United States District Court, E.D. Pennsylvania
ANTWANETTE T. WYCHE, Plaintiff,
THE CITY OF PHILADELPHIA, et al., Defendants.
se plaintiff, Antwanette Wyche, brings this action
against the City of Philadelphia and a “Police Officer
Moore, ” under 42 U.S.C. § 1983, based on an
incident that occurred when she was filming Philadelphia
police officers making an arrest.
previously granted the defendants' motion to dismiss
plaintiff's original complaint on March 10, 2016 because
the plaintiff failed to sufficiently plead municipal
liability. (Doc. No. 12). I allowed the plaintiff leave to
amend her complaint, which she did. Thereafter, the City
filed a motion to dismiss the plaintiff's amended
complaint. I granted that motion to dismiss because, again,
the plaintiff failed to state a claim against the City. (Doc.
No. 24). I again allowed plaintiff leave to amend her
complaint, which she did. The City filed a motion to dismiss
plaintiff's second amended complaint on December 14,
2016. The plaintiff has not filed a response. I will grant
the motion to dismiss.
12, 2013, the plaintiff was recording police officers making
an arrest on the 2200 block of Woodstock Street in
Philadelphia, Pennsylvania. (Compl., Doc. No. 3 ¶ 4).
According to the plaintiff, the arresting officer, Officer
Moore, did not want the arrest being recorded by the
plaintiff so he assaulted and arrested the plaintiff and
charged her with disorderly conduct. (Id.) After
being released from the police precinct, the plaintiff went
to Temple University Hospital where she was treated for
injuries that she received during her arrest, including an
ankle sprain, wrist pain, and back pain. (Id.) The
plaintiff claims that she also suffered humiliation and
embarrassment while being arrested in front of her children
and neighbors. (Id.) Ultimately, the plaintiff's
disorderly conduct charges were dismissed by court order on
October 17, 2013. (Id.) The plaintiff now requests
$25, 000 in compensatory damages, $25, 000 in punitive
damages, and an injunction removing the arrest charges from
her record. (Id. at ¶ 6(a)-(c)).
plaintiff has sued the City of Philadelphia and an
unidentified “Police Officer Moore, Badge No.
first attempted to serve “Officer Moore” nearly
two years ago on July 23, 2015. That summons was returned
unexecuted. (Doc. No. 7). The summons indicated that there
was no Officer Moore “employed as per city
roster.” (Id.). On March 3, 2016, I ordered
the plaintiff to properly serve “Police Officer
Moore” by March 23, 2016. (Doc. No. 11). After March
23, 2016 had passed, plaintiff filed a motion for an
extension of time to serve Police Officer Moore. (Doc. No.
14). I granted that motion and allowed plaintiff thirty more
days with which to serve “Police Officer Moore.”
(Doc. No. 15). On May 9, 2016, plaintiff filed an affidavit
of service indicating she served a complaint on a person at
the Philadelphia Police Department, but no summons has ever
been returned executed as to Police Officer Moore. To date,
no defendant other than the City of Philadelphia has been
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for failure to state a claim upon which
relief can be granted examines the legal sufficiency of the
complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Following the Supreme Court decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009),
pleading standards in federal actions have shifted from
simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to allege facts 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). A facially plausible claim may not be supported
by conclusory allegations, but must allow the court “to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
Federal Rule of Civil Procedure 8(a)(2), a pleading must
contain a short and plain statement of the claim showing that
the plaintiff is entitled to relief.” Id. at
677- 78. A pro se complaint must be liberally
construed and held to a less stringent standard than formal
pleadings. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976). A pro se action
“can only be dismissed for failure to state a claim if
it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.'” Jubilee v. Horn, 959
F.Supp. 276, 279 (E.D. Pa. 1997) (quoting Estelle,
97 S.Ct. at 292).
City moves to dismiss on two grounds. First, it argues
plaintiff's second amended complaint pleads no facts
regarding a municipal policy or custom. Second, it maintains
that plaintiff's claim fails because none of the facts
alleged relate to conduct by a municipal policymaker.