United States District Court, W.D. Pennsylvania
JERMALL E. JOHNSON, Plaintiff,
OFFICER STEVEN DeLUCA, OFFICER MICHAEL SOROKES, AND OFFICER ADAM R. EDMONDS, Defendants.
OPINION AND ORDER 
Paradise Baxter United States Magistrate Judge.
Relevant Procedural and Factual History
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.
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. [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,
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]. On August 13, 2015, Plaintiff filed a
motion for summary judgment. [ECF No. 14].
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].
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].
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.” [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.].
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
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].
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
Standards of Review
Motion to Dismiss
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
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
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 ...