MCLAUGHLIN v. CUNNINGHAM et al
Filing
20
MEMORANDUM/OPINION THAT BOTH THE CUNNINGHAM MOTION TO DISMISS AND THE FOUNTAIN HILL MOTION TO DISMISS ARE GRANTED IN PART AND DENIED IN PART. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/25/14. 3/25/14 ENTERED AND COPIES E-MAILED.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD J. McLAUGHLIN,
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Plaintiff
v.
GRADY CUNNINGHAM, JR., and
BOROUGH OF FOUNTAIN HILL,
Defendants
*
*
Civil Action
No. 13-cv-01926
*
APPEARANCES:
RICHARD J. ORLOSKI, ESQUIRE
On Behalf of Plaintiff
WENDI D. BARISH, ESQUIRE
MEREDITH KIRSCHNER, ESQUIRE
On Behalf of Defendant Grady Cunningham, Jr.
MARK J. WALTERS, ESQUIRE
On Behalf of Defendant Borough of Fountain Hill
*
*
*
O P I N I O N
JAMES KNOLL GARDNER
United States District Judge
This matter is before the court on the Motion to
Dismiss by Defendant, Grady Cunningham (“Cunningham Motion to
Dismiss”) 1; and Defendant, Borough of Fountain Hill’s Motion to
1
The Cunningham Motion to Dismiss was filed May 17, 2013 together
with the Memorandum of Law in Support of Defendant, Grady Cunningham’s Motion
to Dismiss Plaintiff’s Complaint (“Cunningham Memorandum”).
Dismiss (“Fountain Hill Motion to Dismiss”) 2. For the reasons
expressed below, I grant in part and deny in part both the
Cunningham Motion to Dismiss and the Fountain Hill Motion to
Dismiss.
SUMMARY OF DECISION
This civil rights action arises from the alleged
unprovoked physical beating which plaintiff Richard J.
McLaughlin received from defendant Grady Cunningham, Jr.
(“Officer Cunningham”) on June 4, 2012 while plaintiff was
handcuffed in a holding cell at the police station of defendant
Borough of Fountain Hill (“Fountain Hill” or “the Borough”).
Plaintiff asserts claims against both defendants
pursuant to 42 U.S.C. § 1983.
Specifically, plaintiff claims
that defendant Cunningham’s conduct on June 4, 2012 constituted
the use of excessive force in violation of the Fourth, Eighth,
and Fourteenth Amendments of the United States Constitution
(Count One).
Plaintiff further claims that defendant Fountain Hill
is subject to municipal liability pursuant to Monell 3 and its
progeny under official-policy, municipal-custom, and failure-totrain theories of liability (Count Two).
2
The Fountain Hill Motion to Dismiss was filed May 16, 2013,
together with Defendant, Borough of Fountain Hill’s Memorandum of Law in
Support of Its Motion to Dismiss (“Fountain Hill Memorandum”).
3
Monell v. Department of Social Services of City of New York,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
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For the reasons expressed below, I grant the
Cunningham Motion to Dismiss to the extent it seeks to dismiss
plaintiff’s Eighth Amendment claim because plaintiff was not a
convicted and sentenced prisoner at the time of the incident in
question.
However, I deny defendant Cunningham’s motion in all
other respects because plaintiff has stated a plausible
excessive-force claim against defendant Cunningham under either
the Fourth or Fourteenth Amendment.
Additionally, I grant the Fountain Hill Motion to
Dismiss to the extent it seeks to dismiss plaintiff’s claim of
municipal liability against the Borough under official-policy
and failure-to-train theories because plaintiff has not pled
sufficient facts to support a plausible claim under either
theory.
However, I deny the Fountain Hill Motion to Dismiss to
the extent it seeks to dismiss plaintiff’s claim of municipal
liability under a municipal-custom theory because plaintiff has
pled sufficient facts to state a plausible claim under that
theory.
JURISDICTION
Jurisdiction is based upon federal question
jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff brings his
claims against both defendants under 42 U.S.C. § 1983.
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VENUE
Venue is proper pursuant to 28 U.S.C. § 1391(b)
because the events giving rise to these claims occurred in the
Borough of Fountain Hill, Lehigh County, Pennsylvania, which is
located in this judicial district.
See 28 U.S.C. §§ 118,
1391(b).
PROCEDURAL HISTORY
Plaintiff McLaughlin initiated this civil rights
action on April 11, 2013 by filing his Complaint.
Defendant
Cunningham and defendant Borough of Fountain Hill filed motions
to dismiss plaintiff’s claims against each of them in their
entirety on May 17 and May 16, 2013, respectively, which
motions, having been briefed by the parties, are now before the
court for disposition.
STANDARD OF REVIEW
A claim may be dismissed under Federal Rule of Civil
Procedure 12(b)(6) for "failure to state a claim upon which
relief can be granted."
A Rule 12(b)(6) motion requires the
court to examine the sufficiency of the complaint. Conley v.
Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84
(1957) (abrogated in other respects by Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
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167 L.Ed.2d 929 (2007)).
Generally, in ruling on a motion to
dismiss, the court relies on the complaint, attached exhibits,
and matters of public record, including other judicial
proceedings.
Sands v. McCormick, 502 F.3d 263, 268 (3d Cir.
2008).
Except as provided in Federal Rule of Civil
Procedure 9, a complaint is sufficient if it complies with
Rule 8(a)(2), which requires "a short and plain statement of the
claim showing that the pleader is entitled to relief".
Rule
8(a)(2) does not require heightened fact pleading of specifics,
but only enough facts to state a claim to relief that is
plausible on its face.
Twombly, 550 U.S. at 570, 127 S.Ct.
at 1974, 167 L.Ed.2d at 949. 4
In determining whether a complaint is sufficient, the
court must accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading, the plaintiff
may be entitled to relief.
Fowler, 578 F.3d at 210 (citing
Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.
2008)).
4
The United States Supreme Court’s Opinion in Ashcroft v. Iqbal,
556 U.S. 662, 684, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868, 887 (2009), states
clearly that the “facial plausibility” pleading standard set forth in Twombly
applies to all civil suits in the federal courts. Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009). This showing of facial plausibility then
“allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged”, and that plaintiff is entitled to relief.
Fowler, 578 F.3d at 210 (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949,
173 L.Ed.2d at 884).
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Although “conclusory” or “bare-bones allegations” will
not survive a motion to dismiss, Fowler, 578 F.3d at 210, a
complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.
Phillips, 515 F.3d at 231.
Nonetheless, to survive a Rule 12(b)(6) motion, the complaint
must provide "enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element."
Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965,
167 L.Ed.2d at 940) (internal quotations omitted).
The court is required to conduct a two-part analysis
when considering a Rule 12(b)(6) motion.
First, the factual
matters averred in the complaint, and any attached exhibits,
should be separated from legal conclusions asserted.
578 F.3d at 210.
Fowler,
Any facts pled must be taken as true, and any
legal conclusions asserted may be disregarded.
Id. at 210-211.
Second, the court must determine whether those factual
matters averred are sufficient to show that the plaintiff has a
“plausible claim for relief.”
Id. at 211 (quoting Iqbal,
556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is “contextspecific” and requires the court to draw on “its judicial
experience and common sense” to determine if the facts pled in
the complaint have “nudged [plaintiff’s] claims” over the line
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from “[merely] conceivable [or possible] to plausible.”
Iqbal,
556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d
at 884-885.
A well-pled complaint may not be dismissed simply
because “it strikes a savvy judge that actual proof of those
facts is improbable, and that a recovery is very remote and
unlikely.”
Twombly, 550 U.S. at 556, 127 S.Ct. at 1965,
167 L.Ed.2d at 940-941 (internal quotations omitted).
FACTS
Taking all of the well-pled facts contained in the
Complaint as true, as I am required to do under the standard of
review applicable to a motion to dismiss, discussed above, the
facts of this case are as follows.
Plaintiff Richard McLaughlin is an adult individual
who resides in Allentown, Pennsylvania.
Defendant Grady
Cunningham, Jr., was, at all relevant times, a police officer
for defendant Borough of Fountain Hill, a municipal corporation
located in Lehigh County, Pennsylvania and organized under
Pennsylvania law. 5
On June 4, 2012 plaintiff was arrested by defendant
Cunningham on the summary criminal offenses of Harassment,
Public drunkenness, and Disorderly conduct.
At that time,
defendant Cunningham took plaintiff into custody and handcuffed
5
Complaint at ¶¶ 1-4.
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plaintiff’s hands behind his back.
Defendant Cunningham then
drove plaintiff to the Fountain Hill police station and locked
him in a holding cell. 6
At some later time on June 4, 2012, while plaintiff
was confined in the holding cell with his hands still handcuffed
behind his back, defendant Cunningham entered the holding cell
with a loaded gun (plaintiff does not aver whether the gun was
drawn or holstered) and proceeded to verbally and physically
assault plaintiff. 7
Specifically, defendant Cunningham shoved,
punched, and slapped plaintiff in numerous parts of plaintiff’s
body. 8
Defendant Cunningham did so in the presence of another
police officer and the incident was captured on videotape. 9
The
tape was reviewed by defendant Cunningham’s supervisors and it
was abundantly clear to his supervisors that Officer
Cunningham’s conduct was outrageous. 10
6
Complaint at ¶¶ 7-8.
7
Id. at ¶ 9.
8
Id. at ¶ 10.
9
Id. ¶¶ 9 and 12.
10
Id. at ¶ 12.
In Plaintiff’s Brief, he states that defendant Cunningham was
“fired for the beating” and cites paragraph 12 of the Complaint in support of
that factual proposition. (Plaintiff’s Brief at page 6.) However,
paragraph 12 reads, in its entirety: “The incident was captured on video tape
(Footnote 10 continued):
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As the result of the assault by defendant Cunningham,
plaintiff suffered permanent physical injuries and scarring, as
well as mental pain and suffering, anguish, distress, and
sleeplessness. 11
At the time of the incident, defendant Borough had
actual knowledge of defendant Cunningham’s “propensity to use
excessive force against others” and that he “otherwise abused
his authority as a police officer.” 12
Defendant Borough had
notice before June 4, 2012 that defendant Cunningham was “a
rogue officer who could not be trusted.” 13
In addition, defendant Borough had a practice or
custom “of covering up Officer Cunningham’s abuses of authority
as a police officer” and “failed to use...adequate discipline
for prior derelictions of duty by defendant Cunningham,
thereby...condoning misbehavior and implicitly encouraging it.” 14
(Continuation of footnote 10):
and it is abundantly clear after review of the tapes by his supervisors that
Defendant’s conduct was outrageous.” (Complaint at ¶ 12.)
While plaintiff does aver that defendant Cunningham’s
unidentified supervisors reviewed video footage of the incident and found
defendant Cunningham’s conduct outrageous, plaintiff does not aver in
paragraph 12 (or anywhere else in his Complaint) that the Borough fired
Officer Cunningham as a result of the June 4, 2013 incident.
11
Id. at ¶¶ 14-15.
12
Id. at ¶ 18.
13
Id. at ¶ 21.
14
Id. at ¶ 23.
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CONTENTIONS OF THE PARTIES
Contentions of Defendant Cunningham
Defendant Cunningham seeks to have plaintiff’s claim
against him dismissed with prejudice in its entirety. 15
Specifically, defendant Cunningham contends that plaintiff has
failed to sufficiently plead a claim that defendant Cunningham
used excessive force against plaintiff in violation of the
Fourth, Eighth, and Fourteenth Amendments.
More specifically, defendant Cunningham contends that
plaintiff has failed to state a claim for violation of the
Fourth Amendment and that claim should be summarily dismissed
because the facts demonstrate that plaintiff was not a “free
citizen” at the time of the incident and, thus, was not subject
to Fourth Amendment protections at that time. 16
Defendant Cunningham also contends that plaintiff’s
“institutional status” at the time of the incident will
determine whether plaintiff’s excessive force claim is properly
brought under the Eighth or Fourteenth Amendment. 17
Specifi-
cally, defendant Cunningham contends that the Fourteenth
Amendment would govern plaintiff’s excessive force claim if he
were a pretrial detainee at the time of the beating, but the
15
Cunningham Motion to Dismiss at page 3, and proposed Order.
16
Cunningham Memorandum at pages 4-5.
17
Id. at page 5.
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Eighth Amendment would govern that excessive force claim if
plaintiff were a convicted-and-sentenced inmate at the time of
the beating. 18
Ultimately, Officer Cunningham contends that plaintiff
has not pled sufficient facts to substantiate an excessive force
claim under either the Fourth, Eighth, or Fourteenth Amendment
and, therefore, Count One of plaintiff’s Complaint should be
dismissed.
Alternatively, defendant Cunningham contends that
plaintiff should be required to re-plead his excessive force
claim against defendant Cunningham with greater specificity. 19
Contentions of Defendant Borough of Fountain Hill
Defendant Borough of Fountain Hill seeks to have
plaintiff’s claim against it dismissed with prejudice in its
entirety. 20
Specifically, defendant Borough contends that
plaintiff’s municipal-liability claim pursuant to section 1983
should be dismissed because he has not sufficiently pled a claim
for municipal liability based upon an official policy or
18
Cunningham Memorandum at page 5.
19
Id. at 6.
20
Fountain Hill Memorandum at page 6, and proposed Order.
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municipal custom, or under a failure-to-train theory of
liability. 21
More specifically, concerning plaintiff’s officialpolicy or municipal-custom claim, defendant Borough contends
that plaintiff’s Complaint does not provide factual averments
showing (or supporting a plausible inference of) any decisions
by the Borough’s lawmakers, acts of policymaking officials, or
specific practices or courses of conduct so persistent and
widespread as to practically have the force of law. 22
Concerning plaintiff’s failure-to-train claim,
defendant Borough contends that plaintiff has merely asserted,
in a conclusory fashion, that the Borough “failed to use
adequate training” and, has failed to provide any factual
averments concerning (1) the way(s) in which the Borough’s
training was deficient; (2) how that deficiency, or those
deficiencies, created an unreasonable risk that plaintiff would
suffer an unprovoked beating; (3) the Borough’s awareness of
such unreasonable risk; and (4) the Borough’s deliberate
indifference to such unreasonable risk. 23
21
Fountain Hill Memorandum at pages 4-7.
22
Id. at page 5.
23
Id. at page 7.
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Contentions of Plaintiff
Plaintiff contends that neither defense motion to
dismiss should be granted in any respect.
With respect to the Cunningham Motion to Dismiss,
plaintiff responds by quoting a lengthy excerpt from the Opinion
of the United States Supreme Court in Graham v. O’Connor,
490 U.S. 386, 393-400, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). 24
Plaintiff then argues that “[h]ere, the facts allege that that
the officer arrested the Plaintiff for this summary offense, put
him in handcuffs, hands behind his back, placed him in a holding
cell and then beat him” and, therefore, “[o]bviously, Plaintiff
has stated a complaint for ‘excessive force.’” 25
To the extent that plaintiff addresses the question of
which amendment(s) to the Constitution defendant Cunningham
24
The excerpted portion of Graham states, in pertinent part, that
all claims that law enforcement officers have used excessive
force -- deadly or not -- in the course of an arrest,
investigatory stop, or other "seizure" of a free citizen should
be analyzed under the Fourth Amendment and its "reasonableness"
standard, rather than under a "substantive due process" approach.
Because the Fourth Amendment provides an explicit textual source
of constitutional protection against this sort of physically
intrusive governmental conduct, that Amendment, not the more
generalized notion of "substantive due process," must be the
guide for analyzing these claims.
Graham, 490 U.S. at 395, 109 S.Ct. at 1871, 104 L.Ed.2d at 454 (first
emphasis in original, second emphasis added).
Plaintiff’s reliance on this portion of Graham suggests that he
is asserting a violation of the Fourth Amendment and not the Fourteenth
Amendment.
25
Plaintiff’s Brief at page 5.
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violated through his use of excessive force, plaintiff argues
that if plaintiff were “a ‘free man’ detained on three summary
offenses, the Fourth Amendment protects him” and if he were “in
detention as a parole violator, in custody, then the Eighth
Amendment protects him.”
This particular argument, together with plaintiff’s
lengthy quotation of Graham, see footnote 24, supra, suggests
that plaintiff may only be alleging violations of the Fourth and
Eighth Amendments (each of those amendments made applicable to
the states and their political subdivisions through the
Fourteenth Amendment).
However, plaintiff further contends that
he “pleaded the protection of the Fourth, Eighth and Fourteenth
Amendments.” 26
Accordingly, and despite that ambiguity, I consider
plaintiff to be alleging in his Complaint, and contending in his
brief, that defendant Cunningham used excessive force against
plaintiff on June 4, 2012 in violation of the Fourth, Eight, and
Fourteenth Amendments.
DISCUSSION
Section 1983
Plaintiff’s constitutional claims are actionable
against defendants through 42 U.S.C. § 1983.
Section 1983 is an
enabling statute that does not create any substantive rights,
26
Plaintiff’s Brief at page 5.
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but provides a remedy for the violation of federal constitutional or statutory rights.
298 (3d Cir. 2000).
Gruenke v. Seip, 225 F.3d 290,
Section 1983 states:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress.
42 U.S.C. § 1983.
Thus, to state a claim under Section 1983, a plaintiff
must demonstrate that defendant, acting under color of state
law, deprived plaintiff of a federal constitutional or statutory
right.
Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908,
1913, 68 L.Ed.2d 420, 428 (1986); Chainey v. Street,
523 F.3d 200, 219 (3d Cir. 2008) (quoting Kaucher v. County of
Bucks, 455 F.3d 418, 423 (3d Cir. 2006)).
A defendant acts under color of state law when he
exercises power “possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the
authority of state law.”
West v. Atkins, 487 U.S. 42, 49, 108
S.Ct. 2250, 2255, 101 L.Ed.2d 40, 49 (1988); Bonenberger v.
Plymouth Township, 132 F.3d 20, 23 (3d Cir. 1997).
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Here, neither defendant contends that plaintiff’s
claims should be dismissed based the absence of sufficient
allegations of state action.
Eighth Amendment
The Eight Amendment "applies only after the State has
complied with the constitutional guarantees traditionally
associated with criminal prosecutions."
Whitley v. Albers,
475 U.S. 312, 318, 106 S.Ct. 1078, 1083-1084, 89 L.Ed.2d 251,
260 (1986).
In other words, the Eighth Amendment does not apply
until “after sentence and conviction.”
Hubbard v. Taylor,
399 F.3d 150, 166 (3d Cir. 2005)(quoting Graham v. Connor,
490 U.S. 386, 392 n.6, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).
Here, plaintiff does not aver (and the facts do not
support a reasonable inference) that he was incarcerated at the
Fountain Hill police station after having been found guilty of
and sentenced for any summary offense, or after having been
found to have violated the terms of any previously-imposed term
of parole or probation.
Therefore, I grant defendant
Cunningham’s motion to the extent it seeks to dismiss
plaintiff’s claim that defendant Cunningham violated plaintiff’s
rights under the Eighth Amendment.
Generally, a municipality cannot be held liable unless
one of its employees is “primarily liable under Section 1983
itself.”
Williams v. Borough of West Chester, 891 F.2d 458, 467
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(3d Cir.1989); see also City of Los Angeles v. Heller,
475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986).
Because plaintiff has not stated a claim for violation
of the Eighth Amendment based upon defendant Cunningham’s
conduct, I also grant, in part, the Borough’s motion and dismiss
plaintiff’s Eighth Amendment claim for municipal liability
against defendant Fountain Hill arising from the June 4, 2012
incident involving defendant Cunningham.
Startzell v. City of
Philadelphia, 533 F.3d 183, 204 (3d Cir. 2008).
Fourth and Fourteenth Amendments
Plaintiff alleges that defendant Cunningham’s conduct
violated the Fourth and Fourteenth Amendments to the United
States Constitution, and that defendant Borough of Fountain Hill
is subject to municipal liability because the violation of
plaintiff’s constitutional rights was caused by a Borough policy
or custom or by the Borough’s failure to adequately train its
police officers.
The United States Supreme Court has held that
excessive force claims arising out of an arrest, investigatory
stop, or other “‘seizure’ of a free person” are to be analyzed
under the Fourth Amendment and its “reasonableness” standard,
rather than a “substantive due process” approach under the
Fourteenth Amendment.
Graham v. O’Connor, 490 U.S. 386, 395,
109 S.Ct. 1865, 1781, 104 L.Ed.2d 443, 454-455 (1989).
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By comparison, “the Due Process Clause [of the
Fourteenth Amendment] protects a pretrial detainee from the use
of excessive force that amounts to punishment.”
Graham,
490 U.S. at 395 n.10, 109 S.Ct. at 1871 n.10, 104 L.Ed.2d 455
n.10.
The Supreme Court in Graham expressly declined to
resolve the question of “whether the Fourth Amendment continues
to provide individuals with protection against the deliberate
use of excessive force beyond the point at which arrest ends and
pretrial detention begins....”
Graham, 490 U.S. at 395 n.10,
109 S.Ct. at 1871 n.10, 104 L.Ed.2d 455 n.10. 27
Similarly, the
United States Court of Appeals for the Third Circuit declined to
resolve the question of “where an arrest ends and pretrial
detention begins” in United States v. Johnstone, 107 F.3d 200,
205 (3d Cir. 1997).
However, the Third Circuit has noted that “Fourth
Amendment seizure principles may in some circumstances have
implications in the period between arrest and trial” and has
“refer[red] to the Fourth Amendment as applying to those actions
which occur between arrest and pre-trial detention.”
Torres v.
McLaughlin, 163 F.3d 169, 174 (3d Cir. 1998).
27
The Supreme Court had previously defined “pretrial detainees” as
“those persons who have been charged with a crime but who have not yet been
tried on the charge”. Bell v. Wolfish, 441 U.S. 520, 523, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979).
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Accordingly, the alleged inapplicability of the Fourth
Amendment to plaintiff’s excessive force claim in this case is
not nearly as clear-cut as defendant Cunningham’s memorandum
(and his request for summary dismissal) suggests. 28
Neither
defendant Cunningham nor plaintiff, in their respective
memorandum and brief, provide a substantial discussion of the
nuanced issue of the whether the Fourth or Fourteenth Amendment
governs plaintiff’s excessive force claim here.
Moreover, additional development of the facts
concerning plaintiff’s situation at the time of the beating
(including, but not limited to, how long plaintiff had been in
the police station and whether he had been before a neutral
judicial officer for a bail or probable cause determination),
together with additional legal argument from the parties, may
assist the court with the proper resolution of the dispute
concerning which of those two amendments will ultimately govern
plaintiff’s excessive force claim here.
For those reasons, and because (as explained below)
plaintiff’s Complaint states a plausible claim under both the
standard applicable to the Fourth Amendment and the standard
applicable to the Fourteenth Amendment, I deny defendant
Cunningham’s motion to the extent that it seeks to dismiss
28
Cunningham Memorandum at pages 4-5.
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plaintiff’s excessive-force claim under the Fourth and
Fourteenth Amendments from Count One of the Complaint.
Fourth Amendment
A Section 1983 claim for excessive force by a law
enforcement officer is based on the Fourth Amendment protection
from unreasonable seizures of the person.
Groman v. Township of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)(citing Graham,
490 U.S. at 394, 109 S.Ct. at 1871, 104 L.Ed.2d at 454 (1989)).
The use of excessive force is itself an unlawful seizure under
the Fourth Amendment.
Couden, 446 F.3d at 496.
To decide whether the challenged conduct constitutes
excessive force, I must determine the objective reasonableness
of the challenged conduct.
Graham, 490 U.S. at 397, 109 S.Ct.
at 1872, 104 L.Ed.2d at 456; Couden, 446 F.3d at 496. 29
Here, as noted above, plaintiff alleges that defendant
Cunningham subjected him to an unprovoked physical beating in
29
In making this determination, I must pay careful attention a
number of factors, including: (1) the facts and circumstances of each
particular case and consider the severity of the crime; (2) whether the
suspect poses an immediate threat to the safety of the officers or others;
and (3) whether the suspect is actively resisting arrest or attempting to
evade arrest by flight. Graham, 490 U.S. at 396, 109 S.Ct. at 1872,
104 L.Ed.2d at 455; Brown v. Rinehart, 325 Fed.Appx. 47, 50-51 (3d Cir.
2009); Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997).
Other relevant factors include: (1) whether the physical force
applied was of such an extent as to lead to injury; (2) the possibility that
the persons subject to the police action are themselves violent or dangerous;
(3) the duration of the police officers’ action; (4) whether the action takes
place in the context of effecting an arrest; (5) the possibility that the
suspect may be armed; and (6) the number of persons with whom the police
officers must contend at one time. Estate of Smith v. Marasco, 430 F.3d 140,
150 (3d Cir. 2005); Sharrar, 128 F.3d at 822.
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the Fountain Hill police station while plaintiff’s hands were
handcuffed behind his back.
Taking those factual allegations as
true, as I must under the applicable standard of review
described above, plaintiff’s Complaint states a claim for the
use of objectively unreasonable (and, thus, excessive) force by
defendant Officer Cunningham.
Fourteenth Amendment
The Third Circuit has explained that the Due Process
Clause of the Fourteenth Amendment protects a pre-trial detainee
from any punishment before he has been convicted of and
sentenced for a crime.
(3d Cir. 2005).
Hubbard v. Taylor, 399 F.3d 150, 166
In other words, punishment before conviction
and imposition of sentence offends due process.
See id.
More specifically, “the Due Process Clause [of the
Fourteenth Amendment] protects a pretrial detainee from the use
of excessive force that amounts to punishment.”
Graham,
490 U.S. at 395 n.10, 109 S.Ct. at 1871 n.10, 104 L.Ed.2d 455
n.10.
If the treatment of an individual during pretrial
detention is “not reasonably related to a legitimate goal -- if
it is arbitrary or purposeless -- a court may permissibly infer
that the purpose of the governmental action is punishment....”
Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979).
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Where a pretrial-detainee-plaintiff alleges that he
was subjected to excessive force by an officer, the court must
examine whether the force complained of “was applied in a goodfaith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.”
Brooks v. Austin,
720 F.Supp.2d 715, 719 (E.D.Pa. 2010)(Rufe, J.)(quoting Hudson
v. McMillan, 530 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992)).
Here, again, the essence of the well-pled facts in
plaintiff’s Complaint is that defendant Officer Cunningham
delivered an unprovoked physical beating upon plaintiff while
plaintiff was handcuffed in a police-station holding cell after
plaintiff was arrested for several summary offenses.
Plaintiff’s factual averments describe actions by defendant
Cunningham which could be found to have been taken maliciously
and sadistically for the purpose of causing harm -- that is, for
the purpose of inflicting punishment upon plaintiff.
Therefore, plaintiff’s Complaint states a plausible
claim for excessive force against defendant Cunningham if the
Fourteenth Amendment ultimately governs in light of the factual
record developed during discovery.
Accordingly, I deny defendant Cunningham’s motion to
the extent it seeks dismissal of plaintiff’s excessive force
-22-
claim asserted under the Fourth and Fourteenth Amendment in
Count One of the Complaint.
Municipal Liability
Plaintiff contends that defendant Borough of Fountain
Hill is subject to municipal liability for the constitutional
violations inflicted by defendant Cunningham because defendant
Cunningham was acting pursuant to an official policy or
municipal custom at the time, or because Officer Cunningham’s
actions were caused by the Borough’s failure to adequately train
its police officers.
“[M]unicipalities and other local government units
[are] included among those persons to whom § 1983 applies.”
Monell v. Department of Social Services of City of New York,
436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611, 635
(1978).
However, “a municipality cannot be held liable under §
1983 on a respondeat superior theory.”
Monell, 436 U.S. at 691,
98 S.Ct. at 2036, 56 L.Ed.2d at 636.
“Instead, it is when execution of a government's
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is
responsible under § 1983.”
Monell, 436 U.S. at 694, 98 S.Ct. at
2037-2038, 56 L.Ed.2d at 638.
-23-
Policy or Custom
To establish a Monell claim against the Borough of
Fountain Hill under section 1983 based upon a policy or custom,
plaintiff must show “(1) the existence of a custom or policy of
the municipality and (2) that the municipality’s employees
violated the plaintiff’s civil rights while acting pursuant to
this custom or policy.”
Winslow v. The Borough of Malvern
Pennsylvania, 2009 WL 4609590, at *6 (E.D.Pa. December 7,
2009)(DuBois, J.)(citing Monell, supra.)
The municipal policy or custom must be the “moving
force” behind the constitutional violation such that there is a
direct link between the municipal policy or custom and the
deprivation of constitutional rights.
Sullivan v. Warminster
Township, 765 F.Supp.2d 687, 703 (E.D.Pa. 2011)(Surrick,J.)
(quoting Board of County Commissioners of Bryan County, Oklahoma
v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388,
137 L.Ed.2d 626, 639 (1997)).
The Third Circuit has explained the difference between
a policy and a custom for purposes of Monell claims.
“Policy is
made when ‘a decisionmaker possess[ing] final authority to
establish a municipal policy with respect to the action’ issues
an official proclamation, policy, or edict.”
McTernan v. City
of York, 564 F.3d 636, 658 (3d Cir. 2009)(quoting Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)).
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“A course of conduct is considered to be a ‘custom’
when, though not authorized by law, ‘such practices of state
officials [are] so permanently and well-settled’ as to virtually
constitute law.”
McTernan, 564 F.3d at 658 (quoting Andrews,
895 F.2d at 1480 (3d Cir. 1990)).
“Custom requires proof of
knowledge and acquiescence by the decisionmaker.”
Id.
Where a plaintiff’s factual allegations suggest a
pattern of similar incidents and an inadequate response to those
incidents by the municipality, those facts demonstrate the
plausible existence of a municipal custom through acquiescence.
See Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996).
Failure to Train
The United States Supreme Court has stated that, “[i]n
limited circumstances, a local government's decision not to
train certain employees about their legal duty to avoid
violating citizens' rights may rise to the level of an official
government policy for purposes of § 1983.”
Connick v. Thompson,
131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011).
However, “[a]
municipality's culpability for a deprivation of rights is at its
most tenuous where a claim turns on a failure to train.”
Id.
A municipality’s failure to adequately train its
officers and employees gives rise to a cause of action under
Section 1983 if the deficient training reflects a deliberate
indifference to an individual’s civil rights and is “closely
-25-
related to the ultimate injury.” 30
Kline ex rel Arndt v.
Mansfield, 255 Fed.Appx. 624, 629 (3d Cir. 2007)(citing
City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197,
1206, 103 L.Ed.2d 412, 428 (1989)).
The Third Circuit has noted that establishing
municipal liability on a Monell claim for inadequate training is
difficult.
1997).
Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir.
Generally, deficient training can only amount to the
requisite deliberate indifference “where the failure to train
has caused a pattern of violations.”
Berg v. County of
Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). 31
A plaintiff seeking to assert a failure-to-train claim
under section 1983 must “identify a failure to provide specific
training that has a causal nexus with their injuries” and
“demonstrate that the absence of that specific training can
30
Mere proof that an injury could have been avoided if the
municipal officer or employee “had better or more training is not enough to
show municipal liability” under a “failure to train” Monell claim. Kline,
255 Fed.Appx. at 629 (citing Harris, 489 U.S. at 391, 109 S.Ct. at 1205,
103 L.Ed.2d at 427-428). Instead, plaintiff must show that the training
deficiency was the actual cause of the violation of plaintiff’s civil rights.
Harris, 489 U.S. at 390, 109 S.Ct. at 1205, 103 L.Ed.2d at 427-428;
Wolosyzn v. County of Lawrence, 396 F.3d 314, 325 (3d Cir. 2005).
31
However, an exception exists and a “failure to train” Monell
claim may proceed absent a pattern of violations only where (1) “a violation
of federal rights may be a highly predictable consequence of a failure to
equip law enforcement officers with specific tools [or skills] to handle
recurrent situations,” and (2) the likelihood of recurrence and
predictability of the violation of a citizen’s rights “could justify a
finding that [the] policymakers’ decision not to train an officer reflected
‘deliberate indifference’ to the obvious consequence of the policymakers’
choice – namely, a violation of a specific constitutional or statutory
right.” Kline, 255 Fed.Appx. at 629 (quoting Board of County Commissioners
of Bryan County v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 1391
137 L.Ed.2d 626, 642 (1997)).
-26-
reasonably be said to reflect a deliberate indifference” to the
plaintiff’s constitutional rights allegedly caused by the
failure to train.
Reitz v. County of Bucks, 125 F.3d 139, 145
(3d Cir. 1997).
Plaintiff’s Complaint
Plaintiff’s claim against defendant Borough of
Fountain Hill, after incorporating by reference averments
concerning the June 4, 2012 beating, rests upon the following
averments in plaintiff’s Complaint:
18. At all relevant times the Defendant, Borough of
Fountain Hill, had actual knowledge that Defendant,
Cunningham was not a candidate for police officer
because of his propensity to use excessive force
against others, and otherwise abused his authority as
a police officer.
19. At all times herein relevant Defendant, Borough
of Fountain Hill, intentionally, purposefully and
knowingly had a policy, practice, regulation or custom
of covering up Officer Cunningham’s abuse of authority
as a police officer.
20. At all times herein relevant, the policy of the
Defendant, Borough of Fountain Hill, practice,
regulation or custom caused Plaintiff to be subjected
to arrest and physical abuse by Defendant, Cunningham.
21. The Defendant, Borough of Fountain Hill had
actual notice prior to June 4, 2012, that Defendant,
Cunningham, was a rogue officer who could not be
trusted.
22. As a direct and proximate cause of the Borough of
Fountain Hill’s policy, practice, regulation or custom
and its police officers’ actions in accordance
therewith, Plaintiff’s issue (sic) was subjected to
constitutional deprivations of his right to be free
from unlawful arrest, search and seizure and his
-27-
rights to bodily integrity, body security and liberty
as set forth above, in an amount to be determined.
23. The Defendant, Borough of Fountain Hill failed to
use adequate training before June 4, 2012, or adequate
discipline for prior derelictions of duty by defendant
Cunningham, thereby ratifying and condoning and
condoning (sic) and implicitly encouraging it.
24. As a direct and proximate result of being beaten,
Plaintiff suffered damages due to severe and permanent
mental pain and suffering, anxiety, anguish, distress,
stress, sleeplessness, humiliation, [and] loss of
reputation in an amount to be determined.
25. As a result of the incident, defendant has
scarring on his body. 32
When read together and accepted as true, as I am
required to do under the applicable standard of review,
plaintiff’s averments in his Complaint allege that the Borough
(but no identified decisionmaker(s)) knew that Officer
Cunningham had a propensity to use excessive force and to
otherwise abuse his authority, 33 “cover[red] up Officer
Cunningham’s abuse of authority as a police officer”, 34 and
failed to use “adequate discipline for prior derelictions of
duty by [Officer] Cunningham”. 35
These averments combine to
support a plausible inference that Officer Cunningham previously
used excessive force against third persons and that the
32
Complaint at ¶¶ 18-25.
33
Id. at ¶ 18.
34
Id. at ¶ 19.
35
Id. at ¶ 23.
-28-
Borough’s well-settled response was to cover up such conduct and
to take no disciplinary action, thereby implicitly condoning the
conduct.
In other words, plaintiff’s factual allegations
(though not pled with a high degree of specificity) allege a
pattern of similar incidents (excessive use of force by Office
Cunningham) and an inadequate response by the Borough (covering
up those incidents and not imposing discipline).
See Beck,
89 F.3d at 972.
Accordingly, to the extent plaintiff’s claim of
municipal liability is based upon the Borough’s alleged custom
of covering up defendant Cunningham’s prior uses of excessive
force, plaintiff has stated such a claim.
Therefore, I deny
defendant Borough’s motion in that respect.
However, to the extent that plaintiff seeks to state a
claim for municipal liability based upon an official Borough
policy to “cover up” incidents involving the use of excessive
force by its police officers, I conclude that plaintiff has not
plausibly pled such a claim because plaintiff’s has not pled any
facts concerning either the “municipal decisionmaker
possess[ing] final authority to establish a municipal policy”
with respect to the use of force by Borough police officers who
issued the official cover-up policy, or when and in what forum
-29-
that “official proclamation, policy, or edict” was issued.
McTernan, 564 F.3d at 658.
Absent any such factual support, I cannot conclude
that plaintiff states a plausible policy-based claim against
defendant Borough arising from an official policy to cover up
instances of excessive force committed by defendant Officer
Cunningham, or police officers generally, which was adopted or
issued by a Borough decisionmaker.
Therefore, to the extent
plaintiff seeks to assert municipal liability based upon such
official policy, he has not sufficiently stated that claim and I
grant defendant Borough’s motion in that respect.
Additionally, plaintiff seeks to impose municipal
liability upon defendant Borough based upon its alleged failure
to adequately train its police officers.
In support of his failure-to-train claim, plaintiff
relies upon the June 4, 2012 unprovoked beating he received from
Officer Cunningham together with the existence of prior
incidents involving the use of excessive force by Officer
Cunningham that were covered up and for which Officer Cunningham
was not disciplined.
As discussed above, the factual averments in
plaintiff’s Complaint state a plausible custom-based claim for
municipal liability.
Nevertheless, plaintiff has not
-30-
sufficiently pled a claim for municipal liability against
defendant Borough based upon a failure-to-train theory.
Specifically, plaintiff has not “identif[ied] a
failure to provide specific training”, Reitz, 125 F.3d at 145,
but rather has asserted in a general and conclusory fashion that
the Borough “failed to use adequate training” prior to the
June 4, 2012 incident.
Moreover, because he has not provided
any additional factual information concerning the prior
excessive-force incidents involving Officer Cunningham (although
the existence of such incidents can be reasonably inferred from
plaintiff’s Complaint), plaintiff has failed to “demonstrate
that the absence of that specific training can reasonably be
said to reflect a deliberate indifference” to the plaintiff’s
constitutional rights.
Id.
Accordingly, I grant defendant Borough of Fountain
Hill’s motion to dismiss to the extent that it seeks to dismiss
plaintiff’s failure-to-train claim for municipal liability
against the Borough in Count Two of the Complaint.
In sum, I grant defendant Borough’s motion in part and
dismiss plaintiff’s claim in Count Two to the extent the claim
is based upon official-policy and failure-to-train theories of
liability.
However, I deny defendant Borough’s motion to
dismiss plaintiff’s claim in Count Two to the extent the claim
is based upon a municipal-custom theory.
-31-
CONCLUSION
For the reasons expressed above, I grant in part and
deny in part both the Cunningham Motion to Dismiss and the
Fountain Hill Motion to Dismiss.
I grant the Cunningham Motion to Dismiss to the extent
that it seeks to dismiss plaintiff’s Eighth Amendment claim
asserted pursuant to section 1983 because plaintiff was not a
convicted and sentenced prisoner at the time of the incident.
However, I deny defendant Cunningham’s motion in all other
respects because plaintiff has stated a plausible excessiveforce claim under either the Fourth or Fourteenth Amendment.
I grant the Fountain Hill Motion to Dismiss to the
extent it seeks to dismiss plaintiff’s claim of municipal
liability against defendant Borough of Fountain Hill pursuant to
section 1983 under an official-policy or failure-to-train theory
because plaintiff has not pled sufficient facts to support a
plausible claim under either of those theories.
However, I deny
the Fountain Hill Motion to Dismiss to the extent it seeks to
dismiss plaintiff’s claim of municipal liability under a
municipal custom theory because plaintiff has pled sufficient
facts to state plausible claim under that theory.
Plaintiff is granted leave to amend his Complaint to
remedy the deficiencies identified in this Opinion.
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