United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
before the Court are the Valley Forge Defendants' Motion
to Dismiss (ECF No. 4), and Trooper Allaband's Motion to
Dismiss (ECF No. 9). For the following reasons, the Valley
Forge Defendants' Motion will be granted in part and
denied in part, and Trooper Allaband's Motion will be
granted in part and denied in part.
Section 1983 action, Plaintiff Robert Forlina brings civil
rights and state law claims against a Pennsylvania State
Police Trooper and various Defendants associated with Valley
Forge Convention Center Partners, LP d/b/a Valley Forge
Casino Resort (the “Valley Forge Casino”) arising
out of an incident that occurred at the Casino in January of
2015.Plaintiff alleges that Defendants accosted
him for being a “card counter” when Plaintiff was
playing blackjack at the Valley Forge Casino. Plaintiff
further alleges that both the Casino Defendants and Trooper
Allaband acted in concert to deter card counting by making an
example of Plaintiff, all for the purpose of advancing the
financial interests of the Valley Forge Casino.
January 18, 2015, Plaintiff visited the Valley Forge Casino
in King of Prussia, Pennsylvania. (Compl.
¶¶ 13, 17, ECF No. 1.) Upon arriving, Plaintiff was
required to show his driver's license, at which point he
was given a “Daily Passport” card that authorized
him to gamble at the Casino. (Id. ¶ 14-15.)
Plaintiff again provided his identification in order to enter
the gaming floor. (Id. ¶ 15.) Plaintiff stayed
and gambled for ten hours, spending most of his time at the
blackjack table. (Id. ¶ 17.) Plaintiff does not
dispute that he was counting cards while playing blackjack.
(Id. ¶ 18.) Card counting is a playing strategy
used in blackjack where a player memorizes those cards that
have been played face-up to determine the probability of
those cards that remain in play. (Id. ¶ 18.)
counting, although not illegal in Pennsylvania, creates a
statistical advantage for those who use it, and therefore the
strategy is disliked and deterred by casinos, including the
Valley Forge Casino. (Id. ¶ 20.) Plaintiff
alleges that when casino personnel suspect an individual is
counting cards, the casino will evict the player and further
bar them from returning to that casino. (Id.)
after 1:00 p.m. on January 18, 2015, Defendants became
suspicious that Plaintiff was counting cards. (Id.
¶ 24.) While Plaintiff was playing a hand at the
blackjack table, Defendant John Doe asked Plaintiff “in
a loud and accusing manner” to see his identification.
(Id. ¶ 25.) When Plaintiff asked why he needed to
show identification, Doe responded that no reason was needed.
(Compl. ¶ 28.) Plaintiff alleges that Doe's actions
toward him were meant to harass, intimidate, and embarrass
Plaintiff for counting cards. (Id. ¶ 27.)
left the blackjack table and noticed that Defendants Charles
Petruzulli and James Morace, security guards for Valley
Forge, were watching him as he walked through the Casino.
(Id. ¶ 29.) Based on this, Plaintiff decided to
cash out his chips and leave. (Id. ¶ 29.) As
Plaintiff put his chips (allegedly over $1, 000 worth) down
on the cashier counter, Petruzulli and Morace approached him
and asked for his identification. (Id. ¶ 30.)
When Plaintiff again asked them why, they responded by
telling the cashier to not cash out the chips. (Id.
¶ 31.) Plaintiff asked them to call the Gaming
Commission, to which request they refused. (Id.
¶ 29.) Petruzulli and Morace instructed the cashier to
physically cover the chips when Plaintiff tried to count
them, and when they refused to give him a receipt for the
chips, Plaintiff tried to take a photo of them with his cell
phone, at which point Defendants threatened to take his phone
away. (Id. ¶¶ 31-32.) At some point during
this interaction, Trooper Allaband, who was stationed at the
on-site Casino barracks, also came over to the cashier stand.
(Id. ¶¶ 21, 30.) Things escalated from
there. Plaintiff called “911” on his phone and
told the operator that the Valley Forge Casino was stealing
his money and chips. (Id. ¶ 34.) Trooper
Allaband took the phone out of Plaintiff's hand and told
the 911 operator that he was a state trooper and to ignore
Plaintiff's request for help. (Id.)
then alleges that all Defendants “dragged” him
from the cashier stand into a back room,
“slammed” him against a concrete wall, searched
him, took his cash, and then chained his ankles to a bench in
the back room. (Id. ¶ 36.) Plaintiff was
shackled to the bench for approximately 45 minutes, during
which time he suffered a panic attack, and was not provided
water despite his requests. (Id. ¶¶
Plaintiff was shackled to the bench, Defendants offered him a
deal: if Plaintiff gave Defendants the money he won, then
Plaintiff would not be charged with an offense. (Id.
¶ 38.) Plaintiff was eventually issued a citation for
defiant trespass under 18 Pa. Stat. and Cons. Stat. Ann.
§ 3503(b). (Id. ¶ 40) Defendants returned
Plaintiff's cash, except for approximately $600-700,
which Plaintiff alleges Defendants kept for themselves.
(Id. ¶ 42.) Defendants then issued an eviction
notice to Plaintiff and escorted him out of the Casino.
(Id. ¶ 43.)
September 17, 2015, after a trial held in the Court of Common
Pleas of Montgomery County, Plaintiff was found not guilty of
defiant trespass. (Id. ¶ 44.) Plaintiff alleges
that, as a result of Defendants' actions, he suffered
physical injuries, severe emotional distress, and damage to
his reputation. (Id. ¶¶ 46-48.)
alleges that the events described in his Complaint were the
result of Valley Forge Casino's practice of harming,
humiliating, and harassing card counters in order to deter
players from counting cards-a practice allegedly intended to
advance the financial interests of the Casino. (Id.
¶¶ 20, 23, 27.) Plaintiff alleges that neither
Trooper Allaband nor the Casino Defendants ever suspected him
of any crime. (Id. ¶ 45.) He alleges that while
Defendants contend that they asked for his identification
because they believed him to be under the legal gambling age,
they actually confronted him because of his use of the card
counting strategy, particularly because he had been winning.
(Id. ¶¶ 24-26.) The Complaint states that
Pennsylvania State Police are legally required to maintain a
barracks on the premises of the Valley Forge Casino, and that
the Casino pays the entirety of the salaries of the State
Troopers stationed there through its payments to the
Commonwealth under the gaming laws. (Id.
Federal Rule of Civil Procedure 8(a)(2), “[a] pleading
that states a claim for relief must contain a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Rule 12(b)(6) provides for the dismissal of
a complaint, in whole or in part, for failure to state a
claim upon which relief can be granted. A motion under Rule
12(b)(6) tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a). “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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. A complaint that merely alleges entitlement to
relief, without alleging facts that show entitlement, must be
dismissed. See Fowler v. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009). Courts need not accept
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements . . .
.” Iqbal, 556 U.S. at 678. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id.
at 679. This ‘“does not impose a probability
requirement at the pleading stage,' but instead
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of' the
necessary element.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556).
determining whether dismissal of the complaint is
appropriate, courts use a two-part analysis. Fowler,
578 F.3d at 210. First, courts separate the factual and legal
elements of the claim and accept all of the complaint's
well-pleaded facts as true. Id. at 210-11. Next,
courts determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a
“‘plausible claim for relief.'”
Id. at 211 (quoting Iqbal, 556 U.S. at
679). Given the nature of the two-part analysis,
“‘[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.'”
McTernan v. City of York, 577 F.3d 521, 530 (3d Cir.
2009) (quoting Iqbal, 556 U.S. at 679).
Complaint alleges the following counts against all
Defendants: civil rights violations pursuant to 42 U.S.C.
§ 1983 (false arrest, false imprisonment, illegal
search, malicious prosecution, and malicious abuse of
process) (Count 1); assault and battery under Pennsylvania
law (Count 2); false arrest and false imprisonment under
Pennsylvania law (Count 3); malicious prosecution under
Pennsylvania law (Count 4); and a claim for punitive damages
Allaband seeks dismissal of all counts asserted against him,
contending that Plaintiff's Section 1983 claims fail
because Trooper Allaband did not commit any constitutional
violations. Trooper Allaband also contends that the state law
claims are barred by the doctrine of sovereign immunity. The
Casino Defendants also seek dismissal of all counts asserted
against them. The Casino Defendants argue that Plaintiff
“fails to offer any evidence” implicating the
Valley Forge Casino employees, and that instead,
Plaintiff's claims should be directed at Trooper
Allaband. We will first address Trooper Allaband's Motion
and then proceed to the arguments raised by the Casino
Plaintiff's Section 1983 Claims Against Trooper
1983 “provides a remedy for deprivations of rights
secured by the Constitution and the laws of the United States
when that deprivation takes place ‘under the color of
any statute, ordinance, regulation, custom, or usage, of any
State or Territory.'” Lugar v. Edmondson Oil
Co., 457 U.S. 922, 924 (1982) (quoting 42 U.S.C. §
1983). To state a claim under Section 1983, a plaintiff must
(1) allege a violation of a right secured by the Constitution
and the laws of the United States, and (2) show that the
alleged deprivation was committed by a person acting under
color of state law. Abraham v. Raso, 183 F.3d 279,
287 (3d Cir. 1999) (citation omitted). For the purposes of a
Section 1983 action, a defendant acts under color of state
law when he “exercise[s] power possessed by virtue of
state law and made possible only because [he] is clothed with
the authority of state law.” Id. (quoting
West v. Atkins, 487 U.S. ...