United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is a partial motion to dismiss (Doc. 23) Plaintiffs
Dawn Zavec, individually, o/b/o M.Z., a minor, and as
administrator of the estate of Joseph Zavec's Second
Amended Complaint (Doc. 22) filed by Defendants Robert
Collins ("Officer Collins"), Brian Gist
("Officer Gist"), and City of Wilkes-Barre
reasons that follow, Defendants' partial motion to
dismiss the Second Amended Complaint will be granted in part
and denied in part.
pertinent facts, as set forth in Plaintiffs' Second
Amended Complaint (Doc. 22), are as follows:
November 10, 2014, at approximately 9:30 p.m., Wilkes-Barre
Police Officers Robert Collins and Gist encountered
Plaintiffs Dawn Zavec ("Mrs. Zavec"), Joseph Zavec
("Mr. Zavec"),  and their daughter, M.Z., at their home
on Weston Lane in the City of Wilkes-Barre while responding
to a parking complaint involving Mr. Zavec and a neighbor.
Doc. 22, at ¶ 11.
Collins and Gist approached the Zavecs' door and spoke to
them about the parking issue. Id. at ¶¶
13, 14, 16, 17. The Officers became aware of both Mr. and
Mrs. Zavec's disabilities during the encounter.
Id. at ¶¶ 15, 18, 19, 20, 24-28. Mrs.
Zavec was injecting medicine into her stomach within plain
view of Officer Collins as he spoke to Mr. Zavec at the front
door of the home. Id. at ¶ 14. A disposal
container for Mrs. Zavec's needles and injection
equipment was located in plain view as well. Id. at
¶ 15. Further, Mrs. Zavec explained to the Officers that
she was holding an ice pack on her stomach because she had
just given herself an injection of multiple sclerosis
medication. Id. at ¶¶ 18-20. Mr.
Zavec's speech disability, a pronounced stutter, was also
apparent. Id. at ¶¶ 13, 14, 24-28.
speaking to Mr. Zavec about his neighbor's parking
complaint, Officers Collins and Gist began inspecting Mr.
Zavec's vehicle and informed him that his window tint and
tires were illegal. Id. at ¶ 21. Mr. Zavec, who
was a licensed vehicle safety inspector in Pennsylvania, told
the Officers that, in his opinion, the tints and tires were
legal. Id. at ¶ 23.
point during the conversation, Officer Collins began mocking
Mr. Zavec's speech impediment. Id. at ¶
24-25. At that time, Mr. Zavec was inside his home and was
conversing with the Officers, who were on the sidewalk in
front of the home, through the front screen door.
Id. at ¶ 26. Mrs. Zavec, who was inside the
home seated on the couch, witnessed Officer Collins mocking
Mr. Zavec's speech. Id. at ¶ 27.
Gist then joined Officer Collins in mocking Mr. Zavec, and
began to video and audiotape Mr. Zavec with a cell phone.
Id. at ¶ 29. Officer Gist angled his cell phone
in such a way as to film the conversations and activities
which were occurring inside the Zavec home, including
conversations Mr. and Mrs. Zavec were conducting privately
with each other. Id. at ¶¶ 29, 31, 33, 34.
to Plaintiffs, Officer Gist did not have a warrant to record
the inside of the Zavecs' home and the conversations
therein. Id. at ¶ 32. Moreover, Plaintiffs
allege that they did not consent to any such recording.
Id. at ¶ 35, 39, 55. Plaintiffs further contend
that there was no reason for the Officers to continue
interacting with them because the parking dispute had already
been resolved. Id. at ¶ 41.
Zavec eventually ceased talking to the Officers. While still
inside the home, he began speaking to Mrs. Zavec, at one
point telling her "he [Officer Collins] just did it
again, " which was apparently a reference to Officer
Collins continuing to mock Mr. Zavec's speech.
Id. at ¶ 34. Shortly thereafter, Mrs. Zavec
came out of the home and onto the front porch and asked
Officers Collins and Gist to "[p]lease just go because I
did see you do that [mock Mr. Zavec's speech impediment].
Please. Look, I am very sick and I don't need it. Just
please leave. You did what you had to do, now you're just
trying to antagonize him. Please leave." Id. at
Zavec remained inside the home and observed the interaction
between Mrs. Zavec and the Officers through the screen door.
Id. at ¶ 46. Officer Collins then asked Mrs.
Zavec if she thought Mr. Zavec was being "unruly"
and whether she heard Mr. Zavec tell the Officers to "go
fuck themselves." Id. at ¶ 47, 49. Mr.
Zavec confirmed that he had, indeed, said that. Id.
at ¶ 50. Mr. Zavec further expressed anger that Officer
Gist was recording the incident on his cell phone.
Id. at ¶ 51. During the entire encounter,
Officer Collins continued to mock and ridicule Mr.
Zavec's speech impediment. Id. at ¶ 53.
Zavec remained on the porch near the screen door and Mr.
Zavec was now standing just outside the door next to Mrs.
Zavec. Id. at ¶ 54. Frustrated and embarrassed
by Officer Collins' mockery, Mr. Zavec threatened Officer
Collins that, if the Officer continued to mock him, Mr. Zavec
would "knock [his] black fucking head off."
Id. at ¶ 56, 58.
Mr. Zavec levied the threat, Officer Collins began screaming,
"Now you're threatening! Now you're
threatening!" and immediately charged at Mrs. Zavec,
tackling her onto the living room floor. Id. at
Gist stopped recording the incident with his cell phone and
entered Plaintiffs' home to join Officer Collins in his
attack on Mrs. Zavec. Id. at ¶ 61, 63. One of
the Officers pinned Mrs. Zavec to the ground and
"trampled" on top of her while she cried that they
were hurting her, screamed for help, and begged them to stop.
Id. at ¶ 62, 64. One of the Officers also
stepped on Mrs. Zavec's stomach, which is where she had
earlier given herself an injection, and Officer Collins put
his knees in Mrs. Zavec's eyes. Id. at ¶
65-66. While Officers Collins and Gist were
"trampling" on Mrs. Zavec, Mr. Zavec was telling
the Officers that Mrs. Zavec had multiple sclerosis and that
they were going to "kill" her. Id. at
¶ 67. Mrs. Zavec was able to get up off the ground, but
her left leg was completely numb from the Officers'
assault and, at some point, she lost control of her bladder.
Id. at ¶ 68, 71- 72.
at this point that Officers Collins and Gist turned their
attention to Mr. Zavec and pinned him to the floor as well.
Id. at ¶ 68, 73. Mrs. Zavec yelled at the
Officers to get Mr. Zavec off his stomach because he also has
medical conditions when, suddenly, Officer Collins removed
his Taser from its holster and pointed it at Mrs. Zavec's
face with his finger on the trigger, saying "I'm not
telling you again, " as he pulled her head back by her
hair. Id. at ¶ 74, 76. M.Z., the Zavecs'
daughter, attempted to assist Mrs. Zavec, but Officer Gist
grabbed M.Z. by her shirt and threw her against a wall,
breaking a hot wax warmer which dripped hot was on M.Z.'s
back. Id. at ¶ 77. In the midst of all the
commotion, the Zavecs' puppy broke free from its crate
which led Officer Collins to draw his firearm and threaten to
shoot the puppy. Id. at ¶ 78-79. As a result of
the Officers' actions, Plaintiffs' personal property
was damaged. Id. at ¶ 80.
a neighbor called an ambulance for Mrs. Zavec. Id.
at ¶ 71-72, 84-85. Before it arrived, Officers Collins
and Gist left with Mr. Zavec in custody. Id. at
¶ 87. Following the incident, neither Mrs. Zavec nor
M.Z. were charged with any crimes relating to this incident.
Id. at ¶ 89. Mr. Zavec, on the other hand, was
charged with misdemeanor terroristic threats, misdemeanor
resisting arrest, summary disorderly conduct, and summary
defiant trespass. Id. at ¶ 90. Mr. Zavec
subsequently pled guilty to one count of summary disorderly
conduct. Id. at ¶ 58, 92. The remaining charges
were dismissed. Id. at ¶ 92.
light of the above, Plaintiffs instituted the instant lawsuit
(Docs. 1, 15, 22), asserting the following causes of action:
(1) unreasonable search in violation of 42 U.S.C. §
1983, stemming from Officer Gist's video and audio
recording of the encounter, Doc. 22, ¶¶ 96-99; (2)
unreasonable entry into Plaintiffs' home in violation of
42 U.S.C. § 1983, id. at ¶¶ 100-103;
(3) unreasonable seizure in violation of 42 U.S.C. §
1983, id. at ¶¶ 104-107; (4) use of
excessive force in violation of 42 U.S.C. § 1983,
id. at ¶¶ 108-111; (5) deprivation of
personal property without due process of law in violation of
42 U.S.C. § 1983, id. at ¶¶ 112-115;
(6) First Amendment retaliation against Mr. Zavec in
violation of 42 U.S.C. § 1983, id. at
¶¶ 116-119; (7) failure to accommodate in violation
of the Americans with Disabilities Act, 42 U.S.C. §
12101, et seq., and the Rehabilitation Act §
504, 29 U.S.C. § 794, id. at ¶¶
120-144; (8) assault, id. at ¶¶ 145-148;
(9) battery, id. at ¶¶ 149-152; and (10)
trespass, id. at ¶¶ 153-155.
have filed a partial motion to dismiss Plaintiffs' Second
Amended Complaint. See Doc. 23. The motion has been
fully briefed and is now ripe for disposition.
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 their 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). 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,
127 S.Ct. 2197 (2007) (per curiam) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955
(2007)). Detailed factual allegations are not required.
Twombly, 550 U.S. at 555, 127 S.Ct. 1955. 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, 129 S.Ct. 1937, 1950 (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, 127 S.Ct. 1955, meaning enough factual allegations
“‘to raise a reasonable expectation that
discovery will reveal evidence of'” each necessary
element. Phillips v. County of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.
at 556, 127 S.Ct. 1955). “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, 129
S.Ct. 1937. “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 679, 129 S.Ct.
deciding a motion to dismiss, the Court should consider the
allegations in the complaint, exhibits attached to the
complaint, and matters of public record. See 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. Id. The Court need not assume 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 Cir. 1997)).
Claims Pursuant to 42 U.S.C. § 1983
U.S.C. § 1983 provides that “[e]very person who,
under color of any statute, ordinance, regulation, custom, or
usage...subjects, or causes to be subjected, any citizen...or
other person...to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured[.]” 42 U.S.C. § 1983.
“To establish liability under § 1983, a plaintiff
must show that the defendant, acting under color of law,
violated the plaintiff's federal constitutional or
statutory rights, and thereby caused the complained of
injury.” Elmore v. Cleary, 399 F.3d 279, 281
(3d Cir. 2005) (citing Sameric Corp. of Del., Inc. v.
City of Phila., 142 F.3d 582, 590 (3d Cir. 1998)).
Count I - Unreasonable Search
Count I of the Second Amended Complaint, Plaintiffs allege
that Officer Gist's audio and video recording of the
inside of their home and the conversations therein
constituted an unreasonable search in violation of the Fourth
Amendment as the recording was made without a warrant and
without the presence of any exception to the warrant
requirement. (Doc. 22, ¶ 38).
Fourth Amendment to the United States Constitution guarantees
"[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures" by governmental actors. U.S.
Const. amend. IV. The threshold question, thus, is whether
the conduct complained of amounted to a search or a seizure
within the meaning of the Fourth Amendment.
Supreme Court has held, "[a] 'search' occurs
when an expectation of privacy that society is prepared to
consider reasonable is infringed." United States v.
Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656
(1984); Illinois v. Andreas, 463 U.S. 765, 771, 103
S.Ct. 3319, 3324 (1983) ("If the inspection by police
does not intrude upon a legitimate expectation of privacy,
there is no 'search'[.]"). Because individuals
ordinarily possess the highest expectation of privacy within
the “curtilage” of their home, that area
typically is "afforded the most stringent Fourth
Amendment protection." United States v.
Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084
(1976). However, "'[w]hat a person knowingly exposes
to the public, even in his own home ..., is not a subject of
Fourth Amendment protection.'" California v.
Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 1813 (1986)
(quoting Katz v. United States, 389 U.S. 347, 351,
88 S.Ct. 507, 511 (1967)). Thus, an "officer's
observations from a public vantage point where he has a right
to be" and from which the activities or objects he
observes are "clearly visible" do not constitute a
search within the meaning of the Fourth Amendment.
at all relevant times to Count I, Officers Collins and Gist
were standing on a sidewalk in front of Plaintiffs' home
(Doc. 22, at ¶ 26), and Mr. Zavec was speaking with the
Officers from inside his home through the front screen door.
Id. at ¶ 26. The Officers were able to observe
activities occurring inside Plaintiffs' home from where
they were positioned. Id. at ¶¶ 26, 29.
The interior of the home was visible from the street to
anyone walking by. Moreover, Plaintiffs did not seek to
confine their activities to the interior of their home where
they could not been seen by those standing at the front door;
Plaintiffs do not even maintain that they exhibited an
expectation of privacy in their living room and the objects
located in their home by shielding them from public view. I
thus find that the visual observation at issue was not a
“search” within the meaning of the Fourth
Amendment. See United States v. Hersh, 464 F.2d 228,
230 (9th Cir.) (per curiam), cert. denied,
409 U.S. 1008, 93 S.Ct. 442 (1972) (holding that observations
by law enforcement officers through window adjacent to front
door and on porch did not constitute a search within the
meaning of the Fourth Amendment because the officers
"were in a place where they had a right to be, and ...
whatever they saw through the window was in plain
sight"); see also United States v. Taylor, 90
F.3d 903, 908 (4th Cir. 1996) (holding that officers did not
conduct a search by looking into an open window because there
was no expectation of privacy in the area and the items seen
through the window provided the officers with probable cause
and exigent circumstances to enter the home).
concede that "[Officer] Gist can record any discussions
between themselves and the police which occurred on the front
porch of their home, as those discussions were clearly
public." (Doc. 31, at 17). They claim, however that
their "Fourth Amendment claim arises because [Officer]
Gist did not simply choose to record those conversations and
activities which the Zavecs made public. [Officer] Gist chose
to aim his phone to video and audiotape the interior of the
Zavecs' home, where private conversations and activities
were occurring." Id. at 17-18.
of the cell phone camera, however, is immaterial here because
“the technology in question is in general public
use”. See Kyllo v. United States, 533 U.S. 27,
40, 121 S.Ct. 2038, 2046 (2001) (holding that [w]here . . .
the Government uses a device that is not in general public
use, to explore details of the home that would previously
have been unknowable without physical intrusion, the
surveillance is a "search" and is presumptively
unreasonable without a warrant"). More importantly, as I
have already explained, the Zavecs' activities were
visible from a lawful vantage point. The depiction of the
activities as "private" clashes with the fact that
they could have been seen by any person passing by
Plaintiffs' home. Plaintiffs' argument would be
similarly unconvincing and lacking in precedential support
had Plaintiffs argued that "[Officer] Gist chose to aim
his [eyes] to [see] the interior of the
Zavecs' home, where private conversations and activities
were occurring." See California v. Ciraolo, 476
U.S. 207, 213, 106 S.Ct. 1809 (1986) ("The Fourth
Amendment protection of the home has never been extended to
require law enforcement officers to shield their eyes when
passing by a home on public thoroughfares.").
Plaintiffs' argument that "[Officer] Gist did not
possess a warrant" and "[n]o exception to the
warrant requirement existed" is equally flawed because
it incorrectly presupposes that a "search"
occurred. (Doc. 31, at 18).
exposed the interior of their home to anyone positioned at
its entranceway, Plaintiffs possessed no reasonable
expectation of privacy in the home or its plainly visible
contents. Accordingly, the observations the Officers made
through the front door, recorded by Officer Gist on his cell
phone, did not constitute a search ...