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Jason Collura v. City of Philadelphia

December 20, 2012


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



This case arises out of the arrest of pro se plaintiff Jason Collura on July 22, 2010. Plaintiff asserts claims under 42 U.S.C. § 1983 for violation of the First, Fourth, and Fourteenth Amendments of the U.S. Constitution. Plaintiff also asserts claims under Pennsylvania law for false arrest, false imprisonment, intentional infliction of emotional distress, and violation of the Pennsylvania Constitution. All claims are asserted against defendants City of Philadelphia, Police Officer Cedric White, Police Officer Joseph Corvi, Police Officer Daniel Davis, Sergeant Maria Ortiz-Rodriguez, Inspector Jerrold Bates, in their individual capacities, (collectively "City Defendants") and AlliedBarton Security Services LLC ("AlliedBarton").*fn1

City Defendants and AlliedBarton separately move to dismiss certain claims asserted against them. City Defendants also move to strike impertinent and scandalous allegations in plaintiff's Complaint, which AlliedBarton joins. Plaintiff moves for leave to file an amended complaint or, alternatively, to add new parties as defendants.


A. Factual Background*fn2

On July 22, 2010, plaintiff was drinking a fountain soda on the sidewalk next to a Wawa on 17th and Arch streets in Philadelphia at approximately 6:00 p.m. (Compl. ¶ 6) An AlliedBarton security guard, Daniel Rosiello, emerged from the Comcast building across the street and yelled at plaintiff, "These are my f-----g sidewalks, get off them now!" (Compl. ¶ 8) Plaintiff yelled back that he could stay on the public sidewalks, and Mr. Rosiello informed plaintiff that he had already called the police. (Id.)

Defendant Officers Cedric White and Joseph Corvi arrived shortly thereafter, and Mr. Rosiello told them "some things." (Compl. ¶ 9) The officers then approached plaintiff, asking for identification, which plaintiff provided. (Compl. ¶ 10) As Officer Corvi ran his name for a warrant check, Officer White questioned plaintiff. (Id.) Plaintiff answered some questions but also asserted that he knew his rights, had given the officers his identification, and would sue if his rights continued to be violated. (Compl. ¶ 11) Officer Corvi returned, and the officers then had plaintiff move against the wall, searched him, and placed him in handcuffs, which plaintiff complained were too tight. (Compl. ¶ 12) During the search, plaintiff alleges that Officer White threatened him while asking if plaintiff had anything that would stick the officer. (Id.) Plaintiff was placed in the back "hatch" of a police SUV instead of a car and was taken to the 9th District police station. (Compl. ¶¶ 13-14) At the police station, plaintiff was handcuffed to a pipe by defendant Officer Davis while Officers White and Corvi searched his backpack. (Compl. ¶¶ 15-16) Officer Corvi then issued plaintiff a citation for loitering, and plaintiff was released. (Compl. ¶ 17)

The next day, plaintiff filed a complaint about the incident with the Internal Affairs Division of the Police Department. The complaint was assigned to defendant Sergeant Maria Ortiz-Rodriguez. (Compl. ¶ 19) Sergeant Ortiz-Rodriguez interviewed plaintiff about his complaint, but plaintiff alleges she never adequately pursued his claims. (Compl. ¶¶ 19-21) Sergeant Ortiz-Rodriguez ultimately concluded that it was improper for Officers White and Corvi to transport plaintiff in an SUV but allegedly cleared the officers of any other misconduct. (Compl. ¶ 21) Inspector Bates, a superior of Sergeant Ortiz-Rodriguez, approved her report and the termination of the investigation. (Compl. ¶ 23)

Plaintiff also complained to AlliedBarton about Mr. Rosiello's actions. He first spoke with Patrice O'Rourke at the Comcast building to complain about Mr. Rosiello. (Compl. ¶ 24) Ms. O'Rourke did not contact plaintiff about any subsequent investigation. (Id.) Two months after his arrest, plaintiff spoke with Diane Kowalski, Mr. Rosiello's supervisor at AlliedBarton, about Mr. Rosiello. (Compl. ¶ 25) Ms. Kowalski informed plaintiff that Mr. Rosiello had acted pursuant to company policies. (Id.)

B. Procedural Background

On July 19, 2012, plaintiff filed his Complaint in the Court of Common Pleas of Philadelphia County. On August 2, 2012, defendants removed the case to this Court. On August 9, 2012, AlliedBarton filed its Motion to Dismiss. On August 24, 2012, City Defendants filed their Motion to Dismiss and to Strike Impertinent and Scandalous Allegations. On October 9, 2012, plaintiff filed his Motion for Leave to File Amended Complaint Or Alternatively Motion to Add Parties Under Rule 21.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff ...." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).

"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level ....'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

Plaintiff is proceeding pro se in this case. The Court is mindful of the instruction that it should read the submissions of pro se litigants generously and construe formally imperfect filings in accordance with the pro se litigant's substantive intent. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se complaint to "less stringent standards than formal pleadings drafted by lawyers"). The Supreme Court has ruled post-Twombly that dismissing a case on the basis that "allegations of harm [are] too conclusory to put these matters in issue" would violate the liberal pleading standard for pro se plaintiffs. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam).


As an initial matter, pro se plaintiff's use of language in his Complaint and subsequent filings is outrageous and wholly inappropriate. The Court will more fully address this abusive language when it considers City Defendants' motion to strike impertinent and scandalous matter from plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(f). But the Court must be clear: had the language used by pro se plaintiff been used by an attorney, the Court sua sponte would have considered sanctions under Federal Rule of Civil Procedure 11 for the appalling language used. A party, even a party proceeding pro se, is subject to Rule 11 sanctions when filings are presented for an improper purpose, such as to harass. Fed. R. Civ. P. 11(b). After giving notice and reasonable opportunity to respond, the Court may impose sanctions on the offending party. Fed. R. Civ. P. 11(c)(1).

The Court is not considering Rule 11 sanctions at this time because plaintiff is appearing pro se. However, if pro se plaintiff continues to use such abusive language in any future filings, the Court will consider imposing Rule 11 sanctions after providing ...

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