United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Wimbush was incarcerated in a Philadelphia prison when,
unprovoked, a group of corrections officers allegedly
attacked him. Wimbush claims the officers falsely reported to
the Philadelphia Police and District Attorney's Office
that Wimbush was the aggressor. He was subsequently charged
with various criminal offenses and the charges were later
dropped. Wimbush sued the corrections officers, prison
officials, a detective and the City of Philadelphia, alleging
claims under 28 U.S.C. § 1983 and state law. Defendants
moved to dismiss Wimbush's Complaint. For the following
reasons, the Court grants in part and denies in part
Defendants' motion, with leave to amend.
30, 2014 Gary Wimbush was in custody at a detention center in
Philadelphia when corrections officers Asia Bishop, Eliza
Nelson, Shawntae Belton, Byron Daniels, Dalford Bradley and
Hakeem Spurell allegedly attacked him. They sprayed Wimbush
with pepper spray and repeatedly punched and kicked him.
(Compl. ¶¶ 1 & 25, ECF No. 1.) The
corrections officers, along with a police detective named
Dewey, then falsely claimed that Wimbush had assaulted the
officers. (Id. ¶ 28.) Wimbush was later
arrested and charged with aggravated and simple assault and
reckless endangerment. (Id. ¶ 29.) All charges
against Wimbush were nolle prossed. (Id.
¶ 30.) Wimbush contends that it was a policy or custom
of the City of Philadelphia to condone both the use of
excessive force against inmates and malicious prosecution of
prisoners. (Id. ¶ 31.) Moreover, he contends
that Defendants failed to train officers to use reasonable
force. (Id. ¶ 32.)
sued the City of Philadelphia, Philadelphia Police
Commissioner Richard Ross, Commissioner of the Philadelphia
Prison System Louis Giorla, Warden John Delaney, Warden Joyce
Adams, Detective Dewey along with Bishop, Nelson, Belton,
Daniels, Bradley, and Spurell in the Philadelphia Court of
Common Pleas. Defendants removed the case on November 8,
2016, (ECF No. 1), and filed their motion to dismiss, (ECF
survive a motion to dismiss under Rule 12(b)(6), a complaint
must provide “more than labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation omitted). “Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (citation omitted). While a
complaint need not include detailed facts, it must provide
“more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
and Iqbal require the Court to take three steps to
determine whether the second amended complaint will survive
Defendants' motion to dismiss. See Connelly v. Lane
Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First,
it must “take note of the elements the plaintiff must
plead to state a claim.” Id. (quoting
Iqbal, 556 U.S. at 675). Next, it must identify the
allegations that are no more than legal conclusions and thus
“not entitled to the assumption of truth.”
Id. (quoting Iqbal, 556 U.S. at 679).
Finally, where the complaint includes well-pleaded factual
allegations, the Court “should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Id. (quoting
Iqbal, 556 U.S. at 679).
“presumption of truth attaches only to those
allegations for which there is sufficient factual matter to
render them plausible on their face.” Schuchardt v.
President of the United States, 839 F.3d 336, 347 (3d
Cir. 2016) (internal quotation and citation omitted).
“Conclusory assertions of fact and legal conclusions
are not entitled to the same presumption.” Id.
This plausibility determination is a “context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” Id.
(quoting Connelly, 809 F.3d at 786-87).
plausibility standard, however, “does not impose a
heightened pleading requirement” and does not require a
plaintiff to plead specific facts. Id. In other
words, “courts cannot inject evidentiary issues into
the plausibility determination.” Id. The Third
Circuit has also made it clear that “at least for
purposes of pleading sufficiency, a complaint need not
establish a prima facie case in order to survive a
motion to dismiss” because a “prima facie case is
an evidentiary standard, not a pleading requirement and hence
is not proper measure of whether a complaint fails to state a
claim.” Connelly, 809 F.3d at 789 (internal
quotations and citations omitted). Instead, a plaintiff
should plead “enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
necessary elements.” Id. (quoting Phillips
v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
asserts claims under § 1983 for excessive force,
malicious prosecution, false arrest and cruel and unusual
punishment in violation of the Fourth, Fourteenth and Eighth
Amendments. To establish a prima facie case under
§ 1983, Wimbush must first demonstrate that a person
acting under color of law deprived him of a federal right.
See Groman v. Twp. of Manalapan, 47 F.3d 628, 633
(3d Cir. 1995). Wimbush must also show that the person acting
under color of law “intentionally” violated his
constitutional rights or acted “deliberately
indifferent” in violation of those rights. See,
e.g., County of Sacramento v. Lewis, 523 U.S.
833, 843-44 (1998); Brower v. County of Inyo, 489
U.S. 593, 596 (1989) (citing Hill v. California, 401
U.S. 797, 802-05 (1971)); see also Berg v. County of
Allegheny, 219 F.3d 261, 269 (3d Cir. 2000).
asserts § 1983 claims for excessive force under the
Eighth (Count II), Fourth and Fourteenth Amendments (Count
I). Fourth Amendment excessive force claims challenge
unreasonable seizures prior to incarceration. See Lamont
v. New Jersey, 637 F.3d at 177, 182-83 (3d Cir. 2011).
Pretrial excessive force claims are “governed by the
Due Process Clause of the Fourteenth Amendment.”
Robinson v. Danberg, No. 15-3040, 2016 WL 7364148,
at *2 (3d Cir. Dec. 19, 2016) (citing Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (2015)).