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McCall v. City of Philadelphia

United States District Court, E.D. Pennsylvania

August 30, 2019

CITY OF PHILADELPHIA, et al., Defendants.


          Rufe, J.

         Plaintiffs James Albert McCall, III and Yaaseen Nixon, by and through counsel, filed suit against the City of Philadelphia (“the City”) and Philadelphia Police Department Officers Deayoung Park, Matthew Farley, Bruce Wright and Timothy Dougherty (“Police Officers”), asserting violations of their Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, and numerous state tort laws. Plaintiffs also brought the same state tort law claims against Good Luck Chinese Restaurant, Ling Lin, and Zhou Zhao (“Restaurant Defendants”). Defendants have filed motions to dismiss Plaintiff's Complaint. Upon consideration of the motions and responses thereto, Defendants' motions will be granted in part and denied in part.

         I. BACKGROUND[1]

         Plaintiff McCall entered the Good Luck Chinese Restaurant on the evening of September 3, 2016, and purchased a fruit salad from employee Ling Lin. Later that evening he returned to request a refund or exchange because he believed the fruit was not fresh. A verbal disagreement allegedly ensued between McCall and Lin, during which Lin threw money at McCall, and McCall overturned a trash can inside the store before leaving. As McCall walked home, Lin allegedly threw a glass bottle at him and continued to follow him.

         McCall reached the front steps of his home, just as Lin allegedly told him that he was “going to jail.” McCall's wife came outside, and Lin allegedly spit in her face. Lin's husband, who appears to be fellow employee Zhou Zhao, also was present and allegedly approached McCall. McCall's step-son, Plaintiff Yaaseen Nixon, came out of the house, saw Zhao approach his step-father, and allegedly pushed Zhao away to prevent any harm. McCall, his wife, and Nixon then entered their home to avoid any further discord. Lin allegedly reported the incident to Police Officer Wright that night, and no charges were pursued based on that complaint.

         On October 25, 2016, almost two months later, Lin and Zhao allegedly appeared at the Philadelphia Police Department and were interviewed by Officer Park about the September 3 incident; the Complaint does not allege who initiated the interview. Lin told Park that McCall's wife pointed a shotgun at her during the disagreement and that Nixon punched Zhao, facts which were not mentioned in the initial September 3 complaint. Despite having access to the initial complaint, Officer Park proceeded to draft an affidavit of probable cause, presumably related to the search of Plaintiffs' home, which was approved by the Philadelphia District Attorney's Office that same day.

         On October 26, 2016, the City's Police Department, by and through its officers and employees, conducted a search of Plaintiffs' home, which allegedly yielded no evidence of a crime. Approximately two days later, the Defendant Police Officers arrested both McCall and Nixon, and charged them with criminal conspiracy, aggravated assault, possession of an instrument of a crime, terroristic threats, simple assault, and recklessly endangering another person and carrying firearms in public. On July 5, 2017, Plaintiffs appeared in the Philadelphia Common Pleas court, and the criminal charges were withdrawn. Plaintiffs McCall and Nixon allege that they were subjected to excessive force, unlawful arrest and search, and malicious prosecution.


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's “plain statement” lacks enough substance to demonstrate that he is entitled to relief.[2] In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.[3] Courts are not, however, bound to accept as true legal conclusions framed as factual allegations.[4] Something more than a mere possibility of a claim must be alleged; a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”[5] The complaint must set forth “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.”[6] Deciding a motion to dismiss, courts may consider “only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”[7]


         A. Federal Claims Pursuant to § 1983

          Plaintiffs have brought federal claims under 42 U.S.C. § 1983 against the City and Police Officers based on violations of his Fourth and Fourteenth Amendment rights. Section 1983 is not a source of substantive rights, but a means of vindicating violations of federal constitutional and statutory rights committed by state actors.[8] To state such a claim, Plaintiffs therefore must allege (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law.[9]

         As an initial matter, the City and Police Officers argue that Plaintiffs' reference to the Fourteenth Amendment in their Complaint is an attempt to bring additional substantive due process claims in this case, and therefore is barred by the “more specific provision” rule.[10] The Court construes the reference to the Fourteenth Amendment simply as incorporating Plaintiffs' Fourth Amendment claims of unreasonable use of force, unlawful arrest and search, and malicious prosecution against the City and Police Officers as state actors.[11]

         1. Claims Against Police Officers

         Officer Park does not move to dismiss the unlawful arrest and malicious prosecution claims brought against him at this time, as he acknowledges that those claims “are at least conceivably related to Plaintiffs' factual allegations.”[12] However, Officer Park does move to dismiss the claims of excessive force and unlawful search against him, and Officers Farley, Wright, and Dougherty move to dismiss all claims against them.[13] In a rather general manner, Police Officers argue that Plaintiffs did not plead any facts or allege any personal involvement giving rise to those contested claims.[14]

         A defendant's personal involvement, personal knowledge of, or acquiescence in an alleged wrong is necessary to sustain a § 1983 claim.[15] Liability may not be predicated on the operation of respondeat superior, and such allegations must be made with appropriate particularity.[16] Here, Plaintiffs allege that “Defendant Officers arrested” Plaintiffs and brought various criminal charges against them “[w]ithout cause or justification, ” which were later withdrawn.[17] Given that the allegations were against all Police Officers, and not just Officer Park, Plaintiffs have properly pled enough factual allegations regarding the personal involvement of Officers Farley, Wright, and Dougherty in the alleged unlawful arrests and malicious prosecutions. Thus, Police Officers' motion to dismiss the unlawful arrest and malicious prosecution claims will be denied.[18]

         Plaintiffs also have stated sufficient facts regarding Police Officers' personal involvement in the allegedly unlawful search to survive the motion to dismiss. Plaintiffs assert that although Officer Park had access to the initial September 3, 2016 complaint, which made no mention of a weapon being involved in the disagreement, he proceeded to draft an affidavit of probable cause related to Plaintiffs' home on October 25, 2016, which was approved by the Philadelphia District Attorney's Office that same day.[19] Plaintiffs further allege that “[o]n or about October 26, 2016, without cause or justification, the Defendant City of Philadelphia Police Department, by and through its officers and employees, conducted a search of Plaintiffs' home address . . . [which] yielded no evidence of a crime.”[20] Such allegations have placed the Police Officers on notice of the unlawful search claim against them by reference to them as employees of the Philadelphia Police Department, and their motion to dismiss also will be denied on this claim.[21]

         The Court does, however, agree with Police Officers that Plaintiffs' excessive force claim lacks any factual specificity or personal involvement. Whether a police officer used excessive force in violation of a citizen's Fourth Amendment rights depends on whether the amount of force used was “objectively reasonable.”[22] Determining objective reasonableness requires analyzing the “nature and quality of the intrusion on the individual's Fourth Amendment interests, ” which is balanced “against the countervailing governmental interests at stake.”[23]Here, Plaintiffs do not assert any factual allegations as to how, or even if, any of the Police Officers imposed force upon them. Although the Third Circuit has held that the reasonableness of the use of force is normally a jury question, which may be appropriate at the summary judgment stage under some circumstances, [24] there must be some force alleged to survive a motion to dismiss. As Plaintiffs solely have alleged that they were subjected to “an unreasonable use of force, ”[25] and nothing more, Plaintiffs therefore have failed to state a plausible claim for excessive force.

         2. Claims Against the City[26]

         The City moves to dismiss the § 1983 claims against it by arguing that Plaintiffs have pled only conclusory allegations regarding the elements of municipal liability.[27] The Court agrees.

         Section 1983 liability against a municipal entity cannot be based on a theory of respondeat superior or vicarious liability.[28] Rather, “[a] local government may be sued under § 1983 only for acts implementing an official policy, practice or custom.”[29] As recently reiterated by the Third Circuit, a plaintiff can hold a municipality, such as the City, liable for constitutional violations by alleging: (1) an unconstitutional policy or custom of the municipality leading to plaintiff's injuries; or (2) a failure or inadequacy by the municipality that “reflects a deliberate or conscious choice.”[30] A “policy” exists when a municipal decision-maker with final authority issues an official proclamation or edit, and a “custom” exists when “practices of state officials [are] so permanent and well settled as to virtually constitute law.”[31] Furthermore, a deliberate or conscious failure or inadequacy by a municipality may apply to claims related to its failure to train, supervise, and discipline its police officers.[32]

         Plaintiffs do not assert any particular municipal policy that caused their alleged injuries, [33]but appear to allege that the City engaged in a “pattern, practice, and custom of subjecting citizens such as the [P]laintiffs to the use of force, arrest, search and prosecution in the absence of probable cause or other lawful grounds.”[34] To the extent that Plaintiffs attempt to allege a custom, the allegations set forth in their Complaint are insufficient. Other than pleading facts that are specific to Plaintiffs, the inclusion of the conclusory terms “pattern, practice and custom” are simply threadbare recitations of the elements of their claims.[35] Conclusory and general claims that paraphrase § 1983 will not satisfy federal pleading requirements since they “fail[] to satisfy the ‘rigorous standards of culpability and causation' required to state a claim for municipal liability.”[36]

         Plaintiffs also allege a number of “failure to train” claims against the City.[37] The pleading requirements are different for such claims, which “are generally considered a subcategory of policy or practice liability.”[38] For claims relating to police officers, the Supreme Court has held that in limited circumstances, the failure to train may serve as a basis for municipal liability, but only where it “amount[s] to ‘deliberate indifference to the rights of persons with whom the police come into contact.”[39] Deliberate indifference is a “stringent standard” as to fault, [40] where identification of “[a] pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary'” to demonstrate that policymakers had notice of the tortious conduct and therefore exhibited deliberate indifference by failing to act.[41]

         Here, Plaintiffs allege that the City has “encouraged, tolerated, ratified and has been deliberately indifferent . . . to the need for more or different training, supervision, investigation or discipline” regarding issues such as “unlawful arrests and malicious prosecutions by police officers, ” “the proper exercise of police powers, ” and “police officers' use of their status as police officers to employ the use of unlawful arrest, or to achieve ends not reasonably related to their police duties.”[42] Additionally, Plaintiffs allege a multitude of issues with the City's Internal Affairs Division of the Philadelphia Police Department in failing to “provide an internal disciplinary mechanism that imposes meaningful disciplinary and remedial actions.”[43]

         These are general allegations and Plaintiffs fail to provide any specific factual support for their numerous assertions that the City failed to train, supervise, and discipline its employees.[44]

         The Complaint must make specific allegations of unconstitutional conduct rather than vague and conclusory allegations.[45] Moreover, to the extent that Plaintiffs specifically allege that they were arrested, searched, detained, and maliciously prosecuted without probable cause, “[a] policy cannot ordinarily be inferred from a single instance of illegality such as a first arrest without probable cause.”[46] Thus, without identifying any previous patterns of such alleged illegality, it cannot be said that Plaintiffs have sufficiently pled the City's deliberate indifference for purposes of municipal liability.[47]

         B. State Tort Law Claims

         Plaintiffs also have brought Pennsylvania tort law claims against all Defendants for “negligence, false arrest/false imprisonment, malicious prosecution, fraud, defamation, slander, negligent infliction of emotional distress, and outrageous conduct causing emotional distress.”[48]The Court will examine those claims as they relate to the City and Police Officers, as well as Restaurant Defendants.

         1. The City and Police Officers

          In conclusory fashion, the City and Police Officers simply argue that “Plaintiffs plead no facts giving rise to the vast majority of these claims and offer no explanation as to how any conduct by [them] could give rise to such claims.”[49] The City and Police Officers, however, fail to provide any supportive legal authority as to these state law claims and why they should be dismissed.[50] As the City and Police Officers are the ones who bear the burden of showing that no claim has been properly presented at this stage, [51] the Court will not independently parse through the legal merits of each and every state law claim on their behalf, particularly where they concede that some of the federal and state claims, at least, may indeed be plausible. Thus, their motion to dismiss the state law claims against them will be denied at this time.

         2. Good Luck Chinese Restaurant, Ling Lin, and Zhao Zhou a. Supplemental Jurisdiction

          Restaurant Defendants all move to dismiss the state tort law claims based on a lack of supplemental jurisdiction, arguing that there are no federal claims asserted against them and that the state law claims are not part of the same case or controversy pursuant to 28 U.S.C. § 1367.[52]Under the circumstances of this case, the Court finds that it does retain subject matter jurisdiction to adjudicate Plaintiffs' state tort law claims against Restaurant Defendants.

         It has been well established that when a federal court has subject matter jurisdiction over a federal claim, it may also exercise jurisdiction over a related state claim over which the court has no independent basis of subject matter jurisdiction.[53] This includes “claims that involve the joinder or intervention of additional parties, ” the doctrine of which is referred to as “pendent-party jurisdiction.”[54] A court considering whether to exercise pendent-party jurisdiction should focus its inquiry on whether the pendent party's claims “are so related to claims in the action within the original jurisdiction that they form part of the same case or controversy.”[55]Establishing the “same case or controversy” requires that the pendent claims “derive from a common nucleus of operative fact . . . such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding.”[56] This discretionary exercise is grounded in notions of judicial economy, convenience and fairness to litigants.[57] Whether the two claims arise out of a “common nucleus of operative facts” is case-specific.[58]

         As previously noted, the Court has federal question jurisdiction over this case because Plaintiffs have at least properly pled claims of unlawful arrest, unlawful search, and malicious prosecution against Police Officers for the deprivation of their constitutional rights. Although Restaurant Defendants argue that the state claims are unrelated as they simply regard issues over the freshness of the fruit salad, [59] this view is myopic. The state tort law claims against Restaurant Defendants are related to the eventual search, arrest, detention, and prosecution of Plaintiffs, as they allege such actions against them were largely based on the fabrication of facts ...

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