The opinion of the court was delivered by: Judge Conaboy
Here we consider the Motion to Dismiss of Defendant, Police Officer Thomas Jenkins. (Doc. 7.) Defendant Jenkins ("Defendant") filed his motion on June 8, 2012, accompanied by a supporting brief (Doc. 8). Plaintiffs John and Alice Audi ("Plaintiffs") filed their opposition brief on June 25, 2012. (Doc. 13.) Defendant did not file a reply brief, and the time for doing so has passed. Therefore, this motion is ripe for disposition. For the reasons discussed below, we conclude Defendant's motion is properly granted in part and denied in part.
The incident giving rise to this action occurred on July 21, 2011, when Plaintiffs traveled to their home in Moosic, Pennsylvania, from their son's home in Yatesville, Pennsylvania. (Doc. 1 ¶ 10.) Mr. Audi was driving and Ms. Audi was a passenger. (Doc. 1 ¶¶ 10-11.) At the time Mr. Audi was eighty-six years old and Ms. Audi was eighty-four years old. (Doc. 1 ¶¶ 13-14.) Ms. Audi is (and was at the relevant time) legally blind due to macular degeneration and also suffers from arthritis, coronary artery disease, and impaired mobility. (Doc. 1 ¶¶ 15-16.) Mr. Audi has a hearing impairment. (Doc. 1 ¶ 16.)
At about 6:30 p.m. on July 21, 2011, Plaintiffs entered Wylam Avenue en route to their house. (Doc. 1 ¶ 17.) As he entered the last block before his house, Mr. Audi noticed a police vehicle following him with its lights on. (Doc. 1 ¶ 18.) He pulled over to the curb in front of his house, and the police vehicle operated by Defendant pulled to a stop nearby. (Doc. 1 ¶¶ 19-21.) While Ms. Audi remained in the car, Mr. Audi got out and approached the police vehicle where Defendant was seated in the driver's seat with the door and window open. (Doc. 1 ¶¶ 22-24.) When asked whether there was a problem, Defendant replied that Mr. Audi had gone through a stop sign. (Doc. 1 ¶¶ 25-26.) Mr. Audi responded that he did not think he had gone through the stop sign. He also told Defendant that his daughter's funeral had been the day before and he was not feeling well. (Doc. 1 ¶¶ 27-28.) When Mr. Audi could not hear Defendant's response, he moved closer to the police vehicle and put his head to Defendant's open car window. (Doc. 1 ¶ 29.) Defendant then exited his vehicle, pushing Mr. Audi away and "screamed at him" that if he put his head inside the car again, he would be handcuffed. (Doc. 1 ¶ 30.) Mr. Audi then gave Defendant his license and went into his house to use the bathroom. (Doc. 1 ¶ 31.)
Ms. Audi then exited the car to speak with Defendant. (Doc. 1 ¶ 32.) Officer Jenkins put his hand on her right arm and pushed her back, reportedly causing Ms. Audi to lose her balance and "nearly" fall. (Doc. 1 ¶ 33.)
At this time, another Moosic police vehicle arrived and Defendant left the scene. (Doc. 1 ¶ 34.) The officers in the second vehicle returned Mr. Audi's license and gave him a moving violation citation. (Doc. 1 § 35.)
In the following days, Mr. Audi recognized Defendant as he circled Plaintiffs' house in a police vehicle on several occasions, slowing down as he went by. (Doc. 1 ¶¶ 36-38.)
Based on these asserted facts, Plaintiffs filed a six-count complaint in this Court. In Counts I and II, Plaintiffs allege that Defendant violated their civil rights, claiming a 42 U.S.C. § 1983 violation grounded in the averment that Defendant's use of unreasonable and excessive force constituted an unreasonable seizure under the Fourth and Fourteenth Amendments to the United States Constitution. (Doc. 1 at 6-9.) Counts III and IV contain state law claims for Assault and Battery. (Doc. 1 at 9-11.) Counts V and VI contain state law claims for Intentional Infliction of Emotional Distress. (Doc. 1 at 11-13.)
Defendant asserts that dismissal of this case is proper because Plaintiffs have failed to state a claim upon which relief may be granted. (Doc. 8.) For the reasons discussed below, we agree that some claims are subject to dismissal and others must be allowed to proceed.
A. Motion to Dismiss Standard
In a motion to dismiss for failure to state a claim, the defendant bears the burden of showing that no claim has been presented. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). When reviewing a complaint pursuant to a defendant's motion to dismiss for failure to state a claim filed under Federal Rule of Civil Procedure 12(b)(6), the court does so in the context of the requirement of Federal Rule of Civil Procedure 8(a)(2) which requires only "a short and plain statement of the claims showing that the pleader is entitled to relief." The "short and plain statement" must be sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated on other grounds by Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007). Twombly confirmed that more is required than "labels and conclusion, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation")). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." 550 U.S. at 555 (citations omitted).
In McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009), the Third Circuit Court of Appeals set out the standard applicable to a motion to dismiss in light of the United States Supreme Court's decisions in Twombly, 550 U.S. 433 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009).
"[T]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state a claim that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). The Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. Moreover, it continued, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted).
McTernan, 577 F.3d at 530. The Circuit Court discussed the effects of Twombly and Iqbal in detail and provided a road map for district courts presented with a motion to dismiss for failure to state a claim in a case filed just a week before McTernan, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).
[D]istrict courts should conduct a two-part analysis. 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. [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. at 1950. In other words, a complaint must do more than allege a plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Philips [v. Co. of Alleghany], 515 F.3d [224,] 234-35 [(3d Cir.2008 )]. As the Supreme Court instructed in Iqbal, "[w]here 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 ...