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Wimbush v. City of Philadelphia

United States District Court, E.D. Pennsylvania

April 12, 2017

GARY WIMBUSH, Plaintiff,
CITY OF PHILADELPHIA, et al., Defendants.


          GERALD J. PAPPERT, J.

         Gary 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.


         On May 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.)

         Wimbush 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 No. 2).


         To 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         Twombly 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).

         This “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).

         This 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)).


         Wimbush 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).


         Wimbush 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)). ...

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