United States District Court, M.D. Pennsylvania
MICHAEL DEGROAT, Individually and as Administrator of the Estate of Derek DeGroat, Sheila Marie DeGroat, Breeanna DeGroat, and Derek Edward Michael DeGroat by Lindsey Erk as parent and natural guardian, Plaintiffs,
SERGEANT PAUL V. CAVALLARO, et al., Defendants.
Richard Caputo United States District Judge
before the Court is a Motion to Dismiss (Doc. 26) filed by
Defendants Trooper Brian E. Rickard, Corporal Benjamin W.
Clark, Corporal Christopher Cole, Corporal James E. Travis,
Trooper Wayne Thomas, Corporal Derek Felsman, Trooper James
A. Hitchcock, Trooper Brett Ast, and Trooper Michael Oakes
(collectively, the “moving Defendants”). For the
reasons that follow, the moving Defendants' Motion will
be granted in part and denied in part.
well-pleaded facts as set forth in Plaintiffs' Amended
Complaint (Doc. 24) are as follows:
action stems from the death of Derek DeGroat (the
“decedent”), who was shot eleven (11) times and
killed by members of the Pennsylvania State Police
(“PSP”). (Compl. ¶ 19.) On December 21,
2015, the decedent was visiting Plaintiff Sheila DeGroat, his
mother, and Plaintiff Breeanna DeGroat, his sister, at the
family's home in Wayne County, Pennsylvania.
(Id. ¶¶ 2, 17.) During this visit, the
decedent lawfully possessed an unloaded firearm.
(Id. ¶ 19.) A verbal disagreement took place
between the decedent and his then-girlfriend, Lindsey Erk.
(Id. ¶ 18.) At some point, members of the PSP
arrived at the family home, including the moving Defendants.
(Id. ¶ 13.) Around 11:53 P.M., one or more of
the PSP officers on the scene fired thirty-nine (39) shots in
the direction of the decedent, striking him eleven (11) times
and killing him. (Id. ¶¶ 2, 19.) The
decedent did not point or aim his unloaded firearm at the PSP
officers at any time leading up to the shooting.
(Id. ¶ 19.)
suit is brought by Michael DeGroat, individually as the
decedent's father and as Administrator of the Estate for
the decedent; Sheila Marie DeGroat, the decedent's
mother; Breeanna DeGroat, the decedent's sister; and
Derek Edward Michael DeGroat, the decedent's son, by his
parent and natural guardian Lindsey Erk. (Id.
¶¶ 2-3.) The Amended Complaint named as Defendants
Sergeant Paul V. Cavallaro, Station Commander of the Wayne
County Honesdale Troop R Barracks of the PSP; Captain
Christopher L. Paris, the “Troop R” Commanding
Officer of the PSP; the moving Defendants, all of whom are
PSP officers who were present at the DeGroat family home on
the night of the incident; and John Doe's numbered 1-15,
who are presently unknown PSP officers who were also present
at the DeGroat family home on the night of the incident.
(Id. ¶¶ 11-14.) The moving Defendants are
being sued in their official and individual capacities.
(Id. ¶ 13.)
Rule of Civil Procedure 12(b)(6) provides for the dismissal
of a complaint, in whole or in part, for failure to state a
claim upon which relief can be granted. See Fed. R.
Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion,
the Court's role is limited to determining if a plaintiff
is entitled to offer evidence in support of her claims.
See Semerenko v. Cendant Corp., 223 F.3d 165, 173
(3d Cir. 2000). The Court does not consider whether a
plaintiff will ultimately prevail. Id. A defendant
bears the burden of establishing that a plaintiff's
complaint fails to state a claim. See Gould Elecs. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000).
pleading that states a claim for relief must contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
The statement required by Rule 8(a)(2) must
“‘give the defendant fair notice of what the . .
. claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Detailed factual allegations are not
required. Twombly, 550 U.S. at 555. However, mere
conclusory statements will not do; “a complaint must do
more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009). Instead, a complaint must
“show” this entitlement by alleging sufficient
facts. Id. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 664
(2009). As such, “[t]he touchstone of the pleading
standard is plausibility.” Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012).
inquiry at the motion to dismiss stage is “normally
broken into three parts: (1) identifying the elements of the
claim, (2) reviewing the complaint to strike conclusory
allegations, and then (3) looking at the well-pleaded
components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are
sufficiently alleged.” Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
is appropriate only if, accepting as true all the facts
alleged in the complaint, a plaintiff has not pleaded
“enough facts to state a claim to relief that is
plausible on its face, ” Twombly, 550 U.S. at
570, meaning enough factual allegations “‘to
raise a reasonable expectation that discovery will reveal
evidence of'” each necessary element. Phillips
v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. At 678. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id. at
deciding a motion to dismiss, the Court should consider the
complaint, exhibits attached to the complaint, and matters of
public record. Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993)). The Court may also consider “undisputedly
authentic” documents when the plaintiff's claims
are based on the documents and the defendant has attached
copies of the documents to the motion to dismiss. Pension
Benefit Guar. Corp., 998 F.2d at 1196. The Court need
not assume that the plaintiff can prove facts that were not
alleged in the complaint, see City of Pittsburgh v. W.
Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir.
1998), or credit a complaint's “‘bald
assertions'” or “‘legal conclusions,
'” Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d
Amended Complaint (Doc. 24) lists nine causes of action: (1)
a claim under 42 U.S.C. § 1983 for a violation of the
Fourth and Fourteenth Amendments (Count I); (2) an additional
claim under § 1983 for a violation of the Fourth
Amendment (Count II); (3) a claim for negligent infliction of
emotional distress (“NIED”) (Count III); (4) a
claim labeled as “intentional tort” (Count IV);
(5) a claim alleging a breach of the duty of care (Count V);
(6) a claim alleging a failure to intervene against
Defendants Cavallaro and Paris (Count VI); (7) a claim for
wrongful death (VII); (8) claims for assault and battery
(Count VIII); and (9) a claim labeled as “zone of
danger” (Count IX). The moving Defendants filed their
Motion to Dismiss on November 30, 2016, seeking to dismiss
Plaintiffs' Amended Complaint in part. (Doc. 26.) The
moving Defendants argue that the Fourteenth Amendment
substantive due process claim asserted in Count I should be
dismissed because Plaintiffs' federal-law claim is
governed by the Fourth Amendment and its
“reasonableness” standard. ...