United States District Court, W.D. Pennsylvania
MARILYN J. HORAN, UNITED STATED DISTRICT COURT JUDGE
Stormy Gower brings this civil rights action under 42 U.S.C.
§ 1983, alleging that the Defendants violated her rights
under the Fourth and Fourteenth Amendments to the United
States Constitution by conducting an unlawful search of her
property and by an illegal seizure of property based upon
false allegations. Presently before the Court is
Defendants' Motion to Dismiss Plaintiffs Second Amended
Complaint pursuant to Rule 12(b)(6). ECF No. 36. After
careful consideration of the parties' positions, and for
the following reasons, the Motion to Dismiss will be granted
in part, and denied in part.
20, 2018, Ms. Gower filed a Complaint against All But
Furgotten Humane Rescue, Erin Cassidy, Andrea Palmer, Cassie
Wilson, and John Doe and Jane Doe (the "Doe
Defendants"). ECF No. 1. The Doe Defendants have not
been served. Defendants, All But Furgotten Humane Rescue,
Erin Cassidy, Andrea Palmer, and Cassie Wilson (collectively
"Defendants"), responded to the Complaint by filing
a Motion to Dismiss the Complaint. ECF No. 6. In response,
Ms. Gower filed a Brief in Opposition (ECF No. 17), as well
as a Motion to Amend her Complaint (ECF No. 16), which she
argued addressed some of the well-founded arguments in the
Defendants' Motion to Dismiss. The Court granted Ms.
Gower's Motion to Amend, and Ms. Gower filed her Amended
Complaint on November 28, 2018. ECF No. 20.
response, Defendants filed a second Motion to Dismiss the
Amended Complaint, ECF No. 23. Again, Ms. Gower filed a
Motion to Amend her Amended Complaint, ECF No. 25, with an
attached proposed Second Amended Complaint, ECF No. 25-1,
which she contended rendered moot the Defendants'
well-founded argument to dismiss her Fourth Amendment claim.
See ECF No. 25, at ¶ 3 (citing ECF No. 25-1, at
¶¶ 13-14). The Court denied Ms. Gower's Motion
to Amend the Amended Complaint. On January 24, 2019, the
Court heard oral argument on Defendants' Motion to
Dismiss Plaintiffs Amended Complaint, after which
Defendant's Motion to Dismiss was granted, without
prejudice. Opinion and Order, Feb. 2, 2019, ECF No. 33. On
February 19, 2019, Ms. Gower filed her Second Amended
Complaint. ECF No. 34. In response, on March 5, 2019, the
Defendants filed the present Motion to Dismiss said Second
Amended Complaint. ECF No. 36. On March 19, 2019, Ms. Gower
filed a Brief in Opposition to Defendants' Motion to
Dismiss. ECF No. 38. On June 21, 2019, Defendants' filed
a Supplemental Brief in Support of their Motion to Dismiss,
ECF No. 46, to which Ms. Gower filed a Response on July 3,
2019, ECF No. 47.
the parties are familiar with the relevant background, and
the Court has previously set forth the factual background in
its prior Opinion, ECF No. 33, at 2-4, this Opinion will
briefly review the relevant facts. Ms. Gower is the owner of
Thundering Hill Farm in Yukon, Westmoreland County,
Pennsylvania, on which she maintains various animals for
business and personal use. Defendant, All But Furgotten
Humane Rescue, is a Pennsylvania non-profit with the purpose
of the prevention of cruelty to animals. Defendants Erin
Cassidy, Andrea Palmer, and Cassie Wilson (the "named
Defendants" or the "humane officers") are
humane society police officers acting on behalf of Defendant
All But Furgotten Humane Rescue. Ms. Gower alleges that the
unnamed Doe Defendants, residents of Westmoreland County,
Pennsylvania, made false allegations to at least one of the
humane society police officers, and that all of the officers
knew the allegations were false. Ms. Gower alleges that the
humane officers knew the allegations were false because the
officers had contemporaneously observed the condition of Ms.
Gower's animals on her property and how they were kept.
Moreover, she alleges that the officers recklessly omitted
from the affidavit said material exculpatory facts regarding
the officers' contemporaneous knowledge.
Gower alleges that the false allegations were included in an
affidavit of probable cause in order to secure a search
warrant to search her property at night on February 6, 2018.
Ms. Gower alleges the search warrant did not permit a
nighttime search. A Pennsylvania State Trooper informed the
humane officers that the warrant was invalid, and the humane
officers left the property and obtained a second search
warrant. That same night, February 6, 2018, the officers
returned to Ms. Gower's property to execute the second
warrant. Ms. Gower alleges that the second warrant, although
providing for a nighttime search, was invalid, because it was
based on an insufficient affidavit of probable cause, which
again included false allegations and insufficient facts to
establish probable cause. In addition, she alleges that the
humane officers failed to include the fact that they had
prior contemporaneous knowledge of the conditions of her
animals, and that the officers had observed the conditions of
Ms. Gower's animals during the execution of the first
search warrant. In executing the second warrant, the humane
officers seized various animals from Ms. Gower's
property, in addition to cats that had been seized during the
execution of the first warrant. Ms. Gower further alleges
that, on February 27, 2018, Ms. Gower demanded the return of
her animals. On or about March 11, 2018, some of the animals
were returned to Ms. Gower, but her dog was not returned.
Second Amended Complaint, Ms. Gower sets forth a claim that
an unlawful search and seizure violated her constitutional
rights under 42 U.S.C § 1983 and the Fourth Amendment
(Count I); a claim that a reckless investigation violated her
constitutional rights under 42 U.S.C § 1983 and the
Fourteenth Amendment (Count II); and state law claims for
Intentional Infliction of Emotional Distress (Count III),
Trespass (Count IV), and Conversion (Count V). In addition,
Ms. Gower claims that All But Fur gotten Humane Rescue is
liable, based upon its failure to properly train, control,
discipline or supervise Defendants Cassidy, Palmer, and
Wilson, which created a substantial risk of the
constitutional violations that occurred. Second Am. Compl.
STANDARD OF REVIEW
reviewing a motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must "accept all
factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief." Eid v. Thompson,
740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v.
County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)).
"To survive a motion to dismiss a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.5"
Ashcroft v. Iqbal 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(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." Iqbal 556 U.S. at
678 (citing Twombly, 550 U.S. at 556); see also
Thompson v. Real Estate Mortg. Network, 748 F.3d
142, 147 (3d Cir. 2014). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Iqbal 556 U.S. at
678. "Factual allegations of a complaint must be enough
to raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555. A pleading party need not
establish the elements of &prima facie case at
this stage; the party must only "put forth allegations
that 'raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s].5"
Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d
Cir.2009) (quoting Graff v. Subbiah Cardiology
Associates, Ltd., 2008 WL 2312671 (W.D. Pa. June 4,
2008)); see also Connelly v. Lane Const. Corp., 809
F.3d 780, 790 (3d Cir.2016) ("Although a reviewing court
now affirmatively disregards a pleading's legal
conclusions, it must still. . . assume all remaining factual
allegations to be true, construe those truths in the light
most favorable to the plaintiff, and then draw all reasonable
inferences from them.") (citing Foglia v. Renal
Ventures Mgmt, LLC, 754 F.3d 153, 154 n. 1 (3d
allegations must be accepted as true and construed in the
light most favorable to plaintiff when determining if
complaint should be dismissed. Trzaska v. L'Oreal
USA, Inc., 865 F.3d 155, 162 (3d Cir. 2017), as
amended (Aug. 22, 2017). Nonetheless, a court need not
credit bald assertions, unwarranted inferences, or legal
conclusions cast in the form of factual averments. Morse
v. Lower Merion School District, 132 F.3d 902, 906, n. 8
(3d Cir. 1997). The primary question in deciding a motion to
dismiss is not whether the Plaintiff will ultimately prevail,
but rather whether he or she is entitled to offer evidence to
establish the facts alleged in the complaint. Maio v.
Aetna, 221 F.3d 472, 482 (3d Cir.2000). The purpose of a
motion to dismiss is to "streamline [ ] litigation by
dispensing with needless discovery and factfinding."
Neitzke v. Williams, 490 U.S. 319, 326-327, (1989).
if the court decides to grant a motion to dismiss for failure
to state a claim upon which relief can be granted pursuant to
Fed.R.Civ.P. 12(b)(6), the court must next decide whether
leave to amend the complaint must be granted. The Court of
Appeals has "instructed that if 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." Phillips, 515 F.3d at
236 (citing Grayson v. Mayview State Hosp., 293 F.3d
103, 108 (3d Cir.2002)).
Section 1983 Claim for Unlawful Search and Seizure (Count
Gower alleges that the search warrants were invalid because
it was procured through affidavits of probable cause that
contained materially false statements and reckless omissions
of fact. Second Am. Compl. ¶ 17. Ms. Gower alleges that
when the false statements are removed from the affidavits,
and the omitted facts added to the affidavits, it would lead
a judge to find that probable cause was lacking. Second Am.
Compl. ¶¶ 15, 17, 21.
establish a section 1983 claim, which challenges the validity
of a search warrant because of alleged false statements or
reckless omissions of fact, "the plaintiff must prove,
by a preponderance of the evidence, (1) that the affiant
knowingly and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that create a
falsehood in applying for a warrant; and (2) that such
statements or omissions are material, or necessary, to the
finding of ...