AUGUSTINE et al v. RAMSEY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 5/20/14. 5/21/14 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NOEL AUGUSTINE et al.,
CHARLES RAMSEY et al.,
May 20, 2014
Twenty-six individuals involved in the Occupy Philadelphia movement sued nine named
Philadelphia police officers and the City of Philadelphia, claiming that Plaintiffs’ arrests during a
protest violated their rights under the First and Fourth Amendments and under state law.
Defendants move to dismiss the case for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The Court held oral argument on the motion on April 15, 2014. For the
following reasons, the Court grants Defendants’ motion with respect to Plaintiffs’ claims of
excessive force and unreasonable search and denies Defendants’ motion with respect to
Plaintiffs’ other claims.
Occupy Philadelphia, an association of protesters, gathered on or about October 6, 2011
outside City Hall in Philadelphia to protest economic inequality. (Compl. ¶ 18.) Over the course
of seven weeks, these protestors demonstrated outside City Hall’s Dilworth Plaza and marched
throughout the city. (Id.) Philadelphia police officers, assisted by various federal agencies,
shadowed and surveilled the protestors. (Id.)
On November 27, 2011, Philadelphia Mayor Michael Nutter and Police Commissioner
Charles Ramsey issued an order evicting the protestors from Dilworth Plaza. (Id. ¶ 19.)
Defendants then planned the removal of the protestors, including Plaintiffs, from Dilworth Plaza.
(Id.) During the evening of November 29, 2011, Commissioner Ramsey, Deputy Police
Commissioner Kevin Bethel, and Captain William Fisher (“Supervisor Defendants”), Deputy
Chief Inspector John Doe, and Deputy Commissioner John Doe decided to arrest the protestors
“based solely upon the anticipated march or marches that followed the forced removal of the
Occupy Philly encampment from the public space known as Dilworth Plaza.” (Id. ¶ 26.)
On the morning of November 30, 2011, police officers entered Dilworth Plaza, which had
been vacated by the protestors. (Id. ¶ 21.) Officers tore down tents in Dilworth Plaza that had
previously been occupied by protesters. (Id.) At this point, many of the protestors were gathered
near the corner of 15th Street and Market Street. (Id.) Plaintiffs James Savage and T.J. Ghose
were unlawfully arrested by Defendant officers while protesting in that area. (Id. ¶ 22.)
A large group of protestors then began to march through Center City, followed by a
“massive contingent” of Philadelphia police officers on foot, on bicycles, and in vehicles. (Id. ¶
24.) When the protestors, including twenty-four of the Plaintiffs, reached the intersection of 15th
Street and Hamilton Street, a large group of police officers surrounded them, blocking their
movement. (Id. ¶ 25.) Following instructions from Commissioner Ramsey, Deputy
Commissioner Bethel ordered that the protest be terminated. (Id. ¶ 28.) Captain Fisher then
ordered the protestors, including Plaintiffs, to move from the street to the sidewalk, and he
announced that protestors who did not comply with his order would be arrested. (Id. ¶ 29.)
Plaintiffs, complying with Captain Fisher’s order, moved from the street to the sidewalk. (Id.)
Plaintiffs were then surrounded by Defendant officers on bicycles and “corralled against the wall
of a building,” where they were unable to move. (Id.) Upon orders from Commissioner Ramsey,
Deputy Commissioner Bethel, and Captain Fisher, Defendant officers then falsely arrested and
handcuffed Plaintiffs. (Id. ¶¶ 30, 31.)
Plaintiffs were charged with the following misdemeanors: failure to disperse, obstructing
the highway, and criminal conspiracy. (Id. ¶ 31.) They were held for over twenty-four hours in
police custody and released on bail. (Id.) Plaintiffs were later acquitted of all charges. (Id. ¶ 36.)
As a result of Defendants’ actions, Plaintiffs suffered physical pain, substantial and potentially
permanent physical injury, loss of liberty, anxiety, fear, mental harm, and financial loss. (Id. ¶
Plaintiffs now bring fourteen claims against the police officer Defendants. The federal
claims are retaliation in violation of the First Amendment, civil conspiracy, and excessive force,
unreasonable search, assault, unlawful arrest, and malicious prosecution in violation of the
Fourth Amendment. (Id. ¶¶ 37-44, 47-48, 51-52, 55-58, 61-62.) In addition, Plaintiffs bring state
law claims, including battery, assault, false imprisonment, malicious prosecution, conspiracy,
and negligent and intentional infliction of emotional distress. (Id. ¶¶ 45-46, 49-50, 53-54, 59-60,
63-68.) Plaintiffs seek to hold the City of Philadelphia liable under Monell for the constitutional
violations by Defendant officers. (Id. ¶¶ 69-76.) See Monell v. Dep’t of Soc. Servs. of the City of
New York, 436 U.S. 658 (1978). Plaintiffs seek compensatory and punitive damages, injunctive
relief, and attorney’s fees and costs. (Compl. ¶ 78.)
STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim, a district court must accept
as true all well-pleaded allegations and draw all reasonable inferences in favor of the non-
moving party. See Bd. of Trs. of Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v.
Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). A court need not, however, credit “bald
assertions” or “legal conclusions” when deciding a motion to dismiss. Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
“Factual allegations [in a complaint] must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to
dismiss, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570. Although the federal rules impose no probability requirement at the pleading
stage, a plaintiff must present “enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s]” of a cause of action. Phillips v. Cnty. of Allegheny,
515 F.3d 224, 234 (3d Cir. 2008). “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, 556 U.S. at 678. Simply reciting the elements will not suffice.
Id. (holding that a pleading that offers labels and conclusions without further factual
enhancement will not survive motion to dismiss); see also Phillips, 515 F.3d at 231.
The Third Circuit Court of Appeals has directed district courts to conduct a two-part
analysis when faced with a motion to dismiss for failure to state a claim. First, the legal elements
and factual allegations of the claim should be separated, with the well-pleaded facts accepted as
true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). Second, the court must make a commonsense determination of whether the facts
alleged in the complaint are sufficient to show a plausible claim for relief. Id. at 211. If the court
can only infer the mere possibility of misconduct, the complaint must be dismissed because it has
alleged—but has failed to show—that the pleader is entitled to relief.1 Id.
Defendants argue that Plaintiffs’ claims fail for the following reasons: (1) the Complaint
describes only collective action by the six non-supervisor Defendants and does not specify each
Defendant’s independent role in the violations; (2) the Complaint “lumps” twenty-four of the
twenty-six Plaintiffs “together generally by the collective reference, ‘Plaintiffs,’” rather than
alleging facts unique to each Plaintiff; (3) the Complaint does not allege personal involvement
in the arrests by the Supervisor Defendants; and (4) the first five pages of the Complaint are
conclusions of law that must be disregarded. (Defs.’ Mem. of Law in Supp. of Mot. to Dismiss
[Defs.’ Mem.] at 9-10.)2
The mere fact that the Complaint fails to identify each Plaintiff’s and each Defendant’s
unique role is not fatal to Plaintiffs’ claims. However, some of Plaintiffs’ claims, by their nature,
require more facts than the Complaint alleges about each Plaintiff’s arrest and interactions with
the police. In particular, Plaintiffs fail to provide sufficient facts to state claims for excessive
force and unreasonable search.
Plaintiffs cite Conley v. Gibson, 355 U.S. 41, 45-46 (1957), for the proposition that “a
complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
(Pls.’ Answer to Defs.’ Mot. to Dismiss at 8.) The Supreme Court has since said that this
language “has earned its retirement” and “is best forgotten as an incomplete, negative gloss on an
accepted pleading standard.” Twombly, 550 U.S. at 563.
Defendants also ask the Court to dismiss the Complaint on the grounds that the twentysix Plaintiffs should not have been joined. (Defs.’ Mem. at 5.) Under Federal Rule of Civil
Procedure 21, misjoinder of parties is not a ground for dismissing an action. While the Court
may, on just terms, drop a party or sever a claim, see Fed. R. Civ. P. 21, the Court does not
believe that severance is appropriate now.
When an “excessive force claim arises in the context of an arrest or investigatory stop of
a free citizen, it is most properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against
unreasonable . . . seizures.’” Graham v. Connor, 490 U.S. 386, 394 (1989). To state an excessive
force claim, 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). Because Plaintiffs’ arrests constituted
seizures, the Court must decide whether the force used to effect those arrests was excessive, and
thus unreasonable. See Boyden v. Twp. of Upper Darby, Civ. A. No. 13-5434, 2014 WL
1152149, at *5 (E.D. Pa. Mar. 24, 2014). Factors relevant to this analysis include the severity of
the crime, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
Graham, 490 U.S. at 396. Other relevant factors include the possibility that the suspect is violent
or dangerous, the possibility that the suspect may be armed, the duration of the police officers’
action, whether the action takes place in the context of effecting an arrest, whether the suspect is
physically injured, and the number of persons with whom the police officers must contend at one
time. Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997), abrogated on other grounds by
Curley v. Klem, 499 F.3d 199 (3d Cir. 2007).
The situation here, as described by Plaintiffs, warranted only the use of minimal force by
Defendants. The crimes with which Plaintiffs were charged—failure to disperse, obstructing the
highway, and criminal conspiracy—were not serious, and nothing in the Complaint suggests that
Plaintiffs posed a threat, were resisting arrest, or were armed. However, the Complaint does not
allege facts reflecting even the use of minimal force. With respect to the arrests of Plaintiffs
Ghose and Savage, the Complaint simply states that “Defendant Officers intentionally acted to
cause a harmful and/or offensive contact with Plaintiffs’ person and such actions were the actual
and proximate cause of Plaintiffs’ harm.” (Compl. ¶¶ 22, 44.) This conclusory language is not
entitled to the assumption of truth. See Morse, 132 F.3d at 906. In addition, there are no facts
reflecting that Defendants’ contact with Plaintiffs exceeded the degree of contact necessary to
arrest them. See Graham, 490 U.S. at 396 (“[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat thereof to
effect it.”). Indeed, the Complaint does not describe the contact at all.
With respect to the remaining twenty-four Plaintiffs, the Complaint also does not offer
sufficient facts to state a plausible claim of excessive force. (See Compl. ¶¶ 25, 29, 31.) The
only force alleged—threats to arrest Plaintiffs and restrictions on Plaintiffs’ movement—are
routine in the course of an arrest. See Graham, 490 U.S. at 396; Christian v. Orr, Civ. A. No. 082397, 2011 WL 710209, at *14 (E.D. Pa. Mar. 1, 2011) (“[O]fficers may use verbal shock and
awe tactics, including harsh words and threats, as a legitimate means of deterring resistance.”).
Although Plaintiffs allege that they were arrested without probable cause, an unlawful arrest does
not mean that excessive force was used. See Snell v. City of York, 564 F.3d 659, 672 (3d Cir.
2009). Therefore, Plaintiffs fail to allege facts supporting a plausible claim that Defendants used
excessive force in arresting them.
The Fourth Amendment protects individuals from “unreasonable searches and seizures”
of “their persons, houses, papers, and effects.” U.S. Const. amend. IV. The Complaint alleges
that “Defendant Officers conducted unlawful searches of Plaintiffs’ persons.” (Compl. ¶ 56.)
However, the Complaint does not state any facts about these searches, including how, why, and
when they occurred. Therefore, Plaintiffs fail to state a claim that they were unlawfully searched.
Leave to Amend
Plaintiffs request leave to file an Amended Complaint if the Court dismisses any counts.
The Third Circuit has held that “if a complaint is vulnerable to 12(b)(6) dismissal, a district court
must permit a curative amendment, unless an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 236. The Court will grant Plaintiffs leave to amend so that they may offer
facts to support their claims of excessive force and unreasonable search.
The Court dismisses Plaintiffs’ claims of excessive force and unreasonable search
without prejudice and grants Plaintiffs leave to amend the Complaint. An Order consistent with
this Memorandum will be docketed separately.
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