Korth v. Estate of Mark Botts et al

Filing 23

MEMORANDUM re dfts' MOTION to Dismiss 19 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/3/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY L. KORTH,
Plaintiff
vs.
JILL HOOVER, individually and in her
official capacity; JOSEPH R. BAKER,
individually and in his official capacity;
and OLIVER TOWNSHIP,
Defendants

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: CIVIL NO. 1:CV-15-2422
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(Judge Caldwell)
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MEMORANDUM
I.

Introduction and Procedural History
Plaintiff, Gary L. Korth, filed this civil-rights action under 28 U.S.C. § 1983

against defendants, Oliver Township and two of its supervisors, Jill Hoover and Joseph
Baker. The suit arises from an alleged assault on Plaintiff committed by a Township
police officer, Mark Botts, now deceased. At the time of the alleged assault, Plaintiff was
visiting the Township Municipal Building and making a complaint to Hoover about Botts.
We are considering Defendants’ motion to dismiss some of the claims in Plaintiff’s
second amended complaint.
In his amended complaint, Plaintiff presented seven causes of action: (1) a
Fourth Amendment excessive-force claim against Hoover and Baker; (2) a federal civilrights supervisory-liability claim against Hoover and Baker for the injuries Botts inflicted
by way of the deficient policies and practices they implemented; (3) a federal civil-rights

municipal-liability claim against the Township for the injuries Botts inflicted based on
deficient policies, practices and customs; (4) a federal substantive due process claim
against all three defendants for Botts’ conduct; (5) a claim against all three defendants
under the Pennsylvania Constitution, Art. I, § 8, the state counterpart to the Fourth
Amendment; (6) a state-law claim against all the defendants for assault and battery;1 and
(7) a state-law claim against all defendants for negligence.
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants filed a motion to dismiss the
amended complaint. In a memorandum detailing the pertinent allegations of the
amended complaint, we ruled as follows, in pertinent part. The Fourth Amendment
excessive-force claim could proceed against Hoover but not Baker based on Hoover’s
direct personal involvement with the assault. The federal civil-rights supervisory-liability
claim against Hoover and Baker was dismissed because Plaintiff failed to allege sufficient
facts showing they had implemented deficient policies or customs that caused Plaintiff’s
injuries. The federal civil-rights municipal-liability claim against the Township was
dismissed because Plaintiff failed to allege sufficient facts showing it had implemented
deficient policies, practices and customs that caused Plaintiff’s injuries. The federal
substantive due process claim was dismissed because Plaintiff’s civil-rights claim was
covered by the Fourth Amendment, not the Fourteenth Amendment. The Pennsylvania
constitutional claim was allowed to proceed for injunctive relief but not damages. The

1

Plaintiff makes this claim under 42 U.S.C. § 1983, but it is really a state-law claim.
Korth v. Hoover,
F. Supp. 3d
,
n.1, 2016 WL 3088147, at *9, n.1 (M.D. Pa.
2016).

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state-law claim for assault and battery was allowed to proceed against Hoover but not
against the Township or Baker. The state-law claim for negligence was dismissed based
on a state-law grant of immunity. See Korth v. Hoover,

F. Supp. 3d

, 2016 WL

3088147 (M.D. Pa. 2016).
We granted Plaintiff an opportunity to file a second amended complaint setting
forth sufficient facts to support his federal supervisory-liability and municipal-liability
claims. Plaintiff filed a second amended complaint. In that pleading, Plaintiff sets forth
five causes of action. In Count 1, he makes a Fourth Amendment claim against Hoover
and Oliver Township for Botts’ use of excessive force. In Count 2, he makes a
supervisory-liability claim against Hoover and Baker. In Count 3, he makes a municipalliability claim against Oliver Township. In Count 4, he makes a Pennsylvania
constitutional claim against all three defendants for injunctive relief. In Count 5, he
makes a claim for assault and battery against Hoover.

II.

Standard of Review
A complaint need only contain “a short and plain statement of the claim,” Fed.

R. Civ. P. 8(a)(2), and detailed factual allegations are not required. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
Nonetheless, a complaint has to plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570, 127 S.Ct. 1955 at 1974. “The plausibility standard is not
akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
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1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).
“[L]abels and conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 196465, and a court “‘is not bound to accept as true a legal conclusion couched as a factual
allegation.’” Id., 127 S.Ct. at 1965 (quoted case omitted).

III.

Discussion
The second amended complaint is materially the same as the amended

complaint, so we will not detail the allegations of the current pleading here as we have
essentially already done so in the memorandum dealing with Defendants’ motion to
dismiss the amended complaint. Korth v. Hoover,

F. Supp. 3d

, 2016 WL

3088147 (M.D. Pa. 2016).
Defendants move to dismiss Count 1 as against Oliver Township. Count I is
identical to Count I of the amended complaint except that Plaintiff has substituted the
Township for Baker. Defendants observe that we permitted this claim to proceed as
against Hoover because it alleged that, as the person in charge and present at the time,
she knew of and acquiesced in Bott’s assault, and therefore had personal involvement in
the alleged wrongdoing. Korth, supra, 2016 WL 3088147, at *6. Defendants argue that,
since this is a claim alleging direct personal involvement, this theory of liability does not
work against the Township, which can only be liable if Plaintiff alleges that it had a policy
or custom that caused Plaintiff’s injury. Id., 2016 WL 3088147, at *8.
In opposition, Plaintiff contends that he is in fact basing the Township’s liability
on a policy or custom it established. We accept this point, but still find Plaintiff’s
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argument meritless because, as decided below, given that this is Plaintiff’s theory of
liability against the Township, he has not sufficiently pled that the Township had a policy
or custom that caused his injuries.
Defendants have moved to dismiss Count 2, the supervisory-liability claim
against Hoover and Baker, and Count 3, the municipal-liability claim against Oliver
Township. Defendants make the same argument against both claims, that Plaintiff has
failed to sufficiently allege the policy or custom that caused his injuries. Like a
municipality, supervisory officials can be liable on a civil-rights claim if they established a
policy or custom that caused the plaintiff’s injuries. Id., 2016 WL 3088147, at *7.
Defendants maintain that even though Plaintiff filed an amended pleading, he still relies
on the same allegations regarding custom and policy that we found deficient in the
amended complaint.
In opposition, Plaintiff argues that he has sufficiently pled policy or custom by
way of Botts’ “history of outrageous and egregious misconduct,” Doc. 22, ECF p. 13, that
the Township ignored in hiring Botts or in failing to investigate after Plaintiff informed
them of this behavior.
We agree with Defendants that Plaintiff is simply relying on the allegations of
policy and custom that we found deficient when examining the amended complaint. The

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only thing Plaintiff has done is make minor changes in some paragraphs, compare Am.
Compl. ¶ 75 with Second Am. Compl. ¶ 75, without making any substantive changes.2
We also agree with Defendants as to why these allegations are deficient. In
pertinent part, they are based on Botts’ alleged past behavior in regard to: (1) Bott’s
engagement in sexual harassment of Plaintiff’s daughter-in-law; (2) Botts’ resignation
from another police department because of “sexual encounters” with two women; (2)
Botts’ moonlighting at a strip club and openly engaging in lewd conduct; (3) the
Township’s favoring of Botts because he arranged for the strip club to purchase and fund
“donations” to the Township through a so-called “anonymous” source; and (4) the
donation was anonymous to prevent the public disclosure of the source of the funds.
(Second Am. Compl. ¶ 22).
Plaintiff is seeking to hold the Township and the defendant supervisors liable
for excessive force Botts used against him. None of these allegations deal with
excessive force and not with excessive force occurring in the context of a citizen’s
conversation at the Township municipal building with a Township supervisor. We advised
Plaintiff when granting him leave to amend that the previous conduct had to be similar to
the conduct that caused his injuries. Korth, supra, 2016 WL at *8.
Plaintiff asserts that Botts would not have been hired if the Township had
conducted a screening that would have revealed his prior misconduct. That might be

2

Plaintiff does cite 53 Pa. Cons. Stat. Ann . § 2164 in paragraph 75(b) of his second
amended complaint, but does not say how this statutory section is relevant to the analysis we
must make.

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true, but to establish civil-rights liability for a municipality or supervisory officials for failure
to screen an employee the plaintiff “must demonstrate” that the “decision reflect[ed]
deliberate indifference to the risk that a violation of a particular constitutional or statutory
right will follow the decision.” Board of Cnty. Commissioners v. Brown, 520 U.S. 397,
411, 117 S.Ct. 1382, 1392, 137 L.Ed.2d 626 (1997). Here, Plaintiff’s allegations are not
sufficient to show deliberate indifference to the risk that Botts would use excessive force.
We will therefore grant Defendants’ motion to dismiss Count 1 as against the
Township and to dismiss Counts 2 and 3.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

Date: October 3, 2016

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