Perez v. Lebron, Civil No. 5:20-cv-04331-JMG

JOHN PEREZ, Plaintiff, v. OFFICER JOSE LEBRON, et al., Defendants.

Civil No. 5:20-cv-04331-JMG

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 3, 2021

MEMORANDUM OPINION

GALLAGHER, J.

Plaintiff John Perez filed this complaint against the City of Allentown, Allentown Mayor Ray O'Connell, former Chief of the Allentown Police Department Tony Alsleben, eight named Allentown police officers, and ten "Doe" defendants pursuant to 42 U.S.C. §§ 1981, 1983, 1985 and Pennsylvania state law. His claims arise out of a violent encounter with police officers in September 2018. Before the Court is defendants' partial motion to dismiss and motion to strike. For the reasons explained below, the motion will be granted in part and denied in part.

I. BACKGROUND¹

During the early hours of September 8, 2018, a commotion erupted outside the home of Plaintiff John Perez. Compl. ¶¶ 17-19, ECF No. 1 [hereinafter "Compl."]. Several Allentown police officers had responded to the area, a predominantly Latino community, after receiving reports of an armed man nearby. Id.; see also id. ¶ 22. In their search for the suspect, the officers began opening private garages in the alleyway behind Perez's home. Id. ¶ 20.

Tensions quickly escalated as Perez's neighbors questioned the officers about their conduct. Id. ¶ 21. The officers responded by mocking the residents, calling them "babies," "bitches," "4th Street pussies," and "Corn Street pussies." Id. ¶¶ 21, 25. An officer even threatened to return at a later date, cautioning the crowd that "you don't want me back." Id. ¶ 22.

Perez stepped outside to investigate and was greeted with obscenities and derogatory language from one of the officers. Id. ¶ 25. The officer taunted Perez, who is of Dominican heritage, by saying, "you're a buck five [105 pounds] soaking wet. Get the fuck out of here. Go back to where the fuck you came from." Id. ¶ 27. Perez calmly responded but was directed to "mind [his] fucking business." Id. ¶ 30. The officer then forced Perez to the ground. Id. ¶ 32. He struck Perez repeatedly, leaving Perez with a broken nose and dislocated arm. Id. ¶¶ 33-35, 51. None of the other officers intervened as the first officer repeatedly struck Perez. Id. ¶¶ 36, 42. Perez's neighbors pleaded with the officers to stop the assault, to no avail. Id. ¶ 41.

Dazed and injured, Perez was taken into custody and charged with resisting arrest and disorderly conduct. Id. ¶ 46. A jury ultimately acquitted Perez of all charges. Id. ¶ 81.

II. STANDARD

A complaint may be dismissed for failing to "state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To survive dismissal, the 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)). "Although the plausibility standard does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully." Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). To that end, a complaint cannot rely on mere "labels and conclusions, and a formulaicrecitation of a cause of action's elements will not do." Twombly, 550 U.S. at 545.

A three-step framework governs our review of a complaint. Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, we identify "the elements [the] plaintiff must plead to state a claim." Connelly, 809 F.3d at 787 (quoting Iqbal, 556 U.S. at 675). Second, we "identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.'" Id. (quoting Iqbal, 556 U.S. at 679). Finally, we assume the veracity of well-pleaded factual allegations "and then determine whether they plausibly give rise to an entitlement to relief." Id. (quoting Iqbal, 556 U.S. at 679).

At the motion to dismiss stage, we "accept as true all allegations in the plaintiff's complaint as well as all reasonable inferences that can be drawn from them, and we construe them in a light most favorable to the non-movant." Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)).

III. DISCUSSION

The defendants move to dismiss two of Perez's racial discrimination claims, his Fourteenth Amendment Due Process claim, and his claim for equitable relief under the Pennsylvania Constitution. We address these claims in turn before considering defendants' request to strike certain portions of the complaint.

A. Racial Discrimination

In Count VI, Perez raises a race-based Equal Protection Clause claim against all defendants under 42 U.S.C. § 1983. Compl. ¶¶ 180-92. Perez alleges that he "was intentionally discriminated against by the Defendants due to his Hispanic roots." Id. ¶ 187. He further alleges that he "was treated differently than similarly situated white persons." Id. ¶ 182.

Section 1983 offers a cause of action for plaintiffs who have suffered "a deprivation of a constitutional right . . . [that] was caused by a person acting under the color of state law." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (internal citation omitted). At issue here are the rights guaranteed by the Equal Protection Clause. U.S. CONST. amend. XIV, § 1 ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."). "To bring a claim under § 1983 for the denial of equal protection based on race, a plaintiff must show: (1) he is in a protected class; (2) the defendant acted under the color of state law; and (3) the defendant treated the plaintiff differently because of his race, or, put differently, acted with a racially discriminatory intent or purpose." Johnson v. Fuentes, 704 F. App'x 61, 65 (3d Cir. 2017) (internal citations omitted).²

Perez pleads a plausible Equal Protection claim. It is undisputed that Perez is a member of a protected class and that the defendants are state actors who acted under color of state law. See, e.g., Compl. ¶ 201. Perez has also satisfactorily alleged that the defendants acted with a racially discriminatory intent or purpose. Not only does he allege that he "was treated differently than similarly situated white persons," id. ¶ 182, but he also asserts that he was told to "[g]o back to where the fuck [he] came from" shortly before the defendant officers assaulted him. Id. ¶ 27. Viewed in the light most favorable to Perez, we find that these allegations sufficiently state anEqual Protection claim based on Perez's membership in a protected class. See, e.g., Suber v. Guinta, 902 F. Supp. 2d 591, 607 (E.D. Pa. 2012) ("[A] general allegation that plaintiff has been treated differently from others similarly situated will suffice." (internal citation omitted)); Stockley v. Darby Borough, No. 10-688, 2011 WL 665800, at *3 (E.D. Pa. Feb. 23, 2011) (denying motion to dismiss Equal Protection claim where defendant police officer "made arguably racist remarks regarding [plaintiff]" and complaint alleged facts suggesting that "racism was pervasive at the [relevant police department]").

Perez also asserts a Civil Rights Act claim against all defendants under 42 U.S.C. § 1981. Compl. ¶¶ 193-208. He alleges that he was deprived "of rights protected by the Constitution of the United States of America, and the Defendants intended to deny [him] rights enjoyed by white citizens of the United States." Id. ¶ 194.

"To establish a right to relief under § 1981, a plaintiff must show (1) that he belongs to a racial minority; (2) 'an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in' § 1981, including the right to make and enforce contracts." Pryor v. NCAA, 288 F.3d 548, 569 (3d Cir. 2002) (quoting Brown v. Philip Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001)). Section 1981 is not limited to contractual rights alone. Mahone v. Waddle, 564 F.2d 1018, 1028 (3d Cir. 1977). Rather, the Third Circuit has interpreted the statute to cover "the type of racially motivated physical abuse and misuse of governmental power which is alleged in this instance." Id. at 1029 (internal citation omitted).

The problem, though, is that Section 1981 creates rights—not remedies. McGovern v. City of Phila., 554 F.3d 114, 116 (3d Cir. 2009) ("[W]hile § 1981 creates rights, § 1983 provides the remedy to enforce those rights against state actors."). Perez recognizes as much. See Compl. ¶ 198 ("Section 1981 provides extensive equal protection rights, but is properly brought pursuant toSection 1983, which provides the remedy for violations of Section 1981 . . . ."). "[B]ecause a private cause of action cannot be asserted against a municipal [actor] for a violation of § 1981," Perez's Section 1981 claim must be dismissed.³ Lande v. City of Bethlehem, 457 F. App'x 188, 193 (3d Cir. 2012); see McGovern, 554 F.3d at 121 ("[T]he express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989))); see also A.J. v. Lancaster Cnty., No. 5:19-cv-01768, 2019 WL 5102156, at *3 (E.D. Pa. Oct. 11, 2019) (dismissing Section 1981 claims that should have been brought under Section 1983).

B. Due Process

In Count X, pursuant to Section 1983, Perez raises a Fourteenth Amendment Due Process Claim against the eight named Allentown police officers and ten "Doe" defendants. Compl. ¶¶ 237-51. Perez alleges that these officers "deliberately fabricated and suppressed evidence" that "was used as a basis for the filing of criminal charges" against him. Id. ¶¶ 238, 242.

Defendants argue that this claim violates the more-specific-provision rule. See United States...