HALL v. SEPTA - SOUTHEASTERN PUBLIC TRANSPORTATION AUTHORITY et al

Filing 16

MEMORANDUM AND/OR OPINION SETTING FORTH THE REASONS WHY THE COURT IS GRANTING DEFENDANTS' MOTION TO DISMISS (DOCKET NO. 11); DEEMING MOOT PLAINTIFIF'S MOTION IN OPPOSITION (DOCKET NO. 15); AND DISMISSING WITHOUT PREJUDICE PLAINTIFF'S AMENDED COMPLAINT (DOCKET NO. 5) AN APPORPIRATE ORDER FOLLOWS.. SIGNED BY HONORABLE GENE E.K. PRATTER ON 11/21/16. 11/22/16 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED TO COUNSEL.(rab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DEVERE ANDRE HALL, SR.,
Plaintiff,

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v.
SEPTA – SOUTHEASTERN PUBLIC
TRANSPORTATION AUTHORITY et al.,
Defendants.

PRATTER, J.

CIVIL ACTION

No. 15-418

NOVEMBER 21, 2016
MEMORANDUM

Devere Andre Hall, Sr. sued the Southeastern Pennsylvania Transportation Authority
(“SEPTA”), 1 SEPTA Police Commissioner Thomas J. Nestel, III, SEPTA Police Officer Joaquin
Ramos, and SEPTA employee John Ammons (together with Messrs. Nestel and Ramos, the
“Individual Defendants”), 2 alleging a number of federal constitutional violations arising out of
an incident on a SEPTA bus whereby Mr. Hall was allegedly assaulted by an intoxicated
passenger. For the reasons that follow, the Court will grant the Defendants’ Motion to Dismiss.
I.

ALLEGATIONS IN THE AMENDED COMPLAINT
Mr. Hall alleges that an intoxicated passenger verbally and physically assaulted him on a

SEPTA bus. As a result, Mr. Hall alleges he suffered a “broken patella fracture of [his] left
knee” and mental anguish. Am. Compl. pp. 3, 5 (Doc. No. 5). Mr. Hall alleges that SEPTA and
its employees’ failure to prevent his assailant from drinking on the bus resulted in the alleged

1

While the Amended Complaint names the Southeastern Public Transportation Authority
as a defendant, the Court will assume that Mr. Hall, acting pro se, intended to name the
Southeastern Pennsylvania Transportation Authority as a defendant.
2

Mr. Hall also sued the Philadelphia Police Department and Philadelphia District Attorney
Seth Williams. The Court, however, has already dismissed all claims against the Police
Department and District Attorney Williams. Dec. 7, 2015 Order (Doc. No. 7).
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assault. Mr. Hall also claims that, prior to the assault, SEPTA employees did not require his
alleged assailant to move from seating reserved for the disabled and elderly. 3
Following the assault, Mr. Hall alleges that the police, including Joaquin Ramos, did not
criminally charge his alleged assailant, but rather charged Mr. Hall with disorderly conduct.
Mr. Hall also claims that SEPTA employees failed to “preserve evidence” by failing to collect
the beer can or bottle Mr. Hall’s alleged assailant was drinking from prior to the alleged assault.
Am. Compl. pp. 2-3.
II.

LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of a complaint. Although Federal Rule of Civil Procedure 8 requires only “a short
and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted)
(alteration in original), the plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted).
To survive a motion to dismiss, the plaintiff must plead “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. Specifically, “[f]actual allegations must be enough to raise a right to
relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). The
question is not whether the claimant will ultimately prevail, but whether the complaint is
“sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 131 S. Ct. 1289, 1296
(2011).
3

Mr. Hall’s Amended Complaint appears to suggest that he was disabled and/or
wheelchair bound at the time of the incident.
2

When deciding a Rule 12(b)(6) motion to dismiss, the Court may look only to the facts
alleged in the complaint and its attachments. See Jordan v. Fox, Rothschild, O’Brien & Frankel,
20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in
the complaint and view them in the light most favorable to the plaintiff. Angelastro v.
Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). Likewise, the Court must accept
as true all reasonable inferences that may be drawn from the allegations, and view those facts
and inferences in the light most favorable to the non-moving party. See Rocks v. City of Phila.,
868 F.2d 644, 645 (3d Cir. 1989).
III.

DISCUSSION
Mr. Hall purports to bring a number of federal constitutional claims against SEPTA and

the Individual Defendants pursuant to 42 U.S.C. § 1983. Section 1983 affords individuals with a
remedy when state actors violate their federally protected rights. See Kopec v. Tate, 361 F.3d
772, 775-76 (3d Cir. 2004). In order to make out a cognizable § 1983 claim, a plaintiff must
establish “that a person acting under color of law deprived him of a federal right.” Berg v. Cty.
of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). When asserting a § 1983 claim against a
municipality or local government entity pursuant to Monell v. Dep’t of Soc. Serv. of the City of
N.Y., 436 U.S. 658 (1978), a plaintiff must show that a governmental “policy or custom” led to
the deprivation of his or her federal rights. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.
1996). A municipality or local government entity cannot be held liable under § 1983 on a theory
of vicarious liability. Id.
Defendants argue that the Court must dismiss Mr. Hall’s Amended Complaint because it
does not allege that SEPTA maintained a policy or custom that deprived Mr. Hall of any

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federally protected rights or that any defendant was personally involved in depriving Mr. Hall of
any federally protected right.
A. Claims Against SEPTA
Courts treat SEPTA as a municipal agency when determining its liability under § 1983.
Brown v. SEPTA, 539 F. App’x 25, 27 (3d Cir. 2013) (citing Bolden v. SEPTA, 953 F.2d 807,
821 (3d Cir. 1991) (en banc); Searles v. SEPTA, 990 F.2d 789, 790 (3d Cir. 1993)).
Accordingly, to establish liability against SEPTA, a plaintiff must demonstrate that SEPTA
maintained a custom or policy that was the “moving force behind” the alleged violations of his or
her federal rights. Berg, 219 F.3d at 276 (quoting Bd. of Cty. Comm’rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 404 (1997) (internal quotation marks omitted)). In order to make out a
§ 1983 claim against a municipal agency where the alleged policy or custom “does not facially
violate federal law,” a plaintiff must demonstrate “that the municipal action was taken with
deliberate indifference as to its known or obvious consequences.” Id. (internal quotation marks
omitted).
Here, Mr. Hall’s Amended Complaint fails to plead any allegations related to policies or
customs maintained by SEPTA, let alone a policy or custom that was a “moving force behind”
Mr. Hall’s alleged injuries. Rather, Mr. Hall has alleged that SEPTA and its employees failed to
prevent Mr. Hall’s alleged assailant from drinking alcohol in public. Mr. Hall has not, for
example, alleged that SEPTA maintained a policy permitting its passengers to drink alcohol and
become intoxicated on its busses. In fact, Mr. Hall’s Amended Complaint explicitly states that
SEPTA busses contain a sign prohibiting eating and drinking.
Because courts are instructed to construe the pleadings of pro se litigants liberally, Estelle
v. Gamble, 429 U.S. 97, 107 (1976), the Court will interpret Mr. Hall’s Amended Complaint to

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contain a “failure to train” claim under Monell based on the theory that SEPTA failed to train its
employees on how to prevent public intoxication on its busses. A municipal entity’s failure to
train its employees “can ordinarily be considered deliberate indifference [sufficient to sustain a
Monell claim] only where the failure has caused a pattern of violations.” Berg, 219 F.3d at 276.
When a plaintiff cannot demonstrate a pattern of violations, he or she must meet a high burden to
show that the alleged violation of federal rights was “a highly predictable consequence of a
failure to equip law enforcement officers with specific tools to handle recurring situations.” Id.
(quoting Bryan Cty., 520 U.S. at 409). Here, Mr. Hall has only alleged that SEPTA and/or its
employees failed to stop his assailant from drinking in public. Mr. Hall has not demonstrated
any pattern of violations whereby SEPTA turned a blind eye towards physical assaults on its bus
passengers as a result of public intoxication. Nor has Mr. Hall shown that SEPTA failed to equip
its police officers with any specific tools to deal with public intoxication on SEPTA busses, or
that his injuries were a predictable consequence of such a failure. Accordingly, the Court
determines that Mr. Hall has failed to state a Monell claim against SEPTA.
The Court will also construe the Amended Complaint to contain a Due Process Clause
violation pursuant to the “state-created danger” theory. While the Fourteenth Amendment
generally confers no affirmative duty on the government to protect its citizens from violent acts
by private citizens, see DeShaney v. Winnebago Cty. Dep’t of Soc. Serv., 489 U.S. 189, 195-97
(1989), the Third Circuit Court of Appeals has acknowledged the state-created danger theory as
an exception to this general rule. Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). In order
to state a viable claim under the state-created danger theory, a plaintiff must show the following:
(1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor
acted in willful disregard for the safety of the plaintiff; (3) there existed some
relationship between the state and the plaintiff; (4) the state actors used their

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authority to create an opportunity that otherwise would not have existed for the
[harm] to occur.
Id. A failure to establish any one of these elements is fatal to a plaintiff’s claim. Phillips v. Cty.
of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). Here, it is clear that Mr. Hall cannot establish
the fourth element of the test, which requires a “showing that state authority was affirmatively
exercised in some fashion.” Id. at 236; see also Bright v. Westmoreland Cty., 443 F.3d 276, 282
(3d Cir. 2006) (“It is misuse of state authority, rather than a failure to use it, that can violate the
Due Process Clause.”). Mr. Hall’s claims against SEPTA are premised on SEPTA’s failure to
prevent his alleged assailant from drinking alcohol in public and subsequently attacking him.
There is simply no allegation of any affirmative action by SEPTA. Accordingly, the Court
determines that Mr. Hall has failed to state a plausible § 1983 claim based on a state-created
danger theory. 4
B. Claims Against the Individual Defendants
In order to sustain a § 1983 claim against an individual acting under the color of state
law, a plaintiff must demonstrate that the defendant was personally involved in the alleged
violations of his or her federal rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
“Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Id. If a plaintiff attempts to premise his or her § 1983 claim on a
defendant’s “actual knowledge and acquiescence,” the plaintiff’s allegations “must be made with

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Mr. Hall has alleged a violation of the Twenty-Fifth Amendment for Defendants’ failure
to “intervene on [his] behalf.” Am. Compl. p. 4. The Court will treat this allegation as a Due
Process Clause claim based on the state-created danger theory because the Twenty-Fifth
Amendment concerns procedures related to presidential succession. This allegation does not
make out a plausible claim for relief based on the state-created danger theory because it fails to
allege any affirmative action by any of the Defendants. See Phillips, 515 F.3d at 235.
Furthermore, Mr. Hall’s allegation that SEPTA violated the Twenty-First Amendment for
transporting alcohol does not entitle him to any relief.
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appropriate particularity.” Id. Mr. Hall’s Amended Complaint fails to allege that any of the
Individual Defendants were personally involved in the violation of his federal rights.
Mr. Hall’s Amended Complaint contains three possible allegations pertaining to the
Individual Defendants. First, Mr. Hall alleges that his Fourth Amendment rights were violated
when “three SEPTA employee’s [sic] failed to preserve evidence by allowing [Mr. Hall’s
assailant] to throw away an ‘Ice House’ beer.” Am. Compl. p. 2. This allegation fails to allege
personal involvement because it neither identifies any of the Individual Defendants as one of the
three officers nor does it allege any facts that would support a plausible claim that the “three
SEPTA employee’s [sic]” took any action with regard to Mr. Hall’s Fourth Amendment rights.
Second, Mr. Hall appears to allege that Officer Ramos violated his Fourth, Fifth, Sixth,
and Eighth Amendment rights by (i) “charging” him for disorderly conduct even though his knee
was “broken” and (ii) failing to “sanction” Mr. Hall’s alleged assailant. 5 Am. Compl. pp. 3-4.
These allegations, on their face, fail to allege any facts that could plausibly support a finding that
Officer Ramos took any actions that violated Mr. Hall’s Fourth, Fifth, or Sixth Amendment
Rights. Furthermore, the Court will construe Mr. Hall’s Eighth Amendment claim as a
Fourteenth Amendment claim for inadequate medical care because the Eighth Amendment is not
implicated until after an individual has been sentenced or convicted. See Ingraham v. Wright,
430 U.S. 651, 671 n.40 (1977); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir.
2003). To establish a Fourteenth Amendment Due Process Clause claim for inadequate medical
care, a plaintiff must demonstrate “(i) a serious medical need, and (ii) acts or omissions by . . .
officials that indicate deliberate indifference to that need.” Natale, 318 F.3d at 582. The
Amended Complaint does not allege any acts or omissions by Officer Ramos or any other
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The Amended Complaint does appear to state that Officer Ramos issued a “summons” to
Mr. Hall’s alleged assailant.
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defendant that could plausibly support a Fourteenth Amendment claim for inadequate medical
care.
Third, Mr. Hall alleges that each of the Individual Defendants failed to recognize that
Mr. Hall’s alleged assailant was drinking alcohol prior to the alleged altercation in violation of
an unarticulated federal right. Because the Amended Complaint does not allege that any of the
Individual Defendants were present either when the alleged altercation occurred or any time
prior to the alleged altercation, the Court does not find it plausible that any of the Individual
Defendants were present at the time of the incident to have recognized the intoxicated state of
Mr. Hall’s alleged assailant. Nor is it apparent from the Amended Complaint what federal right
the Individual Defendants allegedly violated by failing to recognize that Mr. Hall’s alleged
assailant was drinking alcohol.
Accordingly, the Court determines that Mr. Hall has failed to state a plausible claim for
relief against the Individual Defendants because the Amended Complaint contains no allegations
that could support a finding that the Individual Defendants were personally involved in any
violation of Mr. Hall’s federal rights. 6
C. ADA
Mr. Hall alleges that SEPTA “failed to provide safe transportation for persons . . . with
disabilities” because no SETPA employee removed Mr. Hall’s alleged assailant from the bus
seats designated for the elderly and disabled. Am. Compl. p. 5. The Court will interpret this
6

Mr. Hall also alleges that his Ninth and Fourteenth Amendment rights were violated
because his alleged assailant was not charged with any violations of the “Purdons Criminal
Codes.” Am. Compl. p. 4. The Ninth Amendment, however, “does not independently provide a
source of individual constitutional rights.” Clayworth v. Luzerne Cty., Pa., 513 F. App’x 134,
137 (3d Cir. 2013) (citing Jenkins v. Comm’r of IRS, 483 F.3d 90, 92 (2d Cir. 2007)).
Furthermore, this allegation cannot sustain a Fourteenth Amendment Due Process Clause or
Equal Protection Clause claim because a private citizen does not have a judicially cognizable
interest in the criminal prosecution or nonprosecution of another. Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973).
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allegation as a claim for relief under § 12132 of the Americans with Disabilities Act. Section
12132 provides that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132; see
also Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir. 2006). In order to obtain
compensatory damages as a remedy for an ADA violation, a plaintiff must establish intentional
discrimination. D.E. v. Central Dauphin Sch. Dist., 765 F.3d 260, 269 (3d Cir. 2014). 7 Mr. Hall
has failed to plead a cognizable claim under the ADA for two reasons.
First, the Amended Complaint does not contain sufficient factual information to
determine whether Mr. Hall was a qualified individual with a disability as defined by the ADA.
The ADA defines disability as (i) “a physical or mental impairment that substantially limits one
or more major life activities of such individual,” (ii) “a record of such an impairment,” or
(iii) “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). Throughout the
Amended Complaint, Mr. Hall alleges that he has “disabilities” and that he is a “wheelchair
disabled person.” See, e.g., Am. Compl. p. 4. However, the Amended Complaint does not
contain sufficient factual information to determine (i) whether Mr. Hall was disabled/confined to
a wheelchair at the time of the alleged incident or if his alleged disability was a result of the
incident or (ii) that Mr. Hall’s alleged disability has interfered with any major life activities.
Second, even if the Amended Complaint could establish a prima facie case of
discrimination under the ADA, Mr. Hall has presented no facts demonstrating that any of the
defendants intentionally discriminated against him on the basis of his alleged disability.
Accordingly, the Court determines that the Amended Complaint does not state a cognizable
7

Mr. Hall’s Amended Complaint does not contain any indication that Mr. Hall is seeking
equitable relief. Accordingly, the Court will consider Mr. Hall’s purported ADA claim as a
claim for compensatory damages.
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claim for relief pursuant to the ADA. See McCree v. SEPTA, No. 07-4908, 2009 WL 166660, at
*12 (E.D. Pa. Jan. 22, 2009). 8
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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To the extent Mr. Hall’s Amended Complaint contains any state-law tort claims against
SEPTA or the Individual Defendants, the Amended Complaint also fails. Both SEPTA and its
employees are immune from any such state-law claims by virtue of the Pennsylvania Sovereign
Immunity Act. See 1 Pa.C.S. § 2310; Toombs v. Manning, 835 F.2d 453, 463 (3d Cir. 1987)
(finding that SEPTA is a “Commonwealth agency” for purposes of the Pennsylvania Sovereign
Immunity Act). The facts contained in the Amended Complaint do not trigger any of the
exceptions to sovereign immunity provided by state law. See 42 Pa.C.S. § 8522 (listing
exceptions to sovereign immunity).
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