United States District Court, E.D. Pennsylvania
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DISMISS, ECF NO. 84 - WITHDRAWN DEFENDANT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 -
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
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. 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
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.
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.
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
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.
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,  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 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.
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.
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.
Second Amended Complaint alleges as follows: Altemos,
Bernardi, and/or the John Doe Defendants 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. 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).
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 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.
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.
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.
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.
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. ¶¶
STANDARDS OF REVIEW
Motion to Dismiss - Rule 12(b)(6)
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)).
Motion to Strike - Rule 12(f)
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)).
McCullers's equal protection/race discrimination claim is
dismissed as to Altemos and Contino.
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.
responds to the arguments of Altemos by referring to the
vague and conclusory allegations in his Second Amended
Complaint. 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
McCullers's race discrimination/equal protection claim is
dismissed as to Altemos and Contino.
Allegations of racial animosity and discrimination on the
part of Altemos, only, are stricken from the Second Amended
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.
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.
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