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Kingsmill v. Szewczak

United States District Court, E.D. Pennsylvania

July 30, 2015

ERIC KINGSMILL
v.
POLICE OFFICER CHRISTOPHER SZEWCZAK, and CITY OF PHILADELPHIA

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[Copyrighted Material Omitted]

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For ERIC KINGSMILL, Plaintiff: DEBORAH CIANFRANI, LEAD ATTORNEY, CIANFRANI LAW, LLC, PHILADELPHIA, PA.

For POLICE OFFICER CHRISTOPHER SZEWCZAK, CITY OF PHILADELPHIA, Defendants: MICHAEL R. MILLER, LEAD ATTORNEY, CITY OF PHILADELPHIA LAW DEPT, PHILADELPHIA, PA.

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MEMORANDUM

Stewart Dalzell, J.

I. Introduction

We consider here defendants' motion to dismiss plaintiff Eric Kingsmill's amended complaint. Kingsmill brings this action pursuant to 42 U.S.C. § 1983 against the defendants, Police Officer Christopher Szewczak and the City of Philadelphia. We have jurisdiction under 28 U.S.C. § 1331.

As will be seen by our analysis below, Kingsmill has pled sufficient facts, accepted as true, to demonstrate that Officer Szewczak violated his Fourteenth Amendment substantive Due Process rights on a state-created danger theory of liability. Officer Szewczak is not entitled to qualified immunity because a reasonable officer at the time of the incident would have known that the alleged conduct was unlawful. But Kingsmill's Monell claim against the City of Philadelphia fails as a matter of law. We will therefore deny defendants' motion to dismiss Count I of the amended complaint against Officer Szewczak, but grant their motion to dismiss Count II against the City of Philadelphia.[1]

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. United States, 404 F.3d 744, 750 (3d Cir. 2005). To survive a Rule 12(b)(6) motion, the complaint must contain sufficient factual matter, accepted as true, to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 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 stresses, " 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.

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Courts " are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555.

In the wake of Twombly and Iqbal, our Court of Appeals 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) (internal citations omitted). 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).

We recite the facts as they appear in the amended complaint.

III. Factual Background

At about 3:00 P.M. on February 9, 2014, plaintiff Eric Kingsmill was walking on the sidewalk near the intersection of Norris and Thompson Streets in Philadelphia, Pennsylvania, when he was approached by Joseph Brown. Am. Compl. at ¶ ¶ 7-8. Brown -- not a party in this case -- demanded money, and, when Kingsmill refused, Brown pushed him against a parked car and withdrew a length of pipe from his jacket sleeve. Id. at ¶ ¶ 8-9. Kingsmill, defending himself, punched Brown in the torso. Id. at ¶ 10.

Defendant Police Officer Christopher Szewczak watched this altercation from his patrol car, less than twenty feet away. Id. at ¶ 11. As Kingsmill defended himself, Officer Szewczak " commanded" him to " get over here." Id. at ¶ 12. Kingsmill immediately complied, disengaged from Brown, and walked to within three feet of Officer Szewczak. Id. at ¶ 13. Officer Szewczak stated, " I seen you hit that dude," to which Kingsmill replied, " Did you see him hit me." Id. at ¶ 15. Kingsmill stood facing Officer Szewczak with his back to Brown. Id. at ¶ ¶ 13, 16. Officer Szewczak, looking in Kingsmill's direction, " watched as [Brown] approached with a steel pipe and/or extendable metal baton in his raised right arm." Id. at ¶ 16. Officer Szewczak " watched as [Brown] struck [Kingsmill] in the face" with the pipe. Id. at ¶ 17. Officer Szewczak " had the opportunity to warn" Kingsmill, but neither warned him nor intervened to stop the attack. Id. at ¶ ¶ 18-19. Officer Szewczak never ordered Brown to stop or halt. Id. at ¶ 20.

After Brown attacked Kingsmill, Officer Szewczak told Kingsmill, " I am not calling an ambulance. I am not taking this report." Id. at ¶ 23. Officer Szewczak ordered Brown to " Get your shit and get out of here." Id. Officer Szewczak did not call an ambulance to assist Kingsmill, did not arrest Brown, and did not make a police report concerning the attack. Id. at ¶ ¶ 24-26.

That day, and on each of the next four days, Kingsmill's mother, Victoria Kingsmill, reported the attack to the 26th District Headquarters of the Philadelphia Police Department. Id. at ¶ 27. Each time, the police refused to make a written report. Id. On February 14, 2014, at the direction of the 26th District's Captain,

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Police Officer Maritza Mendez made a report of the attack. Id. at ¶ 28. On March 5, 2014 Brown was arrested and charged in connection with the February 9, 2014 attack. Id. at ¶ 29. On November 14, 2014, after a trial before the Hon. Abbe Fletman in the Philadelphia Court of Common Pleas, Brown was convicted of aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of a crime. Id. at ¶ 30.

Kingsmill alleges that Officer Szewczak's actions created a danger whereby he would suffer serious injury, substantially increased the risk that he would suffer serious injury, placed him in danger of direct and foreseeable harm, and created an opportunity for harm that would not have existed otherwise. Id. at ¶ ¶ 31-34. Kingsmill alleges that Officer Szewczak's order to " get over here" created a " special relationship" between them. Id. at ¶ 36. He also claims that the City of Philadelphia " developed and maintained [policies] or customs exhibiting deliberate indifference to the constitutional rights of persons in the City of Philadelphia which caused the violation of" his rights. Id. at ¶ 42. Kingsmill alleges a policy or custom of inadequate supervision and discipline of Officer Szewczak " whose prior constitutional violations and acts of misconduct were tolerated by the City of Philadelphia." Id. at ¶ 44.

IV. Discussion

A cause of action under Section 1983 requires only two allegations: a person has deprived the plaintiff of a federal right, and that person acted under color of state or territorial law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); see also Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).

Moving to dismiss Count I of the amended complaint, defendants argue that Kingsmill fails to state a substantive Due Process claim under the Fourteenth Amendment because he does not adequately plead either that he enjoyed a " special relationship" with the defendants or the elements of a state-created danger claim. MTD at 6, 8-9. Defendants also claim that Officer Szewczak is entitled to qualified immunity. Id. at 10. Defendants, moving to dismiss Count II of the amended complaint, contend that Kingsmill's allegations regarding a municipal policy or custom are insufficient to state a viable Monell claim. Id. at 11.

We consider these arguments in turn.

A. Count I: Kingsmill v. Officer Szewczak

Section 1983 provides remedies for deprivation of rights established in the Constitution or federal laws, but does not by its own terms create substantive rights. Kneipp v. Tedder,95 F.3d 1199, 1204 (3d Cir. 1996). The Due Process Clause of the Fourteenth Amendment provides that a state shall not " deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. The substantive component of Due Process " protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them." Collins v. City of Harker Heights,503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (internal quotations omitted). But substantive due process does not generally confer upon one a right to governmental aid " even where such aid may be necessary to secure life, liberty, or property ...


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