Smith v. Forester et al

Filing 23

MEMORANDUM OPINION re pending motions. Signed by Judge Leonard P. Stark on 3/29/13. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JERRY L. SMITH, SR.,
Plaintiff,

v.

Civ. No. 11-893-LPS

PATRICK FORESTER, et al.,
Defendants.

Jerry L. Smith, Sr., Frankford, Delaware, Pro Se Plaintiff.
David G. Culley, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware. Counsel for
Defendants.

MEMORANDUM OPINION

March 29,2013
Wilmington, Delaware

tLv ~. 4--

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff Jerry L. Smith, Sr. ("Plaintiff') filed this action pursuant to 42 U.S.C. § 1983

alleging violations ofhis constitutional rights and raising supplemental State claims. (D.I. 1)
Plaintiff amended the complaint on January 27, 2012. (D.I. 4) He proceeds prose and has paid
the filing fee. The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the
Court are Plaintiffs request for default (D.I. 11) and motion to amend (D.I. 17) as well as
Defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (D.I. 12). For the reasons that
follow, the Court will deny the request for default, deny the motion to amend without prejudice,
and will grant in part and deny in part the motion to dismiss.

II.

BACKGROUND
While traveling in his vehicle on October 4, 2009, Plaintiff was stopped in Millsboro,

Delaware. He was charged with violations under Delaware law for inattentive driving, must
drive on the right side of the roadway, failure to have license in possession, failure to have
registration card in possession, and failure to have insurance identification in possession. See 21
Del. C. §§ 2108, 2118, 2721, 4114, 4176(b ). Two trials took place, and Plaintiff was acquitted of
all charges. Counts One, Two, and Three of the Amended Complaint raise constitutional
violations pursuant to 42 U.S.C. § 1983 and§ 1988 for an unlawful stop, fabrication of facts, and
false charges, conspiracy, and malicious prosecution. Counts Four and Five raise supplemental
State claims for malicious abuse of process and intentional infliction of emotional distress.
Count Five also asserts a municipal liability claim pursuant to 42 U.S.C. § 1983.

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All Defendants were served on January 30, 2012. (See D.I. 5, 6, 7, 8, 9) Counsel for
Defendants filed a notice of appearance (D .I. 10) on February 17, 2012. On May 2, 2012,
Plaintiff filed a request for default (D. I. 11) as to all Defendants and, on the same date,
Defendants filed a Motion to Dismiss (D.I. 12). On May 21, 2012, Plaintiff filed a motion to
amend the amended complaint (D.I. 17).

III.

REQUEST FOR DEFAULT
Plaintiff has filed a motion for entry of default (D.I. 11 ). Entry of default judgment is a

two-step process. See Fed. R. Civ. P. 55( a), (b). A party seeking to obtain a default judgment
must first request that the Clerk of the Court "enter . : . the default" of the party that has not
answered the pleading or "otherwise defend[ ed]" within the time required by the rules or as
extended by court order. Fed. R. Civ. P. 55(a). Timely serving and filing a motion to dismiss
under Fed. R. Civ. P. 12(b) precludes entry of default. See Francis v. Joint Force Headquarters

Nat'l Guard, 2006 WL 2711459 (D.N.J. Sept. 19, 2006). Even if default is properly entered, the
entry of judgment by default pursuant to Rule 55(b)(2) is within the discretion of the trial court.

See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
Here, Defendants have filed a motion to dismiss, albeit, belatedly. Nonetheless, because
the entry of default and default judgment are disfavored, as they prevent a plaintiffs claims from
being decided on the merits, see Girafa.com, Inc. v. Smartdevil, Inc., 728 F. Supp. 2d 537, 542
(D. Del. 2010), the Court exercises its discretion and declines to enter Defendants' default.
Accordingly, the Court will deny Plaintiffs motion for entry of default (D.I. 11 ).

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IV.

MOTION TO AMEND

Plaintiff moves to amend (D.I. 17) to more fully conform with Fed. R. Civ. P. 8.
Defendants oppose the motion on the grounds that Plaintiff failed to comply with Local Rule
15.1 when he did not accompany the motion with a proposed amended pleading or provide a
description ofthe proposed amendment. Plaintiff responded to Defendants' opposition, but again
failed to comply with Local Rule 15.1.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as matter of course
within twenty-one days after serving it or, if the pleading is one to which a responsive pleading is
required, twenty-one days after service of a responsive pleading or twenty-one days after service
of a Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its pleading only
with the opposing party's written consent or the court's leave. Rule 15 provides that the Court
should freely give leave to amend when justice so requires.
Rule 15.1 ofthe Local Rules of Civil Practice and Procedure ofthe United States District
Court for the District of Delaware provides that a party who moves to amend a pleading shall
attach to the motion the proposed pleading as amended, complete with a handwritten or
electronic signature and a form of the amended pleading, which shall indicate in what respect it
differs from the pleading which it amends, by bracketing or striking through materials to be
deleted and underlining materials to be added. See D. Del. LR 15 .1. Plaintiff did not attach a
copy of the proposed amended complaint as required by Local Rule 15.1. Therefore, the Court
will deny the motion (D.I. 179) without prejudice to refiling in accordance with the Local Rules
of this Court.

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V.

MOTION TO DISMISS
A.

Leeal Standards

Evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) requires
the Court to accept as true all material allegations of the complaint. See Spruill v. Gillis, 372
F.3d 218, 223 (3d Cir. 2004). "The issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims." In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997) (internal quotation marks omitted).
Thus, the Court may grant such a motion to dismiss only if, after "accepting all well-pleaded
allegations in the complaint as true, and viewing them in the light most favorable to plaintiff,
plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000)
(internal quotation marks omitted).
However, "[t]o survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a
right to relief above the speculative level on the assumption that the allegations in the complaint
are true (even if doubtful in fact)."' Victaulic Co. v. Tieman, 499 F .3d 227, 234 (3d Cir. 2007)
(quoting Bell At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially 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." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). At bottom, "[t]he complaint must state enough facts to raise a reasonable expectation
that discovery will reveal evidence of [each] necessary element" of a plaintiff's claim. Wilkerson
v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008) (internal quotation
marks omitted).

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The Court obligated to accept as true "bald assertions," Morse v. Lower Merion Sch.

Dist., 132 F.3d 902,906 (3d Cir. 1997) (internal quotation marks omitted), "unsupported
conclusions and unwarranted inferences," Schuylkill Energy Res., Inc. v. Pennsylvania Power &

Light Co., 113 F.3d 405, 417 (3d Cir. 1997), or allegations that are "self-evidently false," Nami v.
Fauver, 82 F.3d 63, 69 (3d Cir. 1996). Because Plaintiff proceeds prose, his pleading is
liberally construed and his Complaint, "however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks omitted).

B.

Discussion

Defendants move for dismissal on the grounds that each count of the Amended
Complaint fails to adequately plead a claim. (D.I. 12, 13)

1.

42 u.s.c. § 1988

Counts One, Two, and Three attempt to raise claims pursuant to 42 U.S.C. § 1988. The
Court will dismiss the claims because this provision "does not create an independent federal
cause of action; it is merely intended to complement the various acts which do create federal
causes of action for the violation of federal rights." Tunstall v. Office ofJudicial Support of

Court ofCommon Pleas, 820 F.2d 631,633 (3d Cir. 1987) (explaining Moor v. County of
Alameda, 411 U.S. 693, 702 (1973)).

2.

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u.s.c. § 1983

Counts One, Two, Three, and Six raise claims pursuant to 42 U.S.C. § 1983. When
bringing a § 1983 claim, a plaintiff must allege that some person has deprived him of a federal
right, and that the person who caused the deprivation acted under color of state law. See West v.
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Atkins, 487 U.S. 42, 48 (1988). Defendants argue that, although Plaintiff provides extensive
allegations and trial quotations, his claims for relief are inadequately supported by actual facts
and rely solely upon formulaic recitations of the elements of each claim. In addition, Defendants

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contend that the Amended Complaint fails to identify the Constitutional provisions that were
allegedly violated.

a.

Count One - Constitutional Violation

Count One alleges that on October 4, 2009, Defendant Police Officer Patrick Forester
("Forester") conducted a "false traffic stop" of Plaintiff, "fabricated facts," and issued Plaintiff
"false charges." (D.I. 4 at 7-10) While inartfully pled, in essence, Plaintiff alleges a violation of
rights under the Fourth Amendment of the United States Constitution.
A "traffic stop is a seizure within the meaning of the Fourth Amendment" and "[the]
reasonable suspicion standard applies to routine traffic stops." United States v. Delfin-Colina,
464 F.3d 392, 396-97 (3d Cir. 2006). "[Alt]hough reasonable suspicion is a generally
undemanding standard, a police officer does have the initial burden of providing ... specific,
articulable facts to justify a reasonable suspicion to believe that an individual has violated [a]
traffic law .... " !d. (citation omitted); see also Elozua v. New Jersey, 2008 WL 370926, at *5
(D.N.J. Feb.ll, 2008) ("An unreasonable search and seizure claim under the Fourth Amendment
may arise out of a traffic stop.").
Plaintiff alleges that he was not violating any traffic laws, that when he realized the police
wanted to stop him he pulled over, and that although he initially could not find his insurance and
registration card, when he did, he offered them to Forester, who refused to look at or accept
them. The Court must accept as true Plaintiff's allegation that Forester lacked a proper basis to
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make the traffic stop. A review of the allegations indicates that Plaintiffhas pled facts that, if
proven, could support a violation ofhis Fourth Amendment rights. Therefore, the Court will
deny Defendants' motion to dismiss Count One of the Amended Complaint.

b.

Count Two - Conspiracy

Count Two alleges that Defendants Barry Wheatley ("Wheatley"), Roy Lowe ("Lowe"),
and Forester conspired to deprive Plaintiff of his right to unaltered exculpatory evidence. To
state a conspiracy claim under § 1983, Plaintiff must show that "persons acting under color of
state law conspired to deprive him of a federally protected right." Ridgewood Bd. ofEduc. v. N

.E. ex rei. M.E., 172 F.3d 238, 254 (3d Cir. 1999). In addition, there must be evidence of actions
taken in concert by defendants with the specific intent to violate that right. See Williams v.

Fedor, 69 F. Supp. 2d 649, 665-66 (M.D. Pa.), aff'd, 211 F.3d 1263 (3d Cir. 2000); see also
Parkway Garage, Inc. v. City ofPhiladelphia, 5 F.3d 685,700 (3d Cir. 1993) (stating plaintiff
must show that two or more conspirators reached agreement to deprive him or her of
constitutional right under color oflaw).
Defendants move to dismiss on the grounds that Plaintiff has failed to allege any facts

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establishing an agreement or meeting of the minds among them to injure Plaintiff. Count Two
alleges that Wheatley, Lowe, and Forester were the custodians ofthe evidence and that the
evidence was altered to exclude exculpatory evidence. There are no allegations that these three
Defendants had an agreement or acted in concert to violated Plaintiffs constitutional rights.

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Because the Amended Complaint does not contain allegations that Defendants had an agreement

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to deprive Plaintiff of his constitutional rights, the Court will grant Defendants' motion to

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dismiss Count Two of the Amended Complaint.
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c.

Count Three - Malicious Prosecution

Count Three alleges that, in an effort to convict Plaintiff, Forester lied under oath when
he testified that Plaintiff, at no time during the traffic stop, offered his registration and insurance
card. In addition, Count Three alleges that Forester knew Plaintiff offered his registration card
during the traffic stop, that the video of the traffic stop contained this evidence, that Forester had
watched the video and could have dropped the registration card charge but, instead, chose to
vigorously pursue it.
To state a malicious prosecution claim under§ 1983, a plaintiff must show the following:
"(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the
plaintiffs favor; (3) the proceeding was initiated without probable cause; (4) the defendants
acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff
suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal
proceeding." DiBella v. Borough ofBeachwood, 407 F.3d 599, 601 (3d Cir. 2005).
With regard to the final element -the deprivation of liberty- Plaintiff "must show that he
suffered a seizure as a consequence of a legal proceeding." Gallo v. City ofPhiladelphia, 161
F .3d 217, 222 (3d Cir. 1998). For purposes of malicious prosecution, the "type of constitutional
injury the Fourth Amendment is intended to redress is the deprivation of liberty accompanying
prosecution, not prosecution itself;" "[p]retrial custody and some onerous types of pretrial,
non-custodial restrictions constitute a Fourth Amendment seizure." DiBella, 407 F.3d at 602-03.
The Amended Complaint alleges that Plaintiff received several traffic tickets and that he
was acquitted of all charges following two trials. There are, however, no facts to identify a
seizure suffered as a consequence of a legal proceeding. See Benckini v. Coopersburg Borough,
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2008 WL 2156713, at *5 (E.D. Pa. May 21, 2008) (dismissing malicious prosecution claim
arising out of a traffic stop because plaintiff had not been "seized through malicious
prosecution," stating that "issuance of a traffic citation and the resulting court appearances
simply do not result in a deprivation of liberty sufficient to support a malicious prosecution
claim"). Therefore, for the above reasons, the Court will grant Defendants' motion to dismiss
Count Three of the Amended Complaint.

d.

Count Six - Municipal Liability

Count Six asserts a municipal liability claim under§ 1983 against Defendant Town of
Millsboro ("Millsboro") for failing properly to train and supervise the individual defendants in
conducting traffic stops and in maintaining the integrity of evidence from those stops. The Court
liberally construes the allegations as municipal liability claims predicated on the purported
policy, custom, or practice of failing properly to train, supervise, or discipline Millsboro's
officers and personnel.
A municipality cannot be held liable under a theory of respondeat superior. To state a
§ 1983 claim against a municipality, Plaintiff must identify a custom, practice, or policy that led
to, or caused, his constitutional deprivations. See 42 U.S.C. § 1983; Monell v. Department. of

Soc. Services, 436 U.S. 658. 690 (1978). In addition, Plaintiff must allege "a direct causal link
between [the] municipal policy or custom and the alleged constitutional deprivation." City of

Canton v. Harris, 489 U.S. 378, 385 (1989). "[T]he inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police come into contact." Harris, 489 U.S. at 388.
However, "not all failures or lapses in training will support liability under§ 1983." Woloszyn v.

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County ofLawrence, 396 F .3d 314, 325 (3d Cir. 2005). The alleged deficiency in the training
program "must be closely related to the ultimate [constitutional] injury." !d.
To establish the requisite deliberate indifference, a plaintiff must show that:
"(1) municipal policymakers know that employees will confront a particular situation; (2) the
situation involves a difficult choice or a history of employees mishandling; and (3) the wrong
choice by an employee will frequently cause deprivation of constitutional rights." Carter v. City
ofPhiladelphia, 181 F.3d 339, 357 (3d Cir. 1999). The plaintiff must be able to "show both
contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar
incidents and circumstances under which the supervisor's actions or inaction could be found to
have communicated a message of approval to the offending subordinate." Montgomery v.
DeSimone, 159 F.3d 120, 127 (3d Cir. 1998).
The allegations in Count Six, even when liberally construed, fail to state a plausible claim
for municipal liability under § 1983. The Amended Complaint fails to identify the policies or
customs that caused a violation of his constitutional rights or that any supervisory personnel had
any knowledge of any problems with traffic enforcement. See, e.g., Cunningham v. North
Versailles Twp., 2010 WL 391380, at *12 (W.D. Pa. Jan. 27, 2010) (dismissing municipal
liability claim arising out of traffic stop and premised on failure to train theory, because plaintiff
failed to allege either that policymaker committed alleged wrongful act or that officers' acts were
sufficiently widespread or well-settled as to be functional equivalent of township's law or
policy).

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For the above reasons, the Court concludes that the conclusory allegations fail to show a
plausible claim for relief for municipal liability pursuant to § 1983. Therefore, the Court will
grant Defendants' motion to dismiss Count Six of the Amended Complaint.

3.

Supplemental Claims under Delaware Law

To the extent Counts Four and Five attempt to raise claims against Millsboro, Millsboro
is immune from suit pursuant to Delaware's Municipal Tort Claims Act, 10 Del. C.§ 4010.

a.

Malicious Abuse of Process

Count Four raises a claim of malicious abuse of process. The elements of an abuse of
process claim are: (1) an ulterior improper purpose and (2) a willful act improperly used in the·
regular conduct of proceedings. See STMicroelectronics N. V. v. Agere Sys., Inc., 2009 WL
1444405 (Del. Super. Ct. May 19, 2009). The improper purpose is usually to obtain a collateral
advantage. See Pfeiffer v. State Farm Mut. Auto. Ins. Co., 2011 WL 7062498 (Del. Super. Ct.
Dec. 20, 2011).
The allegations in Count Four do not give rise to an abuse of process claim. Count Four
merely recites the elements for abuse of process under Massachusetts, not Delaware, law, without
supporting facts. Although Plaintiff provides some reasoning for Count Four in his opposition to
Defendants' Motion to Dismiss, a factual basis is missing in Count Four of the Amended
Complaint. Therefore, the Court will grant Defendants' motion to dismiss Count Four of the
Amended Complaint.

b.

Intentional Infliction of Emotional Distress

Count Five alleges intentional infliction of emotional distress. The Amended Complaint
alleges that Defendants intentionally and deliberately inflicted emotional distress upon Plaintiff
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by maliciously prosecuting him. Under Delaware law, the elements of intentional or reckless
infliction of emotional distress can be established when "[ o]ne who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other results from it, for such
bodily harm." Cooper v. Board ofEduc. ofRed Clay Consol. Sch. Dist., 2009 WL 2581239, at
*3 (Del. Super. Ct. Aug. 20, 2009). A claim for intentional infliction of emotional distress may
be made even in the absence of accompanying bodily harm, if the conduct is outrageous. See

Cummings v. Pinder, 574 A.2d 843, 845 (Del. 1990).
Count Five is alleged in a conclusory manner and is not directed towards any one
Defendant. In addition, there are no facts alleging "severe" emotional distress. Because it is
deficiently pled, the Court will grant Defendants' motion to dismiss Count Five.

VI.

CONCLUSION
For the above reasons, the Court will deny Plaintiffs Request for Default (D.I. 11); will

deny without prejudice Plaintiffs Motion to Amend (D.I. 17); and will grant in part and deny in
part Defendants' Motion to Dismiss (D.I. 12). Since it appears plausible that Plaintiff may be
able to articulate a claim or claims against Defendant(s), he will be given an opportunity to
amend his pleading consistent with this Memorandum Opinion. See 0 'Dell v. United States

Gov't, 256 F. App'x 444 (3d Cir. 2007) (leave to amend is proper where plaintiffs claims do not
appear "patently meritless and beyond all hope of redemption").
An appropriate Order will be entered.

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