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Forlina v. Doe

United States District Court, E.D. Pennsylvania

October 11, 2019



          R. BARCLAY SURRICK, J.

         Presently 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.

         I. BACKGROUND [1]

         In this 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.[2]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.

         On 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.)

         Card 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.)

         Shortly 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.)[3] 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.)

         Plaintiff 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.)

         Plaintiff 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. ¶¶ 37-38.)

         While 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.)

         On 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.)

         Plaintiff 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. ¶¶ 21-22.)


         Under 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 (2007)).

         A claim 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).

         In 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).


         Plaintiff's 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 (Count 5).

         Trooper 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 Defendants.

         A. Plaintiff's Section 1983 Claims Against Trooper Allaband

         Section 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. ...

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