Dotterer v. Pinto

RICHARD A. DOTTERER, Plaintiff, v. THOMAS PINTO, ET AL., Defendants.

CIVIL ACTION NO. 13-06903

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 10, 2014

MEMORANDUM

Stengel, J.

This is a § 1983 suit related to injuries inflicted on the plaintiff by police officers during his DUI arrest. The plaintiff alleges that he was tasered eleven times by several officers while he was handcuffed and restrained in the back of a police vehicle. The defendants move to dismiss under Rule 12(b)(6). For the reasons set forth below, I will grant the motion in part and deny in part.

I. BACKGROUND¹

Plaintiff Richard Dotterer claims involve both the Borough of Catasauqua and its police officers and the Borough of North Catasauqua and its police officers; both police departments are alleged to have been involved in the arrest giving rise to this action.

On March 9, 2013, Plaintiff Richard Dotterer was arrested by Catasauqua police officer John P. Lakits and charged with a DUI, driving with a suspended license, resisting arrest, accidents involving damage to unattended vehicle/property, and simple assault. The plaintiff alleges that, while he was handcuffed in the back of the police car,Catasauqua Police Officer Thomas Pinto and North Catasauqua Police Officer Rebecca Saborsky—along with other unidentified officers—tasered him eleven times. The plaintiff also alleges that, at one point, one of these officers handed the taser to a civilian bystander (who had recently been discharged), asking that person to hold the taser gun while the taser prongs and wire were still attached to the plaintiff; allegedly that officer made this request of the bystander so that the officer could approach the plaintiff. Officer Latkits, the arresting officer, never tasered the plaintiff and directed the other officers to cease and desist the tasering of the plaintiff.

Officer Lakits affidavit of probable cause stated that Officer Saborsky had used her taser to dry stun the plaintiff but that did not work so North Catasauqua tasered him with darts which appeared to have little effect.²

The plaintiff was then taken to Lehigh Valley Hospital—Muhlenberg where he was admitted.³ The plaintiff's medical records from March 9, 2013 indicate that he was tasered eleven times and that two barbs were still in place in the plaintiff's right arm and back when he arrived.⁴

Subsequently, the plaintiff brought this § 1983 suit against Officer Pinto, Officer Saborsky, Catasauqua Police Chief Douglas Kish, North Catasauqua Police Chief Kim Moyer, the Borough of Catasauqua, and the Borough of North Catasauqua. He alleges that the excessive use of force during his arrest violated his Fourth, Eighth, andFourteenth Amendment rights. He asserts three counts: 1) an excessive use of force claim against Officers Pinto and Saborsky (Count One) under the Fourth, Eighth, and Fourteenth Amendments; 2) a failure to train/failure to supervise claim against Police Chiefs Kish and Moyer; and 3) a failure to train/failure to supervise claim against the Boroughs of Catasauqua and North Catasauqua. Defendants North Catasauqua, Kim Moyer, and Thomas Pinto move to dismiss the complaint for failure to state a claim. Defendants Catasauqua, Kish, and Saborsky also move to dismiss under Rule 12(b)(6). Since both their motions make similar arguments, I will address them both in this memorandum.⁵

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint.⁶ Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor ofthe plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47. Rather, the Rules require a "short and plain statement" of the claim that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must allege facts suggestive of [the proscribed] conduct." Twombly, 550 U.S. at 564. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).

A court "may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Brown v. Card Service Center, 464 F.3d 450, 456 (3d Cir. 2006)(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

III. DISCUSSION

"To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." Westv. Atkins, 487 U.S. 42, 48 (1988). Count I speaks to the first part of this claim, while Counts II and III speak to the second part pertaining to color of law.

a. Count One: Excess Force

The plaintiff alleges that his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments were violated by the excessive use of force during his arrest. The defendants argue that the Eighth Amendment protections do not apply because the plaintiff had not been convicted at the time of the incident.⁷ I agree. "Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions." Bell v. Wolfish, 441 U.S. 520, 534 n. 16 (1979)(quoting Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40 (1977))(quotation marks omitted). Since the plaintiff had not gone through formal criminal proceedings at the time of the incident, it is clear that the Eighth Amendment would not apply here.

The use of excessive force during an arrest, however, is a cognizable constitutional violation under the Fourth Amendment. Id. The Fourth Amendment provides, "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated."⁸ The use of excessive force during an arrest goes to the question of whether the seizure of the person was reasonable.

How much force is reasonable in effectuating an arrest is based on the "totality of the circumstances," including: 1) the severity of the crime at issue, 2) the immediate threat to the safety of the officers or others that the suspect poses, 3) whether the suspect is resisting or evading arrest, 4) how "violent or dangerous" the suspect is, 5) the "duration" of the force, 6) whether the force was used in making an arrest, and 7) whether the suspect might be armed, and 8) the number of people with whom the police must contend. See Graham v. Connor, 490 U.S. 386, 396 (1989)(citing Tennessee v. Garner, 471 U.S. 1, 8-9, (1985)); Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997). Reasonableness is evaluated from the perspective of a reasonable officer on the scene. Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir. 2004)(citing Graham, 490 U.S. at 396).

The use of a taser during an arrest, especially when the suspect is resisting arrest, may be reasonable. See, e.g., Brown v. Cwynar, 484 Fed.Appx. 676, 681 (3d Cir. 2012)(noting how the use of taser on a suspect resisting arrest is not inherently "excessive force"). However, the plaintiff's allegation that he was tasered eleven times while he was handcuffed in the backseat of a police car is enough to make out a plausible claim of excessive force under the Fourth Amendment. ⁹

b. Counts Two and Three: Failure to Train

In accord with the second requirement of a § 1983 action, the plaintiff asserts a failure to train and a failure to supervise claim against Chiefs of Police Kish and Moyer and their respective municipalities. Under § 1983, "[a] municipality may be liable for failing to train its employees if that failure amounts to deliberate indifference" so long as this failure is closely related to the plaintiff's ultimate injuries. A.M. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 582 (3d Cir.2004)(citing City of Canton v. Harris, 489 U.S. 378, 389-90 (1989)).¹⁰ While this type of claim is typically shown through a pattern of constitutional violations, "[a] single constitutional violation can still provide the basis for municipal liability for failure to train, ... but only where the 'need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights' that the policymaker's inaction amounts to deliberate indifference." Christopher v. Nestlerode, 240 F. App'x. 481, 489-90 (3d Cir.2007) (quoting Canton, 489 U.S. at 391)(quotation marks omitted).¹¹ Specifically, the Supreme Court has noted that the failure to train officers on the use of deadly force during an arrest as one "so obvious" example. See Canton, 489 U.S. at 390 n. 10.

Under this rationale, the need to train officers in how and when to use a taser gunto subdue a person during arrest could be "so obvious" and "highly predictable" such that a showing of repeated constitutional violations may be unnecessary. See Geist...