United States District Court, W.D. Pennsylvania
MARY R. MECHELLI, Plaintiff,
KEN FERREE, DEREK STITT, THE CITY OF MCKEESPORT and UNKNOWN MCKEESPORT POLICE OFFICERS, Defendants.
ROBERT C. MITCHELL, Magistrate Judge.
Presently before the Court is Defendant Ken Ferree's Motion to Dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and (7). For the reasons that follow, Defendant's motion is denied.
This case generally arises out of Defendants' alleged violations of Plaintiff's constitutional rights in connection with Plaintiff's arrest and detention. Plaintiff, Mary Mechelli, is a fifty-four year old resident of McKeesport, Pennsylvania. Moving Defendant Ken Ferree is the contracted Animal Control Officer for the City of McKeesport.
Plaintiff considers herself an animal rights activist and a member of People for the Ethical Treatment of Animals ("PETA"). Plaintiff alleges that on multiple occasions, Defendant Ferree, acting as McKeesport's dog catcher, threatened to shoot Plaintiff's dogs. Plaintiff lobbied to the former McKeesport mayor, James Brewster, to terminate Defendant Ferree for animal cruelty. Defendant Ferree was terminated, but was subsequently reinstated by Brewster's successor, Michael Cherpko. In June 2013, Plaintiff, along with others, protested the Ferree Kennels for alleged animal cruelty activity and on the basis that Defendant Ferree shoots dogs kept at the kennels. At the protest, Plaintiff and Defendant Ferree engaged in a verbal confrontation.
On or about August 1, 2013, Plaintiff returned a phone call from McKeesport Detective Kacznski regarding stolen cars and home burglaries in the area. That same day, Plaintiff alleges that two McKeesport officers came to her house and let her two dogs out of a secured area. While one of the dogs was not recovered, the next morning, Defendant Ferree contacted Plaintiff to inform her that he had caught her other dog and that she was to immediately come to the kennel to retrieve her dog or the dog would be shot. After this conversation, Plaintiff went to the home of the mayor of White Oak, a neighboring municipality, Ina Jean Marton and Marton advised Plaintiff to go to the kennel and retrieve her dog because she believed Defendant Ferree would kill it. Plaintiff immediately went to the kennels. While on the way, Plaintiff received a phone call from Marton who urged her to hurry to the kennel because she believed that Defendant Ferree was going to kill the dog. Plaintiff arrived at the kennel and met Defendant Ferree outside and remained on the phone with Marton. Defendant Ferree informed Plaintiff that her dog was inside and Plaintiff handed Defendant Ferree $140.00 to retrieve the dog. Defendant Ferree directed Plaintiff into a lobby area inside of the kennel. Plaintiff remained on the phone with Marton, and Marton asked to speak with Defendant Ferree but he refused. Defendant Ferree then guided Plaintiff to a set of stairs and pushed her in the back down the stairs. Plaintiff lost control of her phone and fell to the ground. Defendant Ferree then kicked Plaintiff in the head, the back of the arms and ribs approximately twenty times, pulled her hair and punched her in the face, lip and jaw. Defendant Ferree also cursed at Plaintiff and used words derogatory to her gender. Plaintiff claims that after Defendant Ferree beat her, he then handcuffed her and contacted the police.
McKeesport Police Officer Stitt, and Officer Houy and approximately five other unknown officers arrived at the kennel, and Defendant Ferree informed the officers that Plaintiff had resisted arrest. Plaintiff was transported to the McKeesport Police Department where she was then told there was a warrant out for her arrest for various theft by deception charges. Therefore, Plaintiff contends that Defendant Ferree was officially working with the McKeesport Police Department to apprehend Plaintiff for this warrant. When she was in custody at the police department, she lost control of her bladder and Defendant Ferree and other officers made fun of her. Plaintiff also had visible injuries to her face and requested medical attention, but it was not provided. A few hours later, Allegheny County detectives arrived at the McKeesport Police Station to take Plaintiff to Allegheny County Jail but determined that she needed medical attention and took her to Mercy Hospital for treatment.
At Mercy Hospital, Plaintiff was diagnosed with a concussion and trauma to her back, shoulder, face and legs. After she received medical attention, she was then taken to Allegheny County Jail and released the same day. The next day, she sought additional medical attention and was diagnosed with a chest contusion, concussion and post-concussion syndrome. She suffered dizziness, fatigue, pain in her ribs and swelling.
Plaintiff was charged with disorderly conduct for the occurrence with Defendant Ferree at the kennels, and a preliminary hearing on the matter was held on December 10, 2013. Defendant Ferree did not testify at or attend the preliminary hearing. At the hearing, Defendant Officer Stitt testified that he was summoned to the kennel because he was informed that there would be a warrant suspect there. At the conclusion of the preliminary hearing, the disorderly conduct charges were dismissed.
Plaintiff brought suit against Defendant Ferree, Officer Stitt, the City of McKeesport and Unknown McKeesport Police Officers. Plaintiff asserts several claims against Defendant Ferree under 42 U.S.C. § 1983 including: First Amendment retaliation (Count I); excessive force under the Fourth Amendment (Count II); cruel and unusual punishment under the Eighth Amendment (Count III); Intentional Infliction of Emotional Distress (Count V); False Arrest (Count VI); Malicious Prosecution (Count VII); and False Imprisonment (Count VIII). This Court previously denied Officer Stitt and the City of McKeesport's motion to dismiss the claims against them for cruel and unusual punishment in violation of the Eighth Amendment and a Monell claim for an express policy or custom that caused Plaintiff constitutional injury (Counts III and IV). See Memo. Op. and Order [ECF No. 39].
Defendant Ferree now moves to dismiss the claims against him arguing that Officer Houy is a necessary and indispensable party under Federal Rule of Civil Procedure 12(b)(7), that Plaintiff has failed to state a claim with respect to the false arrest, malicious prosecution and false imprisonment claims and Defendant Ferree is otherwise immune from suit under qualified immunity. For the reasons that follow, we reject Defendant Ferree's arguments and deny his motion to dismiss.
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, as Plaintiff asserts claims under the First, Fourth and Eighth Amendments and under 42 U.S.C. § 1983. This Court has supplemental jurisdiction over Plaintiff's state law claims under 28 U.S.C. § 1367. Additionally, all parties have consented to jurisdiction before a United States Magistrate Judge, see Def. Derek Stitt and the City of McKeesport's Consent to Magistrate Jurisdiction [ECF No. 30]; Def. Ken Ferree's Consent to Magistrate Jurisdiction [ECF No. 31]; Pl.'s Consent to Magistrate Jurisdiction [ECF No. ...