Mbagwu v. PPA Taxi & Limousine Division

Filing 33

MEMORANDUM; ETC.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 9/16/22. 9/16/22 ENTERED AND E-MAILED.(JL)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Bethran Mbagwu,
Plaintiff
v.

CIVIL ACTION NO. 2:21-cv-01470-MMB

PPA Taxi & Limousine Division,
Defendant.
MEMORANDUM
BAYLSON, J.
I.

SEPTEMBER 16, 2022

INTRODUCTION
This case involves claims brought under 42 U.S.C. § 1983 related to the ticketing,

towing, and impoundment of Plaintiff Bethran Mbagwu’s taxicab in December 2015. Plaintiff
claims in this Fourth Amended Complaint that employees of Defendant Philadelphia Parking
Authority Taxi and Limousine Division conducted an illegal search of his impounded cab, that
Defendant seized and prevented him from obtaining his cellphone and daily medication, that
Defendant wrongly ticketed and held Plaintiff’s cab, and that Defendant harassed and committed
ethical violations against Plaintiff by shutting off his GPS, forging documents, blacklisting him
and other similar claims. The facts and procedural history of this case have been set out already
by the Court in its October 15, 2021 Memorandum and Opinion dismissing all of Plaintiff’s claims
without prejudice. Mbagwu v. PPA Taxi & Limousine Div., No. 2:21-cv-01470-MMB, 2021 WL
4818965 (E.D. Pa. Oct. 15, 2021). Since then, Plaintiff’s Third Amended Complaint was also
dismissed without prejudice due to non-compliance with the Rules of Civil Procedure. Plaintiff
filed an appeal with the U.S. Court of Appeals of the Third Circuit, which was dismissed for lack
of appellate jurisdiction.

On May 4, 2022 Plaintiff filed his Fourth Amended Complaint

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(“Complaint”) and on May 20, 2022 Defendant filed this motion to dismiss Plaintiff’s claims under
F.R.C.P Rule 12(b)(6) and strike sections of the Complaint under F.R.C.P. Rule 12(f)(2).
For the reasons set out herein, the Court denies in part and grants in part Defendant’s
motion.
The Court notes that shortly after it dismissed Plaintiff’s Second Amended Complaint
without prejudice, Plaintiff’s lawyer filed a motion to withdraw as counsel for Plaintiff, which the
Court granted. The Court urges Plaintiff to explore options for retaining another lawyer in this
case, including by filing a motion in this Court for appointment of counsel through the Court’s
Volunteer Attorney Panels. U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA,
Legal Resources, https://www.paed.uscourts.gov/pro-se/pro-se-resources (last visited Sept. 15,
2022).
II.

JURISDICTION
This Court has 28 U.S.C. § 1331 jurisdiction because Plaintiff alleges causes of action

pursuant to 42 U.S.C. § 1983 and the United States Constitution. This Court retains supplemental
jurisdiction over Plaintiff’s related Pennsylvania State Constitution claims pursuant to 28 U.S.C.
§ 1367(a).
III.

DEFENDANT’S MOTION UNDER 12(B)(6) IS DENIED IN PART AND
GRANTED IN PART
In considering a motion to dismiss under Rule 12(b)(6), the Court “accept[s] all factual

allegations as true [and] construe[s] the complaint in the light most favorable to the
plaintiff.” Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotations
and citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual

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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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a court must accept as true all factual allegations contained in a complaint, this
requirement does not apply to legal conclusions; therefore, pleadings must include factual
allegations to support the legal claims asserted. Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555); see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008) (citing Twombly, 550 U.S. at 556 n.3) (“We caution that without some factual
allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not
only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.”)). Accordingly, to survive a
motion to dismiss, a 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 (citing Twombly, 550 U.S. at 556).
A. Motion Is Denied as to the Warrantless Search and Seizure Claims.
“‘To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the defendants,
acting under color of law, violated the plaintiff’s federal constitutional or statutory rights, and
thereby caused the complained of injury.’” Germantown Cab Co., v. Phila. Parking Auth., 2015
WL 1954163. *5 (E.D. Pa. Apr. 30, 2015) (quoting Biliski v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 574 F.3d 214, 219 (3d Cir. 2009)). To succeed on a Fourth Amendment unlawful search
claim, “a plaintiff must show that the defendant’s actions constituted a ‘search’ or ‘seizure’ within
the meaning of the Fourth Amendment and [was] ‘unreasonable’ under the circumstances.”
Verdier v. Borough, 796 F.Supp.2d 606, 619 (E.D. Pa. 2011).

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Plaintiff has adequately pled facts showing he was subject to an unreasonable warrantless
search and seizure by a government employee. In the Complaint, Plaintiff alleges that the
impoundment clerk told him that his impounded cab would be searched by an officer of PPA’s
Taxi and Limousine Division. Plaintiff also alleges that an officer at PPA headquarters told him
her “boss” would be searching his cab and that he’d have to wait until the search is over to retrieve
the cab. Defendant does not point to a case, statute or regulation allowing PPA employees to
conduct warrantless searches of impounded vehicles. 1 The same follows for the unreasonable
seizure of Plaintiff’s cellphone and prescription medications for his arthritis. For these reasons,
Plaintiff’s search and seizure claims shall proceed to discovery.
B. Motion Is Granted as to the Extortion, Ethics and Harassment Claims.
Plaintiff has not adequately pled facts supporting these causes of action. Plaintiff has
offered nothing more than conclusory allegations regarding these claims. Plaintiff has been
allowed multiple tries to plead adequate facts for these claims and has failed to do so. These claims
are DISMISSED WITH PREJUDICE.
C. Motion To Strike is Denied.
F.R.C.P. Rule 12(f)(2) permits a party to move to strike from a pleading “any redundant,
immaterial, impertinent, or scandalous matter.” The “standard for striking under Rule 12(f) is
strict.” In re Catanella and E.F. Hutton and Co., Inc. Securities Litig., 583 F.Supp. 1388 1400-01
(E.D. Pa. 1984). Because Defendant does not meet this strict standard here, Defendant’s Motion
To Strike is DENIED.

Defendant argues that Opperman v. South Dakota, 428 U.S. 364 authorizes any “government official” to conduct
inventory searches of impounded vehicles. Defendant seems to be misconstruing this holding, which concludes that
“inventories pursuant to standard police procedures are reasonable.” Opperman, 428 U.S. at 372 (police officers’
warrantless search of impounded vehicle was reasonable to inventory valuables and contraband) (emphasis added).
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For the reasons set forth above, Defendant’s Motion To Dismiss is DENIED as to the
warrantless search and seizure claim, and GRANTED WITH PREJUDICE as to the extortion,
ethics, and harassment claims.2 An appropriate order follows.

The Court will reserve judgment pending discovery as to whether Defendant PPA Taxi and Limousine Division is
an appropriate defendant for this lawsuit.
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