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Zavec v. Collins

United States District Court, M.D. Pennsylvania

July 27, 2017

DAWN ZAVEC, Plaintiffs,


          A. Richard Caputo United States District Judge

         Presently 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 (collectively “Defendants”).

         For the reasons that follow, Defendants' partial motion to dismiss the Second Amended Complaint will be granted in part and denied in part.

         I. Factual Background

         The pertinent facts, as set forth in Plaintiffs' Second Amended Complaint (Doc. 22), are as follows:

         On 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"), [1] 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.

         Officers 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.

         While 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.

         At some 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.

         Officer 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.

         According 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.

         Mr. 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 ¶ 40.

         Mr. 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.

         Mrs. 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.

         After 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 ¶ 59-60.

         Officer 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.

         It was 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.

         Eventually, 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.

         In 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.

         Defendants 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.

         II. Legal Standard

         Federal 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).

         “A 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).

         The 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).

         Dismissal 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. 1937.

         In 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)).

         III. Discussion

         A. Claims Pursuant to 42 U.S.C. § 1983

         42 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 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)).

         1. Count I - Unreasonable Search

         In 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).

         The 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.

         As the 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. Id.

         Here, 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).

         Plaintiffs 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.

         The use 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).

         Having 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 ...

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