Filing 16


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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA SHIRLEY BINDER, Plaintiff v. MICHAEL T. KENDERSKI, et al., Defendants : : : : : : : CIVIL ACTION NO. 09-119 MEMORANDUM STENGEL, J. September 4, 2009 P ro se plaintiff Shirley Binder alleges she was injured and suffered a violation of h e r civil rights when Allentown Police Officer Michael Kenderski arrested her for driving u n d e r the influence. Based on this event, Binder filed a complaint containing claims of f a ls e imprisonment and unreasonable seizure against Kenderski and the City of Allentown (C ity). The City filed a motion to dismiss (Document #7) the counts brought against it. For the following reasons, I will grant the motion. I . Background 1 O n or about January 11, 2007, Officer Kenderski was on-duty when he responded to an emergency call from a 7-11 convenience store on South Fourth Street in Allentown, P e n n sylv a n ia . (Compl. 6.) Upon arriving the scene, Officer Kenderski found Shirley B in d e r who was complaining of being assaulted by a patron at another establishment on F o u rth Street. (Id.) Binder alleges she had a two inch laceration above her left eye and 1 For the purposes of this motion, I have accepted as true the allegations in the Complaint. had fresh blood on her hands, face and clothes. (Id.) K e n d e rs k i allegedly ignored these potential signs on injury and asked whether B in d e r had been consuming alcohol. (Id.) He did not call emergency services or attempt to apprehend the alleged assaulter. (Id.) Instead, he left Binder at the scene and told her n o t to drive home. (Id.) A f te r waiting for ten minutes, Binder decided to drive to her residence at 628 S k ylin e Drive in Allentown. (Id.) Officer Kenderski was waiting for her in the parking lo t. (Id.) When Binder exited her vehicle, Kenderski exited his and immediately arrested h e r for driving under the influence. (Id.) Binder spent one night in the Lehigh County P ris o n . (Id.) B in d e r was charged with driving under the influence and public drunkenness. (Id. 7.) These charges were later withdrawn at the preliminary hearing. (Id. 8.) Because B in d e r had refused to submit to chemical testing of blood alcohol concentration, her d riv e r's license was suspended in accordance with Pennsylvania law. (Id. 9.) B in d e r filed her complaint on January 9, 2009, and it contains four counts: (I) false im p ris o n m e n t against Officer Kenderski; (II) Section 1983 claim against Kenderski; (III) r e s p o n d e a t superior claim against the City; and (IV) a non-specific claim brought against a n y other individuals who played a role in the events in question and whose identities are c u rre n tly unknown. (Id. 2545.) The City of Allentown filed the instant motion to d is m is s (Document #7) on March 4, 2009. -2- Binder is proceeding pro se. On April 29, 2009, the court held a telephonic status c o n f e re n c e with the plaintiff and counsel to discuss the request to withdraw submitted by S c o tt M. Wilhelm, Esquire, counsel for the plaintiff. A follow-up conference was s c h e d u le d for June 15, 2009, to discuss the request to withdraw; Binder was told there w a s a possibility she would be required to proceed pro se, if she was unable to retain new c o u n s e l by that date. During the June 15, 2009 conference, Binder informed the court she had not yet a c q u ire d new counsel. Upon consideration of this information and Mr. Wilhelm's formal m o tio n to withdraw, the court granted the motion and stated that Binder would be c o n s id e re d to be proceeding pro se. On June 18, 2009, Ms. Binder was directed to re s p o n d to the pending motion by July 15, 2009, the response already being more than n in e ty days late. As of this date, no response was filed. I I . Standard of review A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure f o r failure to state a claim upon which relief can be granted examines the legal sufficiency o f the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations m u s t be sufficient to make the claim for relief more than just speculative. Bell Atlantic C o rp . v. Twombly, 550 US 544, 127 S.Ct. 1955, 1965 (2007). In determining whether to g ra n t a motion to dismiss, a federal court must construe the complaint liberally, accept all -3- factual allegations in the complaint as true, and draw all reasonable inferences in favor of th e plaintiff. Id. See also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3 d Cir. 1984). T h e Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all o f the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules re q u ire a "short and plain statement" of the claim that will give the defendant fair notice o f the plaintiff's claim and the grounds upon which it rests. Id. The "complaint must a lle g e facts suggestive of [the proscribed] conduct." Twombly, 127 S.Ct. at 1969. Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. S o u th e a s te rn Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995). The claim m u s t contain enough factual matters to suggest the required elements of the claim or to " ra is e a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 1 2 7 S.Ct. at 1965)). I I I . Discussion A . Claims against Officer Kenderski in his official capacity I will dismiss the Section 1983 claim contained in Count II, which is brought a g a in s t Officer Kenderski in his official capacity. A state officer acting in his official -4- capacity is not a "person" under 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 7 1 (1989). Suits against state officers in their official capacity are "only another way of p le a d in g an action against an entity of which an officer is an agent." Kentucky v. G ra h a m , 473 U.S. 159, 16566 (1985) (quoting Monell v. New York City Dep't of Soc. S e rv s ., 436 U.S. 658, 690 n.55 (1992)). Under this standard, the claims against Officer K e n d e rs k i in his official capacity are redundant in light of the claims against the City, and C o u n t II will be dismissed. B . Respondeat superiour claim against the City of Allentown I will dismissCount III because it states no viable claim against the City. As s ta te d , Count III seeks to impose liability based on respondeat superiour. It is not clear w h e th e r Binder is proceeding under federal or state law. Mindful of the plaintiff's pro se s ta tu s and in the interests of completeness, I will consider both avenues. 1 . Liability under Section 1983 T o the extent Count III alleges municipal liability under Section 1983, I re c o m m e n d dismissing the claim. Municipalities and other government bodies may be s u e d under Section 1983. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 6 9 0 9 2 (1992). One of the clearest restrictions is that liability may not be imposed solely o n a respondeat superior theory. Monell, 436 U.S. at 692. This is exactly what the p la in tif f has attempted to do, and it is unequivocally clear such a theory of action is im p e rm is s ib le for Section 1983 liability. See, e.g., Phillips, 515 F.3d at 230 n.1; Sanford -5- v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006). 2 . Liability under state law In the alternative, Count III may be based on state tort law. Even under this th e o ry, the claim fails because it is barred by the Pennsylvania Subdivision Tort Claims A c t (PSTCA) The PSTCA provides legal immunity for government bodies and their e m p lo ye e s unless their actions fall within certain enumerated exceptions. See 42 Pa. Con. S ta t. Ann. 8541 (immunizing government agencies from liability for damages caused by a n y act by the agency or an agency employee, subject to the exceptions); 8545 (p ro v id in g conditional legal immunity to agency employees for any injuries caused by c o n d u c t taken within the scope of employment). A government body's immunity is subject to the exceptions provided in 42 Pa. C o n . Stat. Ann. 8542(a), which reads: A local agency shall be liable for damages on account of an injury to a p e rs o n or property within the limits set forth in this subchapter if both o f the following conditions are satisfied and the injury occurs as a result o f one of the acts set forth in subsection (b): (1 ) The damages would be recoverable under common law or a s ta tu te creating a cause of action if the injury were caused by a p e rs o n not having available a defense under section 8541 (relating t o governmental immunity generally) or section 8546 (relating to d e f e n s e of official immunity); and (2 ) The injury was caused by the negligent acts of the local agency o r an employee thereof acting within the scope of his office or d u tie s with respect to one of the categories listed in subsection (b). A s used in this paragraph, "negligent acts" shall not include acts or -6- conduct which constitutes a crime, actual fraud, actual malice or w illf u l misconduct. S u b s e c tio n (b) provides eight specifically designated exceptions. They are : (1) vehicle lia b ility, (2) care, custody, or control of personal property, (3) real property, (4) trees, tra f f ic controls, and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks, a n d (8) care, custody, and control of animals. Id. 8542(b). Therefore, the agency may b e subjected to liability only if the conduct giving rise to the action can be attributed to it o r one of its employees, was the product of negligence, and falls within one of the eight e x c e p tio n s. T h e claim fails to meet these requirements. First, there is no allegation Officer K e n d e rs k i's conduct was negligent. The actionable, underlying conduct complained of is f a ls e imprisonment, an intentional tort falling outside the realm of negligent conduct. See, e.g., Reiff v. Marks, 2009 WL 2058589, at *4 (E.D. Pa. July 15, 2009) (dismissing r e s p o n d e a t superiour claims against the Borough of West Reading based on assault and f a ls e imprisonment claims against a borough officer); Walker v. N. Wales Borough, 395 F . Supp. 2d 219, 230 n.5 (E.D. Pa. 2005) (dismissing claims against the municipal d e f e n d a n t where the underlying claims were only for intentional torts such as assault, b a tte ry, false imprisonment, and false arrest). As Binder's claim against Kenderski is for a n intentional tort alone without any additional arguments or facts suggesting negligence, h e r claim against the City fails. S e c o n d , the claim does not fall into any of the enumerated eight exceptions -7- provided in 8542(b). Binder has presented no argument on this point. Even when re a d in g the complaint as expansively as possible, Kenderski's conduct does not fit into a n y of those exceptions. Absent allegations Kenderski's conduct was negligent and fell w ith in the 8542(b) exceptions, I will dismiss this claim against the City. C . Remaining claims against Claims against John Doe defendants F in a lly, Counts I and IV will be dismissed for lack of subject matter jurisdiction. Count I is a state law claim for false imprisonment, which was brought pursuant to the s ta tu to ry grant of supplemental jurisdiction under 28 U.S.C. 1367.2 Subsection (c) of th a t statute grants the district court discretion to decline to exercise supplemental ju ris d ic tio n if it has dismissed all claims over which it had original jurisdiction. Because th e count that had provided the underlying original jurisdiction for this supplemental c la im has been dismissed, I decline to exercise jurisdiction over Count I. C o u n t IV is of no jurisdictional assistance either. It raises no specific claim and is e x p a n s iv e ly brought against "corporations, partnerships and any and all other individuals w h o /w h ic h may have played any role whatsoever in contributing to [Ms. Binder's] in ju rie s and damages . . . ." (Compl. 43.) Nowhere does it present any grounds that the p o te n tia l claim is one based on federal law or to support diversity jurisdiction. Because th e claim fails to establish an independent basis of original jurisdiction, I decline to That section empowers the district courts to exercise jurisdiction over other claims "so related to the claims in action within such original jurisdiction that they form part of the same case or controversy." -8- 2 exercise jurisdiction over this claim as well. I V . Conclusion F o r the foregoing reasons, I will grant the motion to dismiss. An appropriate O rd e r follows. -9-

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