The opinion of the court was delivered by: Stengel, J.
Linta G. Bryant, Nikita Reid, individually and on behalf of her minor
son J.B., and Shawn Reid have filed an amended complaint alleging
federal and state law claims against William Vernouski,*fn1
Fred Lamke,*fn2 and Jane Doe. The claims
arise from the shooting death of the Reid family‟s pet dog during the
execution of a bench warrant for Ms. Reid‟s ex-husband, who no longer
lived at the property. Dauphin County Deputy Sheriff William Vernouski
filed a motion to dismiss the amended complaint. For the reasons set
forth below, I will grant the motion in part and deny it in part.
Linta G. Bryant, Nikita Reid, Shawn Reid, and Ms. Reid‟s son J.B. filed a complaint
on February 7, 2011 against Dauphin County Deputy Sheriff William Vernouski. On May 11, 2011, plaintiffs filed an amended complaint against Deputy Vernouski, Fred Lamke, and Jane Doe. Deputy Vernouski filed a motion to dismiss the amended complaint.*fn3
The amended complaint alleges Ms. Bryant owned property at 906 S. 17th Street in Harrisburg, Pennsylvania. Ms. Reid, J.B., and Mr. Reid resided at the property. The Reid family had a pet dog named Bandit.
On May 12, 2009, Deputy Sheriff R.L. Straining and Deputy Vernouski knocked on the door of 906 S. 17th Street. The deputies were there pursuant to a bench warrant for Ms. Reid‟s ex-husband. The bench warrant listed Ms. Reid‟s ex-husband‟s address as the 17th Street address, but the amended complaint alleges he had not resided there since 2002.*fn4 Ms. Reid and J.B. were home and Ms. Reid asked Deputy Straining to wait while she put Bandit into the fenced-in back yard.
While Ms. Reid spoke with Deputy Straining, Deputy Vernouski went to the back of the house. Bandit was at the foot of the backyard steps and barked at Deputy Vernouski when he entered the yard. After twice telling Bandit not to bark, Deputy Vernouski shot Bandit, who was ten feet away. J.B. witnessed the shooting. After Bandit was taken to the veterinarian, he was put down.
Ms. Reid told her co-worker about the incident. Her co-worker emailed Dauphin County Commissioner George Hartwick to advise him of the situation and to request assistance. The co-worker emailed Commissioner Hartwick a second time to inform him that Ms. Reid "decided to pursue further action with a legal professional to help her fight the battle." Ms. Reid learned that Mr. Hartwick called "defendant Marsico,"*fn5 and was expecting a return call from him. Ms. Reid also contacted Harrisburg Police Chief Charles Kellar. Chief Kellar promised to help her, but failed to follow-up.
On June 5, 2009, Ms. Bryant, the owner of the home, was charged with a violation of the dog laws for allowing Bandit to escape and attack Deputy Vernouski. Fred Lamke, a law enforcement officer and plaintiffs‟ next-door neighbor, was the affiant on the citation. Mr. Lamke had received orders from his supervisor, "Jane Doe," to file a citation against Ms. Bryant. At a June 2009 hearing, the charges against Ms. Bryant were dismissed because Mr. Lamke did not appear to testify.
The amended complaint alleges Deputy Vernouski violated plaintiffs‟ First, Fourth, and Fourteenth Amendment rights, Mr. Lamke and Jane Doe violated the plaintiffs‟ First Amendment rights, Mr. Lamke and Jane Doe are liable for malicious prosecution pursuant to the Fourth Amendment and Pennsylvania state law. The amended complaint also contains allegations of a conspiracy claim and an intentional infliction of emotional distress claim.
Deputy Vernouski filed a motion to dismiss the amended complaint, and plaintiffs filed a response.
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 Acomplaint 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).
In Fowler, 578 F.3d at 210, the United States Court of Appeals for the Third Circuit provided a two-part test to determine whether a claim survives a motion to dismiss. AFirst, 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). ASecond, 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 Athe allegations of his or her complaints are plausible.@ Fowler, 578 F.3d at 211 (quoting Phillips, 515 F.3d at 234-35). AWhere the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedBbut it has not >show[n]=B>that the pleader is entitled to relief.=@ Id. ...