United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS MAYOR AND CITY COUNCIL'S
MOTION TO DISMISS, ECF NO. 25 - GRANTED PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT, ECF NO. 29 - DENIED
PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL, ECF NO. 30
- GRANTED IN PART PLAINTIFF'S MOTION FOR AN ORDER
COMPELLING DISCOVERY, ECF NO. 32 - DENIED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Otto Wells, a prisoner proceeding pro se, filed his Complaint
in this matter in May 2016, alleging that in December 2014
Defendants Timothy Gibson and Edwin Perez, both members of
the Philadelphia Police Department, punched, kicked, and
stomped him, and then threatened to arrest him if he sought
medical attention for the injuries they inflicted. ECF No. 1.
The case was placed in suspense pending the resolution of
Wells's criminal case and was removed from suspense in
March 2017. ECF No. 9. In July 2017, Wells filed an Amended
Complaint, adding the Mayor of Philadelphia and the
Philadelphia City Council as Defendants. ECF No. 19. These
newly-added Defendants (“Moving Defendants”) have
filed a Motion to Dismiss the claims against them. ECF No.
Wells, meanwhile, has filed a Motion for Summary Judgment,
ECF No. 29, a Motion for Appointment of Counsel, ECF No. 30,
and a Motion for Order Compelling Discovery, ECF No. 32. For
the reasons set forth below, Moving Defendants' Motion to
Dismiss is granted, Wells's Motion for Summary Judgment
and Motion for Order Compelling Discovery are denied, and
Wells's Motion for Appointment of Counsel is granted in
The Mayor and the City Council's Motion to Dismiss is
Amended Complaint alleges that on the evening of December 18,
2014, he and his girlfriend were walking in Philadelphia when
two Rottweiler dogs began to follow them. Am. Compl.
¶¶ 1-3. Wells began to run and ended up at his
family residence at 2440 N. 30thStreet, at which
point Defendant Officers Edwin Perez and Timothy Gibson
approached him, pulled him out of the doorway, and proceeded
to physically attack him and to direct racial slurs at
Am. Compl. ¶¶ 3-4. Following the attack, the
officers “attempted to prevent [Wells] from seeking
medical treatment for [the] injuries they inflicted by
suggesting if he did not go to the hospital for treatment . .
. they would let him go and not arrest him, ” but if he
sought treatment “they would place criminal charges
against him.” Am. Compl. ¶ 5. Wells “refused
the defendants['] offer . . . and demanded that he be
taken to the hospital for treatment.” Am. Compl. ¶
6. Upon arriving at the hospital, where he received emergency
medical treatment for his injuries, the officers again
threatened to file criminal charges against him. Am. Compl.
¶ 6. Wells alleges that these events occurred
“[a]s a direct and proximate result of a pattern and
practice of racial discrimination” by the Philadelphia
Police Department. Am. Compl. ¶ 1.
Mayor and the City Council move to dismiss Wells's claims
against them under Federal Rule of Civil Procedure 12(b)(6),
contending that Wells has failed to allege any facts to
support any claims against them, and pointing out that he
fails to even mention their names in the body of his Amended
Complaint. Wells responds that the Mayor and the City Council
have a duty to protect citizens from unreasonable and
excessive force from police officers, are responsible for
passing legislation to ensure proper police conduct, and
“are responsible for rogue police officers who do not
follow the proper procedures.” Pl.'s Resp.
Defs.' Mot., ECF No. 28.
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must “contain
sufficient factual matter, accepted as true, to ‘state
a claim for relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Based on Wells's response to the Mayor and the
City Council's motion, it appears that he is seeking to
hold the Mayor and the City Council liable because of their
positions of authority over Officers Perez and Gibson. But
the Mayor and the City Council cannot be held liable for the
officers' conduct simply by virtue of their governmental
positions or roles. Rather, “[a] government official is
liable only for his or her own conduct and accordingly must
have had some sort of personal involvement in the alleged
unconstitutional conduct.” Argueta v. U.S.
Immigration & Customs Enf't, 643 F.3d 60, 71 (3d
Cir. 2011). Based on this principle, there are “two
general ways in which a supervisor-defendant may be liable
for unconstitutional acts undertaken by subordinates.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316
(3d Cir. 2014), rev'd on other grounds sub nom.
Taylor v. Barkes, 135 S.Ct. 2042 (2015). First,
“supervisors can be liable if they established and
maintained a policy, practice or custom which directly caused
the constitutional harm, ” and, second, supervisors can
be liable if “they participated in violating
plaintiff's rights, directed others to violate them, or,
as the persons in charge, had knowledge of and acquiesced in
their subordinates' violations.'” Parkell
v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting
Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5
(3d Cir. 2010)). Wells's Amended Complaint fails to state
a claim against the Mayor and the City Council under either
of these theories. Rather, as Moving Defendants point out,
Wells's Amended Complaint fails to include any
allegations at all concerning these Defendants. Accordingly,
Wells's claims against these Defendants are dismissed.
will be permitted leave to amend his claims against these
Defendants. See Phillips v. Cnty. of Allegheny, 515
F.3d 224, 236 (3d Cir. 2008) (citing Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)).
(“[I]f a complaint is vulnerable to 12(b)(6) dismissal,
a district court must permit a curative amendment, unless an
amendment would be inequitable or futile.”).
In light of the Court's decision to refer this matter to
the Prisoner Civil Rights Panel and to stay all proceedings
while Wells's case is pending before the Panel, as
discussed in more detail below, the Court will not, at this
time, set a deadline for Wells to file a second amended
Wells's Motion for Summary Judgment is denied as
moves for summary judgment on his claims against the
Philadelphia Police Department, Officer Gibson, and Officer
Perez, contending that the undisputed facts show that these
Defendants violated his constitutional rights. ECF No. 29.
Under Federal Rule of Civil Procedure 56, “[t]he court
shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Here,
Wells's Motion is premature, because the parties have not
yet completed discovery and there remain genuine disputes of
material fact between the parties. See Doe v.
Abington Friends Sch., 480 F.3d 252, 257 (3d
Cir. 2007) (“[T]he non-moving party's burden at
summary judgment rests on the assumption that the party
‘had a full opportunity to conduct
discovery.'” (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 257 (1986))). Accordingly,
Wells's motion is denied, without prejudice to renew
after the completion of discovery.
Wells's Motion for an Order Compelling Discovery is
denied as moot.
seeks an order compelling Defendants to answer
interrogatories and to produce certain documents. ECF No. 32.
In a filing dated October 13, 2017, Defendants certified that
they have now responded to Wells's interrogatories and
requests for production of documents. ECF No. 34.
Accordingly, Wells's motion seeking an order compelling
this discovery is denied as moot.
Wells's Motion for Appointment of Counsel is granted in
Motion for Appointment of Counsel, Wells states that his
imprisonment “will greatly limit his ability to
litigate. The issues involved in this case are complex, and
will require significant research and investigation that
requires . . . expert testimony.” Pl.'s Mot.
Counsel, ECF No. 30. In addition, “[a] trial in this
case will likely involve conflicting ...