United States District Court, E.D. Pennsylvania
ROBERT J. BOYDEN, SR.
TOWNSHIP OF UPPER DARBY, et al
For ROBERT J. BOYDEN, SR., Plaintiff: DANIEL A. PALLEN, LEAD ATTORNEY, LAW OFFICES OF DANIEL A. PALLEN, ESQUIRE, MEDIA, PA.
For TOWNSHIP OF UPPER DARBY, OFFICER WILLIAM SIDES, Defendants: MICHAEL P. LAFFEY, HOLSTEN & ASSOCIATES, MEDIA, PA.
Stewart Dalzell, J.
We consider here defendants Township of Upper Darby (" the Township" or " Upper Darby" ) and Officer William Sides's motion to dismiss plaintiff's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6).
Robert J. Boyden, Sr. brings this action against the defendants pursuant to 42 U.S.C. § 1983 and state tort law claiming that the defendants violated his Fourth Amendment rights by using excessive force when arresting him, and that in doing so Officer Sides also committed assault and battery on Boyden.
We have federal question jurisdiction over Counts I and II -- Boyden's § 1983 claims pursuant to 28 U.S.C. § 1331 -- and supplemental jurisdiction over Count III -- asserting Boyden's state law claims pursuant to 28 U.S.C. § 1367.
The defendants move to dismiss the § 1983 claim against Officer Sides on the ground that Boyden has failed to state a claim for any violation of a constitutional right, and that, even if he has, Officer Sides is entitled to qualified immunity. See Def. Resp. at 6-7. They also rely on this argument in their motion to dismiss the claim against the Township, and add that Boyden has failed to allege liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because he acknowledges that the use of excessive force is a violation of Upper Darby's policies, and has failed to allege conduct by a policymaker. Id. at 11. Finally, the defendants argue that the assault and battery claim must fail because Officer Sides was using only the force necessary to effectuate the arrest. Id. at 15.
II. Standard Of Review
A defendant moving to dismiss under Fed.R.Civ.P. 12(b)(6) bears the burden of proving that the plaintiff has failed to state a claim for relief, see Fed.R.Civ.P. 12(b)(6); see also, e.g., Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in order to survive a Rule 12(b)(6) motion, " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face'", Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged", Iqbal, 556 U.S. at 678.
As the Supreme Court has stressed, " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action . . . do not suffice." Id. (citing Twombly, 550 U.S. at 555 for the proposition that courts " are not bound to accept as true a legal conclusion couched as a factual allegation" ).
In the wake of Twombly and Iqbal, our Court of Appeals has laid out a two-part test to apply when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6):
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. 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.'
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). We thus begin by reciting the facts as they appear in the amended complaint (hereinafter " Comp." ).
In deciding a motion to dismiss, we may consider " the allegations contained in the complaint, exhibits attached to the complaint and matters of public record", and any " undisputedly authentic document that a defendant attaches as an exhibit to a
motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Boyden is a forty-two-year-old man from Lansdowne, Pennsylvania. According to the Affidavit of Probable Cause attached to Boyden's motion to dismiss, on October 20, 2012, at about " 1209hrs", Delaware County dispatch summoned Officer Jonathan Resinski to the area of School Lane and Irvington Road in Upper Darby and reported that a white male in his early forties was " staggering about the street" and then " had climbed the wall of the Arlington Cemetery and walked over to a tree and laid down underneath of it." Police Criminal Complaint, Affidavit of Probable Cause, Comp. Ex. A, at 1. Officer Resinski arrived at the scene, and at some point Officers Joseph DiFrancesco and Sides arrived, each in his own car. See id. (referring to " Officer Joseph DiFrancesco #40 in full uniform and operating marked unit # 14" and " Officer William Sides #87 in full uniform and operating marked unit #22" ).
In his affidavit Officer Resinski says that when he arrived Boyden was lying face up on the ground, and when Officer Resinski spoke to Boyden, Boyden said " he was sun tanning in the cemetery." Id. According to Officer Resinski, " [p]olice observed [Boyden's] speech to be slurred and an odor of an alcoholic beverage coming from his person." Id. The police asked for Boyden's name and date of birth, and Boyden responded, " [w]hat the fuck do you need that for" and " you guys already know who I am" . Id. Officer Resinski reported that Boyden " was handcuffed while seated on the ground and taken into custody." Id. The officers then " escorted" Boyden to Officer Resinski's police car, and while he was on the way to the car he " began to refuse to walk asking, 'What the fuck are you locking me up for now this time?'" Id. Officer Resinski reported that Boyden
had a wrist lock applied to his right hand by this Officer and was escorted to my marked vehicle. When Police and the defendant had arrived to the location of my marked unit # 24, the defendant refused to sit in the back of the unit. The subject was verbally directed five times by Police to sit in the back of the unit. Upon each request, the defendant asked, " What are you some kinda tough guy?" and " what are you gonna do, beat me . . . go ahead!" It was at this point, Officer William Sides #87 in full uniform and operating marked unit #22 of the Upper Darby Township Police department, withdrew his yellow X26 Taser from its holster, withdrew the cartridge and ordered the defendant into the vehicle or he would be tased. The defendant refused exclaiming, " Go ahead and fucking tase me you tough guy!!" The defendant continued to actively resist and Officer Sides did taser the defendant in his stomach at which point the defendant cooperated with Police and sat in the back seat of the patrol vehicle.
It thus appears that the officers handcuffed Boyden while he was on the ground, Boyden then stood up, walked to Officer Resinski's car, and orally resisted getting in. Boyden used belligerent language, but it is not clear from this account how he physically resisted, as the affidavit says only that he " actively resist[ed]." Id. Boyden avers that he " show[ed] no attempt to resist." Comp. ¶ 18.
Boyden pled guilty to the charge of " Disorderly Conduct Engage In Fighting" for his behavior on October 20, 2012 and
the Commonwealth dropped the charge of " Resist Arrest/Other Law Enforce" . See Criminal Docket, Court of Common Pleas of Delaware County, Def. MTD Ex. C at 3.
Boyden avers that " the use of excessive force was, is, and remains a part of a customary practice of the Police Department for the Township of Upper Darby,", Comp. ¶ 19, and says that the " Township has a long-standing custom of employing unnecessary force upon the constituents it serves and of failing to train and/or discipline officers as to professionalism and the proportionate use of force." Id. In support, Boyden says that in 2013 Mayor Thomas Micozzie fired Officers Michael Givens and Ryan Wiseley for using excessive force against a juvenile and that the officers have since been reinstated despite Mayor Micozzie's statement that they had committed a " violation of Township and Police Department Policy and Procedure." Id. ¶ 20, n.1.
Boyden argues that " the Township of Upper Darby by and through policymaker, Superintendent Chitwood, ha[s] wholly failed in the duty to instruct, supervise, control, and discipline William Sides on a continuing basis by allowing him to unlawfully, and maliciously employ excessive force against natural persons", id. ¶ 32. He contends that " Superintendent Michael Chitwood and Upper Darby Township, had knowledge . . . that William Sides was about to or likely to commit the wrongs as described", id., and that the Township " had the power to prevent or otherwise aid in preventing the commission of the unlawful use of excessive force by training Officer Sides how to properly interact with citizens." Id. at ¶ 34. The Township's failure to prevent the alleged excessive force, Boyden claims, " reflects deliberate indifference to the constitutional rights of its constituents." Id. at ¶ 38. He alleges that this " deliberate indifference" is the " moving force" behind his injuries. Id. at ¶ 39.
Boyden also cites Yormie v. Upper Darby Police Officer One, No. 12-5609 (E.D. Pa. 2012), and Montgomery v. Sharp, No. 12-5346 (E.D. Pa. 2012), as examples of the use of excessive force by the Upper Darby Police Department. Id. at ¶ 21. In those cases, the plaintiffs alleged that other Upper Darby police officers had used excessive force -- not including the use of a Taser -- in arresting them. It appears that both cases settled.
Finally, Boyden avers, upon information and belief, that " state and/or federal authorities" are currently investigating a " police beating of Giovanni Mucci" on September 13, 2013, in which Officer Sides participated and during which Officer Sides used his Taser repeatedly. Id. ¶ ¶ 22-23.
Boyden thus argues that " [t]he Township has demonstrated deliberate indifference to the natural and constitutional rights of its constituents . . . by failing to correct the customary use of excessive force within its jurisdiction." Id. at ¶ 25. Here, Boyden argues that Officer Sides's Tasering of him " remains unpunished, despite [Police] Superintendent [Michael] Chitwood's knowledge of the October 20, 2012 incident." Id. at ¶ 30.
A. Excessive Force Claim Against Officer William Sides Pursuant To 28 U.S.C. ...