacity in which certain counts are brought. See Doc. Nos. 6 & 7. More specifically, Defendants contend that the counts raised within the complaint fail as a matter of law, to the extent that Plaintiff alleges: (1) claims against the Borough (2) claims against the Borough Police Department (Defs‟. Mot. at ¶ 6); (3) official capacity claims against the Board of Supervisors, Chief of Police Bazzone, and Officer Wittlinger (Defs‟. Mot. at ¶ 5); (4) individual capacity claims against Chief Bazzone (Defs‟. Mot. at ¶ 6); (5) substantive due process claims (Defs‟. Mot. at ¶ 3); (6) procedural due process claims (Defs‟. Mot. at ¶ 3); (7) excessive force claims (Defs‟. Mot. at ¶ 4); (8) punitive damages claims (Defs‟. Mot. at ¶ 7); and (9) all state negligence claims (Defs‟. Mot. at ¶ 7). The Court will address each of these claims seriatim.

A. Counts III -- VI: Federal Claims Against All Defendants

The Court begins the analysis with the claims brought under federal law. At counts III, IV, V, and VI, Plaintiff brings section 1983 claims, each of which are alleged against all Defendants. Generally, 42 U.S.C. § 1983 does not create substantive rights, but rather provides a remedy for a violation of rights created by federal law or the Constitution of the United States.

42 U.S.C. § 1983; City of Okl. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...

To establish a Section 1983 claim, a plaintiff "must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation [violation of a right] was committed by a person acting under the color ...


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