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Johnson v. DeLuca

United States District Court, W.D. Pennsylvania

January 20, 2017


          OPINION AND ORDER [1]

          Susan Paradise Baxter United States Magistrate Judge.


         A. Relevant Procedural and Factual History

         On January 16, 2015, Plaintiff, Jermall E. Johnson, an inmate incarcerated at the State Correctional Institution at Camp Hill, Pennsylvania, initiated this civil rights action by filing a pro se complaint, pursuant to 42 U.S.C. § 1983, against Defendants Erie Police Department (“EPD”) and EPD Officer Steven DeLuca. In his pro se complaint, Plaintiff alleged that, on June 28, 2014, Defendant Deluca used excessive force against him in violation of his Fourth Amendment rights, and that Defendant EPD “failed to address” him after he filed a complaint against Defendant DeLuca.

         On June 17, 2015, Defendants filed a motion to dismiss, arguing that Plaintiff's claims against them should be dismissed because Plaintiff failed to state a claim upon which relief may be granted. [ECF No. 7]. On August 26, 2015, Defendants filed an addendum to their motion to dismiss, to which they attached as an exhibit the docket from Plaintiff's underlying criminal case, which indicates that he was found guilty, following a non-jury trial, of (1) possession of a firearm with an altered manufacturer's number; (2) possession of a firearm by a prohibited person; (3) carrying a firearm without a license; (4) possession of marijuana; and (5) possession of drug paraphernalia.[2] [ECF No. 16-1 at 4-5]. In response, Plaintiff filed a “motion of response in opposition, ” to which he attached an “affidavit of claim” that provides further details of his claims. [ECF Nos. 12 and 12-1, respectively]. In the affidavit, Plaintiff avers:

On or about 6-28-14 at approximately 0155 HRs, the Defendant “Officer Steven DeLuca” was involved in an incident involving an assault at a tavern, “Cramers Bar” on the 800 Block of East Ave. The Defendant did brandish his duty weapon and did point it directly at the Plaintiff. The Defendant then gave the Plaintiff one single vulgar command to “Get on the f*cking ground, ” and before the Plaintiff was giving [sic] the opportunity to respond or obey that command, and while Plaintiff's hands were in the air, in a surrenderance [sic] stance, the Defendant “Officer Steven DeLuca of the Erie Police Department” then took his booted foot and kicked the Plaintiff in the abdomen/groin area. The Defendant then forcefully struck the Plaintiff above his left eye with a metal flashlight, assaulted, and then forcefully wrestled the Plaintiff to the ground, only before re-brandishing his duty weapon and giving the Plaintiff another vulgar command to, “turn around and put your f*cking hands on your car, ” in which this time the Plaintiff was allotted enough time to obey the Defendant's command.

[ECF No. 12-1 at 1].[3] On August 13, 2015, Plaintiff filed a motion for summary judgment. [ECF No. 14].

         On March 29, 2016, the Court issued an Opinion and Order, in which it granted in part and denied in part Defendants' motion to dismiss. In particular, the Court granted the motion as to EPD, but denied it as to Deluca, finding that Plaintiff's allegations were “minimally sufficient to state a Fourth Amendment claim of excessive use of force at this early stage of the proceedings.” [ECF No. 24 at 8]. In the same Opinion and Order, the Court denied Plaintiff's motion for summary judgment, concluding that “it is quite apparent from the conflicting accounts of the incident at issue contained in Defendant Deluca's criminal complaint [ECF No. 7-1] and Plaintiff's ‘Affidavit of Claim' [ECF No. 12-1] that there are genuine issues of material fact that preclude the entry of summary judgment[.]” [ECF No. 24 at 8].

         On May 12, Plaintiff filed a “petition for leave to file amended complaint.” [ECF No. 30]. In his “petition, ” Plaintiff sought permission to file his “amended claims and complaints” (hereinafter, “amended complaint”), which he had previously filed, along with numerous exhibits, without leave of Court on February 22, 2016. [ECF Nos. 22 and 23, respectively]. Defendants opposed the “petition.” [ECF No. 31]. However, following a telephonic hearing on June 14, 2016, the Court issued a Text Order granting Plaintiff's request and allowing him to file his amended complaint. [ECF No. 39].

         In his amended complaint, Plaintiff avers that he “files these claims and complaints under Perjury, Official Oppression, Intentional Infliction of Emotion Distress, and Conspiracy (Exhibits), malicious prosecution, and other Fourth Amendment violations.”[4] [ECF No. 40 at 1]. In addition to the EPD and DeLuca, EPD Officers Adam R. Edmonds and Michael Sorokes are named as Defendants. With regard to Edmonds, Plaintiff asserts claims for “Perjury Under Oath, Official Oppression, Intentional Infliction of Emotional Distress, and Conspiracy.” [Id. at 2]. More specifically, Plaintiff alleges that Edmonds' “incident data report contradicts Officer's [sic] Deluca and Sorokes incident data reports, his own testimony given in trial under oath, and testimony given by Officer Deluca at same trail [sic] under oath.” [Id.]. With regard to Sorokes, Plaintiff also asserts claims “for Perjury, Official Oppression, Intentional Infliction of Emotional Distress, and Conspiracy (Incident Data Report).” [Id. at 3]. Plaintiff claims that Sorokes “openly lied and committed perjury, as can be reviewed in his incident data report.” [Id.].

         In the amended complaint, Plaintiff states that he “would also like to amend to his State Law Claim, a complaint against Officer Deluca for Assault and Battery, Official Oppression, Intentional Infliction of Emotional Distress, for this incident on June 28, 2014.” [Id. at 4]. Plaintiff further alleges that DeLuca “arrested the Plaintiff's fiancé on October 3, 2014, on the date of Plaintiff's preliminary hearing, as an act of retaliation against the Plaintiff” and “continued to harass the Plaintiff after the June 28, 2014, incident.” [Id.]. Specifically, Plaintiff alleges that “[o]n September 13, 2014, Officer Deluca filed another complaint against [him], and manipulated the Commonwealth, again by lying [about] the Plaintiff to gain another conviction, in which [Plaintiff] received a term of 15-30 years in a State Corrections Institution.”[5] [Id.].

         Finally, Plaintiff re-asserts a claim against the EPD, which had previously been dismissed, alleging that the EPD has a “policy or custom of assault by [its] employees against it's [sic] citizens for excessive force and this is their policy not to correct it.” [Id. at 5].

         On July 28, 2016, Defendants filed a motion to dismiss all of the newly asserted claims. [ECF No. 41]. They filed a brief in support of their motion, to which they have attached, as an exhibit, the opinion of the Pennsylvania Superior Court affirming Plaintiff's conviction arising out of the June 28, 2014, incident. [ECF Nos. 42 and 43, respectively]. On August 23, 2016, Plaintiff filed a “response to motion to dismiss amended claims and complaints, ” to which he attached as an exhibit (1) a letter from the Office of the Prothonotary of the Supreme Court of Pennsylvania advising the Ernie County District Attorney's Office of its right to file an Answer to Plaintiff's petition for allowance of appeal in his criminal case; and (2) a newspaper article about the alleged use of excessive force by EPD officers. [ECF Nos. 47 and 47-1, respectively]. On September 14, 2016, Defendants filed a supplement to their motion to dismiss, to which they attached (1) an affidavit prepared by Defendant DeLuca, which incorporates by reference his incident report regarding the June 28 incident; and (2) a portion of the transcript of Plaintiff's criminal trial. [ECF No. 54]. Plaintiff filed a response to Defendants' supplement, taking issue with the contents of DeLuca's affidavit. [ECF No. 55]. Finally, on October 21, 2016, Defendants filed a reply to Plaintiff's response, to which they attached the full transcript of Plaintiff's criminal trial. [ECF No. 56-1].

         B. Standards of Review

         1. Motion to Dismiss

         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 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). See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

         The Court need not accept inferences drawn by 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 School 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)). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions”). 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 5 C.Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (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.” Smith v. Sullivan, 2008 WL 482469, at *1 (D. Del. February 19, 2008) (quoting Phillips v. Cnty. 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 ...

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