GAREY v. BOROUGH OF QUAKERTOWN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/20/2012. 8/20/2012 ENTERED AND COPIES E-MAILED.(sg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BOROUGH OF QUAKERTOWN, et al.,
MEMORANDUM RE: DEFENDANTS’ MOTION TO DISMISS
August 20, 2012
Plaintiff Michael Garey commenced this civil rights action by filing a Complaint against
Defendants the Borough of Quakertown and Officers Kris Baccari and Christopher Grill,
individually and in their capacities as Borough of Quakertown police officers. Presently before
the Court is Defendants’ Motion to Dismiss the Complaint (ECF No. 5) pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants’
Motion to Dismiss is DENIED.
Factual and Procedural Background
The following facts are drawn from the Complaint. On or around February 16 or 17,
2010, Plaintiff was arrested by Richland Township police. (Cplt. ¶ 2.) Plaintiff was searched,
handcuffed, and placed in the back of a Richland Township patrol vehicle. (Id.) Subsequently,
Plaintiff was pulled out of the vehicle and searched again, at which point Officers Baccari and/or
Grill stunned him with a Taser,1 allegedly without provocation. (Id.) Plaintiff was tased a
second time, again allegedly without provocation. (Id. ¶ 18.) Plaintiff was then placed back in
the Richland Township patrol vehicle. (Id. ¶ 19.)
During the course of these events, a Pennsylvania State Police patrol vehicle was parked
behind the Richland Township patrol vehicle in which Plaintiff was detained. (Id. ¶ 17.)
Officers Baccari and Grill were unaware that the State Police patrol vehicle was equipped with a
dash camera and that it recorded the events which took place. (Id.)
Defendants claim that Plaintiff was tased because he attempted to smash the windows of
the Richland Township patrol vehicle with his feet and head and open the car door and the plastic
partition inside the vehicle. (Id. ¶ 16.) Defendants further claim that Plaintiff was belligerent
and kicked an officer. (Id.)
According to the Complaint, the video captured by the State Police patrol vehicle shows
that Plaintiff’s first tasing was unprovoked and that Defendants fabricated their version of events
to justify tasing Plaintiff. (Id. ¶ 18.) Plaintiff was in custody of the Richland Township police,
handcuffed, and in the back of a police vehicle immediately prior to being tased. (Id. ¶ 21.) At
the time, Plaintiff allegedly posed no threat to the police and did not attempt to fight or injure the
officers or anyone else. (Id. ¶ 22.) The video did not capture the second tasing. (Id. ¶ 18.)
The Complaint alleges that the Borough of Quakertown failed to properly train Officers
Baccari and Grill in how to properly place a prisoner in custody in a police car without resorting
Taser, or TASER, is the brand name of an electroshock weapon commonly used by law
enforcement. Courts abbreviate and use the name as a verb. See, e.g., Reiff v. Marks, No. 08cv-5963, 2011 WL 666139, at *2 n.23 (E.D. Pa. Feb. 23, 2011) (collecting cases). Accordingly,
this Court will adopt the verb “tase” to refer to the act of stunning an individual with a Taser.
to use of a Taser when that suspect is already handcuffed, in a police car, and poses no physical
threat. (Id. ¶ 26.) The Complaint further alleges that officers in the Borough of Quakertown
have a history of verbal and physical abuse and police brutality toward citizens in circumstances
similar to those here. (Id. ¶ 27.) Additionally, the Complaint alleges that the Borough of
Quakertown had, prior to the date of the incident involving Plaintiff, permitted, tolerated, and
negligently overlooked the inappropriate use of Tasers by its officers and failed to train them in
the proper use of Tasers on arrestees. (Id. ¶ 29.)
On February 14, 2012, Plaintiff commenced the instant action. In his Complaint, Plaintiff
asserts a federal civil rights claim for excessive force in violation of the Fourth Amendment of
the United States Constitution, pursuant to 42 U.S.C. § 1983 (Count I), as well as state law
claims for assault and battery (Count II) and intentional infliction of emotional distress (Count
III), against Officers Baccari and Grill. Plaintiff also asserts a civil rights claim pursuant to
Monell v. New York City Department of Social Services, 436 U.S. 658 (1978) (Count IV),
against the Borough of Quakertown. Plaintiff seeks the following relief: compensatory and
punitive damages against Officers Baccari and Grill; compensatory damages against the Borough
of Quakertown; reasonable attorney’s fees and costs; and any other relief that the Court deems
On April 16, 2012, Defendants filed a Motion to Dismiss Plaintiff’s Complaint (ECF No.
5) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On May 8, 2012, Plaintiff
filed a Response in Opposition thereto (ECF No. 6). Defendants did not file a Reply.
This Court has original jurisdiction over Plaintiff’s federal law claims pursuant to 28
U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over Plaintiff’s state law
claims pursuant to 28 U.S.C. § 1367.
Standard of Review
A claim may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A valid
complaint requires only “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Generally, a district court may consider only facts alleged in the complaint and its
attachments on a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir.1994). The court may also take into consideration a “document integral to or
explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997) (emphasis in original).
The Third Circuit has held that a district court must conduct a two-part analysis to
determine whether a claim survives a motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009). First, the court must distinguish between the factual and legal elements
of the claim. Id. at 210–11. The court must accept as true the plaintiff's well-pled allegations
and construe the complaint in the light most favorable to the plaintiff, Common Cause of Pa. v.
Pennsylvania, 558 F.3d 249, 253 (3d Cir.2009) (citing Lewis v. Atlas Van Lines, Inc., 542 F.3d
403, 405 (3d Cir.2008)), but not “threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” Fowler, 578 F.3d at 210 (quoting Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009)). Second, the court must inquire whether the complaint states a
plausible claim to relief. Id. at 211 (citing Iqbal, 129 S. Ct. at 1950). “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.” Iqbal, 129 S.Ct. at 1950 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Defendants move to dismiss Plaintiff’s claims on several grounds. The Court will
address each of their contentions in turn.
First, Defendants contend that Officers Baccari and Grill are entitled to qualified
immunity from suit. Specifically, Defendants contend that no constitutional right was violated
during Plaintiff’s arrest, and even if it were, that right was not clearly established at the time of
the arrest. According to Defendants, the use of Tasers by Officers Baccari and/or Grill under the
circumstances of this case was objectively reasonable.
Government officials are entitled to qualified immunity if “their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Thomas v. Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006) (quoting Behrens v.
Pelletier, 516 U.S. 299, 305 (1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).
Qualified immunity serves to protect police officers from suits based on mistaken judgment,
protecting “all but the plainly incompetent or those who knowingly violate the law.” Hunter v.
Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
Qualified immunity is “an immunity from suit rather than a mere defense to liability.”
Keystone Redev. Partners, LLC v. Decker, 631 F.3d 89, 101 (3d Cir. 2011) (quoting Mitchell v.
Forsyth, 4276 U.S. 511, 526 (1985) (emphasis in original)). Accordingly, qualified immunity
should be decided “at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S.
223, 232 (2009) (quoting Hunter, 502 U.S. at 227). However, the Third Circuit has warned that
“it is generally unwise to venture into a qualified immunity analysis at the pleading stage as it is
necessary to develop the factual record in the vast majority of cases.” Newland v. Reehorst, 328
F. App’x 788, 791 n.3 (3d Cir. 2009). A defendant has the burden of pleading qualified
immunity. Thomas, 463 F.3d at 293-94.
The Supreme Court has outlined a two-step process for determining whether a defendant
is entitled to qualified immunity. First, a court must analyze whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the officer’s conduct
violated a constitutional right.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second, if the
allegations support a violation of a constitutional right, the court must “ask whether the right was
clearly established.” Id. It is not sufficient for the right to be established in a general sense at the
time the incident occurred, rather “[t]he contours of the right must be sufficiently clear that a
reasonable officer would understand that what he is doing violates that right.” Schneyder v.
Smith, 653 F.3d 313, 329 (3d Cir. 2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). The central inquiry under the second prong is whether it would have been clear to a
reasonable officer that his actions were unlawful under the circumstances. Saucier, 553 U.S. at
202. The court need not address the qualified immunity prongs in any particular order. Pearson,
555 U.S. at 236.
Where an alleged use of excessive force occurs in the context of an arrest, the claim “is
properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard.” Curley
v. Klem, 499 F.3d 199, 206 (3d Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 388
(1989)). “[T]o state a claim for excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.”
Estate of Smith v. Marasco, 430 F.3d 140, 148 (3d Cir. 2005) (quoting Estate of Smith v.
Marasco, 318 F.3d 497, 515 (3d Cir. 2003) (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d
Cir. 1999))). Here, it is undisputed that a seizure occurred. Thus, the only question for purposes
of determining whether the Complaint states a violation of a constitutional right is whether the
seizure was unreasonable.
An excessive force claim must be evaluated “from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.” Kopec v. Tate, 361 F.3d 772, 777
(3d Cir. 2004) (quoting Graham, 490 U.S. at 396). Central to the “calculus of reasonableness” is
the fact that police officers often must make split-second decisions about the degree of force
necessary in a given situation. Id. (quoting Graham, 490 U.S. at 396-7).2 “[I]f the use of force is
‘objectively reasonable’, an officer’s good faith is irrelevant and any bad faith motivation on his
part is immaterial.” Id. at 776.
Among the factors to consider in determining the objective reasonableness of an officer’s
actions are: “the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he actively is resisting arrest or attempting to
evade arrest by flight.” Kopec v. Tate, 361 F.3d 772, 777 (3d Cir. 2004) (citing Graham v.
Connor, 490 U.S. 386, 396 (1989)). Further factors include: whether “the persons subject to the
police action are violent or dangerous, the duration of the action, whether the action takes place
in the context of effecting an arrest, the possibility that the suspect may be armed, and the
number of persons with whom the police officers must contend at one time.” Id. (citing Sharrar
v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)).
The proper test for determining whether an application of force is excessive requires
“careful attention to the facts and circumstances of each particular case[.]” Curley, 499 F.3d at
207 (quoting Graham, 490 U.S. at 396). The Fourth Amendment test of reasonableness “is not
capable of precise definition or mechanical application[.]” Id. at 211 (quoting Bell v. Wolfish,
441 U.S. 520, 599 (1979)).
At this juncture, Plaintiff has sufficiently alleged a violation of his constitutional right to
be free from an unreasonable seizure under the Fourth Amendment – a right which is clearly
established to the extent the law recognizes that it protects citizens from the use of excessive
force in effectuating an arrest. The Complaint alleges that Plaintiff was tased without
provocation when he had already been handcuffed and was inside a police vehicle. “[W]hile the
use of a Taser in the course of an arrest may be a discretionary decision on the part of an
individual officer that is dependent on the circumstances then and there being presented, a
reasonable law enforcement officer should know that excessive uses of Taser stuns to effectuate
an arrest would constitute a Fourth Amendment violation.” Gorman v. Warwick Twp., No. 10cv-6760, 2011 WL 1235198, at *9 (E.D. Pa. Apr. 1, 2011) (Joyner, C.J.).
Taking the Complaint’s allegations as true, and in the absence of a clear record of what
actually occurred in the course of Plaintiff’s arrest, the Court must deny the request for dismissal
on the basis of qualified immunity at this time. However, Defendants are nevertheless free to
assert that Officers Baccari and Grill are entitled to qualified immunity at summary judgment or
at trial should they so choose.
State Law Claims
Next, Defendants contend that Plaintiff’s state law claims for assault and battery and
intentional infliction of emotional distress should be dismissed because the amount of force used
by Officers Baccari and Grill to effectuate an arrest was objectively reasonable.
Under Pennsylvania law, “[a]ssault is an intentional attempt by force to do an injury to
the person of another, and a battery is committed whenever the violence menaced in an assault is
actually done, though in ever so small a degree, upon the person.” Verdier v. Borough, 796 F.
Supp. 2d 606, 631 (E.D. Pa. 2011) (quoting Renk v. City of Pitt., 641 A.2d 289, 293 (Pa. 1994)
(quoting Cohen v. Lit Bros., 70 A.2d 419, 421 (Pa. Super. Ct. 1950) (quoting Butler v. Stockdale,
19 Pa. Super. 98, 107 (Pa. Super. Ct. 1901)))). “In making a lawful arrest, a police officer may
use such force as is necessary under the circumstances to effectuate the arrest.” Russoli v.
Salisbury Twp., 126 F. Supp. 2d 821, 870 (E.D. Pa. 2000) (quoting Renk, 641 A.2d at 293).
“The reasonableness of the force determines whether the police officer’s conduct constitutes an
assault and battery.” Id. (citing Renk, 641 A.2d at 293).“ Accordingly, “[a] claim brought under
Pennsylvania law for excessive force by a police officer is a claim for assault and battery.” Id.
As discussed above, Plaintiff has adequately stated a claim for excessive force.
Therefore, Plaintiff has also adequately stated a claim for assault and battery.
To maintain a claim for intentional infliction of emotional distress under Pennsylvania
law, a “plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally
or recklessly caused the plaintiff severe emotional distress.” Bell v. Twp. of Concord, 759 F.
Supp. 2d 621, 631 (E.D. Pa. 2011) (quoting Britt v. Chestnut Hill College, 632 A.2d 557, 559 n.2
(Pa. Super. Ct. 1993) (quoting Motheral v. Burkhart, 583 A.2d 1180, 1188 (Pa. Super. Ct.
1990))).3 “[A] plaintiff must suffer some type of resulting physical harm due to the defendant’s
outrageous conduct.” Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (quoting Swisher v.
Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005) (quoting Fewell v. Besner, 664 A.2d 577, 582
(Pa. Super. Ct. 1995) (citing Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 995)))).
“Liability on an intentional infliction of emotional distress claim ‘has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.’” Reedy, 615 F.3d at 231-2 (quoting Field v. Phila. Elec. Co., 565 A.2d 1170, 1184
(Pa. Super. Ct. 1989)).
Construed liberally and in favor of Plaintiff, the Complaint adequately states a claim for
intentional infliction of emotional distress. The use of Tasers by Officers Grill and Baccari after
Plaintiff had already complied with the arrest and posed no threat to the officers or the public
leads to an inference of sufficiently outrageous conduct to sustain a claim for intentional
inflection of emotional distress at this stage of the litigation.
Accordingly, the Court will deny Defendants’ request to dismiss Plaintiff’s state law
claims for assault and battery and intentional infliction of emotional distress.
Further, Defendants contend that Plaintiff has failed to sufficiently plead that his
constitutional rights were violated pursuant to a municipal policy or custom pursuant to Monell
While the Pennsylvania Supreme Court has not formally recognized a cause of action
for intentional infliction of emotional distress, Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir.
2010) (citing Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000)), the
Pennsylvania Superior Court has. Id. at 231 (citing Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.
Super. Ct. 2005)).
v. New York City Department of Social Services, 436 U.S. 658 (1978). Specifically, Defendants
contend that Plaintiff has failed to allege any analogous prior violations of which the Borough
Quakertown was aware or any analogous prior violations committed by Officers Baccari or Grill.
The existence of a policy or custom can be established by (1) showing that a
“decisionmaker possessing final authority to establish municipal policy with respect to the action
issued an official statement of policy,” or (2) by demonstrating that, though not specifically
endorsed or authorized by law, the “practices of state officials [are] so permanent and well settled
that they operate as law.” Jiminez v. All Am. Rathskellar, 503 F.3d 247, 250 (3d Cir. 2007)
(internal quotation marks omitted). “In limited circumstances, a local government’s decision not
to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983.” Connick v. Thompson, 131 S. Ct.
1350, 1359 (2011). Once a policy or custom is identified, a plaintiff must also establish that the
municipality maintained the policy or custom with “deliberate indifference” to the purported
constitutional deprivations. Jiminez, 503 F.3d at 250.
Here, the Complaint, taken as a whole and construed in the light most favorable to
Plaintiff, can be fairly interpreted as alleging the existence of a municipal policy or custom. The
Complaint alleges that the Borough of Quakertown failed to properly train Officers Baccari and
Grill in how to properly place a prisoner in custody in a police car without resorting to use of a
Taser when that suspect is already handcuffed, in a police car, and poses no physical threat. The
Complaint also alleges that the officers in the Borough of Quakertown have a history of verbal
and physical abuse and police brutality toward citizens in circumstances similar to those here.
Moreover, the Complaint alleges that the Borough of Quakertown had, prior to the date of the
incident involving Plaintiff, permitted, tolerated, and negligently overlooked the inappropriate
use of Tasers by its officers and failed to train them in the proper use of Tasers on arrestees.
Accordingly, the Court declines to dismiss Plaintiff’s Monell claim for failure to plead the
existence of an applicable policy or custom.
Finally, Defendants contend that Plaintiff’s claim for punitive damages against Officers
Baccari and Grill fails as a matter of law because their alleged misconduct does not rise to the
level of wanton or reckless behavior.
“[P]unitive damages may be awarded under 42 U.S.C. § 1983 ‘when the defendant’s
conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Coleman v. Kaye, 87 F.3d 1491, 1497
(3d Cir. 1996) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Plaintiff’s allegations that
Officers Baccari and/or Grill repeatedly tased him without justification after effectuating a proper
arrest permits an inference that they acted with at least the requisite level of indifference to his
federally protected rights to state a plausible claim for punitive damages at this stage of the
litigation. Therefore, the Court will deny Defendants’ motion to dismiss Plaintiff’s punitive
For the reasons set forth above, Defendant’s Motion to Dismiss is DENIED. An
appropriate order follows.
O:\CIVIL 12\12-799 Garey v. Borough of Quakertown\Memo re MTD.wpd
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