WIMBUSH v. CITY OF PHILADELPHIA et al

Filing 7

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 4/12/2017. 4/13/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GARY WIMBUSH,
Plaintiff,
CIVIL ACTION
No. 16-05783

v.
CITY OF PHILADELPHIA, et al.,
Defendants.
PAPPERT, J.

April 12, 2017
MEMORANDUM

Gary Wimbush was incarcerated in a Philadelphia prison when, unprovoked, a
group of corrections officers allegedly attacked him. Wimbush claims the officers
falsely reported to the Philadelphia Police and District Attorney’s Office that Wimbush
was the aggressor. He was subsequently charged with various criminal offenses and
the charges were later dropped. Wimbush sued the corrections officers, prison officials,
a detective and the City of Philadelphia, alleging claims under 28 U.S.C. § 1983 and
state law. Defendants moved to dismiss Wimbush’s Complaint. For the following
reasons, the Court grants in part and denies in part Defendants’ motion, with leave to
amend.
I.
On May 30, 2014 Gary Wimbush was in custody at a detention center in
Philadelphia when corrections officers Asia Bishop, Eliza Nelson, Shawntae Belton, Byron
Daniels, Dalford Bradley and Hakeem Spurell allegedly attacked him. They sprayed

Wimbush with pepper spray and repeatedly punched and kicked him. (Compl. ¶¶ 1 &
25, ECF No. 1.) The corrections officers, along with a police detective named Dewey,
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then falsely claimed that Wimbush had assaulted the officers. (Id. ¶ 28.) Wimbush
was later arrested and charged with aggravated and simple assault and reckless
endangerment. (Id. ¶ 29.) All charges against Wimbush were nolle prossed. (Id. ¶ 30.)
Wimbush contends that it was a policy or custom of the City of Philadelphia to condone
both the use of excessive force against inmates and malicious prosecution of prisoners.
(Id. ¶ 31.) Moreover, he contends that Defendants failed to train officers to use
reasonable force. (Id. ¶ 32.)
Wimbush sued the City of Philadelphia, Philadelphia Police Commissioner
Richard Ross, Commissioner of the Philadelphia Prison System Louis Giorla, Warden
John Delaney, Warden Joyce Adams, Detective Dewey along with Bishop, Nelson,
Belton, Daniels, Bradley, and Spurell in the Philadelphia Court of Common Pleas.
Defendants removed the case on November 8, 2016, (ECF No. 1), and filed their motion
to dismiss, (ECF No. 2).
II.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide
“more than labels and conclusions” or “a formulaic recitation of the elements of a cause
of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
“Factual allegations must be enough to raise a right to relief above the speculative level
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Id. (citation omitted). While a complaint need not include detailed facts, it must
provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

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Twombly and Iqbal require the Court to take three steps to determine whether
the second amended complaint will survive Defendants’ motion to dismiss. See Connelly
v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, it must “take note of the
elements the plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675).
Next, it must identify the allegations that are no more than legal conclusions and thus
“not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679). Finally,
where the complaint includes well-pleaded factual allegations, the Court “should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679).
This “presumption of truth attaches only to those allegations for which there is
sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and
citation omitted). “Conclusory assertions of fact and legal conclusions are not entitled
to the same presumption.” Id. This plausibility determination is a “context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Id. (quoting Connelly, 809 F.3d at 786–87).
This plausibility standard, however, “does not impose a heightened pleading
requirement” and does not require a plaintiff to plead specific facts. Id. In other words,
“courts cannot inject evidentiary issues into the plausibility determination.” Id. The
Third Circuit has also made it clear that “at least for purposes of pleading sufficiency, a
complaint need not establish a prima facie case in order to survive a motion to dismiss”
because a “prima facie case is an evidentiary standard, not a pleading requirement and
hence is not proper measure of whether a complaint fails to state a claim.” Connelly,

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809 F.3d at 789 (internal quotations and citations omitted). Instead, a plaintiff should
plead “enough facts to raise a reasonable expectation that discovery will reveal evidence
of the necessary elements.” Id. (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 234
(3d Cir. 2008)).
III.
Wimbush asserts claims under § 1983 for excessive force, malicious prosecution,
false arrest and cruel and unusual punishment in violation of the Fourth, Fourteenth
and Eighth Amendments. To establish a prima facie case under § 1983, Wimbush must
first demonstrate that a person acting under color of law deprived him of a federal
right. See Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Wimbush
must also show that the person acting under color of law “intentionally” violated his
constitutional rights or acted “deliberately indifferent” in violation of those rights. See,
e.g., County of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998); Brower v. County of
Inyo, 489 U.S. 593, 596 (1989) (citing Hill v. California, 401 U.S. 797, 802–05 (1971));
see also Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000).
A.
Wimbush asserts § 1983 claims for excessive force under the Eighth (Count II),
Fourth and Fourteenth Amendments (Count I). Fourth Amendment excessive force
claims challenge unreasonable seizures prior to incarceration. See Lamont v. New
Jersey, 637 F.3d at 177, 182–83 (3d Cir. 2011). Pretrial excessive force claims are
“governed by the Due Process Clause of the Fourteenth Amendment.” Robinson v.
Danberg, No. 15-3040, 2016 WL 7364148, at *2 (3d Cir. Dec. 19, 2016) (citing Kingsley
v. Hendrickson, 135 S. Ct. 2466, 2473 (2015)). Post-conviction excessive force claims are

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“governed by the Eighth Amendment, which protects convicted prisoners from cruel
and unusual punishment.” Id. at *3.
Wimbush’s Complaint does not explain if he was incarcerated pre- or postconviction, so the Court does not know under which theory to analyze his excessive
force claim. Wimbush’s Complaint does make clear that a Fourth Amendment
excessive force theory is not applicable to this case. In his amended complaint,
Wimbush should clarify his prisoner status.1
B.
In Count V, Wimbush asserts against Detective Dewey and the corrections
officers § 1983 claims for deprivation of procedural due process and malicious
prosecution under the Fourteenth Amendment and false arrest under the Fourth
Amendment.
To state a claim for deprivation of procedural due process, “a plaintiff must
allege that (1) he was deprived of an individual interest that is encompassed within the
Fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures
available to him did not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455
F.3d 225, 234 (3d Cir. 2006) (citation omitted). Wimbush has not pleaded any facts to
explain why the procedures available to him did not provide due process of law.
To the extent he seeks to bring a claim for malicious prosecution under the
Fourteenth Amendment, his claim fails as a matter of law. See Wheeler v. Wheeler, 639
F. App’x 147, 151 (3d Cir. 2016) (“[R]edress for alleged false arrest or malicious

Defendants’ contention that Wimbush has failed to state a claim because he “lumps [the
corrections officers] together and vaguely attributes the alleged wrongdoing to all of them
collectively” misapplies Twombly and Iqbal’s pleading standard. (Def.’s Mot., at 5, ECF No. 2.)
1

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prosecution ‘cannot be based on substantive due process considerations, but instead
must be based on a provision of the Bill of Rights’ such as the Fourth Amendment.”
(quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir. 2000))).
“To state a claim for false arrest under the Fourth Amendment, a plaintiff must
establish: (1) that there was an arrest; and (2) that the arrest was made without
probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012).
Courts analyzing § 1983 false arrest claims first determine whether the arrest was
supported by a warrant. If Wimbush was arrested pursuant to a warrant, he must
plead facts demonstrating that (1) the officer “knowingly and deliberately, or with a
reckless disregard for the truth, made false statements or omissions that create a
falsehood in applying for a warrant” and (2) that “such statements or omissions are
material, or necessary, to the finding of probable cause.” Wilson v. Russo, 212 F.3d 781,
786–87 (3d Cir. 2000); see also Paszkowski v. Roxbury Twp. Police Dept., 581 F. App’x
149, 152 (3d Cir. 2014). “The proper inquiry in a section 1983 claim based on false
arrest . . . is not whether the person arrested in fact committed the offense but whether
the arresting officers had probable cause to believe the person arrested had committed
the offense.” Paszkowski, 581 F. App’x at 152 (quoting Dowling v. City of Philadelphia,
855 F.2d 136, 141 (3d Cir. 1988)).
Wimbush alleges that he was arrested after the corrections officers and
Detective Dewey “falsely and maliciously represented to the Philadelphia Police
Department and the Philadelphia District Attorney’s office” that Wimbush had
assaulted them. (Compl. ¶ 29.) Wimbush does not state if he was arrested pursuant to

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a warrant nor does he plead enough facts to establish that he was arrested without
probable cause.
IV.
The Court analyzes Wimbush’s claims against the City under the standard for
municipal liability set forth in Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978). Generally, a municipality will not be held liable under
the doctrine of respondeat superior for the misconduct of its employees. See Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). Rather, a municipality can
only be liable under § 1983 when a constitutional injury results from the
implementation or execution of an officially adopted policy or informally adopted
custom. See Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell,
436 U.S. 658).
A.
A policy “is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or
edict.” Andrew, 895 F.2d at 1480 (citation and quotation omitted). “A course of conduct
is considered to be a ‘custom’ when, though not authorized by law, such practices of
state officials are so permanent and well settled as to virtually constitute law.” Id.
(citation and quotation omitted). “In either instance, a plaintiff must show that an
official who has the power to make policy is responsible for either the affirmative
proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews, 895 F.2d at 1480). “[A] policy or
custom may also exist where the policymaker has failed to act affirmatively at all,

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though the need to take some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely to result in the violation of
constitutional rights, that the policymaker can reasonably be said to have been
deliberately indifferent to the need.” Natale, 318 F.3d at 584 (citation and quotation
omitted).
A successful Monell claim must therefore establish: (1) an underlying
constitutional violation; (2) a policy or custom attributable to the municipality; and (3)
that the constitutional violation was caused by the municipality’s policy or custom. See
Monell, 436 U.S. at 658. To show causation where the alleged policy or custom does not
facially violate constitutional rights, the plaintiff “must demonstrate that the municipal
action was taken with ‘deliberate indifference’ as to its known or obvious consequences.”
Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997); see also Berg v. County of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). “A showing of simple or even heightened
negligence will not suffice.” Id. In other words, custom “requires proof of knowledge
and acquiescence by the decisionmaker.” McTernan, 564 F.3d at 658.
To the extent a plaintiff alleges that defendants failed to train their employees,
this failure to train must also “amount to a deliberate indifference to the rights of
persons with whom those employees will come into contact.” Carter v. City of
Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999). Moreover, “the identified deficiency in
a . . . training program must be closely related to the ultimate injury,” in other words, it
“must have actually caused the constitutional violation.” Thomas v. Cumberland
County, 749 F.3d 217, 222 (3d Cir. 2014) (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 391 (1989)) (quotations omitted). “Ordinarily, a pattern of similar

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constitutional violations by untrained employees is necessary to demonstrate deliberate
indifference for the purposes of failure to train.” Id. at 223 (quoting Connick v.
Thompson, 563 U.S. 51, 62 (2011)).
B.
Wimbush has not stated a claim for an underlying constitutional violation, see
supra Part III; his Monell claims accordingly fail. Regardless, he must also establish a
policy or custom attributable to the municipality and plead facts sufficient to show that
the policy or custom caused the alleged constitutional violation. See Monell, 436 U.S. at
658. He has not done so.
i.
In addition to suing the City of Philadelphia, Wimbush asserts claims against
Warden John Delaney, Warden Joyce Adams, Commissioner Louis Giorla, and
Commissioner Richard Ross in their individual and official capacities. “Individual, or
personal, capacity suits seek to impose personal liability upon a government official for
actions he takes under the color of state law.” Helm v. Palo, No. 14-6528, 2015 WL
437661, at *9 (E.D. Pa. Feb. 3, 2015) (citing Kentucky v. Graham, 473 U.S. 159, 165
(1985)). “Official capacity suits, however, are just another way of pleading an action
against an entity of which an officer is an agent.” Id.; see also Monell, 436 U.S. at 690
n.55. Therefore, if “the governmental entity receives notice of the suit and an
opportunity to respond to it, an official-capacity suit is, in all respects, to be treated as a
suit against the government entity itself.” Id. (citing Graham, 473 U.S. at 166).

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Wimbush sued the City of Philadelphia and his claims against Delaney, Adams, Giorla
and Ross in their official capacities are redundant.2
Wimbush’s claims against them in their individual capacities fail because he has
not alleged that these individuals were personally involved in the alleged constitutional
violations. Rode v. Dellaciprete, 845 F.2d 1195, 2017 (3d Cir. 1988). Wimbush concedes
as much in his response to the Defendants’ motion. (Pl.’s Br., at 6, ECF No. 5, (“It is
not alleged that Defendants Giorla, Delaney and Adams had personal knowledge of the
particular acts perpetrated by the Defendant Correction Officers against the
plaintiff.”).) Wimbush argues instead that personal involvement or personal knowledge
is not required. That is incorrect. “A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior. Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845
F.3d at 1207. Wimbush has not alleged such facts in his Complaint.
ii.
Wimbush alleges that the City had a “policy, practice and/or custom” to (1)
condone the use of excessive force, (Compl. ¶¶ 31, 73); (2) condone the malicious
prosecution of prisoners by corrections officers (id. ¶¶ 33, 75); (3) maintain policies
“exhibiting deliberate indifference to the legal and constitutional rights of persons
within the Philadelphia Prison System” (id. ¶ 27); and (4) “fail to train correction[s]
officers . . . in a manner utilizing only justified, reasonable, and necessary force,” (id. ¶
It does not matter that these officials represent different aspects of city government, e.g., the
prison system and the police department, because these departments cannot be sued apart from the
City of Philadelphia itself. See 53 P.S. § 16257; Lee v. Abellos, No. 13-0486, 2014 WL 7271363, at *1
n.2 (E.D. Pa. Dec. 19, 2014); Costobile-Fulginiti v. City of Philadelphia, 719 F. Supp. 2d 521, 525
(E.D. Pa. 2010).
2

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32). He fails to allege any facts to support these allegations. See Campeggio, 2014 WL
4435396, at *7.
Indeed, “simply paraphrasing § 1983 does not meet Rule 8’s pleading
requirements because it fails to satisfy the rigorous standards of culpability and
causation required to state a claim for municipal liability.” Wood v. Williams, 568 F.
App’x 100, 104 (3d Cir. 2014) (quoting McTernan v. City of York, 564 F.3d 636, 658–59
(3d Cir. 2009) (internal quotations omitted)). Wimbush’s allegations merely recast the
Monell standard into factual allegations such that the “complaint contained no specific
factual allegations fleshing out the claims of supervisory liability.” Wood, 568 F. App’x
at 107.
V.
A.
In Count III Wimbush also brings state law claims for assault and battery
against the corrections officers. Battery is “harmful or offensive contact with the
person of another.” C.C.H. v. Phila. Phillies, Inc., 940 A.2d 336, 340 n.4 (Pa. 2008).
Assault is acting with the intent to put a person in “reasonable and immediate
apprehension” of a harmful or offensive touching and succeeding in causing such
apprehension. Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa. 1960). In other words,
assault is an “attempted battery.” See United States v. Mcculligan, 256 F.3d 97, 105
(3d Cir. 2001). A bodily contact is offensive if “it offends a reasonable sense of personal
dignity.” RESTATEMENT (SECOND) OF TORTS § 19 (1965); see also Schall v. Vazquez, 322
F. Supp. 2d 594, 602 (E.D. Pa. 2004).

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Wimbush alleges that while he was incarcerated in a Philadelphia prison, a
group of corrections officers physically attacked him without provocation. The officers
sprayed Wimbush with pepper spray, punched and kicked him and after restraining
him on the ground, they continued to punch and kick him for no legitimate reason.
(Compl. ¶¶ 1 & 25.) These allegations are sufficient to support a claim for assault and
battery.
B.
In Count IV Wimbush asserts a claim for state law malicious prosecution against
the corrections officers and Detective Dewey. “In Pennsylvania, a plaintiff alleging
common law malicious prosecution must show (1) the defendants initiated a criminal
proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding
was initiated without probable cause; and (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice.” Merkle v. Upper Dublin Sch. Dist.,
211 F.3d 782, 791 (3d Cir. 2000)).
Wimbush alleges that after physically attacking him for no legitimate reason,
the corrections officers and Detective Dewey lied to the Philadelphia Police and District
Attorney’s Office resulting in Wimbush’s arrest for aggravated and simple assault and
reckless endangerment. Wimbush has also alleged that the charges were ultimately
nolle prossed, a disposition which is sufficient to show that the proceeding “ended in the
plaintiff’s favor.” See Haefner v. Burkey, 626 A.2d 519, 521 (Pa. 1993). These facts are
sufficient to state a claim for malicious prosecution.

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VI.
“[I]n civil rights cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to state a claim unless
doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007); see also Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004); Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002). Under Federal Rule of Civil Procedure 15(a), “courts may grant . . . amendments
‘when justice so requires.’” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116 (3d
Cir. 2004) (citing FED. R. CIV. P. 15(a)). Wimbush is free to amend his Complaint.
An appropriate order follows.

BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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