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Victoria Geist, Mother and Natural v. Jason Ammary


December 20, 2012


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


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.


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).


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)).


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 is not a conviction and would not "estop" the claim of false arrest.*fn11

She even ventures to challenge the constitutionally of the statute in question as "void for vagueness."*fn12

I will grant Defendants' Motion to Dismiss Plaintiff's false arrest claim. Ms. Wilson's conviction is dispositive.*fn13 To maintain a false arrest claim, a plaintiff must show that the arresting officers lacked probable cause to make the arrest. Probable cause is "defined in terms of facts and circumstances 'sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.'" Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Sharrar v. Felsing, 128 F.3d 810, 817 (3d Cir. 1997). Probable cause need only exist as to any offense that could be charged under the circumstances. Graham v. Connor, 490 U.S. 386, 393, n.6, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Pennsylvania follows the Restatement of Torts § 667(1) position that probable cause is conclusively established where there is a guilty plea or conviction, even if later overturned. Tarlecki v. Mercy Fitzgerald Hosp., No. 01-1347, 2002 U.S. Dist. LEXIS 12937 at 11, 2002 WL 1565568 (E.D. Pa. 2002) (citing McGriff v. Vidovich, 699 A.2d 797, 799-800 (Pa. Commw. Ct. 1997)). Probable cause in the context of a § 1983 unlawful arrest claim is conclusively established by the Plaintiff's guilty plea or conviction, although not where the conviction is later overturned. Howard v. Yock, No. 97-3102, 1998 U.S. Dist. LEXIS 6741 at 5, 1998 WL 227226 (E.D. Pa. 1998); Montgomery v. De Simone, 159 F.3d 120, 125 (3d Cir. 1998) (holding that the Restatement approach to probable cause contravenes the policies of the Civil Rights Act where the underlying conviction has since been overturned).

Ms. Wilson was adjudicated delinquent on the charged conduct giving rise to the arrest. This alone is sufficient to show that the officer had "some reasonable basis to believe [she] had committed a crime." Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994). Therefore, the arrest is justified as being made with probable cause, and I will grant the motion to dismiss as to the count of false arrest. Id. See also Lynn v. Schertzberg, 169 Fed. Appx. 666, 670 (3d Cir. Pa. 2006) (Plaintiff's false arrest and false imprisonment claims must fail because he was convicted of the charge against him).

B. Count II: Retaliatory Filing of Charges

Plaintiff claims that Defendant Ammary attempted to cover up his use of the Taser by "filing unfounded and additional charges" against Ms. Wilson. (Compl. at ¶¶ 20-21). Plaintiff alleges that these charges were filed without probable cause in violation of the Fourth and Fourteenth Amendment.*fn14 (Compl. at ¶ 25).

Plaintiff relies on the case Vasquez v. Hillery, 474 U.S. 254 (1986) for the proposition that the claim of retaliatory filing of felony-like charges does exist. In Vasquez, the defendant was previously convicted of first-degree murder. After numerous appeals and a habeas petition, the United States Supreme Court held that where there was a systematic exclusion of blacks from the indicting grand jury, the theory that the accused's conviction after a fair trial purged any taint attributable to the indictment process could not be sustained. Vasquez, 474 U.S. at 257-66. The Court also discussed the effect of discriminatory composition of a grand jury on a habeas petition. Id. Plaintiff cites this case for the broad proposition that "an impermissible and unconstitutional procedure would not be condoned by the subsequent conviction in criminal court." (Doc. No. 19 at 21).

Vasquez was a habeas petition, involving a challenge to the all-white composition of a grand jury. Here, Plaintiff is challenging the "unsupported charges" allegedly filed as a cover-up for Defendant Ammary's behavior. The fact that Ms. Wilson was found delinquent on the four charges suggests the claims were well-supported and demonstrates a sufficient basis for the filing of the "felony-like" charges. Vasquez does not support a claim that a cause of action for retaliatory filing of felony-like charges exists. Plaintiff has cited no case indicating that any court has ever recognized such a cause of action. Count II will be dismissed.

C. Count III: Excessive Use of Force

Plaintiff claims that Defendant Ammary violated Ms. Wilson's Fourth, Fourteenth and Eighth Amendment rights by his excessive use of force.*fn15 Plaintiff alleges that the use of the Taser on a fourteen-year-old girl during an arrest, as well as Officer Ammary's decision as to where to shoot the Taser is evidence that the force was "excessive." Here, the Defendants do not dispute that the arrest was a seizure; rather, they argue that Officer Ammary did not, as a matter of law, use an unreasonable amount of force to effect that seizure. The Defendant argues that the use of a Taser was objectively reasonable as a matter of law because Ms. Wilson was charged and found delinquent on the charge of resisting arrest, which automatically warrants the use of force. (Doc. No. 8 at 5*fn16 ).

Defendant also disputes any injury. Id.

Use of excessive force by a law enforcement officer is considered a "seizure" under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985). The test is an objective one, which scrutinizes the reasonableness of the challenged conduct. Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004). The facts to be examined include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Other considerations may include "the possibility that the persons subject to the police action are violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time." Id. Reasonableness is to be evaluated from the "perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id.; Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).

The application of a Taser may be a reasonable use of force. Woods v. Grant, 665 F.Supp.2d 438, 445 (D.Del. 2009). Taser cases within the Third Circuit do not establish bright-line rules of law, but rather reflect the fact-sensitive nature of any determination of reasonableness of the use of a Taser on a person. See Reiff v. Marks, 2011 U.S. Dist. LEXIS 18205 (E.D. Pa. Feb. 23, 2011). In cases dealing with Taser use, the deployment was generally deemed reasonable where the use was necessary to overcome a suspect's resistance to arrest because the Plaintiff attempted to flee, appeared to threaten officer safety, or was either armed or suspected to be armed. Id. at 19-20, n. 97.

Plaintiff points to several facts to consider in determining whether the complaint is sufficient to state a cause of action against Defendants including: 1) Ms. Wilson's age; 2) the fact that Officer Ammary grabbed Ms. Wilson from behind; and 3) Ms. Wilson's reactive flailing as opposed to intentional striking. Plaintiff also argues that Ms. Wilson surrendered any alleged resistance when she saw the Taser and, in fact, put her hands over her head.

Ms. Wilson was adjudicated delinquent on the charge of resisting arrest. This adjudication means the officer was justified in using "substantial force."*fn17 Lora-Pena v. F.B.I., 529 F.3d 503, 506 (3d Cir. 2008) ("Under Pennsylvania law, to convict the plaintiff [of resisting arrest], the jury had to find that the officer involved was justified in using substantial force."). Even though Officer Ammary had probable cause to arrest Ms. Wilson, he was still constrained to use only the level of force which was reasonable to bring Ms. Wilson into custody. The fact that Ms. Wilson was acting in an unruly manner factors into the totality of the circumstances. Her behavior may have justified a greater use of force than would have been reasonable had Ms. Wilson been cooperative. However, Ms. Wilson's behavior does not dispense with the reasonableness requirement altogether. See e.g., Green v. N.J. State Police, 246 Fed. Appx. 158 (3d Cir. 2007) (finding that Plaintiff's admission that during the struggle he came "in contact either by striking or kicking two of the officers," would not, as a matter of logic, necessarily conflict with a finding of excessive force); Gibson v. Mueller, 2012 U.S. Dist. LEXIS 44853 (D.N.J. Mar. 29, 2012) (finding that even where certain facts as alleged in Plaintiff's § 1983 claim contradict facts found in support of Plaintiff's state court conviction, they do not necessarily undermine Plaintiff's allegation in the § 1983 case that the officers used unreasonable force). Likewise, the absence of physical injury does not necessarily signify that the force has not been excessive. Rather, it is simply one of the circumstances to be considered under the objective reasonableness standard. Gulley v. Elizabeth City Police Dep't, 340 Fed. Appx. 108, 110 (3d Cir. 2009).

Notably, the video tape I considered in my analysis contains gaps in the recording.

Although the Court will not make inferences in Plaintiff's favor that are contradicted by the videotape, there is a notable gap, among others, at the outset of the contact between Ms. Wilson and Officer Ammary. Given the facts in the Complaint and the lack of evidence pertaining to the initial contact between Ms. Wilson and Defendant Ammary, I cannot conclude on a motion to dismiss, that Defendant Ammary's actions were objectively reasonable under the circumstances. However, in order to ultimately succeed on the excessive force claim, the Plaintiff must show that the officer's actions were unreasonable in light of the circumstances of the arrest. See Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir. 2004).

D. Count IV: Failure to Control a Rogue Officer

The Supreme Court determined in Monell v. New York City Department of Social Services, 436 U.S. 658, 692 (1978), that a municipality or other local government may be subject to liability under § 1983. But local governments "are responsible only for their own illegal acts"; they cannot be held vicariously liable under § 1983 for their employees' actions. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011). Therefore, to establish municipal liability under § 1983, a plaintiff must prove that "action pursuant to official municipal policy" caused her injury. Monell, 436 U.S. at 691. "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 131 S. Ct. at 1359.

In limited circumstances, a supervisor can be liable under § 1983 in his or her individual capacity for failure to train.*fn18 City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989).*fn19 Under this theory of liability, the plaintiff must show that the alleged "failure to train amounts to deliberate indifference to the rights of persons with whom the [untrained persons] come into contact." Id. at 388; Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989) (policymakers may be liable under § 1983 if they, with "deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm"). However, "[t]he scope of failure to train liability is a narrow one." Brown v. Muhlenberg Tp., 269 F.3d 205, 215 (3d Cir. 2001).

The Plaintiff must do more than argue that the "constitutionally cognizable injury would not have occurred if the superior had done more than he or she did." Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). The Plaintiff must specifically identify what the superior failed to do that shows his or her deliberate indifference. Id. "Only in the context of a specific defalcation on the part of the supervisory official can the court assess whether the official's conduct evidenced deliberate indifference and whether there is a close causal relationship between the 'identified deficiency' and the 'ultimate injury.'" Id.

Under the deliberate indifference standard, for a supervisor to be liable for failure to train his or her subordinates, the plaintiff must (1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure.*fn20 Brown, 269 F.3d at 216 (citing Sample, 885 F.2d at 1118).

In other words, the plaintiff must show "both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate."*fn21 Montgomery, 159 F.3d at 127. However, "[a] single constitutional violation can still provide the basis for municipal liability for failure to train, . . . but only where the 'need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights' that the policymaker's inaction amounts to deliberate indifference." Christopher v. Nestlerode, 240 F. App'x. 481, 489-90 (3d Cir. 2007) (quoting Canton, 489 U.S. at 391).

In the Complaint, Plaintiff alleges the following:

38. At all relevant times the Defendant, City of Allentown, gave the Defendant, Ammary, a Taser, despite actual notice that the Ammary was not a candidate for using a taser [sic] because of his propensity to use excessive force against the public.

39. At all times herein relevant Defendant, City of Allentown, intentionally, purposefully, and knowingly, had a policy, practice, regulation or custom of giving minimal training about the usage of the taser [sic], especially on a non-violent female minor.

40. At all times herein relevant the policy of the Defendant, City of Allentown, practice, regulation or custom caused Plaintiff to be subject to arrest and abuse by Defendant, Jason Ammary.

43. The Defendant, City of Allentown, failed to use adequate training before issuing a taser [sic] to Defendant, Ammary.

I find these allegations sufficient to survive the instant motion to dismiss. If Plaintiff can prove that Defendant had policies or customs that condoned the use of excessive force in effectuating seizures of suspects, the municipality could be liable. Plaintiff identifies a "policy and practice" which potentially constitutes deliberate indifference to the constitutional rights of citizens, namely, failing to create a policy or train officers regarding proper Taser gun use and deployment. Likewise, if the Plaintiff can prove that the municipality did not provide training to police officers on procedures to avoid the use of excessive force in arresting suspects, she could prevail on her excessive-force claim. These allegations are not merely a recitation of the elements of a Monell claim, but point towards specific failings in training that led to the specific violation of constitutional rights here alleged. Plaintiff is entitled to discovery to determine whether her allegations of inadequate training and corrupt policy are true. The court will therefore deny the motion on this point.

E. Qualified Immunity

The Defendants also move to dismiss the claims against Officer Ammary on the grounds that he is entitled to qualified immunity.*fn22 Under the doctrine of qualified immunity, government officials are immune from suit for damages where their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity protects government officials whether they have made a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact. Id. To determine whether qualified immunity applies, a court must examine "whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right" and "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. at 232. A court may exercise its discretion in choosing which prong to address first, considering the circumstances of the particular case. Id. at 236. Additionally, the Third Circuit has warned that "it is generally unwise to venture into a qualified immunity analysis at the pleading stage as it is necessary to develop the factual record in the vast majority of cases." Newland v. Reehorst, 328 F. App'x 788, 791 n.3 (3d Cir. 2009).

"A decision on qualified immunity will be premature when there are unresolved disputes of historical facts relevant to the immunity analysis." Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). Here, the gaps in the video along with the parties opposing contentions of the facts of the arrest are sufficient to make a decision on qualified immunity premature. As discussed above, the Court finds that Plaintiff alleged sufficient facts at the motion to dismiss stage of the litigation to demonstrate that Ms. Wilson's Fourth Amendment rights may have been violated when the Defendant stopped and arrested her. Moreover, a reasonable law enforcement officer should know that an "excessive use[] of a Taser stun[] to effectuate an arrest would constitute a Fourth Amendment violation." Gorman v. Warwick Twp., No. 10-cv-6760, 2011 U.S. Dist. LEXIS 35809, 2011 WL 1235198, at *9 (E.D. Pa. Apr. 1, 2011). Accordingly, Officer Ammary is not entitled to qualified immunity at this time but may raise the defense on a later motion or at trial.


For the reasons set forth above, I will grant in part and deny in part Defendants' Motion to Dismiss.

An appropriate Order follows.

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