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Victoria Geist, Mother and Natural v. Jason Ammary

December 20, 2012

VICTORIA GEIST, MOTHER AND NATURAL GUARDIAN OF KESHANA WILSON, A MINOR, PLAINTIFF,
v.
JASON AMMARY, ET AL., DEFENDANTS.



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

MEMORANDUM

This is a § 1983 action against a police officer and the City of Allentown brought by Victoria Geist on behalf of her daughter, Keshana Wilson. Much of the incident was caught on a security tape. The Defendant has filed a motion to dismiss each of the four claims in the complaint. I will grant the motion in part and deny it in part for the reasons set forth in this memorandum.

I.Background

Victoria Geist is the mother of Keshana Wilson, who was fourteen years old at the time of the alleged incident and attended Dieruff High School in Allentown, PA. (Compl. at ¶¶ 2, 8). According to the complaint,*fn1 on Thursday, September 29, 2011, after the students at Dieruff High were dismissed for the day, Defendant Jason Ammary grabbed Ms. Wilson from behind and twisted her around without identifying himself as a police officer. (Compl. at ¶ 8). Officer Ammary allegedly physically abused Ms. Wilson and made racial slurs during the incident. He apparently did not seize or touch the two white companions, who were walking with Ms. Wilson.*fn2 (Compl. at ¶¶ 7, 9 B, G, L).

The excessive force claim concerns Ammary intentionally firing a Taser at Ms. Wilson. (Compl. at ¶ 9 F, 29-30). After she was hit in the groin, Ms. Wilson fell to the ground and attempted to roll on her side to keep from pressing the Taser barbs further into her abdomen and pelvic area. (Doc. No. 1 at ¶ 9 G-K). Defendant forced Ms. Wilson to lie on her stomach and handcuffed her, which pushed the Taser barbs further into her body causing additional pain. Id. Ms. Wilson was then transported to the hospital to have the barbs removed. (Doc. No. 1 at ¶¶ 9 L, 11).

Plaintiff alleges the initial stop was unconstitutional and without probable cause. (Compl. at ¶¶ 13-15).*fn3 She also claims the Defendant filed a false report that embellished the circumstances surrounding the incident. (Compl. at ¶¶ 20-22).*fn4 Apparently, this report was later "impeached" by a video tape. (Compl. at ¶ 32).*fn5 The complaint alleges a Monell claim against the City of Allentown for failure to control a "rogue officer," for providing a Taser to an unqualified officer and for failure to train officers concerning the safe use of Tasers. (Doc. No. 1 at ¶¶ 38-39). The Complaint alleges that the City was on notice that the Defendant was a rogue officer. (Doc. No. 1 at ¶ 41). Ms. Wilson alleges that she suffered pain, emotional distress, and humiliation. (Doc. No. 1 at ¶ 16).

II.Standard

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint.*fn6 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 County 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 she bases her 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 School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). 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. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).

"In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 222 (3d Cir. N.J. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

III.Discussion

This is a §1983 civil rights claim.*fn7 To prevail in an action under § 1983, a plaintiff must demonstrate: (1) a violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). "Action under color of state law 'requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998)).

A. Count I: No Probable Cause to Initiate Police Contact or False Arrest Ms. Wilson was cited for a summary offense and was adjudicated delinquent on a charge of failure to disperse.*fn8 She contends that Defendant Ammary embellished the facts supporting the arrest, for which he had no probable cause, in order to justify his use of the Taser.*fn9

Plaintiff's many collateral arguments dodge the question of whether this was a valid arrest.*fn10 She contends the Defendants breached the "confidentiality" of juvenile proceedings by referring to Ms. Wilson's adjudications in their pleadings. She asserts that an adjudication ...


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