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McCullers v. Lehigh County

United States District Court, E.D. Pennsylvania

July 12, 2018

KEVIN MCCULLERS, Plaintiff,
v.
LEHIGH COUNTY, CITY OF ALLENTOWN, HOWARD W. ALTEMOS, JR., [1]CARLOS ROBERTO BERNARDI, FRED J. CONTINO, and JOHN DOES, 1 THROUGH 10, Defendants.

         OPINION DEFENDANT CONTINO'S MOTION TO DISMISS, ECF NO. 82 - GRANTED DEFENDANT ALTEMOS'S MOTION TO DISMISS, ECF NO. 83 - GRANTED IN PART AND DENIED IN PART DEFENDANT BERNARDI'S MOTION TO DISMISS, ECF NO. 84 - WITHDRAWN DEFENDANT CONTINO'S SUPPLEMENTAL MOTION TO DISMISS, ECF NO. 86 - GRANTED DEFENDANT CONTINO'S MOTION TO DISMISS LEHIGH COUNTY'S CROSSCLAIMS, ECF NO. 91 - GRANTED

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case[2] arises from an incident on July 17, 2014, when constable-Defendants Howard W. Altemos, Jr. and Carlos Roberto Bernardi allegedly went to the residence of Plaintiff Kevin McCullers to serve a warrant for unpaid parking/traffic tickets and shot at McCullers when he drove his vehicle out of his garage, resulting in serious and permanent injuries. The matter is now before the Court on a Second Amended Complaint, which Defendants Altemos and Fred J. Contino, chairman of the Constables' Education and Training Board (“the Board”), have moved to dismiss.[3] Contino has also moved to dismiss Lehigh County's crossclaim against him. For the reasons set forth below, the Motions to Dismiss are granted in part and denied in part as follows. The equal protection/race discrimination claim against Altemos is dismissed. The request to strike certain paragraphs from the Second Amended Complaint is granted in limited part and denied in part as explained herein. The Motion to Dismiss by Altemos is otherwise denied. The Motions to Dismiss the Second Amended Complaint by Contino are granted in their entirety and all claims against Contino are dismissed. Contino's Motion to Dismiss Lehigh County's crossclaim against him is also granted.

         II. BACKGROUND

         On July 6, 2015, McCullers initiated this civil rights action pursuant to 42 U.S.C. § 1983, asserting violations of his constitutional rights and state tort claims. Compl., ECF No. 1. He filed a First Amended Complaint a few months later. Am. Compl., ECF No. 26. Defendants Bernardi, Contino, Lehigh County, and City of Allentown (“City”), as well as then-Defendant Commonwealth of Pennsylvania, moved to dismiss the First Amended Complaint. Altemos filed a Motion to Stay the proceedings pending the outcome of the criminal case filed against him arising from the shooting incident on July 17, 2014.

         In an Opinion dated June 30, 2016, this Court dismissed with prejudice all claims under the First Amendment as to all Defendants. Opn., ECF No. 70. It also dismissed with prejudice McCullers's Fourteenth Amendment claims for violation of his due process rights, the indemnity claim, the Commonwealth of Pennsylvania as immune, and the claims against Contino in his official capacity. The Court dismissed without prejudice the claims against Contino in his individual capacity, McCullers's equal protection claims, and, under limited theories, the Fourth Amendment claims. Contino's qualified immunity defense was denied without prejudice as moot, but Bernardi's motion for qualified immunity and to dismiss the assault and battery claim was denied. Bernardi's request to strike was denied without prejudice. Finally, Altemos's request to stay the civil proceedings pending resolution of his state criminal proceedings was granted.

         The stay was lifted on November 15, 2017, and McCullers filed a Second Amended Complaint on December 1, 2017. Sec. Am. Compl., ECF No. 79. McCullers asserts two counts: (1) federal civil rights violations under 42 U.S.C. § 1983 for excessive force, unconstitutional taking, and race discrimination as to all Defendants; and (2) state tort of assault and battery as to Altemos, Bernardi, and the John Doe Defendants. Id. ¶¶ 75-107. Bernardi, Lehigh County, and the City filed Answers, with affirmative defenses, to the Second Amended Complaint. ECF Nos. 80-81, 105. Lehigh County's Answer includes a crossclaim for contribution and/or indemnification against Defendants Altemos, Bernardi, and Contino. LC Answer, ECF No. 81. Defendants Altemos and Contino have moved to dismiss all or part of McCullers's claims. ECF Nos. 82-84, 86. Contino has also moved to dismiss Lehigh County's crossclaim. ECF No. 91.

         In Altemos's Motion to Dismiss, he argues that McCullers's Fourteenth Amendment claim under the Equal Protection Clause for race discrimination fails to state a claim because the Second Amended Complaint includes only vague and conclusory allegations, unsupported by facts, that Altemos was intolerant of African Americans. A. Mem. 4, ECF No. 83. Altemos asserts that McCullers also fails to allege sufficient facts showing that his actions were the product of racial animus. Id. Next, Altemos suggests that the Second Amended Complaint is replete with character attacks that have no bearing to any viable claim. Id. 6-8. He contends that paragraphs 11-14, 27, 34-36, 39-42, and 65-66 should be stricken. Id.

         Contino has filed three Motions to Dismiss. In the first motion, he suggests that the Second Amended Complaint contains essentially the same allegations as the First Amended Complaint, simply renumbered. C. Mem. 3, [4] ECF No. 82. He contends that McCullers makes no factual allegations that Contino's actions or inactions were on the basis of race discrimination. Id. 6. Contino also argues that there are no allegations that either Altemos or Bernardi did not receive the required training to make them eligible for certification by the Board, or that, in light of Contino's limited authority, there were grounds to allow him to revoke their firearms certification. Id. 8, 10-11. In addition to Contino's alleged lack of authority as Board chairman, Contino argues that McCullers cannot show that his actions alone could have created a controlling majority of the seven-member Board[5] required for Board action. Id. 12 (citing Armenti v. Tomalis, No. 1:12-cv-2039, 2016 U.S. Dist. LEXIS 151985, at *15 (M.D. Pa. Nov. 2, 2016) (explaining the “precedential legal holding that an individual defendant cannot be held liable where less than a majority of the board acted for impermissible reasons”)). Contino argues that while McCullers alleges that Contino is a policymaker based on his position as chairman of the Board, McCullers does not identify any policy, practice, or custom that Contino could have changed. Id. 13. He further contends that McCullers fails to show a pattern of preexisting violations to show deliberate indifference. Id. Contino asserts that McCullers fails to offer any facts to support the conclusory allegation that Contino directed others to violate McCullers's constitutional rights or had knowledge of and acquiesced in the actions of Altemos or Bernardi. Id. 14. Finally, Contino asserts that the federal claims for damages are barred by qualified immunity because Pennsylvania law does not give him the authority to take the action McCullers complains he failed to take, and that if this Court interprets the law differently, then it is not clearly established. Id. 14-16.

         In a Supplemental Motion to Dismiss, Contino moves to dismiss the unconstitutional taking claim, an argument not advanced in his original Motion to Dismiss. C. Supp. Mem., ECF No. 86. He submits three arguments. First, the claim does not apply to Contino. Id. Second, this Court did not give McCullers leave to amend to assert such a claim. Id. Third, McCullers's allegations are insufficient to show any unconstitutional taking. Id.

         Finally, Contino has moved to dismiss Lehigh County's crossclaim against him. CC. Mem., ECF No. 91. Contino asserts that the crossclaim can only relate to Count I and, regardless, in light of the pending Motions to Dismiss the Second Amended Complaint, the crossclaim is premature. CC Mem. 3. Contino also argues that the crossclaim does not distinguish between the types of damages, and that indemnification and contribution do not apply to punitive damages. CC Mem. 4.

         III. FACTUAL ALLEGATIONS

         The Second Amended Complaint alleges as follows: Altemos, Bernardi, and/or the John Doe Defendants[6] were employed as Pennsylvania State Constables and performed constable duties on behalf of Lehigh County and/or the City. Sec. Am. Compl. ¶¶ 28-29. They were appointed, trained, certified, and removed by Defendants.[7] Id. ¶ 30. They were supervised and reviewed by Contino as chairman of the Board, Lehigh County, and/or the City. Id. ¶¶ 6, 31. The Board trains constables and establishes standards for certification of constables and qualification to carry and use firearms in the performance of their duties. Id. ¶ 19 (citing 44 Pa.C.S. § 7148).

         On July 17, 2014, Altemos, Bernardi, and/or the John Doe Defendants went to McCullers's residence to serve a warrant for unpaid parking/traffic tickets. Id. ¶ 43. McCullers concludes[8] that they went on behalf of, at the direction of, and/or with the actual knowledge and acquiescence of Contino, Lehigh County, and/or the City. Id. ¶ 47. Altemos, Bernardi, and/or the John Doe Defendants were in plain clothes and armed. Id. ¶ 44. They did not knock on McCullers's door or identify themselves. Id. ¶¶ 46, 49.

         While the constables were on his property, McCullers, who is African American, was leaving his residence to go to Dunkin Donuts and drove his vehicle out from his garage. Id. ¶¶ 48, 61. As McCullers's was backing out, Altemos, Bernardi, and/or the John Doe Defendants shot at McCullers. Id. ¶¶ 52, 55. McCullers was unarmed and did nothing to provoke the shooting. Id. ¶¶ 51, 56-57. Bernardi and/or the John Doe Defendants shot McCullers's tire. Id. ¶ 54. Altemos and/or the John Doe Defendants shot McCullers. Id. ¶ 53. The bullet that struck McCullers entered his left side and traveled to his neck, causing paralysis. Id. ¶ 68. He has had numerous surgeries and remains wheelchair-bound. Id. ¶¶ 68-69. Altemos was criminally charged for his conduct in the incident and pled nolo contendere to Recklessly Endangering Another Person. Id. ¶¶ 59-60.

         Altemos, Bernardi, and/or the John Doe Defendants never acted to deprive similarly situated non-African Americans of their rights. Id. ¶ 62. McCullers concludes that the actions of Altemos, Bernardi, and/or the John Doe Defendants were motivated by discrimination as they harbored animosity toward McCullers because he is African American. Id. ¶¶ 61, 81. McCullers also concludes that Altemos, Bernardi, and/or the John Doe Defendants conspired against him to deprive him of his constitutional rights and to cause him bodily harm. Id. ¶ 61. Prior to the day in question, Altemos, Bernardi, and/or the John Doe Defendants visited McCullers's residence and were aggressive, belligerent, and rude to his girlfriend, who is also African American, resulting in her having to contact the township police and having them respond to end the encounter. Id. ¶ 65. Altemos and Bernardi treated similarly situated non-African Americans better. Id. ¶ 67.

         It has become custom for Pennsylvania constables to serve warrants, armed and plain-clothed, with the authority to make arrests and use deadly force. Id. ¶ 45. McCullers concludes that on July 17, 2014, Altemos, Bernardi, and/or the John Doe Defendants were acting at the direction of Defendants and in furtherance of an accepted custom and/or practice. Id. ¶¶ 63-64. He also concludes that Defendants knew or reasonably should have known that the lack of hiring policies, non-enforcement of rules, and insufficient training were resulting in excessive use of force by constables. Id. ¶¶ 26, 91-95. There were multiple prior incidents, including in Lehigh County, of Pennsylvania constables violating constitutional rights and using excessive force. Id. ¶ 27. In April 2014, the Commonwealth of Pennsylvania, after conducting a study, proposed reforms to the constable system. Id. ¶ 24.

         Count One of the Second Amended Complaint is brought against all Defendants, alleging a violation of 42 U.S.C. § 1983 for excessive force, unconstitutional taking, and race discrimination under the Fourth and Fourteenth Amendments. Sec. Am. Compl. ¶¶ 75-99. McCullers alleges that on July 17, 2014, Altemos, Bernardi, and/or the John Doe Defendants were acting in their individual and/or official capacities. Id. ¶ 77. They were allegedly acting either: (1) under the personal direction of Lehigh County, and/or the City, and/or Contino, or (2) with the actual knowledge and acquiescence of Lehigh County, the City, and Contino. Id. ¶ 77. Defendants allegedly knew prior to July 17, 2014, of the past history of violence and discriminatory treatment of African Americans by Altemos, Bernardi, and/or the John Doe Defendants, but failed to take remedial action. Id. ¶¶ 78-79, 84-85, 90-91. They were allegedly deliberately indifferent by permitting constables to carry firearms in the line of duty, discharge firearms unnecessarily, and make arrests with inadequate training and supervision. Id. ¶ 79. Count Two of the Second Amended Complaint asserts the state law tort of assault and battery against Altemos, Bernardi, and/or the John Doe Defendants. Id. ¶¶ 100-107.

         IV. STANDARDS OF REVIEW

         A. Motion to Dismiss - Rule 12(b)(6)

         In rendering a decision on a motion to dismiss, this Court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level'” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (explaining that determining “whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

         B. Motion to Strike - Rule 12(f)

         A court may strike “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored and are considered a “drastic remedy to be resorted to only when required for the purposes of justice.” DeLa Cruz v. Piccari Press, 521 F.Supp.2d 424, 428 (E.D. Pa. 2007) (quoting N. Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 158 (E.D. Pa. 1994)). Thus, the moving party generally must demonstrate that the material “has no possible relation to the controversy and may cause prejudice to one of the parties.” Id. at 428-29 (quoting River Rd. Dev. Corp. v. Carlson Corp.-Ne., No. 89-7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990)). “Even where the challenged material is redundant, immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the presence of the surplusage will prejudice the adverse party.” Pennington v. Wells Fargo Bank, N.A., 947 F.Supp.2d 529, 534 (E.D. Pa. 2013) (quoting XpertUniverse, Inc. v. Cisco Sys., Inc., 868 F.Supp.2d 376, 379 (D. Del. 2012)).

         V. ANALYSIS

         A. McCullers's equal protection/race discrimination claim is dismissed as to Altemos and Contino.

         Altemos and Contino move to dismiss McCullers's Fourteenth Amendment claim under the Equal Protection Clause. They argue that the Second Amended Complaint, like the First Amended Complaint, contains insufficient factual allegations to show that the actions of Altemos, or the actions or inactions of Contino, were the product of racial animus. They assert that McCullers makes only vague and conclusory allegations and does not describe any similarly situated individuals who received more favorable treatment.

         McCullers responds to the arguments of Altemos by referring to the vague and conclusory allegations in his Second Amended Complaint.[9] See Opp. A. Mem. 4, ECF No. 88 (citing Sec. Am. Compl. ¶¶ 62, 66, 78, 81). But, these allegations are essentially the same that were alleged in the First Amended Complaint, which this Court determined were insufficient to state an equal protection claim. See Opn. 6-9 (explaining, inter alia, that although McCullers claimed the constables were aggressive, belligerent, and rude to his African American girlfriend on a prior visit to his residence, he “allege[d] no facts to support his various conclusory allegations that the constables acted out of racial animus”). Further, as to the allegation that Altemos did not deprive similarly situated non-African American individuals of their constitutional rights, McCullers does not include any specific facts regarding these allegedly similarly situated individuals, as is necessary. See Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238-39 (3d Cir. 2011) (concluding that the plaintiff failed to state an equal protection claim because he “simply alleged that he was treated differently from ‘other similarly situated residential and commercial developers'” and that “[w]ithout more specific factual allegations as to the allegedly similarly situated parties, he has not made plausible the conclusion that those parties exist and that they are like him in all relevant aspects”). Finally, although McCullers refers to a Third Circuit case in which the Court of Appeals determined that a supervisor's use of a racial slur in front of the employee's non-African American co-workers, coupled with threats of termination, may be severe enough to create a hostile work environment, see Opp. C. Mem. 4 (citing Castleberry v. STI Grp., 863 F.3d 259, 265 (3d Cir. 2017)), there are no allegations here that Altemos or Contino used any racial epithets.

         Consequently, McCullers's race discrimination/equal protection claim is dismissed as to Altemos and Contino.

         B. Allegations of racial animosity and discrimination on the part of Altemos, only, are stricken from the Second Amended Complaint.

         Altemos asserts that some of the allegations in the Second Amended Complaint are character attacks and irrelevant to any viable claim. He argues that these paragraphs should be stricken. McCullers responds that the standard for striking pleadings is strict and that Altemos does not analyze how each challenged paragraph is “scandalous, ” “impertinent, ” or “immaterial” to the litigation. See Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”). McCullers also contends that the allegations regarding Bernardi's alleged violent history are relevant to his claims that other Defendants were deliberately indifferent to his lack of training.

         This Court agrees with McCullers that the allegations in paragraphs 27, 34-36, 39-41, and 65 may be relevant to the Monell claim. See Lawson v. City of Coatesville, No. 12-6100, 2013 U.S. Dist. LEXIS 123447, at *18 (E.D. Pa. Aug. 28, 2013) (refusing to strike allegations of police officers' racial comments because they related to the plaintiff's Monell claim). The motion to strike these paragraphs is therefore denied.

         The motion to strike is also denied as to paragraphs 11 through 14. Although this Court finds that counsel's commentary in these paragraphs is unnecessary and does nothing to support McCullers's claims, because motions to strike are disfavored, it cannot conclude that the “allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” See Ciolli v. Iravani, 625 F.Supp.2d 276, 283 (E.D. Pa. 2009) (explaining that a motion to strike is disfavored and will usually be denied unless such a showing is made). Further, in the event the case proceeds to trial, counsel is generally entitled wide latitude in characterizing what the evidence does or does not reveal. See Mori v. Allegheny Cnty., 51 F.Supp.3d 558, 570 n.6 (W.D. Pa. 2014) (commenting that “the pleadings merely serve to alert ...


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