Moore v. Ryan et al
Filing
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MEMORANDUM AND ORDER granting in part and denying in part dfts' Mtn to partially dismiss pltf's amended complaint 22 as follows: GRANTED to the extent that Dfts John Doe 1 and John Doe 2 are dismissed from the action, withprejudice. DENIED in all other respects. Signed by Honorable Sylvia H. Rambo on 04/01/13 (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL E. MOORE, SR.,
Plaintiff
v.
THOMAS F. RYAN,
JOHN DOE 1, JOHN DOE 2, and
CITY OF HARRISBURG, PA,
Defendants
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CIVIL No. 1:12-CV-1875
JUDGE SYLVIA H. RAMBO
MEMORANDUM
In this Section 1983 civil rights action, Plaintiff has sued several law
enforcement officers and the City of Harrisburg alleging violations of his Fourth
Amendment rights. Plaintiff alleges, inter alia, that the individual officers, two of
whom remain unidentified, were members of the Harrisburg Bureau of Police, and
applied excessive force to effectuate his arrest on September 26, 2009. Presently
before the court is Defendants’ second motion to partially dismiss (Doc. 22), wherein
Defendants contend that Plaintiff has failed to state a valid Section 1983 claim
against the City of Harrisburg, and that the statute of limitations bars any claim
against the unidentified individual defendants. For the following reasons,
Defendants’ motion will be granted in part and denied in part.
I.
Background
“As a general matter, a district court ruling on a motion to dismiss may
not consider matters extraneous to the pleadings.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). Thus, for the purposes of the motion
sub judice, and in light of the record presently in existence, the court only considers
the allegations contained in the original (Doc. 1) and amended (Doc. 20) complaints.
A.
Procedural History
Initially proceeding in this matter pro se, Plaintiff, Darryl Moore, filed
his original complaint commencing this civil action on September 20, 2012. (Doc. 1.)
In that complaint, Plaintiff named Thomas F. Ryan (“Defendant Ryan”) & K9, the
City of Harrisburg (“City of Harrisburg”), and the Harrisburg Police Bureau as
defendants. (Id.) Pursuant to the court’s September 20, 2012 order granting
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 7), the Clerk of
Courts issued a summons to the three named Defendants, the receipt of which was
acknowledged by Defendants’ attorney on October 16, 2012 (Doc. 8 (as to
Defendant Ryan) & Doc. 9 (as to Defendants Harrisburg Police Bureau and City of
Harrisburg)). On November 20, 2012, Defendants filed a motion to dismiss (Doc.
12), followed by a brief in support (Doc. 13) on December 4, 2012.
On December 7, 2012, the court granted Plaintiff an extension of time to
respond to Defendants’ motion to dismiss due to his recent release from
incarceration, which he alleged created “an inadequate amount of time to locate
counsel.” (See Doc. 14.) Following the entry of appearance of Devon M. Jacob,
Esquire, and Travis S. Weber, Esquire, on Plaintiff’s behalf, the court granted a
second motion for an extension of time to allow Plaintiff’s counsel an opportunity to
respond to the pending motion to dismiss. (Doc. 19.)
On February 5, 2013, Plaintiff filed an amended complaint. (Doc. 20.)
In addition to clarifying the causes of action and facts set forth in the original
complaint, the amended complaint altered the named defendants. Specifically, the
2
amended complaint removed the “Harrisburg Police Bureau,” but added “John Doe
1" and “John Doe 2” (“Unidentified Defendants”). (See id.)1 On February 20, 2013,
Defendants filed an amended motion to dismiss (Doc. 22) and brief in support (Doc.
23). On March 6, 2013, Plaintiff filed a brief in opposition (Doc. 24), to which
Defendants replied (Doc. 26). Thus, the matter has been fully briefed and is ripe for
disposition.
B.
Facts2
In the morning of September 26, 2010, Plaintiff was walking on
Hoerner Street in the city of Harrisburg, Dauphin County, Pennsylvania, when he
noticed a person kneeling next to a dog at the end of an alley. (Doc. 20 at ¶¶ 9, 10.)
At that time, there was an active bench warrant for Plaintiff’s arrest due to Plaintiff’s
failure to appear at a hearing in a criminal proceeding. (Id. at ¶ 33.) The
unidentified person released the dog, which “charged quickly and aggressively at
[Plaintiff].” (Id. at ¶ 11.) Plaintiff attempted to dodge the charging animal in an
“attempt to stay out of the dog’s grasp.” (Id. at ¶¶ 11, 12.) Plaintiff was
unsuccessful in his attempt, and the dog bit into Plaintiff’s flesh, after which “one of
the Defendants approached [him] from behind and struck [Plaintiff] on the back of
the head with an object, . . . until [Plaintiff] was knocked unconscious.” (Id. at ¶¶
13-15.) The dog did not release Plaintiff’s arm from its mouth, and Defendants
continued to strike Plaintiff. (Id. at ¶ 16.)
1
Defendant Ryan and the City of Harrisburg remained defendants in the action, as
amended.
2
As required when deciding a motion to dismiss, the court will accept as true all wellpleaded factual allegations contained in Plaintiff’s amended complaint. See Trump Hotels & Casino
Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth v. Seldin, 422 U.S.
490, 501 (1975)).
3
During the beating, Plaintiff realized, for the first time, that his attackers
were police officers in full uniform, and that the dog was a police dog. (Id. at ¶ 17.)
The Unidentified Defendants and Officer Ryan ignored Plaintiff’s requests for help
and continued to beat Plaintiff, whose arm was still in the dog’s mouth. (Id. at ¶¶ 18,
20.) As a result of the beating, Plaintiff sustained a broken left tibia and serious
injury to the muscle in his arm, and was hospitalized for seven days at Hershey
Medical Center, during which time he had to undergo several surgical procedures.
(Id. at ¶¶ 26-29.)
After his discharge from the hospital, Plaintiff was taken to the police
station and charged with resisting arrest, escape, flight to avoid apprehension, and
taunting a police animal. (Id. at ¶ 30.) The charges were ultimately dismissed3 and
not refiled. (Id. at ¶¶ 31-32.)
At Count I of his complaint, Plaintiff contends that Defendants Ryan,
John Doe 1, and John Doe 2 used excessive and unlawful force to effectuate his
arrest. At Count II, Plaintiff contends that the City of Harrisburg maintained
policies, practices, and customs, which were the moving force that resulted in the
excessive force.
Defendants move to dismiss Count I as to the Unidentified Defendants
on the basis that the statute of limitations bars any claim against John Doe 1 and John
Doe 2, and move to dismiss Count II in its entirety, arguing that Plaintiff has not
adequately pled that any policy, practice, or custom was the moving force behind the
alleged constitutional violations. In response, Plaintiff argues that the Unidentified
3
Plaintiff alleges that the charges were dropped at the preliminary hearing as a result of
Defendant Ryan’s failure to appear. (Doc. 20 at ¶ 31.)
4
Defendants were properly added to this action because the facts giving rise to their
liability relate back to those set forth in the original complaint, and further argues
that he has adequately pled a proper claim against the City of Harrisburg for Monell
liability. The arguments raised in the motion will be addressed ad seriatim.
II.
Legal Standard
Defendants’ motion challenges Plaintiff’s amended complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6). Rule 12(b)(6) provides for the dismissal
of claims that fail to assert a basis upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When adjudicating a motion to dismiss for failure to state a claim, the
court must view all the allegations and facts in the complaint in the light most
favorable to the plaintiff, and must grant the plaintiff the benefit of all reasonable
inferences that can be derived therefrom. Kanter v. Barella, 489 F.3d 170, 177 (3d
Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). However,
the court need not accept inferences or conclusory allegations that are unsupported
by the facts set forth in the complaint. See Reuben v. U.S. Airways, Inc., Civ. No.
12-CV-2842, 2012 WL 4513236, *1 (3d Cir. Oct. 3, 2012) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)); Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009) (stating that district courts “must accept all of the complaint’s wellpleaded facts as true, but may disregard any legal conclusions”).
Ultimately, the court must determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a “plausible claim for relief.”
Ashcroft v. Iqbal, 556 U.S. at 679 (2009); see also Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The “plausibility
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standard” requires “more than a sheer possibility” that a defendant is liable for the
alleged misconduct. Reuben, 2012 WL 4513236 at * 1 (citing Iqbal, 556 U.S. at
678). The complaint must do more than allege the plaintiff’s entitlement to relief; it
must “show such an entitlement with its facts.” Steedley v. McBride, 446 F. App’x
424, 425 (3d Cir. 2011) (citing Fowler, 578 F.3d at 211). As the Supreme Court
instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quoting Fed. R. Civ. P. 8(a)(2)) (alterations in original). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In Santiago v. Warminster Twp., 629 F.3d 121, 129-30 (3d Cir. 2010),
the Third Circuit applied the principles of Iqbal and Twombly and set forth a threepart analysis that a district court in this Circuit must conduct in evaluating whether
allegations in a complaint survive a Rule 12(b)(6) motion to dismiss. Under the test
set forth in Santiago, the district court must initially “take note of the elements a
plaintiff must plead to state a claim.” Id. at 130. Next, the court should identify
allegations that “are no more than conclusions” and thus, “not entitled to the
assumption of truth.” Id. Lastly, “where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id.
III.
Discussion
6
As Plaintiff brings his claims pursuant to Section 1983, the court will
briefly address the law as it pertains to that statute. Section 1983 of Title 42 of the
United States Code offers private citizens a means to redress violations of federal
law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in
pertinent part, as follows:
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.
Id. “Section 1983 is not a source of substantive rights, but merely a method to
vindicate violations of federal law committed by state actors.” Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe,
536 U.S. 273, 284-85 (2002)). To establish a claim under this section, a plaintiff
must demonstrate that: (1) the conduct complained of was committed by persons
acting under color of state law; and (2) the conduct violated a right, privilege, or
immunity secured by the Constitution or laws of the United States. Harvey v. Plains
Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487
U.S. 42, 48 (1988)). Defendants’ motion does not challenge whether the
Unidentified Defendants were acting “under color of state law” or whether the right
to be free from excessive force is secured by the Constitution. Instead, whether
Plaintiff’s Section 1983 claim against the Unidentified Defendants can survive the
instant motion depends upon whether Plaintiff has complied with the statute of
limitations.
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A.
Statute of limitations raised in motion to dismiss
The Federal Rules of Civil Procedure indicate that a statute of
limitations defense generally cannot be used in the context of a Rule 12(b)(6)
motion.4 See Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (“[A]
limitations defense must be raised in the answer, since Rule 12(b) does not permit it
to be raised by motion.”). However, it is well-established that an exception may be
made where “the complaint facially shows noncompliance with the limitations period
and the affirmative defense clearly appears on the face of the pleading.” Fidelity
Nat. Title Ins. Co. v. Craven, Civ. No. 12-CV-4306, 2012 WL 5881856, *5 (E.D. Pa.
Nov. 21, 2012) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1385 n.1 (3d Cir. 1994)). A court may not dismiss a claim on a Rule 12 motion
“where the face of the [complaint] does not unequivocally reveal whether a cause of
action has been commenced within the limitations period.” Id. (citing Robinson, 313
F.3d at 135); see also Jaramillo v. Experian Info. Solutions, Inc., 155 F. Supp. 2d
356, 358-59 (E.D. Pa. 2001) (holding that for a Rule 12 dismissal of a claim as timebarred, noncompliance with limitations period must clearly appear on the face of the
pleading).
1. Applicable statutes of limitations
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Rule 12(b) states that “[e]very defense . . . shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may at the option of the pleader be made by
motion . . . .” Fed. R. Civ. P. 12(b). The defenses listed in Rule 12(b) do not include statutes of
limitations defenses. See id.
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Although federal statutory law does not contain a specific statute of
limitations for such actions, it is well-established that an excessive force claim under
Section 1983 is subject to the state statute of limitations governing personal injury
actions. Garvin v. City of Phila., 354 F.3d 215, 220 (3d Cir. 2003); Sameric Corp. of
Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). In this regard, federal
courts sitting in Pennsylvania have adopted Pennsylvania’s two year personal injury
statute of limitations set forth at 42 Pa. C.S. § 5524, in determining that a Section
1983 claim must be filed no later than two years from the date the cause of action
accrued. See Lake v. Arnold, 232 F.3d 360, 368-69 (3d Cir. 2000). A claim under
Section 1983 accrues when the plaintiff “knew or should have known of the injury
upon which [his] claim is based.” Sameric, 142 F.3d at 599.
2. Analysis
Here, the Unidentified Defendants were not named or even mentioned
in Plaintiff’s original complaint. Rather, the Unidentified Defendants were appeared
in this case for the first time in Plaintiff’s amended complaint, filed on February 6,
2013. (Doc. 20.) Based on the averments set forth in either the original or amended
complaint, the latest date on which the Unidentified Defendants’ alleged actions
could have occurred was September 26, 2010, the date Plaintiff suffered the alleged
“beating.” Accordingly, the two-year statute of limitations expired on September 26,
2012, nearly six months before the claims against the Unidentified Defendants were
added to this action. Thus, Plaintiff’s claims against the Unidentified Defendants are
time-barred unless the amendments relate back to the date the original complaint was
filed. Federal Rule of Civil Procedure 15(c) governs the relation back of amended
complaints. Rule 15(c) provides, in pertinent part, as follows:
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(c) Relation Back of Amendments.
(1)When an Amendment Relates Back. An
amendment to a pleading relates back to the date of
the original pleading when:
* * *
(B) the amendment asserts a claim or
defense that arose out of the conduct,
transaction, or occurrence set out – or
attempted to be set out – in the original
pleading; or
(C) the amendment changes the party or
the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided
by Rule 4(m) for serving the summons and
complaint, the party to be brought in by
amendment:
(i) received such notice of the action that it
will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the identity of the proper
party’s identity.
Fed. R. Civ. P. 15(c)(1); see also DiLauri v. Mullen, 477 F. App’x 944, 947 (3d Cir.
2012).
In the matter sub judice, it is apparent that Plaintiff’s claims against the
Unidentified Defendants arise out of the same conduct and occurrences set forth in
the original complaint, namely the circumstances surrounding Plaintiff’s arrest on
September 26, 2010. However, since the Unidentified Defendants were named in
this action by amendment, Rule 15(c)(1)(C) requires that: (i) they must have received
notice of the institution of the action within 120 days (the period provided by Rule
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4(m)) following the filing of the original complaint; and (ii) they knew or should
have known that they were intended to be named as parties to the lawsuit but for
Plaintiff’s mistake concerning the proper party’s identity. Both requirements must
be met before Plaintiff’s claims against the Unidentified Defendants may be found to
relate back to the filing of the original complaint. In this case, the court sees no need
to consider the notice requirement because Plaintiff has failed to meet the
requirement of Rule 15(c)(1)(C)(ii).
To satisfy the requirement of Rule 15(c)(1)(C)(ii), “the plaintiff must
demonstrate that a mistake concerning the identity of the proper party existed at the
time the complaint was filed.” Schach v. Ford Motor Co., 210 F.R.D. 522, 527
(M.D. Pa. 2002) (emphasis in original) (citing Nelson v. Cnty. of Allegheny, 60 F.3d
1010, 1014 (3d Cir. 1995). Here, Plaintiff has not alleged or otherwise indicated any
mistake as to the identity of the Unidentified Defendants at the time he filed his
original complaint. In fact, neither John Doe 1 nor John Doe 2 were even identified
by their proper names upon being added, and remain unidentified to date. Nothing
prevented Plaintiff from naming these Defendants in the same manner in the original
complaint.
Indeed, this is not a case where Plaintiff seeks to substitute a named
defendant for a fictitious defendant identified as a party in the original complaint.
See, e.g., Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 200-01 (3d Cir. 2001)
(noting Rule 15(c)(1)(C)(ii) may be satisfied when a plaintiff lacked knowledge of
the identity of a john doe defendant when the original complaint was filed). Nor is
this a case where a pro se plaintiff made a legal mistake and sued the wrong party.
See, e.g., Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 457-58 (3d Cir.
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1996) (holding that the plaintiff should be allowed to show on remand that he
satisfied Rule 15(c)(1)(C)(ii) where he mistakenly sued the police department instead
of individual police officers); see also DeLauri, 477 F. App’x at 947. Rather,
Plaintiff’s original complaint simply did not intend to sue any individual officer
other than Officer Ryan. In that complaint, Plaintiff asserted that Officer Ryan was
the officer who used excessive force while effectuating the arrest. He did not assert,
as he did in his amended complaint, that other officers even participated in the arrest
or otherwise subjected him to excessive force. In short, the factual existence of the
Unidentified Defendants first arose in Plaintiff’s amended complaint, which was
filed several months after the original filing and post-dating the expiration of the
statute of limitations.
Based on the foregoing, the claims against the Unidentified Defendants
set forth in the amended complaint do not relate back to the date of the original
complaint in this matter. Since the amended complaint was filed after the expiration
of the two-year statute of limitations, the claims against the Unidentified Defendants
are time-barred and will be dismissed.5
B.
Claims asserted against the City of Harrisburg
5
Plaintiff argues that the claims against the Unidentified Defendants relate back because
the Unidentified Defendants received notice of the action, share the same attorney, and have an identity
of interest. Additionally, Plaintiff contends that the fact he initiated the action pro se should pardon his
failure to name John Doe 1 or John Doe 2 in the original complaint. The court rejects this argument in
its entirety. It would be absurd to impute notice of the action upon the Unidentified Defendants when
there was only one tortfeasor identified, specifically or otherwise, in the original complaint. Moreover,
the liberal pleading requirements in the federal rules and favorable standard applicable to pro se litigants
do not compel a different result. Indeed, this is not strictly a case of failing to comply with rules or
procedure. Rather, Plaintiff’s amended complaint inserts two individuals, neither of whom were
mentioned in the original complaint in any capacity, into the factual recitation. Their “miraculous”
appearance has nothing to do with Plaintiff’s prior pro se status.
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A local government cannot be held liable for the unconstitutional acts
of its employees on a theory of respondeat superior. Monell v. Dept. of Soc. Servs.,
436 U.S. 658, 691 (1978) (“[A] municipality cannot be held liable solely because it
employs a tortfeasor . . . [or] on a respondeat superior theory” (emphasis in
original)). However, “the government as an entity is responsible under § 1983”
when it “caused” the plaintiff’s injury; that 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.” Kokinda v.
Breiner, 557 F. Supp. 2d 581, 590 (M.D. Pa. 2008) (citing Monell, 436 U.S. at 694).
To state a claim against a municipality based on 42 U.S.C. § 1983, “the
alleged constitutional violation must carry out either an official policy or a custom so
‘well-settled as to virtually constitute law.’” Peterson v. City of Uniontown, 441 F.
App’x 62, 63 (3d Cir. 2011) (citing McTernan v. City of York, 564 F.3d 636, 657-58
(3d Cir. 2009)).6 To survive a motion to dismiss, the plaintiff must allege that a
“policy or custom of the [municipality] defendants was the moving force behind the
6
The Third Circuit has outlined three circumstances in which municipal liability will attach
under Section 1983:
First, the municipality will be liable if its employee acted pursuant to a formal
government policy or a standard operating procedure long accepted within the
government entity; second, liability will attach when the individual has policy
making authority rendering his or her behavior an act of official government
policy; third, the municipality will be liable if an official with authority has
ratified the unconstitutional actions of a subordinate, rendering such behavior
official for liability purposes.
See McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (internal citations omitted). The Third
Circuit has also made clear that liability can be imposed on a municipality based on its failure to train its
employees where plaintiff can show a pattern of violations or where that failure to train demonstrates
deliberate indifference on the part of the municipality. Berg v. Cnty. of Allegheny, 219 F.3d 261, 276
(3d Cir. 2000).
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constitutional violation.” Brown v. Culp, Civ. No. 11-CV-1734, 2011 WL 6003900,
*9 (M.D. Pa. Oct. 27, 2011) (citing Kokinda, 557 F. Supp. 2d at 587); see also
Peterson, 441 F. App’x at 63 (citing Collins v. City of Harker Heights, 503 U.S. 115,
120 (1992)). To be the “moving force,” the constitutional violation must “result
from ‘deliberate indifference to the constitutional rights of the [municipality’s]
inhabitants.’” Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995)
(quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)). When the plaintiff
bases his Monell allegations on an alleged failure to train or discipline, deliberate
indifference can be shown where the need for more training or discipline to prevent
violations of constitutional rights was obvious. Brown v. Muhlenberg Twp., 269
F.3d 205, 216 (3d Cir. 2001) (citing City of Canton, 489 U.S. at 390).
In the amended complaint, Plaintiff sets forth facts that could arguably
support a conclusion that the City of Harrisburg failed to adequately train or
supervise its officers in relation to the use of force to effectuate an arrest of a
complacent suspect. Notably, there is no requirement at the pleading stage for
Plaintiff to identify a specific policy to survive a motion to dismiss. See Carter v.
City of Phila., 181 F.3d 339, 357-58 (3d Cir. 1999). However, a plaintiff must
adequately give notice to a municipality-defendant for the basis of its claim, which
requires some specificity as to the custom, policy, or procedure which caused the
plaintiff’s injuries as opposed to a generic and unspecified reference to a custom,
policy, or procedure. See McTernan, 564 F.3d at 658 (citing Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)) (affirming district court’s dismissal of
complaint because it “g[ave] no notice as to the Defendant[ ]’s improper conduct,
simply alleg[ing] that [plaintiff’s] rights were violated due to the City’s policy of
14
ignoring First Amendment right[s].”); see also Groman, 47 F.3d at 637 (holding that
“vague assertions” of police department’s failure to train or investigate wrongdoings
are insufficient to give notice to the City in support a Monell claim); Bush v. City of
Scranton, Civ. No. 11-CV-0670, 2011 WL 5089458, *3 (M.D. Pa. Oct. 26, 2011).
Here, Plaintiff has pled sufficient facts to make out a plausible Monell
claim that – at least for the purposes of a motion to dismiss – must be allowed to go
forward. Plaintiff’s factual support for the Monell claim is thin, but not unusually so
for a case at this early stage in the proceedings. See, e.g., Oswald v. Gibbons, Civ.
No. 10-CV-6093, 2011 WL 2135619, *5 (E.D. Pa. May 31, 2011) (“Although [the]
plaintiff faces a high burden in establishing Monell liability based on a custom or
practice of a failure to train, such an allegation is sufficient under Monell.”).
Plaintiff sets forth facts implicating the improper use of a police dog to effectuate his
arrest, during which Plaintiff alleges he did not resist. Plaintiff’s claim, namely that
such use of force was caused by a failure to have proper procedures or adequately
train officers regarding proper use of police dogs, is more than a reference to a
generic custom or policy and it adequately gives notice to the City of Harrisburg of
the improper conduct that Plaintiff contends was the moving force behind the
constitutional violation. (See Doc. 20 at ¶¶ 34, 45-56.) Accordingly, at this point,
the court will deny Defendants’ motion to dismiss Plaintiff’s Section 1983 Monell
claim for municipal liability.
IV.
Conclusion
The claims against the Unidentified Defendants set forth in the amended
complaint do not relate back to the date of the original complaint, as no actor, other
15
than Defendant Ryan, was alleged to be the individual who subjected Plaintiff to
excessive force. Because a claim against the Unidentified Defendants was asserted
for the first time more than two years following the date of accrual, and because
Plaintiff has failed to establish the requirements of Rule 15(c)(1), such a claim is
barred by the statute of limitations set forth at 42 Pa. C.S. § 5524. Accordingly,
Defendants’ motion to dismiss the Unidentified Defendants from the action will be
granted. Furthermore, because Plaintiff has sufficiently pled that a policy, practice,
or custom was a moving force behind the alleged constitutional violation, it would be
premature to dismiss Plaintiff’s claims without the benefit of discovery.
Accordingly, Defendants’ motion to dismiss Plaintiff’s Monell claim will be denied.
An appropriate order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: April 1, 2013.
16
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL E. MOORE, SR.,
Plaintiff
v.
THOMAS F. RYAN,
JOHN DOE 1, JOHN DOE 2, and
CITY OF HARRISBURG, PA,
Defendants
:
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CIVIL No. 1:12-CV-1875
JUDGE SYLVIA H. RAMBO
ORDER
In accordance with the accompanying memorandum of law,
Defendants’ motion to partially dismiss Plaintiff’s amended complaint (Doc. 22) is
GRANTED IN PART and DENIED IN PART as follows:
1.
Defendants’ motion is GRANTED to the extent that Defendants
John Doe 1 and John Doe 2 are dismissed from the action, with
prejudice.
2.
Defendants’ motion is DENIED in all other respects.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: April 1, 2013.
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