United States District Court, W.D. Pennsylvania
BARRY FISCHER UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion to Dismiss for
Failure to State a Claim and supporting brief, (Docket Nos.
, ); Plaintiff's Response in Opposition, (Docket
No. ); and Defendants' Reply, (Docket No. ).
After careful consideration of the parties' submissions,
in light of the standards governing motions to dismiss set
forth by the Supreme Court in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009), and as articulated in
Third Circuit precedent, see, e.g., Connelly v.
Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016), and
for the following reasons, Defendants' Motion, (Docket
No. ), is DENIED, without prejudice to Defendants
renewing their arguments at the motion for summary judgment
stage of this matter.
Motion to Dismiss Plaintiff's 42 U.S.C. § 1983
excessive force claim at Count I is denied, as the Court
finds that Plaintiff has set forth sufficient allegations to
state a plausible claim that Officer Garrett K. Kimmell's
actions in punching, kicking, and kneeing Plaintiff
constituted an actionable “seizure” under Third
Circuit jurisprudence. See United States v. Brown,
448 F.3d 239, 245 (3d Cir. 2006) (“A seizure occurs
when there is either (a) ‘a laying on of hands or
application of physical force to restrain movement, even when
it is ultimately unsuccessful, ' or (b) submission to
‘a show of authority.' Put another way, when a
seizure is effected by even ‘the slightest application
of physical force, ' it is immaterial whether the suspect
yields to that force.”) (quoting California v.
Hodari D., 499 U.S. 621, 626 (1991)); see also
Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006)
(“The use of excessive force is itself an unlawful
‘seizure' under the Fourth Amendment.”).
doctrine of qualified immunity “protects government
officials ‘from liability for civil damages insofar as
their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.'” Kelly v. Borough of
Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In
addressing a claim of qualified immunity, a court must
determine: “(1) whether the facts alleged by the
plaintiff show the violation of a constitutional right, and
(2) whether the law was clearly established at the time of
the violation.” Id. “[T]o decide whether
a right was clearly established, a court must consider the
state of the existing law at the time of the alleged
violation and the circumstances confronting the officer to
determine whether a reasonable state actor could have
believed his conduct was lawful.” Id.
Court is mindful of case law holding that “any claim of
qualified immunity must be resolved at the earliest possible
stage of litigation.” Fanti v. Weinstock, 629
F. App'x 325, 328-329 (3d Cir. 2015) (internal quotations
omitted). However, taking Plaintiff's allegations as
true, the Court finds that he has sufficiently pled a clearly
established violation of his Fourth Amendment rights because
the beating of Plaintiff after he was physically detained
“could be viewed as unreasonable, excessive and serving
no legitimate law enforcement purpose.” Greene v.
Perez, No. 13-5493, 2017 U.S. Dist. LEXIS 58340, at *10
(D.N.J. Apr. 17, 2017) (holding that the defendants were not
entitled to qualified immunity at the motion-to-dismiss stage
of the proceedings). Furthermore, a reasonable officer could
have believed that punching, kicking, kneeing, and tasing
Plaintiff after he was physically restrained was unlawful.
Defendants ask that the Court accept their version of the
facts by arguing that Plaintiff refused to follow directives,
resisted Officer Kimmell's attempts to search him,
physically confronted Officer Kimmell, moved for Officer
Kimmell's weapon, and gained a physical position over
Officer Kimmell. (See Docket No. 24 at 6). Plaintiff
alleges that he did not reach for Officer Kimmell's
weapon, as his arm was immobilized in a cast, and that he did
not resist arrest. (Docket No. 21 at ¶¶ 26-28,
31-34). Thus, there are several disputed issues of material
fact. See Conte v. Rios, 658 F. App'x 639,
642-43 (3d Cir. 2016) (stating that a District Court must
identify the factual issues relevant to deferring a decision
on qualified immunity); see also Hernandez v.
Montoya, No. 16-CV-4592, 2017 U.S. Dist. LEXIS 73683, at
*7-8 (D.N.J. May 15, 2017) (declining to address qualified
immunity at the motion-to-dismiss stage because “the
defendants ask the court to accept their version of the
facts, which the court, at this stage of the proceedings,
Court further notes that it denied Defendants' Motion to
Strike a Video Attached as Exhibit A to Plaintiff's
Second Amended Complaint. (Docket No. 35). In this
Court's estimation, the video showing the incident
supports Plaintiff's allegations that he was subjected to
an unlawful seizure. However, it is well settled that
“‘[a]ny assessment of the probative value of
video evidence must take into account that the camera, while
an immutable witness, can only describe events from the
particular perspective of the video's lens.'”
Velez v. Fuentes, No. 15-CV-6939, 2016 U.S. Dist.
LEXIS 99328, at *25 (D.N.J. July 29, 2016) (quoting
Breeland v. Cook, No. 12-CV-2511, 2014 U.S. Dist.
LEXIS 27446, at *9 (M.D. Pa. Mar. 3, 2014)). Given the
parties' disputes of fact, the Court finds that discovery
is necessary and will defer reaching a decision as to whether
qualified immunity applies. See Id. at *25-26
(explaining that “the Court is not required to accept
the video tape as the only account of the incident” and
denying summary judgment at the motion-to-dismiss stage
because genuine disputes of material fact remained); see
also Coles v. Carlini, No. 10-6132, 2012 U.S. Dist.
LEXIS 44855, at *22 (D.N.J. Mar. 29, 2012) (denying motion to
dismiss because “[t]he First Amended Complaint as well
as the video present facts supporting the Plaintiffs'
allegations that they were subjected to an unlawful seizure
by the Defendant Troopers”).
Motion to Dismiss Plaintiff's 42 U.S.C. § 1983
failure to intervene claim at Count IV is denied, as
Plaintiff has sufficiently stated his claim. A police officer
“has a duty to take reasonable steps to protect a
victim from another officer's use of excessive force,
even if the excessive force is employed by a superior.”
Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir.
2002). “If a police officer, whether supervisory or
not, fails or refuses to intervene when a constitutional
violation such as an unprovoked beating takes place in his
presence, the officer is directly liable under Section
1983.” Id. (quoting Byrd v. Clark,
783 F.2d 1002, 1007 (11th Cir. 1986)). “However, an
officer is only liable if there is a realistic and reasonable
opportunity to intervene.” Id. at 651.
alleges that Officer Kimmel held him against the wall when
Officer Dan Verno entered the room and lifted him off Officer
Kimmel. (Docket No. 21 at ¶¶ 39-40). Plaintiff
asserts that thereafter, Officer Kimmel tasered him while he
was shackled to the bench and Officer Verno watched rather
than intervening to aid him. (Id. at ¶¶
41-42). In support of his claim, Plaintiff further avers that
Officer Verno was an integral participant in the tasing
because he had a reasonable opportunity to intervene but
failed to do so. (See Id. at ¶¶ 81-88).
Such allegations, taken as true, are sufficient to state a
plausible claim for relief. See, e.g., Beenick
v. LeFebvre, No. 14-CV-1562, 2015 U.S. Dist. LEXIS
63002, at *29 (M.D. Pa. May 14, 2015) (denying motion to
dismiss the plaintiff's failure to intervene claim
because the plaintiff had alleged that a correctional officer
was present and knew that another officer ordered him to
slice watermelon with a meat slicer in an unsafe manner but
did nothing to stop him); Miller v. Sauers, No.
11-CV-189, 2012 U.S. Dist. LEXIS 113581, at *13-14 (W.D. Pa.
July 24, 2012) (recommending that a motion to dismiss the
plaintiff's failure to intervene claim be denied because
the plaintiff had alleged that prison officials were aware
that another officer was physically assaulting him, had a
reasonable opportunity to intervene, but did not),
adopted by, 2012 U.S. Dist. LEXIS 113355 (W.D. Pa.
Aug. 13, 2012). Moreover, in the Court's estimation, the
video showing the incident supports a conclusion that
Plaintiff's allegations should move beyond the pleading
stage and into discovery. See, e.g., Peraza v.
Cain, No. 12-CV-376, 2017 U.S. Dist. LEXIS 35259, at *30
(M.D. Pa. Mar. 13, 2017) (concluding that the plaintiff's
failure to intervene claim was not subject to dismissal
because a video showed that an officer was present but not
actively involved in the restraint of the plaintiff); see
also Kates v. Packer, No. 13-CV-1525, 2016 U.S. Dist.
LEXIS 41528, at *28 (M.D. Pa. Mar. 29, 2016) (holding that a
determination as to the plaintiff's failure to intervene
claim was premature in light of the survival of his excessive
Motion to Dismiss Plaintiff's assault and battery claim
at Count II is likewise denied, as the Court finds that
Plaintiff has sufficiently stated his claim and that it is
otherwise premature to address same. While Pennsylvania's
Political Subdivision Tort Claims Act immunizes local
agencies from liability under state tort law for actions
within the scope of their employment, an employee can be held
liable in tort for actions outside that scope. 42 Pa.C.S.
§ 8542; see also Bates v. Morris, No.
15-CV-780, 2016 U.S. Dist. LEXIS 40835, at *6 (W.D. Pa. Feb.
26, 2016). Under Pennsylvania law, an action falls within the
scope of employment when: (1) it is the kind that the
employee is employed to perform; (2) it occurs substantially
within the job's authorized time and space limits; (3) it
is motivated at least in part by a desire to serve the
employer; and (4) if force was used by the employee against
another, the use of force is not unexpected by the employer.
Bates, 2016 U.S. Dist. LEXIS 40835, at *6.
“Where the alleged intentional tort was provoked,
unnecessary or unjustified by security concerns or
penological goals, courts have ruled that such conduct does
not, as a matter of law, fall within the scope of
employment.” Id. As discussed above, having
reviewed Plaintiff's Second Amended Complaint and a video
of the incident, the Court finds that Plaintiff's
allegations should move beyond the pleading stage and into
discovery. See Id. at *7 (denying motion to dismiss
assault and battery claim because taking the plaintiff's
allegations as true, “it could reasonably be argued
that the use of force was unprovoked and unwarranted”);
see also Coulston v. Glunt, No. 14-CV-112, 2015 U.S.
Dist. LEXIS 92519, at *11-14 (W.D. Pa. May 22, 2015) (same).
Motion to Dismiss Plaintiff's 42 U.S.C. § 1983
failure to properly train, supervise, discipline, and
investigate claim at Count III is denied, as the Court
concludes that Plaintiff has set forth sufficient allegations
to state a plausible claim for relief to survive a motion to
dismiss. A plaintiff may plead a failure to train, supervise,
or discipline claim where the municipality's failure
“amounts to deliberate indifference to the rights of
persons with whom the police come into contact.”
City of Canton v. Harris, 489 U.S. 378, 388 (1989);
see also Montgomery v. De Simone, 159 F.3d 120,
126-27 (3d Cir. 1998); Carter v. City of Phila., 181
F.3d 339, 357 (3d Cir. 1999); Bonenberger v. Plymouth
Twp., 132 F.3d 20, 25 (3d Cir. 1997). A failure to
train, supervise, or discipline claim can form the basis for
§ 1983 municipal liability only if “the plaintiff
can show both contemporaneous knowledge of the offending
incident or knowledge of a prior pattern of similar incidents
and circumstances under which the supervisor's actions or
inaction could be found to have communicated a message of
approval to the offending subordinate.”
Montgomery, 159 F.3d at 127; C.H. v. Oliva,
226 F.3d 198, 202 (3d Cir. 2000).
state a failure to train, supervise, or discipline claim, a
plaintiff “must do more than simply engage in a
formulaic recitation of the elements of a claim; a
‘blanket assertion' or conclusory allegation of
municipal liability will not suffice.” Landis v.
Moyer, No. 1:13-CV-673, at Docket No. 47 at 40 (M.D. Pa.
Aug. 6, 2013) (quoting Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). To this
end, a plaintiff “must plead sufficient facts from
which it can be found that the municipal defendant he or she
has sued is responsible for enacting, implementing, or
widespreadly engaging in a practice which constitutes or
causes a constitutional violation.” Id.
Specifically, “there must be sufficient allegations
from which a jury could conclude that the municipality was
the ‘moving force, ' or proximate cause, of the
injury suffered by the plaintiff.” Id.
(quoting Thompson v. Wynnewood of Lower Merion Twp.,
No. 12-CV-2308, 2012 U.S. Dist. LEXIS 130742, at *26-27 (E.D.
Pa. Sept. 13, 2012)).
Second Amended Complaint, Plaintiff alleges that there have
been other incidents wherein Elizabeth Borough's police
officers subjected others to excessive force. (Docket No. 21
at ¶ 67). Although Defendants argue that
“Plaintiff only offers facts to support a single
incident, ” (Docket No. 24 at 7), the Court finds that,
at this stage of the proceedings, Plaintiff has stated a
plausible claim for relief. See Thomas v. Cumberland
County, 749 F.3d 217, 224 (3d Cir. N.J. Apr. 11, 2014)
(explaining that “[w]e have previously found that a
single-incident constitutional violation was sufficient to
preclude summary judgment” on claims for
municipal liability”) (emphasis added); see also
Conte v. Rios, 14-CV-225, 2015 U.S. Dist. LEXIS 114493,
at *21-22 (W.D. Pa. Aug. 27, 2015) (rejecting the
defendants' argument that the plaintiff's failure to
train claim should be dismissed because he alleged only one
incident), rev'd on other grounds by, 658 F.
also alleges that Elizabeth Borough had policies, practices,
customs, and usages to: (1) encourage and/or tacitly sanction
the violation of its citizens' constitutional rights; (2)
use force or excessive force to entice a suspect to retaliate
to excuse its officers' actions; and (3) use their
authority to intimidate or harass African Americans and to
suppress their civil and constitutional rights. (Docket No.
21 at ¶ 68). Plaintiff avers that Elizabeth Borough
consciously disregarded the unconstitutionality of the use of
force to suppress his civil rights and that its policies,
practices, customs, and usages were a direct and proximate
cause of the alleged unconstitutional conduct. (Id.
at ¶ 69). He contends that it was Elizabeth
Borough's policy and/or custom to inadequately train,
supervise, and discipline its police officers, thereby
failing to discourage further constitutional violations.
(Id. at ¶ 71). Such allegations are sufficient,
as “‘there is no requirement at the pleading
stage for [the plaintiff] to identify a specific policy to
survive a motion to dismiss.'” Landis, No.
1:13-CV-673, at Docket No. 47 at 42 (quoting Moore v.
Ryan, No. 12-CV-1875, 2013 U.S. Dist. LEXIS 46458, at
*21 (M.D. Pa. Apr. 1, ...