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Michael Tirado v. Montgomery County

March 29, 2013

MICHAEL TIRADO, PLAINTIFF
v.
MONTGOMERY COUNTY, PENNSYLVANIA, A POLITICAL SUBDIVISION OF THE COMMONWEALTH OF PENNSYLVANIA, OPERATING AS THE MONTGOMERY COUNTY CORRECTIONAL FACILITY;
C.O. DAVIS, INDIVIDUALLY AND IN HIS PROFESSIONAL CAPACITY AS A CORRECTIONAL OFFICER AT THE MONTGOMERY COUNTY CORRECTIONAL FACILITY; AND
C.O. BANKS, INDIVIDUALLY AND IN HIS PROFESSIONAL CAPACITY AS A CORRECTIONAL OFFICER AT THE MONTGOMERY COUNTY CORRECTIONAL FACILITY, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

This matter is before the court on the Motion of Defendants Montgomery County, C.O. Davis and C.O. Banks for the Partial Dismissal of Plaintiff's Complaint, which motion was filed on March 9, 2012 together with a memorandum of law. Plaintiff's Response in Opposition to Defendants Montgomery County, C.O. Davis and C.O. Banks' for the Partial Dismissal of Plaintiff's Complaint was filed on March 23, 2012 together with a memorandum of law.

SUMMARY OF DECISION

For the following reasons, I grant in part and deny in part defendants' partial motion to dismiss. Specifically, I deny defendants' motion to dismiss plaintiff's claim in Count I against defendant Montgomery County for failure to train based upon a "single violation" theory. I conclude that plaintiff has averred sufficient facts to withstand a motion to dismiss on this claim.

However, I grant defendants' motion to dismiss plaintiff's claim in Count I against defendant Montgomery County for failure to train based upon a "pattern of violations" theory and on his failure to supervise claim in Count I against defendant Montgomery County based upon either a "single violation" or "pattern of violations" theory, with leave to file an Amended Complaint to re-plead those aspects of Count I. I conclude that plaintiff has not plead any facts to support a "pattern of violations" theory for either a failure to train or a failure to supervise claim. Furthermore, I conclude that plaintiff has not pled any facts to support a "single violation" theory for a failure to supervise claim.

I grant defendants' motion to dismiss Count II of plaintiff's Complaint alleging a violation of Article I, § 13 of the Pennsylvania Constitution because I conclude that there is no private cause of action for money damages permitted under Pennsylvania law.

I grant defendants' motion to dismiss Count III of plaintiff's Complaint alleging a cause of action for negligence because plaintiff concedes that his claim against defendant Montgomery County should be dismissed and because I conclude that defendants Davis and Banks are immune from suit for a claim of negligence based upon the facts of this case.

I grant defendants' motion to dismiss claims against defendant Montgomery County in Counts IV and V by agreement of plaintiff. Furthermore, I grant defendants' motion to dismiss plaintiff's claims in Counts IV and V against defendants Davis and Banks in their official capacity because such claims are actually claims against defendant Montgomery County.

Finally, I grant defendants' motion to dismiss plaintiff's request for attorneys' fees on plaintiff's state-law claims contained in Counts II through V because I dismiss Counts II and III in their entirety and because plaintiff is not entitled to attorneys' fees under Pennsylvania law on Counts IV and V.

JURISDICTION

Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiff brings claims under 42 U.S.C. § 1983. This court also properly has supplemental jurisdiction pursuant to 28 U.S.C. § 1367 over plaintiff's state law claims, which are part of the same case or controversy.

VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to these claims occurred in Eagleville, Montgomery County, Pennsylvania, which is located in this judicial district. See 28 U.S.C. §§ 118, 1391(b).

PROCEDURAL HISTORY

This matter is before the court on the Complaint filed February 2, 2012 by plaintiff Michael Tirado. Defendants filed a motion for partial dismissal of the Complaint on March 9, 2012, which motion, having been briefed by the parties, is now before the court for disposition.

STANDARD OF REVIEW

A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief". Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn1

In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory" or "bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884). '

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.

A well-pled complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).

PLAINTIFF'S CLAIMS On February 2, 2012 plaintiff Michael Tirado filed his Complaint alleging five causes of action against defendants Montgomery County, Pennsylvania, and Montgomery County Corrections Officers Davis and Banks in both their individual and official capacities. The parties do not identify the first names of the two corrections officers.

Count I alleges a claim under 42 U.S.C. § 1983 for violation of plaintiff's right to be free from cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. Specifically, plaintiff contends that Corrections Officers Davis and Banks violated his Eighth Amendment rights by using excessive force on him and that defendant Montgomery County was deliberately indifferent to plaintiff's Constitutional rights by failing to properly train and supervise defendants Davis and Banks.

Count II avers a state-law claim against all three defendants for violation of Article I, § 13 of the Pennsylvania Constitution. Count III asserts a state-law claim for negligence against all three defendants. Count IV alleges a state-law cause of action against all defendants for assault. Count V asserts a state-law cause of action for battery against all defendants. Finally, plaintiff seeks attorneys' fees in his prayer for relief in each Count of his Complaint.

FACTS Taking all of the well-pled facts contained in the Complaint as true, as I am required to do under the standard of review applicable to a motion to dismiss, discussed above, the facts of this case are as follows.

On February 4, 2010 plaintiff Michael Tirado was an inmate at the Montgomery County Correctional Facility ("MCCF") in Eagleville, Montgomery County, Pennsylvania. On that date, plaintiff was determined to be in possession of a cigarette lighter, which is considered contraband under MCCF policy. Plaintiff was taken from his cell, strip-searched and the cell he occupied was also searched. Upon returning to his cell, and while cleaning and straightening up, plaintiff inadvertently pushed a small bag of garbage out of his cell into the passageway of the cell block.

Upon observing the debris outside of plaintiff's cell, Corrections Officers Davis and Banks inquired regarding the source of the garbage. Upon learning that it was plaintiff that had pushed the garbage from inside his cell, the two officers demanded that plaintiff clean it up. After obtaining a broom and dust pan, plaintiff began sweeping up the debris with the help of another inmate. While cleaning up the debris, the broom slipped from plaintiff's hand and fell close to C.O. Davis, who caught the broom.

Although the broom did not strike C.O. Davis, he became angry with plaintiff and accused plaintiff of throwing the broom at him. Corrections Officer Davis then threw the broom at plaintiff and punched plaintiff in the eye. Plaintiff raised his hands and arms in a defensive position, and when he did so, C.O. Banks joined C.O. Davis and the two corrections officers began to beat plaintiff's head and torso.

Plaintiff fell to the ground and attempted to protect himself, but the officers began kicking plaintiff in the head and torso. At one point, the officers attempted to lift plaintiff up by the back of his pants and shirt. Plaintiff pleaded ...


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