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Ford v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

December 22, 2014

LEON D. FORD, Plaintiff,


MAUREEN P. KELLY, Chief Magistrate Judge.

Pending before the Court is a "Joint Motion to Dismiss" (ECF No. 35), [1] filed on behalf of all Defendants, who are alleged to have had a role in shooting and paralyzing the Plaintiff, Leon D. Ford ("Plaintiff" or "Ford"), in the course of a routine traffic stop. For the reasons set forth in this Memorandum Order, the Joint Motion to Dismiss is granted in part and denied in part.


In the Amended Complaint (ECF No. 34), Plaintiff sets forth civil rights claims against City of Pittsburgh Police Officers David Derbish ("Derbish"), Michael Kosko ("Kosko") and Andrew Miller ("Miller") for injuries sustained by him in the course of a traffic stop on the evening of November 11, 2012. The claims against these Defendants include unreasonable search and seizure, false arrest, false imprisonment, the use of excessive force in violation of the Fourth and Fourteenth Amendments of the United States Constitution, and state law claims for assault and battery.

Plaintiff also alleges claims against the City of Pittsburgh, the City of Pittsburgh Bureau of Police, Assistant Chief of Police McDonald and former Chief of Police Harper, named as defendants solely in their official capacities. Plaintiff alleges that these defendants participated in an ongoing deliberate failure to train, supervise and discipline City of Pittsburgh Police Officers. In addition, Plaintiff alleges these supervisory defendants wrongfully implemented customs and policies authorizing the use of racial profiling to effectuate arrests and traffic stops. Plaintiff alleges that the supervisory defendants failed to prevent and/or adopted customs or practices resulting in the frequent use of excessive force in the course of police interaction with African American males, who have been stopped on the erroneous suspicion that they are involved in criminal activity. Plaintiff further alleges that the supervisory defendants acted with deliberate indifference to City of Pittsburgh police officers' violation of the constitutional rights of the citizens of the City of Pittsburgh generally, and the rights of Plaintiff in particular.

With regard to the events at issue, Plaintiff alleges well-pleaded facts in the Amended Complaint. Specifically, on November 11, 2012, Officers Kosko and Miller were on patrol near Larimer Avenue in the City of Pittsburgh, when Officer Miller allegedly saw Plaintiff's vehicle driving at a high rate of speed. Officer Kosko activated the lights and siren of the patrol vehicle and initiated a traffic stop. When approached by the officers, Plaintiff gave Officer Kosko his Pennsylvania driver's license, proof of ownership of the vehicle and proof of insurance. The officers did not believe that Plaintiff was who he identified himself to be, and held him at the scene while they called Officer David Derbish to confirm his identity. After approximately 20 minutes, Officer Derbish arrived and was unable to provide any additional information regarding Plaintiff's identity. Thereafter, Officer Derbish claimed that he saw a bulge in Plaintiff's sweat pants and believed it to be the barrel of a handgun. Officer Miller and Kosko opened Plaintiff's driver side door and attempted to yank him out of the vehicle, while Officer Derbish opened the passenger side door to push Plaintiff out. Shortly thereafter, the car suddenly lurched forward, with Plaintiff and Officer Derbish in the car. Seconds later, Officer Derbish shot the Plaintiff multiple times in the chest. As a result of the shooting, Plaintiff suffered paralysis and other critical injuries. Plaintiff alleges that the actions of Defendants Derbish, Miller and Kosko constitute the unconstitutional use of excessive force, as well as false arrest, false imprisonment, and assault and battery.


A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all of the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus , 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson , 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal , 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

A court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp. , 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly , 550 U.S. at 555, citing Papasan v. Allain , 478 U.S. 265, 286 (1986). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 556, citing 5C Wright & Miller, Federal Practice and Procedure ยง 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In other words, at the motion to dismiss stage, a plaintiff is "required to make a showing' rather than a blanket assertion of an entitlement to relief." Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008). "This does not impose a probability requirement at the pleading stage, ' but instead simply calls for 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 n. 3.

The United States Court of Appeals for the Third Circuit has expounded on the Twombly/Iqbal line of cases:

To determine the sufficiency of a complaint under Twombly and Iqbal, the Court must take the following three steps:
First, the court must tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, where there are well-pleaded factual allegations, a court should assume their veracity ...

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