Eve v. Lynch et al
Filing
36
MEMORANDUM AND ORDER granting dfts Shanahan's and Fisher's Motion for partial Judgment on the Pleadings 27 . The state law claims against Shanahan and Fisher are dismissed with prejudice.Signed by Honorable Sylvia H. Rambo on 05/10/12 (ma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN EVE,
Plaintiff
v.
STEPHEN LYNCH;
ANDREW B. SMITH;
CPL. KEVIN SHANAHAN;
JAMES R. FISHER; and
ROBERT DEMUEL,
Defendants
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CIVIL NO. 1:11-CV-01131
JUDGE SYLVIA H. RAMBO
MEMORANDUM
Plaintiff, proceeding pro se, filed this suit under 42 U.S.C. § 1983
alleging federal civil rights violations and also bringing state tort claims as a result of
alleged use of excessive force during Plaintiff’s arrest on September 26, 2009.
Presently before the court is Defendants Shanahan’s and Fisher’s (“Moving
Defendants”) motion for partial judgment on the pleadings. (Doc. 27.) For the
reasons set forth below, the motion will be granted.
I.
Background
Unless otherwise noted, the following facts are taken directly from
Plaintiff’s third amended complaint,1 (Doc. 19), which was filed pro se on November
1
Plaintiff filed his original complaint on June 14, 2011 (Doc. 1), followed by an
amended complaint on July 7, 2011 (Doc. 9), a second amended complaint on October 11, 2011
(Doc. 13), and a third amended complaint on November 30, 2011 (Doc. 19). Defendants Shanahan
(continued...)
30, 2011. Plaintiff was arrested during a disturbance at Arooga’s Bar and Grille in
Harrisburg, Pennsylvania, at about 2:00 a.m. on September 26, 2009.2 Plaintiff
alleges that Defendants Shanahan and Fisher used excessive force while arresting
Plaintiff, resulting in injuries. Defendants Shanahan and Fisher are Pennsylvania
state troopers. Specifically, Plaintiff claims that Troopers Shanahan and Fisher
“dragged and knocked the plaintiff on the floor” and “beat him repeatedly about the
face and body until he became unconscious.” (Doc. 19 ¶ 5.) The complaint also
names as Defendants Robert Demuel, a Derry Township Police Officer, and Stephen
Lynch and Andrew B. Smith, who are employed as bouncers at Arooga’s Bar and
Grille. (See Compl., Doc. 1.) Plaintiff’s third amended complaint claims a
deprivation of his constitutional rights under 42 U.S.C. § 1983 and also asserts state
law claims for intentional infliction of emotional distress and assault.
On January 20, 2012, Defendants Shanahan and Fisher filed a motion
for partial judgment on the pleadings (Doc. 27) and brief in support (Doc. 28). A
brief in opposition to Defendants’ motion was due on February 3, 2012, however no
brief was filed. On February 28, 2012, the court issued an order to show cause by
March 9, 2012, why Defendants’ motion should not be deemed unopposed. (Doc.
30.) On March 16, 2012, the court received a letter, dated March 8, 2012 and
addressed to the Clerk of Court, requesting either further postponement of the matter
or that he be appointed counsel. In the letter, Plaintiff states that he “had been
receiving help from another inmate who has since been transferred to another
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(...continued)
and Fisher answered the third amended complaint on January 19, 2012. (Doc. 25.)
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Plaintiff is currently an inmate at the Centre County Correctional Facility. (See Doc.
1, Compl.; Doc. 28 at 1.)
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facility” and claims that he lacks knowledge in the law. The court, accepting the
letter as a timely response to the court’s order to show cause, granted Plaintiff an
additional thirty days, or until April 20, 2012, to respond to Defendants’ motion for
partial judgment on the pleadings. (Doc. 32.) Plaintiff failed to file any response
and the motion shall therefore be deemed unopposed.
II.
Legal Standard
Under Federal Rule of Civil Procedure 12(c), once the pleadings are
closed, a party may move for judgment on the pleadings “within such time as to not
delay the trial.” Fed. R. Civ. P. 12(c).3 The standard of review for a motion for
judgment on the pleadings is identical to that of the motion to dismiss under Federal
Rule 12(b)(6). Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)
(citations omitted); Cannon v. United States, 322 F. Supp. 2d 636, 636 (W.D. Pa.
2004); Katzenmoyer v. City of Reading, 158 F. Supp. 2d 491, 496 (E.D. Pa. 2001).
The only notable difference between these two standards is that the court in a motion
on the pleadings reviews not only the complaint but also the answer and any written
instruments and exhibits attached to the pleadings. 2 Moore’s Fed. Practice Civil §
12.38 (2004); Prima v. Darden Restaurants, Inc., 78 F. Supp. 2d 337, 341-42 (D.N.J.
2000). Despite this difference, courts in this circuit have consistently stated that the
distinction between the two standards is “merely semantic.” Christy v. We The
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Federal Rule of Civil Procedure 12(c) provides:
After the pleadings are closed but within such time as not to delay the trial, any
party may move for judgment on the pleadings. If, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56 . . . .
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People Forms & Serv. Ctrs., 213 F.R.D. 235, 238 (D.N.J. 2003); see Smith v. City of
Philadelphia, 345 F. Supp. 2d 482, 485 (E.D. Pa. 2004) (“A motion for judgment on
the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is treated using the
same standard as a motion to dismiss for failure to state a claim under Federal Rule
of Civil Procedure 12(b)(6).”) (citing Regalbuto v. City of Philadelphia, 937 F. Supp.
374, 376-77 (E.D. Pa. 1995)).
In deciding a motion to dismiss under Rule 12(b)(6), the court is
required to accept as true all of the factual allegations in the complaint, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and all reasonable inferences permitted by the
factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007),
viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d
170, 177 (3d Cir. 2007); Phillips v. County of Allegheny, et al., 515 F.3d 224, 233
(3d Cir. 2008). If the facts alleged are sufficient to “raise a right to relief above the
speculative level” such that the plaintiff’s claim is “plausible on its face,” a
complaint will survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007); Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007); see
also Ashcroft v. Iqbal, ___U.S.___, 129 S. Ct. 1937, 1949 (2009) (explaining a claim
has “facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged”). Further, when a complaint contains well-pleaded factual allegations, “a
court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 129 S. Ct. at 1950. However, a court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Id.
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(quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements do not suffice.” Id. at 1949
(citing Twombly, 550 U.S. at 555).
Finally, in the Third Circuit, a court must grant leave to amend before
dismissing a civil rights complaint that is merely deficient. See, e.g., FletcherHarlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007);
Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified only
on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v. Parker,
363 F.3d 229, 236 (3d Cir. 2004).
III.
Discussion
Moving Defendants argue that partial judgment on the pleadings should
be granted on Plaintiff’s assault and intentional infliction of emotional distress
claims because Moving Defendants are entitled to sovereign immunity on those state
law claims.
Sovereign immunity bars claims that are asserted against the
Commonwealth, its agencies, and Commonwealth employees acting within the scope
of their office or employment. See Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 68182 (M.D. Pa. 2010) (citing 1 Pa. Cons. Stat. Ann. § 2310.) The Pennsylvania
General Assembly, after the judicial abolition of sovereign immunity by the
Pennsylvania Supreme Court in Mayle v. Pa. Dep’t of Highways, 388 A.2d 709 (Pa.
1978), reaffirmed by statute the concept of immunity for the Commonwealth and its
employees. The statute reads:
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Pursuant to section 11 of Article 1 of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the
General Assembly that the Commonwealth, and its officials
and employees acting within the scope of their duties, shall
continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the
General Assembly shall specifically waive the immunity.
When the General Assembly specifically waives sovereign
immunity, a claim against the Commonwealth and its
officials and employees shall be brought only in such
manner and in such courts and in such cases as directed by
the provisions of Title 42 (relating to judiciary and judicial
procedure) or 62 (relating to procurement) unless otherwise
specifically authorized by statute.
1 Pa. Cons. Stat. Ann. § 2310 (emphasis added).
The Pennsylvania General Assembly has provided nine specific
exceptions to the general grant of immunity: (1) the operation of a motor vehicle in
the control or possession of a Commonwealth party; (2) health care employees; (3)
care, custody or control of personal property; (4) Commonwealth-owned property;
(5) potholes or other dangerous conditions; (6) care, custody or control of animals;
(7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines.
See 42 Pa. Cons. Stat. Ann. § 8522.
[T]he proper test to determine if a Commonwealth employee is
protected from liability pursuant to 1 Pa. Cons. Stat. Ann. § 2310 and 42 Pa. Cons.
Stat. Ann. § 8522 is to consider whether the Commonwealth employee was acting
within the scope of his or her employment; whether the alleged act which causes
injury was negligent and damages would be recoverable but for the availability of the
immunity defense; and whether the act fits within one of the nine exceptions to
sovereign immunity. See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw.
Ct. 1992). Immunity has been previously upheld for Commonwealth law
enforcement officers by this court as well as by the courts of the state. See, e.g.,
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Mitchell, 680 F. Supp. 2d 672; Shoop v. Dauphin Cty., 766 F. Supp. 1327, 1333 -1334
(M.D. Pa. 1991); Borosky v. Commonwealth, 406 A.2d 256 (Pa. Commw. Ct. 1979).
Plaintiff’s state tort claims do not fall within one of the specific
exceptions to sovereign immunity. Indeed, it is well-established that sovereign
immunity applies to intentional torts provided the defendant is acting within the scope
of his or her employment. See Stone v. Felsman, 2011 U.S. Dist. LEXIS 125909,
*35-36 (M.D. Pa. Nov. 1, 2011) (collecting cases). Courts have found that conduct of
an employee is within the scope of employment if “‘it is of a kind and nature that the
employee is employed to perform; [and] it occurs substantially within the authorized
time and space limits . . . .’” Larsen v. State Employees’ Ret. Sys., 553 F. Supp. 2d
403, 420 (M.D. Pa. 2008) (quoting Velykis v. Shannon, 2006 U.S. Dist. LEXIS 78875,
at *11 (M.D. Pa. Oct. 30, 2006)).
Here, the record clearly supports the conclusion that Moving
Defendants were acting within the scope of their employment when the alleged
excessive force was used. Moving Defendants were responding to a dispute that
arose between employees of Arooga’s and Plaintiff and, in the process, effectuated
Plaintiff’s arrest. The actions taken by Moving Defendants are all of a kind and
nature that a trooper is employed to perform and were taken in their capacity as state
troopers, not as private individuals. Accordingly, sovereign immunity applies to
Plaintiff’s assault and intentional infliction of emotional distress claims against
Defendants Shanahan and Fisher and those claims will be dismissed. Moreover,
because Plaintiff has amended his complaint several times and further amendments
will not negate Moving Defendants’ immunity against Plaintiff’s state law tort claims,
the court will dismiss these claims with prejudice.
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An appropriate order will issue.
s/Sylvia H. Rambo
United States District Judge
Dated: May 10, 2012.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN EVE,
Plaintiff
v.
STEPHEN LYNCH;
ANDREW B. SMITH;
CPL. KEVIN SHANAHAN;
JAMES R. FISHER; and
ROBERT DEMUEL,
Defendants
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CIVIL NO. 1:11-CV-01131
ORDER
In accordance with the accompanying memorandum of law, IT IS
HEREBY ORDERED THAT Defendants Shanahan’s and Fisher’s motion for
partial judgment on the pleadings (Doc. 27) is GRANTED and the state law claims
against Shanahan and Fisher are DISMISSED with prejudice.
s/Sylvia H. Rambo
United States District Judge
Dated: May 10, 2012.
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