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Korth v. Hoover

United States District Court, M.D. Pennsylvania

June 20, 2017

GARY L. KORTH, Plaintiff
v.
JILL HOOVER, individually and in her official capacity; JOSEPH R. BAKER, individually and in his official capacity; and OLIVER TOWNSHIP, Defendants

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         Plaintiff, Gary L. Korth, filed this civil-rights action under 42 U.S.C. § 1983 accompanied by state-law claims. The suit arises from an alleged assault on Plaintiff committed by a police officer, Mark Botts, now deceased, employed by Oliver Township. The defendants are the Township and two of its supervisors, Jill Hoover and Joseph Baker. At the time of the alleged assault, Plaintiff was visiting the Township Municipal Building and making a complaint to Hoover about Botts.

         We are considering Defendants' “motion for a protective order and/or order clarifying remaining claims.” The motion requests that we “strik[e] any remaining claims for injunctive relief” and that we dismiss Oliver Township and Joseph Baker from the action. The request to strike the claims for injunctive relief is essentially directed at Count 4 of the second amended complaint. That count seeks unspecified injunctive relief against the three defendants under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the Fourth Amendment.

         II. Procedural History

         Plaintiff filed this action in state court, and it was removed here by Defendants. In response to a motion to dismiss the original complaint, Plaintiff filed an amended complaint. In the amended complaint, Plaintiff presented seven causes of action: (1) a Fourth Amendment excessive-force claim against Hoover and Baker; (2) a federal civil-rights supervisory-liability claim against Hoover and Baker for the injuries Botts inflicted by way of the deficient policies and practices they implemented; (3) a federal civil-rights municipal-liability claim against the Township for the injuries Botts inflicted based on deficient policies, practices, and customs; (4) a federal substantive due process claim against all three defendants for Botts' conduct; (5) a claim against all three defendants under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the Fourth Amendment; (6) a state-law claim against all the defendants for assault and battery; and (7) a state-law claim against all defendants for negligence.

         Defendants filed a motion to dismiss the amended complaint. In a memorandum detailing the pertinent allegations of the amended complaint, we ruled as follows, in relevant part. The Fourth Amendment excessive-force claim could proceed against Hoover but not against Baker, based on Hoover's direct personal involvement with the assault. The federal civil-rights supervisory-liability claim against Hoover and Baker was dismissed because Plaintiff failed to allege sufficient facts showing they had implemented deficient policies or customs that caused Plaintiff's injuries. The federal civil-rights municipal-liability claim against the Township was dismissed because Plaintiff failed to allege sufficient facts showing it had implemented deficient policies, practices, and customs that caused Plaintiff's injuries. The federal substantive due process claim was dismissed because Plaintiff's civil-rights claim was covered by the Fourth Amendment, not the Fourteenth Amendment. The Pennsylvania constitutional claim was allowed to proceed for injunctive relief but not damages. The state-law claim for assault and battery was allowed to proceed against Hoover but not against the Township or Baker. The state-law claim for negligence was dismissed based on a state-law grant of immunity. See Korth v. Hoover, 190 F.Supp.3d 394 (M.D. Pa. 2016).

         In regard to the state constitutional claim for injunctive relief, which was set forth in Count 5 of the amended complaint, Defendants had argued in part that Plaintiff was not entitled to injunctive relief because he only alleged past exposure to illegal conduct, and such exposure did not present a case or controversy for injunctive relief. They cited City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). (Doc. 11, ECF p. 28, Defs.' Br. in Supp.). We did not dismiss this claim at that time because we were permitting Plaintiff to amend the claims concerning federal supervisory liability and municipal liability, and we thought amendment might answer Defendants' objection. Korth, 190 F.Supp.3d at 410-11.

         Plaintiff filed a second amended complaint. In that pleading, Plaintiff set forth five causes of action. In Count 1, he made a Fourth Amendment claim against Hoover and Oliver Township for Botts' use of excessive force. In Count 2, he made a supervisory-liability claim against Hoover and Baker. In Count 3, he made a municipal-liability claim against Oliver Township. In Count 4, a repeat of the amended complaint's Count 5, he made a claim under the Pennsylvania Constitution, Art. I, § 8, against all three defendants for unspecified injunctive relief. In Count 5, he made a claim for assault and battery against Hoover.

         Defendants filed a motion to dismiss, which sought dismissal of Count 1 as against the Township, and dismissal of Counts 2 and 3. They argued that Plaintiff had once again failed to adequately allege supervisory or municipal liability based on policy or custom. They did not move to dismiss Counts 4 or 5. We granted the motion on October 3, 2016. Korth v. Hoover, 2016 WL 5719834, at *3 (M.D. Pa.).

         As a result, the remaining claims are: (1) Count 1 against Hoover for her direct personal involvement in the assault by Botts; (2) Count 4, a claim under the Pennsylvania Constitution, Art. I, § 8, against all three defendants for unspecified injunctive relief; and (3) Count 5, a state-law claim for assault and battery against Hoover. Defendants filed an answer to the second amended complaint on October 24, 2016.

         In the instant motion, Defendants argue that, although our October 3, 2016, memorandum did “not specifically address Count 4, ” Count 4 is now moot in light of our ruling that Plaintiff has failed to sufficiently allege any policies or customs that would support municipal or supervisory liability. In the absence of such allegations, Defendants reason that a claim for injunctive relief is moot as there are no unconstitutional policies or customs that need to be enjoined. They thus argue for a “clarification” that Count 4 is moot and a “formal” dismissal of Count 4, along with Baker and the Township from the lawsuit. Defendants note that they raised the issue in the joint case management plan (Doc. 28, p. 4) and also at the case management conference. (Doc. 34, Br. in Support at ECF pp. 6-7).

         As further support for their motion, they argue that Hoover's deposition is upcoming and Plaintiff may attempt to depose her about customs and policies on the ground that such discovery is relevant to the claim for injunctive relief. An order clarifying the remaining claims and parties would thus limit discovery issues at her deposition.

         Defendants also argue that, with no allegations about customs or policies, injunctive relief would not be appropriate because there is no danger of future violations, citing Samoles v. Lacey Twp., No. 12-CV-3066, 2014 WL 2602251, at *15 (D.N.J. Jun. 11, 2014)(injunctive relief not appropriate when the record showed that the plaintiff was not “substantially likely to suffer an excessive use of force injury under similar circumstances in the future”), and Spencer v. DeLuca, No. 10-CV-65, 2010 WL 2076912, at *1 (W.D. Pa. May 21, 2010)(dismissing a claim for equitable relief when the plaintiff failed to allege “facts ...


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