Korth v. Estate of Mark Botts et al
MEMORANDUM re MOTION for Protective Order 33 and/or Order Clarifying Remaining Claims (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 6/20/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GARY L. KORTH,
JILL HOOVER, individually and in her
official capacity; JOSEPH R. BAKER,
individually and in his official capacity;
and OLIVER TOWNSHIP,
: CIVIL NO. 1:CV-15-2422
Plaintiff, Gary L. Korth, filed this civil-rights action under 42 U.S.C. § 1983
accompanied by state-law claims. The suit arises from an alleged assault on Plaintiff
committed by a police officer, Mark Botts, now deceased, employed by Oliver Township.
The defendants are the Township and two of its supervisors, Jill Hoover and Joseph
Baker. 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 for a protective order and/or order
clarifying remaining claims.” The motion requests that we “strik[e] any remaining claims
for injunctive relief” and that we dismiss Oliver Township and Joseph Baker from the
action. The request to strike the claims for injunctive relief is essentially directed at Count
4 of the second amended complaint. That count seeks unspecified injunctive relief
against the three defendants under the Pennsylvania Constitution, Art. I, § 8, the state
counterpart to the Fourth Amendment.
Plaintiff filed this action in state court, and it was removed here by Defendants.
In response to a motion to dismiss the original complaint, Plaintiff filed an amended
complaint. In the 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; and
(7) a state-law claim against all defendants for negligence.
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 relevant part. The Fourth Amendment excessive-force claim could proceed
against Hoover but not against 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 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, 190 F. Supp. 3d 394 (M.D. Pa. 2016).
In regard to the state constitutional claim for injunctive relief, which was set
forth in Count 5 of the amended complaint, Defendants had argued in part that Plaintiff
was not entitled to injunctive relief because he only alleged past exposure to illegal
conduct, and such exposure did not present a case or controversy for injunctive relief.
They cited City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75
L.Ed.2d 675 (1983). (Doc. 11, ECF p. 28, Defs.’ Br. in Supp.). We did not dismiss this
claim at that time because we were permitting Plaintiff to amend the claims concerning
federal supervisory liability and municipal liability, and we thought amendment might
answer Defendants' objection. Korth, 190 F. Supp. 3d at 410-11.
Plaintiff filed a second amended complaint. In that pleading, Plaintiff set forth
five causes of action. In Count 1, he made a Fourth Amendment claim against Hoover
and Oliver Township for Botts’ use of excessive force. In Count 2, he made a
supervisory-liability claim against Hoover and Baker. In Count 3, he made a municipalliability claim against Oliver Township. In Count 4, a repeat of the amended complaint’s
Count 5, he made a claim under the Pennsylvania Constitution, Art. I, § 8, against all
three defendants for unspecified injunctive relief. In Count 5, he made a claim for assault
and battery against Hoover.
Defendants filed a motion to dismiss, which sought dismissal of Count 1 as
against the Township, and dismissal of Counts 2 and 3. They argued that Plaintiff had
once again failed to adequately allege supervisory or municipal liability based on policy or
custom. They did not move to dismiss Counts 4 or 5. We granted the motion on October
3, 2016. Korth v. Hoover, 2016 WL 5719834, at *3 (M.D. Pa.).
As a result, the remaining claims are: (1) Count 1 against Hoover for her direct
personal involvement in the assault by Botts; (2) Count 4, a claim under the Pennsylvania
Constitution, Art. I, § 8, against all three defendants for unspecified injunctive relief; and
(3) Count 5, a state-law claim for assault and battery against Hoover. Defendants filed
an answer to the second amended complaint on October 24, 2016.
In the instant motion, Defendants argue that, although our October 3, 2016,
memorandum did “not specifically address Count 4,” Count 4 is now moot in light of our
ruling that Plaintiff has failed to sufficiently allege any policies or customs that would
support municipal or supervisory liability. In the absence of such allegations, Defendants
reason that a claim for injunctive relief is moot as there are no unconstitutional policies or
customs that need to be enjoined. They thus argue for a “clarification” that Count 4 is
moot and a “formal” dismissal of Count 4, along with Baker and the Township from the
lawsuit. Defendants note that they raised the issue in the joint case management plan
(Doc. 28, p. 4) and also at the case management conference. (Doc. 34, Br. in Support at
ECF pp. 6-7).
As further support for their motion, they argue that Hoover’s deposition is
upcoming and Plaintiff may attempt to depose her about customs and policies on the
ground that such discovery is relevant to the claim for injunctive relief. An order clarifying
the remaining claims and parties would thus limit discovery issues at her deposition.
Defendants also argue that, with no allegations about customs or policies,
injunctive relief would not be appropriate because there is no danger of future violations,
citing Samoles v. Lacey Twp., No. 12-CV-3066, 2014 WL 2602251, at *15 (D.N.J. Jun.
11, 2014)(injunctive relief not appropriate when the record showed that the plaintiff was
not “substantially likely to suffer an excessive use of force injury under similar
circumstances in the future”), and Spencer v. DeLuca, No. 10-CV-65, 2010 WL 2076912,
at *1 (W.D. Pa. May 21, 2010)(dismissing a claim for equitable relief when the plaintiff
failed to allege “facts suggesting that it is likely that plaintiff will in the future be again
stopped by defendants, much less that it will be for reasons prohibited by the
In opposition, Plaintiff has made a number of arguments. The pertinent ones
are as follows. First, the October 3, 2016, memorandum already addressed Defendants’
argument concerning Count 4, and Count 4 was not dismissed. Second, the motion is an
attempt to revisit the motion to dismiss and the court declined to dismiss Count 4. Third,
there is no need for clarification as Count 4 was not dismissed. Fourth, the motion is an
attempt to seek reconsideration of the motion to dismiss, but a motion for reconsideration
will only be granted if there is manifest injustice, and there is no manifest injustice here.
Fifth, Samoles is distinguishable because that case was decided on summary judgment
and here discovery is not complete, with Defendants’ motion actually being an attempt to
prevent discovery. Sixth, discovery concerning supervisory and municipal liability is
relevant to the remaining section 1983 claim and the state-law claim against the
supervisors (which we take to mean Count 4).
We agree with Plaintiff that Defendants’ motion cannot succeed as a motion for
clarification. “‘The general purpose of a motion for clarification is to explain or clarify
something ambiguous or vague, not to alter or amend.’” Montgomery Cnty. v. Microvote
Corp., 2000 WL 341566, at *1 (E.D. Pa.)(quoted case omitted). There was nothing
ambiguous or vague about our decision on the motion to dismiss the second amended
complaint. There is no clarification required as to the status of Count 4. Defendants did
not move to dismiss Count 4, and so it remained in the case. In this regard, Plaintiff
incorrectly asserts that Defendants moved to dismiss the count.
We agree with Plaintiff that the motion is an attempt to revisit the motion to
dismiss in the sense that it is an attempt to raise an argument that should have been
made in that motion.1 It can therefore be considered a second motion to dismiss, or even
a third one, if the motion to dismiss the original complaint is counted.2 Viewed in this
way, it violates Fed. R. Civ. P. 12(g)(2), which generally prohibits the filing of a second
Rule 12 motion “raising a defense or objection that was available to the party but omitted
from its earlier motion.” However, Rule 12(g)(2) makes an exception for the
circumstances described in Rule 12(h)(2) or (3). Rule 12(h)(2)(B) permits raising the
defense of failure to state a claim upon which relief can be granted in a motion under
Rule 12(c), a motion for judgment on the pleadings. Defendants can therefore raise their
argument against Count 4, that the count fails to state a claim for injunctive relief, in a
motion for judgment on the pleadings, even though it was not raised in their motion to
dismiss. See Oliver v. Roquet,
, n.3, 2017 WL 2260961, at *4 n.3
(3d Cir. 2017)(“a defense omitted from an earlier motion may nonetheless be raised in a
motion for judgment on the pleadings”).
The motion is substantively a motion for judgment on the pleadings. It was
filed after Defendants filed their answer and will not delay trial as discovery is still open.
See Fed. R. Civ. P. 12(c)(“After the pleadings are closed — but early enough not to delay
It is not, however, as Plaintiff argues, a motion for reconsideration. Defendants did
not move to dismiss Count 4 in the motion to dismiss so there is nothing to reconsider.
We observe, however, that the argument was made in the motion to dismiss the
original complaint, not omitted from that motion. As noted, no definitive ruling was made
because we had given Plaintiff a chance to amend his pleading.
trial — a party may move for judgment on the pleadings.”).3 We will therefore treat the
instant motion as one for judgment on the pleadings.
Since the motion argues that Count 4 fails to state a claim, we review it under
the standard used for motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Turbe v.
Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); Bangura v. City of Philadelphia,
338 F. App'x 261, 264 (3d Cir. 2009)(nonprecedential). Under Rule 12(b)(6), we 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 of the complaint, the
plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009)(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)).
Defendants argue that Count 4 fails to state claim for injunctive relief because,
as we ruled in connection with the motion to dismiss the second amended complaint,
there are insufficient allegations about customs or policies. In the absence of such
allegations, injunctive relief is not appropriate because there is no danger of future
We agree with Defendants that any claim for injunctive relief fails here. The
second amended complaint fails to allege a sufficient likelihood that Plaintiff will be
subjected in the future to a similar wrong, assault by a police officer, especially since the
pleading focuses on various acts of misconduct by Mark Botts, now deceased. Lyons,
461 U.S. at 111, 103 S.Ct. 1670 (“The equitable remedy is unavailable absent a showing
The discovery deadline is July 31, 2017, and trial is scheduled for October 2017.
of irreparable injury, a requirement that cannot be met where there is no showing of any
real or immediate threat that the plaintiff will be wronged again”). That Plaintiff also failed
to sufficiently allege customs or policies that would lead to municipal or supervisory
liability, as Defendants point out, also supports dismissal of Count 4. Id. at 104, 103
S.Ct. at 1666 (observing that there was no basis for equitable relief in Rizzo v. Goode,
423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), when plaintiffs showed at trial in that
case only “a relatively few instances of violations by individual police officers, without any
showing of a deliberate policy on behalf of the named defendants”). See also Samoles,
supra, 2014 WL 2602251, at *15 (injunctive relief not appropriate when the record
showed that the plaintiff was not “substantially likely to suffer an excessive use of force
injury under similar circumstances in the future”), and Spencer, supra, 2010 WL 2076912,
at *1 (dismissing a claim for equitable relief when the plaintiff failed to allege “facts
suggesting that it is likely that plaintiff will in the future be again stopped by defendants,
much less that it will be for reasons prohibited by the constitution”).
Plaintiff objects that discovery concerning supervisory and municipal liability is
relevant to the remaining section 1983 (apparently the claim against Hoover for
excessive force) and the state-law claim against the supervisors (apparently Count 4).
We disagree. Discovery is only appropriate if Plaintiff has adequately pled his claim in
regard to custom or policy. Plaintiff failed to do so. Further, the claim against Hoover is
based on her personal involvement in the alleged assault by Botts, so the claim against
her does not involve custom or policy.
We will therefore dismiss Count 4 of the second amended complaint and
dismiss from this action the Township and Joseph Baker as the only claim left against
them was Count 4.4
/s/William W. Caldwell
William W. Caldwell
United States District Judge
Date: June 20, 2017
We treat Defendants’ motion as one for judgment on the pleadings. However, it
could also be considered a motion for reconsideration, although Defendants specifically reject
the idea that their motion should be construed as such. If it were construed as a motion for
reconsideration, it would be for the June 2, 2016, order dealing with the motion to dismiss the
amended complaint, when the motion to dismiss the state constitutional claim was denied, but
only because there was the possibility that the second amended complaint would cure the
The June 2, 2016, order was interlocutory because further proceedings were
contemplated in this court. A court may revise an interlocutory order “when consonant with
justice to do so.” United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973); In re Anthanassious,
418 F. App’x 91, 95 (3d Cir. 2011) (nonprecedential) (quoting Jerry). It would be consonant
with justice to grant the motion as Plaintiff fails to allege a valid claim for injunctive relief.
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