Eberhardinger v. City of York et al
Filing
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MEMORANDUM re York dfts' MOTION TO DISMISS 9 (Order to follow as separate docket entry)Signed by Chief Judge Christopher C. Conner on 9/20/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIKA EBERHARDINGER,
Plaintiff
v.
CITY OF YORK, et al.,
Defendants
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CIVIL ACTION NO. 1:16-CV-2481
(Chief Judge Conner)
MEMORANDUM
Plaintiff Erika Eberhardinger (“Eberhardinger”) commenced this action
against the City of York, York City Police Officer Benjamin Praster (“Officer
Praster”), York City Police Officer Benjamin Smith (“Officer Smith”), Matthew
Foster (“Foster”), and State Farm Mutual Automobile Insurance Company
pursuant to 42 U.S.C. § 1983 and state law. (See Doc. 1). Before the court is a
motion (Doc. 9) to dismiss filed by defendants City of York, Officer Praster, and
Officer Smith (collectively, the “York defendants”). For the reasons that follow, the
court will grant the motion in part and deny the motion in part.
I.
Factual Background & Procedural History
On December 19, 2014, Eberhardinger, Foster, and Mason Millen (“Millen”)
left Banana Max Bar & Grill in York, Pennsylvania by vehicle at approximately 1:45
a.m. (Doc. 1 ¶¶ 19-20). Foster drove, Eberhardinger sat in the front passenger seat,
and Millen sat in the back seat behind Eberhardinger. (Id. ¶ 20). Shortly thereafter,
Foster failed to stop at a stop sign. (See id. ¶¶ 21-22). Officer Praster witnessed this
and pursued Foster. (Id.) When Foster did not pull over, Officer Praster continued
to follow the vehicle and radioed for assistance. (Id. ¶¶ 23, 56, 57(b), 57(i)).
Officer Smith responded to Officer Praster‟s request and joined the pursuit.
(Id. ¶ 24). Foster saw Officer Smith‟s vehicle approaching from the west and started
to reverse toward Officer Praster who was following him from the east. (Id. ¶¶ 2426). Officer Smith exited his patrol car and approached Foster‟s vehicle on foot.
(Id. ¶ 26). Foster crashed the vehicle into a telephone phone while in reverse and
then attempted to drive past Officer Smith. (Id. ¶¶ 26-28, 56). Officer Smith fired
four shots at the windshield of the vehicle to stop Foster from driving past him. (Id.
¶¶ 29-30). The shots struck Eberhardinger in the face, forearm, and hand. (Id. ¶ 30).
Eberhardinger commenced the instant action on December 15, 2016. (Doc.
1). Against the York defendants, Eberhardinger asserts the following claims: an
excessive force claim pursuant to 42 U.S.C. § 1983 against Officers Praster and
Smith (Count I), a state law negligence claim against Officers Praster and Smith
(Count II), and Monell claims against the City of York (Counts III and IV). The York
defendants move to dismiss all claims brought against them under Federal Rule of
Civil Procedure 12(b)(6). (Doc. 9). The motion is fully briefed and ripe for
disposition.
II.
Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
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most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd.,
292 F.3d 361, 374 n.7 (3d Cir. 2002)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir.
2010). In the first step, “the court must „tak[e] note of the elements a plaintiff must
plead to state a claim.‟” Id. at 130 (alteration in original) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a claim must be
separated; well-pleaded facts are accepted as true, while mere legal conclusions
may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual allegations, it
must determine whether they are sufficient to show a “plausible claim for relief.”
Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 556. A
claim is facially plausible when the plaintiff pleads facts “that allow[] the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
Courts should grant leave to amend before dismissing a curable pleading in
civil rights actions. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc.,
482 F.3d 247, 251 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108
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(3d Cir. 2002). Courts need not grant leave to amend sua sponte in dismissing noncivil rights claims pursuant to Rule 12(b)(6), Fletcher-Harlee Corp., 482 F.3d at 25253, but leave is broadly encouraged “when justice so requires,” FED. R. CIV. P.
15(a)(2).
III.
Discussion
Eberhardinger asserts claims against Officers Praster and Smith under
Section 1983 for excessive force in violation of her constitutional rights under the
Fourth Amendment. Eberhardinger also brings Monell claims against the City of
York for failure to train and discipline and for permitting a widespread persistent
pattern of unconstitutional conduct. Finally, Eberhardinger avers a state law
negligence claim against both officers. The York defendants challenge the
sufficiency of each claim. The court will address these issues seriatim.
A.
Section 1983 Claims
Section 1983 of Title 42 of the United States Code creates a private cause of
action to redress constitutional wrongs committed by state officials. See 42 U.S.C. §
1983. The statute is not a source of substantive rights, but serves as a mechanism
for vindicating rights otherwise protected by federal law. Gonzaga Univ. v. Doe, 536
U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state
a claim under Section 1983, plaintiffs must show a deprivation of a “right secured
by the Constitution and the laws of the United States . . . by a person acting under
color of state law.” Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro,
51 F.3d 1137, 1141 (3d Cir. 1995)). The defendants do not dispute that they were
state actors at all times relevant herein. We must thus determine whether any
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defendants‟ conduct deprived Eberhardinger of rights secured by the United States
Constitution.
1.
Excessive Force
In the case sub judice, Eberhardinger avers that both officers used excessive
force in violation of the Fourth Amendment. Officers Praster and Smith each
invoke the doctrine of qualified immunity. The court will thus address
Eberhardinger‟s excessive force claim through the prism of the qualified immunity
doctrine.
Qualified immunity protects a state actor who has committed a constitutional
violation if the plaintiff‟s rights were not “clearly established” when the individual
acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). No liability will attach if a
reasonable actor could have believed the challenged conduct was in compliance
with settled law. Id.; see also Springer v. Henry, 435 F.3d 268, 280 (3d Cir. 2006).
The doctrine cloaks government officials with “immunity from suit rather than a
mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis
omitted), and “ensure[s] that insubstantial claims against government officials [will]
be resolved prior to discovery.” Pearson, 555 U.S. at 231-32 (quoting Anderson v.
Creighton, 483 U.S. 635, 640 n.2 (1987)). The defense generally “protects „all but the
plainly incompetent or those who knowingly violate the law.‟” Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The
burden to establish qualified immunity rests with the defendant claiming its
protection. Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001).
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A court evaluating a claim of qualified immunity considers two distinct
inquiries: whether, based on the record evidence, a constitutional right has been
violated and, if so, whether the right was “clearly established” at the time of the
alleged violation. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir.
2015) (quoting Pearson, 555 U.S. at 232). A court may begin its qualified immunity
analysis with either prong. See Pearson, 555 U.S. at 237. The right to be free from
the excessive application of force during lawful arrests is clearly established. See
Kopec v. Tate, 361 F.3d 772, 776-78 (3d Cir. 2004). Hence, we need only determine
whether Eberhardinger alleges a violation of that right.
To state a claim for excessive force under the Fourth Amendment,
Eberhardinger must allege: (1) that a seizure occurred, and (2) that it was
unreasonable. Id. at 776 (quoting Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d
Cir. 2003)). A police pursuit, absent aggravating circumstances, does not constitute
a “seizure” within the meaning of the Fourth Amendment. See Cty. of Sacramento
v. Lewis, 523 U.S. 833, 843-44 (1998); Carroll v. Borough of State College, 854 F.
Supp. 1184, 1190 (M.D. Pa. 1994). An aggravating circumstance is one in which
police took some “direct or intervening action to halt the vehicle in a violent or
sudden manner likely to cause injury to the occupants.” Carroll, 854 F. Supp. at
1190 (citing Tennessee v. Garner, 471 U.S. 1, 7 (1985)). Such circumstances include,
for example, erecting a roadblock that makes it impossible for the vehicle to stop
without injury to the driver or passengers or using deadly force to stop the vehicle.
See id.
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The reasonableness of force used in effecting a seizure depends upon the
totality of the circumstances. Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999).
The court must determine whether the officer‟s actions were “objectively
reasonable” in view of “the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386,
397 (1989). This reasonableness assessment “must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Id. at 396. Courts consider three main factors in determining reasonableness: (1)
the severity of the underlying crime, (2) any immediate threat posed by the subject,
and (3) whether the suspect actively resisted arrest. Id. Additional factors may
include “the possibility that the persons subject to the police action are themselves
violent or dangerous, the duration of the action, whether the action takes place in
the context of effecting an arrest, the possibility that the suspect may be armed, and
the number of persons with whom the police officers must contend at one time.”
Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997); Fisher v. Matthews, 792 F. Supp.
2d 745, 774 (M.D. Pa. 2011).
a.
Officer Praster
As to Officer Praster, Eberhardinger contends only that he pursued the
vehicle after Foster failed to stop at a stop sign and radioed for assistance when
Foster did not pull over. (Doc. 1 ¶¶ 21-23, 25). Eberhardinger does not articulate
any aggravating circumstances that would enable the court to consider Officer
Praster‟s pursuit a seizure under the Fourth Amendment. See Carroll, 854 F. Supp.
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at 1190. Hence, on the facts alleged, Officer Praster is entitled to qualified
immunity.
b.
Officer Smith
As to the claim against Officer Smith, the parties do not dispute that Officer
Smith‟s use of his gun to prevent Foster from fleeing constituted a seizure. The sole
issue is whether the force used by Officer Smith was unreasonable. (See Doc. 9-3 at
6-9; Doc. 27 at 6-9). Eberhardinger contends that Officer Smith fired four shots at
the windshield of the vehicle when Foster attempted to flee despite the fact that
Foster was unarmed and had passengers in the vehicle. (Doc. 1 ¶¶ 20, 29-30). We
find that Eberhardinger adequately alleges that Officer Smith used unreasonable
force and thus violated her constitutional rights under the Fourth Amendment.
Hence, the court cannot grant qualified immunity to Officer Smith at this
procedural juncture. Accordingly, we will deny the York defendants‟ motion to
dismiss the excessive force claim against Officer Smith.
2.
Monell Liability
Municipalities and other local government entities are “persons” for
purposes of Section 1983 liability. Monell v. N.Y.C. Dep‟t of Social Servs., 436 U.S.
658, 690 (1978). But such entities may not be held liable in a Section 1983 suit for
conduct of their employees under a theory of respondeat superior liability. Bd. of
Cty. Comm‟rs v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 692); see
also Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). Municipal
liability only arises when a government causes an employee to violate another‟s
constitutional rights by an official custom or policy. Monell, 436 U.S. at 690-94;
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see also Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998). To establish
liability under Monell, a plaintiff must identify the challenged policy or custom,
demonstrate proper attribution to the public entity, and show a causal link between
the execution of the policy or custom and the injury suffered. See Natale v. Camden
Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003).
A policy exists when a decisionmaker possessing final authority to establish
public policy with respect to the disputed action issues an official proclamation,
policy, or edict. Id. at 584 (quoting Kneipp, 95 F.3d at 1212). By contrast, a custom
is an act that is not formally approved but is nonetheless “so widespread as to have
the force of law.” Id. (quoting Bryan Cty., 520 U.S. at 404). A plaintiff may also
establish municipal liability by demonstrating that a policymaker failed to take
affirmative action despite an obvious need to correct the “inadequacy of existing
practice [which is] so likely to result in the violation of constitutional rights” that
inaction exhibits “deliberate indifference” to the need. Id. (quoting Bryan Cty.,
520 U.S. at 417-18).
A government entity exhibits deliberate indifference when it “disregard[s] a
known or obvious consequence of [its] . . . action.” Connick v. Thompson, 563 U.S.
51, 61 (2011); see Vargas v. City of Phila., 783 F.3d 962, 974 (3d Cir. 2015). Failure
to train amounts to deliberate indifference when it causes a pattern of cognate
constitutional violations. See Connick, 563 U.S. at 62; Kelly v. Borough of Carlisle,
622 F.3d 248, 265 (3d Cir. 2010). Alleged training deficiencies must closely relate to
the constitutional injury. City of Canton v. Harris, 489 U.S. 378, 391 (1989). The
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failure-to-act theory of liability is governed by the same causation principles. See
Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
The York defendants argue that the complaint is completely devoid of facts to
support a Monell claim and fails to meet the pleading requirements of the Federal
Rules of Civil Procedure. (Doc. 9-3 at 15). We agree. Eberhardinger‟s allegations of
municipal liability are purely conclusory. Eberhardinger avers that the training
and discipline practices of the York City Police Department have been
“inadequate” for years, (see Doc. 1 ¶¶ 41-43), but fails to identify a single
constitutional violation sufficient to suggest deliberate indifference on behalf of the
City of York. Her examples of improper training and discipline all relate to the
events of December 19, 2014, (see id. ¶¶ 41-42), yet she somehow concludes that
“[t]he pattern of training and discipline deficiencies was so pervasive as to
constitute „customs‟ with the force of law,” (see id. ¶ 44).1 In the absence of factual
allegations relating to previous similar incidents Eberhardinger fails to plead a
custom of inadequate training or discipline. See Godnig v. Stroud Area Reg‟l Police
Dep‟t, No. 3:15-2292, 2016 WL 4440282, at *9 (M.D. Pa. Aug. 23, 2016).
Eberhardinger also contends that the City of York permitted a widespread,
persistent pattern of unconstitutional conduct by York City police officers. (See
Doc. 1 ¶ 48). But she again fails to describe a single instance, other than the events
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The court recognizes that the United States Supreme Court has indicated
that a single incident may evince deliberate indifference when “the need to train
officers . . . can be said to be so obvious” in itself and the lack thereof would
perforce lead to recurrent rights violations. City of Canton, 489 U.S. at 390 n.10; see
also Thomas v. Cumberland Cty., 749 F.3d 217, 223-25 (3d Cir. 2014). Eberhardinger
does not argue that this theory applies. (See Doc. 1 ¶¶ 44, 46).
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of December 19, 2014, to support this claim. (See id. ¶ 48). Without more,
Eberhardinger has not plausibly alleged a “pattern” of known constitutional
violations amounting to an unofficial custom of the City of York. See Tereo v.
Smuck, No. 1:16-CV-1436, 2017 WL 2080193, at *9 (M.D. Pa. May 15, 2017) (Conner,
C.J.). Hence, the court will grant the York defendants‟ motion to dismiss both
Monell claims.
B.
Negligence
Eberhardinger asserts a state law claim for negligence against Officers
Praster and Smith. The York defendants contend that this claim is barred by the
immunity afforded under the Pennsylvania Political Subdivision Tort Claims Act
(“PSTCA”), 42 PA. STAT. AND CONS. STAT. ANN. § 8541 et. seq., and should be
dismissed. The PSTCA immunizes local agencies from liability for damage “on
account of any injury to a person or property caused by any act of the local agency
or an employee thereof or any other person.” Id. § 8541. An employee of a local
agency is “liable for civil damages . . . only to the same extent as his employing local
agency.” Id. § 8545. Accordingly, in order to maintain a negligence claim against an
employee of a local agency covered by the PSTCA, a plaintiff must demonstrate that
an enumerated exception to the Act‟s broad grant of immunity applies. See id. §
8542. Eberhardinger does not argue, and the court does not find, that any of the
eight exceptions apply. (See Doc. 24 at 12-13).
The PSTCA also exempts from its protective scope any employee whose act
constitutes “a crime, actual fraud, actual malice or willful misconduct.” 42 PA.
STAT. AND CONS. STAT. ANN. § 8550; Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir.
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2006). Willful misconduct is conduct which evinces that the employee “desired to
bring about the result that followed or at least was aware that it was substantially
certain to follow, so that such desire can be implied.” Sanford, 456 F.3d at 315
(quoting Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)). It is synonymous
with the term “intentional tort.” Id. The complaint avers that Officers Praster and
Smith acted negligently, not that they acted criminally, fraudulently, maliciously, or
willfully. (See Doc. 1 ¶¶ 35-38). Hence, Eberhardinger fails to plausibly allege facts
to overcome governmental immunity. We will grant the York defendants‟ motion to
dismiss the negligence claim as to both officers.2
C.
Leave to Amend
The Third Circuit Court of Appeals requires courts to grant leave to amend
in civil rights cases when a curative amendment is conceivable. See FletcherHarlee Corp., 482 F.3d at 251; Grayson, 293 F.3d at 108. Because Eberhardinger‟s
claims are factually rather than legally flawed, the court will grant Eberhardinger
the opportunity to amend her pleading with respect to the claims dismissed herein,
as more fully articulated in the forthcoming order.
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Eberhardinger asks the court to consider “willful misconduct” as an
alternative theory of liability. (See Doc. 24 at 12-13). The court need not address
Eberhardinger‟s belated assertion, as “[i]t is axiomatic that the complaint may not
be amended by the briefs in opposition to a motion to dismiss.” Pennsylvania ex
rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting Car
Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Nonetheless,
the court notes that “willful misconduct” is not a recognized cause of action under
Pennsylvania law. Booze v. Wetzel, No. 1:12-CV-01307, 2017 WL 2991801, at *11
(M.D. Pa. May 25, 2017); Jackson v. Davis, No. 2:13-CV-1717, 2014 WL 3420462, at
*21 (W.D. Pa. July 14, 2014).
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IV.
Conclusion
The court will grant in part and deny in part the York defendants‟ motion
(Doc. 9) to dismiss. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:
September 20, 2017
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