Cole v. Encapera, Civil Action No. 15-104

JASON COLE, Plaintiff, v. RICK ENCAPERA, TERRY CHILDS, JUSTIN SCHULTZ andCALIFORNIA BOROUGH Defendant.

Civil Action No. 15-104

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

April 14, 2016

United States Magistrate Judge Cynthia Reed Eddy

MEMORANDUM OPINION¹

CYNTHIA REED EDDY, United States Magistrate Judge.

I. INTRODUCTION

Presently before the Court is Plaintiff's Motion to Amend/Correct Complaint [ECF No. 63]. The motion is fully briefed and ripe for disposition. [ECF Nos. 63, 64, 65, 70]. For the reasons that follow, Plaintiff's motion is granted in part and denied in part.

II. BACKGROUND

Only the factual background pertinent to the disposition of this motion will be outlined here. Plaintiff generally brings this civil rights action against the Defendants for their allegedly unconstitutional conduct while acting on behalf of the California Borough Police Department. Plaintiff seeks to amend his complaint a fourth time to include additional defendants, former Mayor of California Borough, Casey Durdines and current Mayor of California Borough Walter Weld, Jr. (collectively "Borough Mayors") in their official and individual capacities for alleged constitutional violations, and seeks to assert new claims against the original and new defendants.Specifically, Plaintiff seeks to add three new claims against the defendants for allegedly violating his Fourth Amendment rights and seeks to add a violation of the Pennsylvania Constitution related to the search of his tenant's apartment in early 2013, and seeks to add a claim of trespass under Pennsylvania law.

Defendants oppose Plaintiff's motion to add new parties and to amend his complaint. Defendants oppose the addition of the Borough Mayors as defendants and argue that: (1) bringing suit against the Borough Mayors in their official capacities is duplicative of the claims against California Borough; and (2) any claim of individual liability against the current and former mayors is futile because Plaintiff has not alleged personal involvement of these individuals. Likewise, Defendants oppose any amendment to Plaintiff's complaint as futile and argue: (1) any such claim under 42 U.S.C. § 1983 is barred by the applicable statute of limitations; (2) Plaintiff does not have standing to assert a Fourth Amendment violation; (3) there is no private right to monetary damages against Defendants under the Pennsylvania Constitution; and (4) any trespass claim is futile, as Plaintiff has not alleged the exclusive use and possession of the property.

For the following reasons, Plaintiff's motion to add new parties is granted in part and denied in part, and his motion to amend his complaint is granted in part and denied in part.

III. STANDARD OF REVIEW

1. Motion to Amend pursuant to Federal Rule of Civil Procedure 15

Federal Rule of Civil Procedure permits a plaintiff to amend his complaint once as a matter of course within twenty-one days after the service of a responsive pleading, if the pleading is one to which a responsive pleading is required, or twenty-one days after service of a motion pursuant to Rule 12(b). Fed. R. Civ. P. 15(a)(1)(B). After this period, a party may onlyamend his pleading with the opposing party's written consent or by leave of court. Fed. R. Civ. P. 15(a)(2). Rule 15(a) mandates that a court give parties leave to amend "when justice so requires." Fed. R. Civ. P. 15(a). Where a plaintiff seeks to amend his complaint by leave of court, "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). However, justice does not require the court to allow amendment where there is undue delay, bad faith or dilatory motive on the part of the movant, the movant has repeatedly failed to cure deficiencies in previously allowed amendments, the opposing party would suffer undue prejudice by amendment, or amending would prove futile. Id.

Here, Defendants argue that Plaintiff's amendment would be futile. A proposed amendment is futile and the denial for leave to amend is proper if the amendment is frivolous or advances a claim or defense that is facially legally insufficient. See 6 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1487 (2d ed. 2010); Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir.2011)). "The standard for deciding whether claims are futile for the purpose of granting leave to amend a complaint is the same as a motion to dismiss." Markert v. PNC Fin. Servs. Grp., Inc., 828 F. Supp. 2d 765, 771 (E.D. Pa. 2011) (citations omitted). See also Massarsky v. Gen. Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983); S.K. v. N. Allegheny Sch. Dist., No. CV 14-218, 2015 WL 7308671, at *5 (W.D. Pa. Nov. 19, 2015).

2. Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "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)). The reviewing court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the factual allegations of the complaint conceivably fail to raise, directly or inferentially, the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550 U.S. at 561 (citations omitted). Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints "must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal quotations omitted). A court in making this determination must ask "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim." Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).

IV. DISCUSSION

As Plaintiff seeks to add new parties and to amend his complaint, each motion will be considered seriatim.

1. Motion to Add Borough Mayors as Defendants

Plaintiff seeks to hold the Borough Mayors liable for violating his constitutional rights in their official and individual capacities. Because an action pursuant to 42 U.S.C. § 1983 "against a state official in his or her official capacity is not a suit against the official but rather is a suitagainst the official's office[,]" and "no different from a suit against the State itself[,]" Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989) (citations omitted), Plaintiff's motion to add the Borough Mayors in their official capacities is denied as futile as California Borough, the Borough Mayors' "office," is a defendant in this action.

Suit can be brought against state officials in their individual capacity under Section 1983 where (1) "it is shown that such defendants, 'with deliberate indifference to the consequences, established and maintained a policy, custom, or practice which directly caused constitutional harm.'" A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)), or (2) the official "participated in violating the plaintiff's rights, directed others to violate them, or as the person in charge, had knowledge of and acquiesced in his subordinates' violations." J.M.K., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Here, Plaintiff has not adequately alleged that the Borough Mayors established and maintained a policy, custom, or practice which caused constitutional harm. The plaintiff must allege more than the official had policymaking authority, it must be alleged that the official used that authority to establish a final policy that caused constitutional harm. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S. Ct. 1292, 1300, 89 L. Ed. 2d 452 (1986) ("We hold that municipal liability under [Section] 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question."). Accordingly, Plaintiff's motion to proceed against the Borough Mayors in their individual capacities on a "policy-maker" theory of liability under Section 1983 is denied. However, the Court finds thatunder the motion to dismiss standard, Plaintiff has adequately alleged that the Borough Mayors personally participated in the violation of Plaintiff's constitutional rights by having knowledge of the police officer's conduct and acquiescing in their allegedly unconstitutional conduct against Plaintiff. Plaintiff has alleged that the Borough Mayors attended, or were charged with attending Borough Council meetings where he personally complained of the conduct, and that the conduct continued and intensified after Plaintiff's public complaints. At this stage, we must take Plaintiff's allegations as true, and draw all reasonable inferences therefrom. Accordingly, Plaintiff may amend his complaint to add the Borough Mayors in...