GORMAN v. WARWICK Twp.

MICHEALE A. GORMAN

v.WARWICK TOWNSHIP, OFFICER EDWARD LOUX, CORPORAL AARON M. RICHWINE and OFFICER BARRY J. SZAMBOTI

CIVIL ACTION NO. 10-CV-6760

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: April 1, 2011

MEMORANDUM AND ORDER

JOYNER, J.

This civil rights action has been brought before the Court on Partial Motion of Defendants to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. No. 4). For the following reasons, we shall grant the motion in part.

Factual Background

As alleged in the Complaint, Plaintiff Micheale Gorman was stopped by the defendant Warwick Township police officers on November 19, 2008 at approximately 9:30 p.m. on suspicion of driving while under the influence of alcohol or controlled substance. (Complaint, 511). Following Plaintiff's apparent failure of field sobriety tests, she was placed under arrest and handcuffed behind her back by Defendant Corporal Richwine and Officer William Hueber, both of the Warwick Township Police Department. Once handcuffed and while in the process of entering the police cruiser "in the manner in which she was instructed," Plaintiff avers that Defendant Loux "stepped in and suddenly administered a Taser stun to [her] right hip area while her back was towards him which dropped her almost to the ground but for the fact that her limp body became supported by the side of the patrol car." (Complaint, 513). Plaintiff further contends that Defendant Loux "continued to administer multiple Taser stuns" to her body "resulting in multiple Taser wounds as well as other physical and psychological injuries..." (Complaint, 514). Plaintiff, "who already suffered from a cardiac condition," was then transported by unidentified Warwick Township police officers to the Doylestown Hospital Emergency Room for medical treatment "as a result of the multiple Taser stuns, wounds, shock and resulting conditions." (Complaint, 516).

Two years after this incident, on November 18, 2010, Ms. Gorman brought this suit seeking relief under the Fourth and Fourteenth Amendments and under Pennsylvania common law for assault and battery, intentional infliction of emotional distress and misrepresentation and deceit. By the motion which is now before us, the various Defendants seek to dismiss all and/or part of the claims against them.

Standards for Ruling on Rule 12(b)(6) Motions

It is axiomatic that a motion under Fed. R. Civ. P. 12(b)(6) seeks dismissal of a pleading due to "failure to state a claim upon which relief may be granted." In order to survive a Rule 12(b)(6) motion, a pleading must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929, 949 (2007); Holmes v. Gates, 2010 U.S. App. LEXIS 25489 at *3 (3d Cir. Dec. 10, 2010). 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. Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009); Santiago v. Warminster Township, 629 F.3d 121, 126 (3d Cir. 2010). The law is well-settled that in considering and ruling upon motions to dismiss, the district courts must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Sheridan v. NGK Metals Corp., 609 F.3d 239, 262, n. 27 (3d Cir. 2010); Krantz v. Prudential Investments Fund Management, 305 F.3d 140, 142 (3d Cir. 2002). In addition to the complaint itself, the court can review documents attached thereto as well as matters of public record. A court may also take judicial notice of a prior judicial opinion. McTernan v. City of York, PA, 577 F.3d 521, 526 (3d Cir. 2009); Buck v. Hampton Township School District, 452 F.3d 256, 260 (3d Cir. 2006). Now when presented with a motion to dismiss, district courts should conduct a two part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(citing Iqbal, 129 S. Ct. at 1949). Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. (citing Iqbal 129 S. Ct. at 1950). In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. Id.

Discussion

A. Failure to State a Claim Against Officers Hueber and Szamboti

Defendants first assert that inasmuch as Plaintiff has failed to plead any action by Officer Hueber or Officer Szamboti that would subject either of them to liability, the complaint fails to state a claim upon which relief may be granted and both officers are properly dismissed from this suit.

According to the opening paragraphs of the complaint, "[t]his action arises under the provisions of the Civil Rights Act of 1866, as amended, 42 U.S.C. Section 1983." (Complaint, 51). Section 1983 provides remedies for deprivations of rights established in the Constitution or federal laws; it does not, by its own terms, create substantive rights. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006)(citing Baker v. McCollan, 443 U.S. 137, 145, n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979). Entitled "Civil action for deprivation of rights," §1983 reads as follows in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ...

Thus by the plain terms of §1983, two - and only two -allegations are required in order to state a cause of action under that statute. Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572, 577 (1980). First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who deprived him of that right acted under color of state or territorial law. Id.; Anspach v. City of Philadelphia, 503 F.3d 256, 261 (3d Cir. 2007).

"[T]he first step in evaluating a section 1983 claim is to 'identify the exact contours of the underlying right said to have been violated' and to determine 'whether the plaintiff has alleged a deprivation of a constitutional right at all.'" Kaucher, supra,(quoting County of Sacramento v. Lewis, 523 U.S. 833, 841, n.5, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) and Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Further, "[b]ecause vicarious liability is inapplicable to ... §1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948. It is particularly noteworthy that a number of circuit courts, including the Third Circuit, have held that a police officer has a duty to take reasonable steps to protect a victim from another officer's use of excessive force, even if the excessive force is employed by a superior. Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). "If a police officer, whether supervisory or not, fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under Section 1983." Id, (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11^th Cir. 1986; in accord, Putnam v. Gerloff, 639 F.2d 415, 423 (8^th Cir. 1981); Byrd v. Brishke, 466 F.2d 6, 11 (7^th Cir. 1972)). Stated otherwise, where an officer "knew of and acquiesced in the treatment received ... at the hands of other officers," liability may be imposed. See, Baker v. Monroe Township, 50 F.3d 1186, 1193 (3d Cir. 1995); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

In employing these principles to evaluate the complaint in this matter, we note that the only allegations against Officer Szamboti are that he "was at all times relevant hereto a police officer with the Warwick Township Police Department in Warwick Township," that he, along with Officers Loux, Richwine and Hueber, is being sued in his individual and official capacity, and was

"at all times relevant hereto" acting "under the color of their respective official capacity and their acts were performed under the color of the statues (sic) and ordinances of the Township of Warwick, County of Bucks and Commonwealth of Pennsylvania."

(Complaint, ¶ s 8, 10). Although the complaint also avers that the "defendants intentionally used excessive force against Gorman," and failed to "take any action to stop or attempt to stop the assault and battery on Gorman or to otherwise take control of the situation," we cannot discern whether Officer Szamboti was present at the scene of Plaintiff's vehicle stop, what actions, if any, he took relative to the plaintiff, or when and/or where he acted or failed to act. In short, we have no idea what Officer Szamboti did or how he could conceivably be held liable to Plaintiff. As a consequence, we find that these very generalized allegations fail to show that Plaintiff has a plausible claim entitling her to relief against Officer Szamboti.

We...