Bryant et al v. Vernoski

Filing 39

MEMORANDUM AND ORDER Upon consideration of deft William Vernouski's mtn to dismiss the amended complaint 13 , and all responses and replies thereto, IT IS HEREBY ORDERED that: 1) The mtn is GRANTED in part and DENIED in part in accordance with the accompanying memorandum; 2) Defendant's mtn to dismiss claims raised by Linda Bryant is GRANTED; 3) Defendant's mtn to dismiss Nikita Reid's, Shawn Reid's and J.B.'s 14th Amendment claim, First Amendment claim, Fourth Ame ndment malicious prosecution claim, and state law malicious prosecution claim is GRANTED; 4) Defendant's mtn to dismiss Shawn Reid's intentional infliction of emotional distress claim is GRANTED; 5) Defendant's mtn to dismiss Ms. Reid& #039;s, Mr. Reid's, and J.B.'s 14th Amendment unreasonable seizure claim is DENIED and 6) Defendant's mtn to dismiss Ms. Reid's and J.B.'s intentional infliction of emotional distress claim is DENIED. Signed by Honorable Lawrence F. Stengel on 9/1/11 (Attachments: # 1 Order) (jc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LINDA G. BRYANT, et al.,
Plaintiffs
v.
WILLIAM VERNOSKI,
Defendant

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Civil Action No.

11-263

MEMORANDUM
Stengel, J.

September 1, 2011

Linta G. Bryant, Nikita Reid, individually and on behalf of her minor son J.B., and
Shawn Reid have filed an amended complaint alleging federal and state law claims against
William Vernouski,1 Fred Lamke,2 and Jane Doe. The claims arise from the shooting
death of the Reid family‟s pet dog during the execution of a bench warrant for Ms. Reid‟s
ex-husband, who no longer lived at the property. Dauphin County Deputy Sheriff
William Vernouski filed a motion to dismiss the amended complaint. For the reasons set
forth below, I will grant the motion in part and deny it in part.
I.

Background
Linta G. Bryant, Nikita Reid, Shawn Reid, and Ms. Reid‟s son J.B. filed a complaint

on February 7, 2011 against Dauphin County Deputy Sheriff William Vernouski. On
May 11, 2011, plaintiffs filed an amended complaint against Deputy Vernouski, Fred
Lamke, and Jane Doe. Deputy Vernouski filed a motion to dismiss the amended

1
2

The amended complaint incorrectly referred to the defendant as “William Vernoski.”
The amended complaint incorrectly referred to the defendant as “Fred Lanke.”

complaint.3
The amended complaint alleges Ms. Bryant owned property at 906 S. 17th Street in
Harrisburg, Pennsylvania. Ms. Reid, J.B., and Mr. Reid resided at the property. The
Reid family had a pet dog named Bandit.
On May 12, 2009, Deputy Sheriff R.L. Straining and Deputy Vernouski knocked on
the door of 906 S. 17th Street. The deputies were there pursuant to a bench warrant for
Ms. Reid‟s ex-husband. The bench warrant listed Ms. Reid‟s ex-husband‟s address as the
17th Street address, but the amended complaint alleges he had not resided there since
2002.4 Ms. Reid and J.B. were home and Ms. Reid asked Deputy Straining to wait while
she put Bandit into the fenced-in back yard.
While Ms. Reid spoke with Deputy Straining, Deputy Vernouski went to the back of
the house. Bandit was at the foot of the backyard steps and barked at Deputy Vernouski
when he entered the yard. After twice telling Bandit not to bark, Deputy Vernouski shot
Bandit, who was ten feet away. J.B. witnessed the shooting. After Bandit was taken to
the veterinarian, he was put down.
Ms. Reid told her co-worker about the incident. Her co-worker emailed Dauphin
County Commissioner George Hartwick to advise him of the situation and to request
assistance. The co-worker emailed Commissioner Hartwick a second time to inform him
3

On August 30, 2011, Mr. Lamke filed a motion to dismiss the amended complaint. This motion will be
addressed after the plaintiffs‟ response is filed.
4
The amended complaint alleges the Dauphin County Domestic Relations records showed Ms. Reid‟s
ex-husband did not reside on S. 17th Street. It also alleges the deputies did not have a warrant to enter the
property without the consent of the owner. Deputy Vernouski attached the bench warrant as an exhibit to
his motion to dismiss.

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that Ms. Reid “decided to pursue further action with a legal professional to help her fight
the battle.” Ms. Reid learned that Mr. Hartwick called “defendant Marsico,”5 and was
expecting a return call from him. Ms. Reid also contacted Harrisburg Police Chief
Charles Kellar. Chief Kellar promised to help her, but failed to follow-up.
On June 5, 2009, Ms. Bryant, the owner of the home, was charged with a violation
of the dog laws for allowing Bandit to escape and attack Deputy Vernouski. Fred Lamke,
a law enforcement officer and plaintiffs‟ next-door neighbor, was the affiant on the
citation. Mr. Lamke had received orders from his supervisor, “Jane Doe,” to file a citation
against Ms. Bryant. At a June 2009 hearing, the charges against Ms. Bryant were
dismissed because Mr. Lamke did not appear to testify.
The amended complaint alleges Deputy Vernouski violated plaintiffs‟ First, Fourth,
and Fourteenth Amendment rights, Mr. Lamke and Jane Doe violated the plaintiffs‟ First
Amendment rights, Mr. Lamke and Jane Doe are liable for malicious prosecution pursuant
to the Fourth Amendment and Pennsylvania state law. The amended complaint also
contains allegations of a conspiracy claim and an intentional infliction of emotional
distress claim.
Deputy Vernouski filed a motion to dismiss the amended complaint, and plaintiffs
filed a response.

No defendant has the last name “Marsico,” and “Marsico” is not mentioned elsewhere in the amended
complaint. According to the website for Dauphin County, Pennsylvania, the Dauphin County District
Attorney is Ed Marsico. See Dauphin County Pennsylvania, Publicly Elected Officials,
http://www.dauphincounty.org/publicly-elected-officials/district-attorney/ (last visited Aug. 2, 2011).
5

3

II.

Standard
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The factual allegations must be sufficient to make the claim for relief more than
just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In
determining whether to grant a motion to dismiss, a federal court must construe the
complaint liberally, accept all factual allegations in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks Cnty.
Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all
of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules
require a “short and plain statement@ of the claim that will give the defendant fair notice of
the plaintiff=s claim and the grounds upon which it rests. Id. The Acomplaint must allege
facts suggestive of [the proscribed] conduct.” Twombly, 550 U.S. at 564. Neither “bald
assertions” nor “vague and conclusory allegations” are accepted as true. See Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Se. Pa. Transp.
Auth., 897 F. Supp. 893 (E.D. Pa. 1995). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949 (2009)). The claim must contain enough factual matters to suggest the required
elements of the claim or to “raise a reasonable expectation that discovery will reveal
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evidence of” those elements. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Twombly, 550 U.S. at 556).
In Fowler, 578 F.3d at 210, the United States Court of Appeals for the Third Circuit
provided a two-part test to determine whether a claim survives a motion to dismiss. AFirst,
the factual and legal elements of a claim should be separated. The District Court must
accept all of the complaint=s well-pleaded facts as true, but may disregard any legal
conclusions.@ Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1949). ASecond, a District Court
must then determine whether the facts alleged in the complaint are sufficient to show that
the plaintiff has a >plausible claim for relief.=@ Id. (quoting Iqbal, 129 S.Ct. at 1950). The
plaintiff must show Athe allegations of his or her complaints are plausible.@ Fowler, 578
F.3d at 211 (quoting Phillips, 515 F.3d at 234-35). AWhere the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
allegedBbut it has not >show[n]=B>that the pleader is entitled to relief.=@ Id. (quoting Iqbal,
129 S.Ct. at 1949). This A>plausibility= determination will be >a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.=@
Fowler, 578 F.3d at 211 (quoting Iqbal, 129 S.Ct. at 1949).
III.

Discussion
A.

Unreasonable Seizure

In their response to the motion to dismiss, plaintiffs discuss their unreasonable
seizure claim under a section entitled: “Plaintiffs stated a substantive due process
violation claim against [Deputy Vernouski].” It appears, however, plaintiffs argue both
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their Fourth Amendment and their Fourteenth Amendment rights were violated. 6
1.

Fourth Amendment

Plaintiffs maintain Deputy Vernouski violated their Fourth Amendment right
against unreasonable seizures. The amended complaint alleges Deputy Vernouski killed
the Reid family‟s dog, even though the dog was not attacking the deputy and was not a
danger to others.
In Brown v. Muhlenberg Township, 269 F.3d 205, 210 (3d Cir. 2001), the United
States Court of Appeals for the Third Circuit held that a Fourth Amendment7 seizure
occurs when a law enforcement officer kills a person‟s dog. To be constitutional, the
seizure must be reasonable. Id. Ms. Reid, Mr. Reid and J.B. have a possible claim as to
whether Deputy Vernouski violated the Reid family‟s Fourth Amendment rights when he
shot their dog, i.e., whether the shooting constituted an unreasonable seizure of their
effects.8
Plaintiffs state: “The claim against defendant [Vernouski] is clear under the authority of Brown v.
Muhlenberg Twp, 269 F.3d 205 (3d Cir. 2001), in which the Third Circuit recognized that an owner of
property, in that case a dog, had made out a claim for an unconstitutional seizure of their property in
violation of the Fourth Amendment. . . . Plaintiffs assert that the latter conduct, and the absence of any and
all justification, further supports a substantive due process violation under County of Sacramento v. Lewis,
523 U.S. 833 (1988), and its progeny.” Brief in Opposition to Defendant‟s Motion to Dismiss the
Amended Complaint Pursuant to Rule 12(b)(6) at 7-8, Bryant v. Vernouski, No. 11-263 (M.D. Pa. filed July
11, 2011).
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The Fourth Amendment, which is applicable to the states through the Fourteenth Amendment, provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated. . . .” U.S. Const. amend. IV.
8
Deputy Vernouski maintains he has absolute immunity for any alleged Fourth Amendment violation.
Deputy Vernouski, however, maintains the Fourth Amendment violation was based on an unlawful entry.
It appears plaintiffs argue the shooting of their dog constituted the Fourth Amendment violation. To the
extent plaintiffs attempt to argue the entry onto the property was a violation of their Fourth Amendment
rights, the claim fails. “[A]n arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is
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Because the complaint does not allege Ms. Bryant owned the dog, Ms. Bryant
cannot state a Fourth Amendment unreasonable seizure claim for the shooting of the Reid
family dog.
2.

Fourteenth Amendment

“Where a particular Amendment „provides an explicit textual source of
constitutional protection‟ against a particular sort of government behavior, „that
Amendment, not the more generalized notion of substantive due process, must be the guide
for analyzing these claims.‟” Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting
Graham v. Connor, 490 U.S. 386, 395 (1989)); accord County of Sacramento v. Lewis, 523
U.S. 833, 842 (1998).
Here, the government behavior is governed by the Fourth Amendment protection
against unreasonable seizures of “effects.” Therefore, I find plaintiffs cannot state a claim
under the Fourteenth Amendment substantive due process clause.
B.

First Amendment Retaliation Claim

To state “a retaliation claim under the First Amendment, a plaintiff must allege: (1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory action.” Thomas v.
within.” United States v. Veal, 453 F.3d 164, 167 (3d Cir. 2006) (quoting Payton v. New York, 445 U.S.
573, 603 (1980) (alteration in original). Officers must “have „a reasonable belief the arrestee (1) lived in
the residence, and (2) is within the residence at the time of entry.”‟ Id. (quoting United States v. Gay, 240
F.3d 1222, 1226 (10th Cir.2001)). The deputies were acting pursuant to a bench warrant. The allegations
in the amended complaint are not sufficient to state a claim the deputies did not reasonably believe that Ms.
Reid‟s ex-husband resided at the residence and that he was in the residence at the time the officers arrived.

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Independence Twp., 463 F.3d 285, 296 (3d. Cir. 2006) (citing Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir.2003)).
Ms. Bryant, Ms. Reid, J.B., and Mr. Reid allege their First Amendment rights were
violated because criminal charges were filed against Ms. Bryant. Plaintiffs sought
assistance from public officials and maintain the charges were brought against Ms. Bryant
because they intended to pursue legal action.
The amended complaint fails to state a First Amendment retaliation claim against
Deputy Vernouski. The amended complaint does not allege Deputy Vernouski was aware
plaintiffs raised concerns following the incident,9 and does not allege he knew a citation
had been issued or that he was involved in the issuance of the citation. Plaintiffs‟ response
maintains Deputy Vernouski violated plaintiffs‟ First Amendment rights because the
actions protected his interests and he was the only witness for the Commonwealth‟s case.
The amended complaint, however, does not allege Deputy Vernouski testified as a witness
or planned to testify as a witness.
Plaintiffs‟ response maintains their Fourteenth Amendment right of access to the
courts and their First Amendment right to petition for redress were violated. “The due
process clause of the fourteenth amendment imposes upon state actors an obligation to
refrain from preventing individuals from obtaining access to the civil courts.” Brown v.
Grabowski, 922 F.2d 1097, 1113 (3d Cir. 1990). To state a claim for violation of the First

9

The complaint does not allege Ms. Bryant engaged in constitutionally protected conduct. Rather, it
alleges Ms. Reid‟s friend emailed Commissioner Hartwick and Ms. Reid contacted the police department.

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Amendment right to petition for redress, a plaintiff must “demonstrate that a defendant
caused „actual injury‟ . . . i.e., took or was responsible for actions that „hindered [a
plaintiff's] efforts to pursue a legal claim.‟” Roberts v. Mentzer, 382 Fed. App‟x 158, 162
(3d Cir. 2010) (quoting Beckerman v. Susquehanna Twp. Police & Admin., 254 Fed.Appx.
149, 153 (3d Cir.2007)).
Plaintiffs do not allege Deputy Vernouski was involved in the issuance of the
citation or was aware of the citation. Moreover, even if he was involved, it is unclear how
the issuance of a citation interfered with plaintiffs‟ right to access the court. Cases
alleging denial of access to the courts generally relate to one of two categories.
Christopher v. Harbury, 536 U.S. 403, 412-13 (2002). The first category of claims alleges
“systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits
at the present time.” Id. at 413. Examples include cases in which the relief sought was
access to a law library, a reader for an illiterate prisoner, or access to a lawyer. Id. The
second category of claims alleges the defendants “have caused the loss or inadequate
settlement of a meritorious case, the loss of an opportunity to sue, or the loss of an
opportunity to seek some particular order of relief . . . .” Id. (internal citations omitted).10
The basis of plaintiffs‟ claim for denial of access to the court is that defendants
issued a citation against Ms. Bryant because they knew plaintiffs were planning to take
legal recourse. Even if defendants knew plaintiffs were going to take legal recourse and
10

The Supreme Court has noted decisions addressing the right of access to the courts have been grounded
in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth
Amendment Due Process Clause, the Fourteenth Amendment Equal Protection Clause, and the Fourteenth
Amendment Due Process Clause. Christopher, 536 U.S. at 415 n.12.

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issued the citation to stop such action, this would not constitute denial of access to the
courts.
I will grant Deputy Vernouski‟s motion to dismiss the plaintiffs‟ First Amendment
retaliation claim and their denial of access to the court claim.
C.

Fourth Amendment Malicious Prosecution Claim

To state § 1983 a malicious prosecution claim for violation of the Fourth
Amendment11 the plaintiff must allege:
(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;
(4) the defendants acted maliciously or for a purpose other than bringing the
plaintiff to justice; and
(5) the plaintiff suffered a deprivation of liberty consistent with the concept
of seizure as a consequence of a legal proceeding.
DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005) (quoting Estate of
Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.2003)). The issuance of a citation and a
requirement that the plaintiff appear in court is not a Fourth Amendment seizure. DiBella,
407 F.3d at 603. If there is no pre-trial custody or other “pretrial, non-custodial
restrictions,” there is no Fourth Amendment seizure. Id.
In DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005), the Third
Circuit found the plaintiffs were not deprived of liberty where they were issued a
summons, “but were never arrested[,] . . . never posted bail[,] . . . were free to travel[,] and
The Third Circuit requires a plaintiff to base “a viable Section 1983 action for malicious prosecution . . .
on a federal constitutional violation rather than state common law.” DiBella v. Borough of Beachwood,
407 F.3d 599, 602 (3d Cir. 2005) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 792 (3d Cir.
2000)).
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. . . did not have to report to Pretrial Services.” The Third Circuit contrasted the plaintiffs‟
situation to the plaintiff in Gallo v. City of Philadelphia, 161 F.3d 217, 224 (3d Cir. 1998),
where the Third Circuit found the “restrictions amounted to a seizure.” DiBella, 407 F.3d
at 602 (quoting Gallo, 161 F.3d at 222). In Gallo, the plaintiff “was arrested for arson and
posted a $10,000 bond[,] . . . was prohibited from traveling outside Pennsylvania and New
Jersey, required to contact Pretrial Services on a weekly basis, and required to attend all
court hearings including his trial and arraignment.” Id.
Ms. Bryant, Ms. Reid, Mr. Reid, and J.B. did not suffer a deprivation of liberty.
There was no “seizure due to a legal proceeding.” Ms. Reid, Mr. Reid, and J.B had no
citations issued against them and were not required to appear in court. A citation was
issued against Ms. Bryant and she was required to appear in court, but no additional
restrictions impinged on her liberty. Plaintiffs maintain there is the “additional element of
restraining their freedom to seek legal recourse for the wrongs committed against them.”
This is not a restraint on their liberty as contemplated by the Fourth Amendment malicious
prosecution law. The amended complaint fails to allege Deputy Vernouski initiated
criminal proceedings against plaintiffs. Plaintiffs fail to state a Fourth Amendment
malicious prosecution claim.
D.

State Law Malicious Prosecution Claim

In Pennsylvania, to state a § 1983 malicious prosecution claim, the plaintiff must
allege: “(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
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(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). The
amended complaint does not allege Deputy Vernouski initiated criminal proceedings
against any of the plaintiffs. I find plaintiffs fail to state a malicious prosecution claim
under Pennsylvania state law.
E.

Conspiracy

To the extent plaintiffs attempt to raise a conspiracy claim, the amended complaint
fails to state a claim. “To demonstrate a conspiracy under § 1983, a plaintiff must show
that two or more conspirators reached an agreement to deprive him or her of a
constitutional right „under color of law.‟” Parkway Garage, Inc. v. City of Philadelphia, 5
F.3d 685, 700 (3d Cir. 1993), abrogated on other grounds by United Artists Theatre Circuit,
Inc., 316 F.3d 392 (3d Cir. 2003) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 150,
90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).
There simply is no factual basis in the amended complaint showing any agreement
or conspiracy. The amended complaint contains no allegations suggesting Deputy
Vernouski reached an agreement with the other defendants. The complaint fails to even
allege Deputy Vernouski knows Mr. Lamke or “Jane Doe.” Deputy Vernouski‟s motion
to dismiss the conspiracy claim will be granted.12

The amended complaint does not allege there was a conspiracy to violate the plaintiff‟s Fourth
Amendment right against unreasonable seizures. There is no allegation Deputy Vernouski or anyone else
at the police department was aware there was a dog at the premises or had time to reach any kind of
agreement regarding the seizure of the dog.
12

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F.

Intentional Infliction of Emotional Distress

Plaintiffs maintain the complaint stated an intentional infliction of emotional
distress claim because the plaintiffs observed and/or heard the shooting and were present
when the dog bled and when the veterinarian put him down. Plaintiffs rely on Brown v.
Muhlenberg, 269 F.3d 205, 219 (3d Cir. 2001) to support their claim. The Third Circuit in
Brown found the plaintiffs stated a claim “where it is shown that a police officer‟s attention
was called to the severe emotional distress of the pet‟s owner, he hesitated before shooting,
and he then attempted to fire five bullets into the pet within the owner‟s view and without
justification. In such cases, the malicious behavior is directed to the owner as well as to the
pet, with the potential for serious emotional injury to the owner being readily apparent.”
Id. To state an intentional infliction of emotional distress claim, the plaintiff must allege
that the “acts against the dog were performed with the intention of inflicting severe
emotional distress on the dog‟s owners.” Id.
Although the complaint does not allege that Deputy Vernouski intended to inflict
emotional distress on the dog‟s owner, the complaint contains enough allegations, at this
stage, to deny the motion to dismiss the intentional infliction of emotional distress claim as
to Ms. Reid and J.B. Discovery may yield additional evidence. The motion to dismiss
the claim as to Ms. Bryant and Mr. Reid, who were not at the residence at the time of the
incident, will be granted.
IV.

Conclusion
I will grant Deputy Vernouski‟s motion to dismiss in part and deny it in part. I will
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grant the motion to dismiss all claims raised by Ms. Bryant. For claims raised by Ms.
Reid, Mr. Reid, and J.B., I will grant the motion to dismiss the Fourteenth and First
Amendment claims, the Fourth Amendment malicious prosecution claim, the state law
malicious prosecution claim, and the conspiracy claim, and Mr. Reid‟s intentional
infliction of emotional distress claim. I will deny the motion to dismiss the Fourth
Amendment unreasonable seizure claim and Ms. Reid‟s and J.B.‟s intentional infliction of
emotional distress claim.
An appropriate order follows.

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