WELLS v. PEREZ et al

Filing 35

OPINION. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 10/20/17. 10/23/17 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(mas, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
OTTO WELLS,

:
:
Plaintiff,
:
:
v.
:
:
PHILADELPHIA POLICE DEPARTMENT;
:
EDWIN PEREZ; TIMOTHY GIBSON;
:
MAYOR OF PHILADELPHIA; and
:
PHILADELPHIA CITY COUNCIL,
:
:
Defendants.
:
__________________________________________

No. 2:16-cv-02687

OPINION
Defendants Mayor and City Council’s Motion to Dismiss, ECF No. 25 – Granted
Plaintiff’s Motion for Summary Judgment, ECF No. 29 – Denied
Plaintiff’s Motion for Appointment of Counsel, ECF No. 30 – Granted in part
Plaintiff’s Motion for an Order Compelling Discovery, ECF No. 32 – Denied
Joseph F. Leeson, Jr.
United States District Judge

I.

October 20, 2017

Introduction
Plaintiff Otto Wells, a prisoner proceeding pro se, filed his Complaint in this matter in

May 2016, alleging that in December 2014 Defendants Timothy Gibson and Edwin Perez, both
members of the Philadelphia Police Department, punched, kicked, and stomped him, and then
threatened to arrest him if he sought medical attention for the injuries they inflicted. ECF No. 1.
The case was placed in suspense pending the resolution of Wells’s criminal case and was
removed from suspense in March 2017. ECF No. 9. In July 2017, Wells filed an Amended
Complaint, adding the Mayor of Philadelphia and the Philadelphia City Council as Defendants.
ECF No. 19. These newly-added Defendants (“Moving Defendants”) have filed a Motion to
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Dismiss the claims against them. ECF No. 25. 1 Wells, meanwhile, has filed a Motion for
Summary Judgment, ECF No. 29, a Motion for Appointment of Counsel, ECF No. 30, and a
Motion for Order Compelling Discovery, ECF No. 32. For the reasons set forth below, Moving
Defendants’ Motion to Dismiss is granted, Wells’s Motion for Summary Judgment and Motion
for Order Compelling Discovery are denied, and Wells’s Motion for Appointment of Counsel is
granted in part.
II.

The Mayor and the City Council’s Motion to Dismiss is granted.
Wells’s Amended Complaint alleges that on the evening of December 18, 2014, he and

his girlfriend were walking in Philadelphia when two Rottweiler dogs began to follow them.
Am. Compl. ¶¶ 1-3. Wells began to run and ended up at his family residence at 2440 N. 30th
Street, at which point Defendant Officers Edwin Perez and Timothy Gibson approached him,
pulled him out of the doorway, and proceeded to physically attack him and to direct racial slurs
at him. 2 Am. Compl. ¶¶ 3-4. Following the attack, the officers “attempted to prevent [Wells]
from seeking medical treatment for [the] injuries they inflicted by suggesting if he did not go to
the hospital for treatment . . . they would let him go and not arrest him,” but if he sought
treatment “they would place criminal charges against him.” Am. Compl. ¶ 5. Wells “refused the
defendants[’] offer . . . and demanded that he be taken to the hospital for treatment.” Am. Compl.
¶ 6. Upon arriving at the hospital, where he received emergency medical treatment for his
injuries, the officers again threatened to file criminal charges against him. Am. Compl. ¶ 6. Wells
alleges that these events occurred “[a]s a direct and proximate result of a pattern and practice of
racial discrimination” by the Philadelphia Police Department. Am. Compl. ¶ 1.

1

Defendants Philadelphia Police Department, Officer Perez, and Officer Gibson have filed
an Answer to the Amended Complaint. ECF No. 26.
2
Wells is African-American.
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The Mayor and the City Council move to dismiss Wells’s claims against them under
Federal Rule of Civil Procedure 12(b)(6), contending that Wells has failed to allege any facts to
support any claims against them, and pointing out that he fails to even mention their names in the
body of his Amended Complaint. Wells responds that the Mayor and the City Council have a
duty to protect citizens from unreasonable and excessive force from police officers, are
responsible for passing legislation to ensure proper police conduct, and “are responsible for
rogue police officers who do not follow the proper procedures.” Pl.’s Resp. Defs.’ Mot., ECF
No. 28.
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Based on Wells’s response to the Mayor and the
City Council’s motion, it appears that he is seeking to hold the Mayor and the City Council liable
because of their positions of authority over Officers Perez and Gibson. But the Mayor and the
City Council cannot be held liable for the officers’ conduct simply by virtue of their
governmental positions or roles. Rather, “[a] government official is liable only for his or her own
conduct and accordingly must have had some sort of personal involvement in the alleged
unconstitutional conduct.” Argueta v. U.S. Immigration & Customs Enf’t, 643 F.3d 60, 71 (3d
Cir. 2011). Based on this principle, there are “two general ways in which a supervisor-defendant
may be liable for unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med.,
Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds sub nom. Taylor v. Barkes, 135 S.
Ct. 2042 (2015). First, “supervisors can be liable if they established and maintained a policy,
practice or custom which directly caused the constitutional harm,” and, second, supervisors can

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be liable if “they participated in violating plaintiff’s rights, directed others to violate them, or, as
the persons in charge, had knowledge of and acquiesced in their subordinates’ violations.’”
Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp.,
629 F.3d 121, 129 n.5 (3d Cir. 2010)). Wells’s Amended Complaint fails to state a claim against
the Mayor and the City Council under either of these theories. Rather, as Moving Defendants
point out, Wells’s Amended Complaint fails to include any allegations at all concerning these
Defendants. Accordingly, Wells’s claims against these Defendants are dismissed.
Wells will be permitted leave to amend his claims against these Defendants. See Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citing Grayson v. Mayview State Hosp.,
293 F.3d 103, 108 (3d Cir. 2002)). (“[I]f 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.”). In light of the Court’s decision to refer this matter to the Prisoner Civil Rights Panel and
to stay all proceedings while Wells’s case is pending before the Panel, as discussed in more
detail below, the Court will not, at this time, set a deadline for Wells to file a second amended
complaint.
III.

Wells’s Motion for Summary Judgment is denied as premature.
Wells moves for summary judgment on his claims against the Philadelphia Police

Department, Officer Gibson, and Officer Perez, contending that the undisputed facts show that
these Defendants violated his constitutional rights. ECF No. 29. Under Federal Rule of Civil
Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Here, Wells’s Motion is premature, because the parties have not yet completed discovery
and there remain genuine disputes of material fact between the parties. See Doe v. Abington

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Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (“[T]he non-moving party’s burden at summary
judgment rests on the assumption that the party ‘had a full opportunity to conduct discovery.’”
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986))). Accordingly, Wells’s
motion is denied, without prejudice to renew after the completion of discovery.
IV.

Wells’s Motion for an Order Compelling Discovery is denied as moot.
Wells seeks an order compelling Defendants to answer interrogatories and to produce

certain documents. ECF No. 32. In a filing dated October 13, 2017, Defendants certified that
they have now responded to Wells’s interrogatories and requests for production of documents.
ECF No. 34. Accordingly, Wells’s motion seeking an order compelling this discovery is denied
as moot.
V.

Wells’s Motion for Appointment of Counsel is granted in part.
In his Motion for Appointment of Counsel, Wells states that his imprisonment “will

greatly limit his ability to litigate. The issues involved in this case are complex, and will require
significant research and investigation that requires . . . expert testimony.” Pl.’s Mot. Counsel,
ECF No. 30. In addition, “[a] trial in this case will likely involve conflicting testimony, and
counsel would better enable to present evidence and cross examine witnesses and Defendants.”
Id.
Although “[i]ndigent civil litigants possess neither a constitutional nor a statutory right to
appointed counsel, . . . Congress has granted district courts statutory authority to ‘request’
appointed counsel” for such litigants. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002)
(quoting 28 U.S.C. § 1915(e)(1)). In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Court of
Appeals for the Third Circuit developed a non-exhaustive “list of criteria to aid the district courts
in weighing the appointment of counsel for indigent civil litigants.” Montgomery, 294 F.3d at

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498 (citing Tabron, 6 F.3d at 155). As a threshold matter, a district court must assess whether the
claimant’s case has some arguable merit in fact and law. Id.
“[C]laims that law enforcement officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen [are] analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (U.S.
1989). Wells’s allegations that the officers violently attacked him for no reason state a claim for
excessive force under the Fourth Amendment. Moreover, Wells has attached to his (premature)
Motion for Summary Judgment several declarations or affidavits from persons claiming that they
witnessed at least part of the events alleged in Wells’s Amended Complaint, and he has attached
medical documentation that appears to show that he suffered injuries in December 2014. This
suffices for Wells to overcome the “threshold hurdle” of showing that his case has some arguable
merit in fact and law.
Because Wells has overcome this threshold hurdle, the Court turns to consideration of the
following factors:
1. the plaintiff’s ability to present his or her own case;
2. the difficulty of the particular legal issues;
3. the degree to which factual investigation will be necessary and the ability of the
plaintiff to pursue investigation;
4. the plaintiff’s capacity to retain counsel on his or her own behalf;
5. the extent to which a case is likely to turn on credibility determinations, and;
6. whether the case will require testimony from expert witnesses.
See Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155–57). In addition, “[t]wo other
factors a district court should consider are: 1) The Court’s willingness to aid the indigent party in
presenting his or her case by, for example, explaining how to introduce and move for the
admission of evidence; and 2) The supply of attorneys willing to take § 1915(e) requests in the

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geographic area of the litigation.” Gordon v. Gonzalez, 232 F. App’x 153, 156 n.4 (3d Cir.
2007).
With respect to the first Tabron factor—which the Court of Appeals has identified as
“[p]erhaps the most significant of Tabron’s post-threshold factors”—Wells has shown some
ability to gather evidence and submit filings for his case, although he does not appear to be “a
sophisticated ‘jailhouse lawyer.’” See Montgomery, 294 F.3d at 501-02.
With respect to the second factor—the difficulty of the particular legal issues—although
the law regarding excessive force claims is relatively clear, the Court must consider this factor
“in conjunction with . . . the plaintiff’s capacity to present his own case,” which, as indicated
above, appears to be relatively limited. See Montgomery, 294 F.3d at 502 (quoting Tabron, 6
F.3d at 157).
With respect the third factor—concerning the extent to which factual investigation is
required—based on the nature of Wells’s claims, it appears that “the facts surrounding
[Defendants’] alleged use of excessive force should be within [Wells’s] own personal
knowledge.” See Bostwick v. Shoop, No. 1:09-CV-02212, 2009 WL 10657698, at *3 (M.D. Pa.
Nov. 19, 2009).
With respect to the fourth factor—the ability to retain counsel—Wells has been granted
leave to proceed in forma pauperis in this case and there is nothing in the record to suggest that
he has the ability to retain counsel himself.
With respect to the fifth factor—concerning the extent to which the case will turn on
credibility determinations— assuming the officers present a different account from that offered
by Wells, resolution of such a dispute at trial “may well depend on nothing more than whom the
finder of fact believes.” See Wassell v. Younkin, No. CIV.A. 3:07-326, 2008 WL 73658, at *5

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(W.D. Pa. Jan. 7, 2008). “The development of such a swearing contest would support the
appointment of counsel.” Id.
With respect to the sixth factor—whether the case will require expert testimony—“[i]t is
too early in the lawsuit to determine whether expert testimony will be necessary,” since any
medical claims set forth by Wells “may be sufficiently obvious to the layperson.” See id.
With respect to the first factor noted in Gordon—the Court’s willingness to aid Wells—
the Court has an obligation to construe Wells’s pleadings liberally and, if Defendants file
motions for summary judgment, the Court will give Wells “every opportunity to functionally
respond in some meaningful way” to such any such motion. See Williams v. Lane, No.
CIV.A.01-03396, 2007 WL 756731, at *3 (E.D. Pa. Mar. 8, 2007). But “the same standards for
summary judgment still apply” to a pro se plaintiff, such that a pro se plaintiff “‘must still set
forth facts sufficient to survive summary judgment.’” Id. (quoting Ezeiruaku v. United States,
No. 00-2225, 2000 WL 1751077, at *3 (E.D. Pa. Nov. 29, 2000)).
Finally, with respect to the second factor noted in Gordon—the available supply of
attorneys—the Eastern District of Pennsylvania has established the Prisoner Civil Rights Panel,
which is a panel of volunteer attorneys for cases such as Wells’s. Nevertheless, the Court is
mindful that it “should exercise care in appointing counsel because volunteer lawyer time is a
precious commodity.” See Montgomery, 294 F.3d at 499.
In sum, Wells has met the threshold requirement of showing that his case has some
arguable merit in fact and law and, at this relatively early stage of the case, it appears that at least
some of the Tabron factors weigh in favor of appointment of counsel. The Court will therefore
grant Wells’s request for counsel in part, and will refer this action to this district’s Prisoner Civil
Rights Panel to attempt to find a volunteer attorney willing to represent Wells. Wells is advised,

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however, that the Court cannot, under § 1915(e), require an unwilling attorney to represent him,
and thus Wells will have to wait to see if an attorney on the Panel is willing to accept his case.
The Court will stay all proceedings during the time that Wells’s case is pending before the Panel.
VI.

The Philadelphia Police Department has waived any objections to service of process.
In Defendants’ response to Wells’s Motion for Summary Judgment, they state that

although Wells has listed the Philadelphia Police Department in the caption of this case, the
Department “has never been listed by [Wells] as a defendant in either the Complaint or Amended
Complaint, has never been served, and is not docketed as a defendant.” Defs.’ Mem. Opp’n Pl.’s
Mot. Summ. J. 1-2, ECF No. 31. 3 On this basis, Defendants aver that Wells’s Motion for
Summary Judgment applies only to Officers Gibson and Perez, and not to the Department.
Defendants are correct that the Philadelphia Police Department has not been served in this case
and is not currently docketed as a defendant. But the Department waived any objection to service
when it filed an answer to Wells’s Complaint and did not assert a defense of insufficient service
of process under Federal Rule of Civil Procedure 12(b)(5). 4 See, e.g., Addanki v. Def. Logistics
Agency Def. Pers. Support Ctr., No. CIV. A. 95-CV-696, 1996 WL 635590, at *4 (E.D. Pa. Oct.
31, 1996) (“Rule 12(b)(5), in conjunction with Rule 12(h), requires that a defendant file a motion
to dismiss for insufficient service of process before a responsive pleading is filed, or raise the
issue in the first responsive pleading. Otherwise, the right to raise such a claim is waived.”).
Accordingly, in the separate Order accompanying this Opinion, the Court will direct the Clerk to
add the Police Department to this case’s docket.

3

In his Amended Complaint, Wells alleges that the Department engaged in a “pattern and
practice of racial discrimination” and that the Department has a “reputation of terrorizing . . . the
Black community’s res[i]dents where they are assigned to patrol.” Am. Compl. ¶¶ 1-2.
4
Defendants’ Answer, filed on May 22, 2017, clearly states that it is being filed by
“Defendants Philadelphia Police Department, Edwin Perez and Timothy Gibson.” ECF No. 13.
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VII.

Conclusion
For the reasons set forth above, the Mayor and the City Council’s Motion to Dismiss is

granted, Wells’s Motion for Summary Judgment and Motion for Order Compelling Discovery
are denied, and Wells’s Motion for Appointment of Counsel is granted in part. A separate order
follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.________
JOSEPH F. LEESON, JR.
United States District Judge

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