United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS' MOTION TO DISMISS FOR FAILURE
TO STATE A CLAIM-GRANTED.
F. Leeson, Jr. United States District Judge
se Plaintiff Jerome Caldwell commenced this putative
civil rights action on or about January 15, 2019, alleging
that his constitutional rights were violated during a
physical altercation with an Allentown Police Officer.
Specifically, Caldwell states that on August 31, 2018,
Defendant Police Officer Andrew J. Beky physically
assaulted him after a Domino's pizza delivery driver
called the police claiming that Caldwell had failed to pay
for an order of pizza. See generally Compl., ECF No.
2. Officer Beky and another individual identified as
Supervisor Williams now move to dismiss Plaintiff's
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a viable claim. See
generally Defs.' Mem., ECF No. 13. For the reasons
set forth below, Defendants' motion to dismiss is
granted, however, Caldwell is granted leave to re-plead
one of his potential claims.
Facts Alleged in the Complaint
following facts are drawn from Caldwell's Complaint and
are accepted as true, with all inferences drawn in
Caldwell's favor. See Lundy v. Monroe Cty. Dist.
Attorney's Office, No. 3:17-CV-2255, 2017 WL
9362911, at *1 (M.D. Pa. Dec. 11, 2017) (“In
considering whether a complaint fails to state a claim upon
which relief may be granted, the court must accept as true
all allegations in the complaint and all reasonable
inferences that can be drawn therefrom are to be construed in
the light most favorable to the plaintiff.”),
report and recommendation adopted, 2018 WL 2219033
(M.D. Pa. May 15, 2018).
avers that on August 31, 2018, Officer Beky “slam[med]
[Caldwell's] face on the hood of the [police] car causing
injuries to [his] face[, ] for[e]head[, ] and eyes.”
Compl. at 6.Although his allegations are difficult to
make out, the alleged altercation between Beky and Caldwell
appears to have arisen after a Domino's pizza delivery
driver called the police claiming that Caldwell failed to pay
for his pizza. Id. Caldwell claims that he had
already paid for the pizza with a credit card over the
telephone, however, when Officer Beky arrived at the scene he
did not believe Caldwell's explanation. Id.
According to the Complaint, Caldwell's injuries are
visible in his Lehigh County Jail ID photograph. Id.
At the bottom of his narrative statement, Caldwell states
that he “reserve[s] all right [sic] to amend
this Complaint.” Id.
respect to the legal authority upon which his claims are
brought, the Complaint states that Caldwell's treatment
at the hands of Officer Beky and his resulting injuries
constitute a “violation of the 8th Amendment
of [sic] cruel a[nd] unusual punishment.”
Compl. at 6. Caldwell also claims that Officer Beky
“willfully knowingly intentionally abuse[d] his
authority, ” “torture[d]” him, and used
“excessive force.” Id.
commenced this action on January 15, 2019, with the filing of
the Complaint and a motion for leave to proceed in forma
pauperis. See ECF Nos. 1, 2. The Complaint
initially named four Domino's Pizza employees as
Defendants. In an Order dated January 23, 2019, the Court
granted Caldwell's motion to proceed in forma
pauperis and dismissed his claims as to the four
Domino's employees. See ECF No. 5. Also on January
23, 2019, the Clerk of the Court sent Officer Beky and
Supervisor Williams requests to waive service of the
summonses. See ECF No. 6. On February 8, 2019,
counsel for Officer Beky and Supervisor Williams noticed his
appearance and formally waived service of the summonses.
See ECF Nos. 8-10.
filed their motion to dismiss on April 2, 2019. See
ECF No. 13. Having observed no docket activity for over two
months thereafter, the Court issued an Order dated June 6,
2019, directing Caldwell to “mail to the Clerk of the
Court a brief in opposition to the Motion to Dismiss
within fourteen days after he receives this order,
” and advising him that “his failure to respond
to the Motion to Dismiss may result in the motion being
granted as uncontested and this case being dismissed without
further notice.” ECF No. 14 (emphasis in original). The
Court never received any filing from Caldwell in opposition
to the motion to dismiss.
STANDARD OF REVIEW: RULE 12(b)(6)
rendering a decision on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), 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). Of course, “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); see Thourot v. Monroe Career & Tech.
Inst., No. CV 3:14-1779, 2016 WL 6082238, at *2 (M.D.
Pa. Oct. 17, 2016) (explaining that “[a] formulaic
recitation of the elements of a cause of action” alone
will not survive a motion to dismiss). The court's task
then in deciding a motion to dismiss is to determine whether,
based upon the facts as alleged and taken as true, and
disregarding legal conclusions and conclusory assertions, the
complaint states a plausible claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (“[O]nly a
complaint that states a plausible claim for relief survives a
motion to dismiss.”); Ashford v. Francisco,
No. 1:19-CV-1365, 2019 WL 4318818, at *2 (M.D. Pa. Sept. 12,
2019) (“To avoid dismissal under Rule 12(b)(6), a civil
complaint must set out sufficient factual matter to show that
its claims are facially plausible.”). It is only where
“the ‘[f]actual allegations . . . raise a right
to relief above the speculative level'” that has
the plaintiff stated a plausible claim.
Phillips, 515 F.3d at 234 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 540, 555 (2007)). Put
differently, “[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 679 (citing Twombly, 550 U.S. at 556).