Gross v. Cairo
MEMORANDUM re dft's MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 9 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 9/15/22. (ma)
Case 1:21-cv-02188-SHR Document 13 Filed 09/15/22 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Civil No. 1:21-CV-2188
Judge Sylvia H. Rambo
Before the court is Defendant Peter Cairo’s motion to dismiss Plaintiff Shelly
Gross’s claim under 42 U.S.C. § 1983 for failure to state a claim. (Doc. 9.) For the
reasons set forth below, the motion will be denied.
This case arises from an incident that occurred in Harrisburg, Pennsylvania,
on January 10, 2020 between Plaintiff Shelly Gross and Defendant Peter Cairo, an
employee of the Dauphin County Adult Probation Services Division. (Doc. 1 ¶¶ 2–
4.) According to the complaint, at about 2:00 p.m., Gross received a call from a
neighbor who asked her to check on her next-door neighbor, Mr. Jacobs. (Id. at ¶ 4,
5.) When Gross knocked on Jacobs’s door, Cairo opened it from inside the home
and was “immediately rude and aggressive demanding to know what Plaintiff
wanted.” (Id. at ¶¶ 6–7.) Gross explained to Cairo that she had been asked to check
on Jacobs, and when Gross moved toward the doorway, Cairo “violently struck” her
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“in the stomach.” (Id. at ¶¶ 8–9.) Gross, who was thirteen weeks pregnant at the
time, experienced stomach pain and immediately went to the emergency room,
where it was determined that she had suffered placental hemorrhaging. (Id. at ¶¶ 10–
In December 2021, Gross filed a complaint against Cairo in his individual
capacity, alleging a § 1983 claim and tort claims under state law. (Doc. 1.) Cairo has
moved to dismiss the § 1983 claim for failure to state a claim. The motion has been
fully briefed and is ripe for review.
STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege
“factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “When
reviewing a 12(b)(6) motion, we ‘accept as true all well-pled factual allegations in
the complaint and all reasonable inferences that can be drawn from them.’” Estate
of Ginzburg by Ermey v. Electrolux Home Prods., Inc., 783 F. App’x 159, 162 (3d
Cir. 2019) (quoting Taksir v. Vanguard Grp., 903 F.3d 95, 96–97 (3d Cir. 2018)).
The facts alleged must be “construed in the light most favorable to the plaintiff.” In
re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) (internal
quotations, brackets, and ellipses omitted). But “[t]he court is not required to draw
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unreasonable inferences” from the facts. 5B Charles A. Wright & Arthur R. Miller,
Federal Practice & Procedure § 1357 (3d ed. 2004).
The Third Circuit has detailed a three-step process to determine whether a
complaint meets the pleading standard. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2014). First, the court outlines the elements a plaintiff must plead to state a claim for
relief. Id. at 365. Second, the court must “peel away those allegations that are no
more than conclusions and thus not entitled to the assumption of truth.” Id. Third,
the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then
‘determine[s] whether they plausibly give rise to an entitlement to relief.’” Id.
(quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense.” Id.
Cairo’s motion contends that the complaint fails to allege a § 1983 claim.
Section 1983 offers private citizens a means to redress violations of federal law
committed by state officials. See 42 U.S.C. § 1983. To state a § 1983 claim, the
plaintiff must demonstrate that (1) the conduct complained of was committed by a
person 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)). Cairo’s motion will be denied because the complaint
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adequately alleges both elements of the § 1983 claim and Cairo has not established
that he is entitled to qualified immunity.
A. The complaint adequately alleges that Gross was seized.
Cairo’s motion argues that the complaint fails to allege that Gross was seized,
as is necessary to state a Fourth Amendment claim. The Fourth Amendment protects
the right of “people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” U.S. CONST. amend. IV. In order to state a
claim for a Fourth Amendment violation, the plaintiff must allege that the actions of
the defendant: (1) constituted a seizure; and (2) were unreasonable in light of the
circumstances. See Estate of Smith v. Marasco, 318 F.3d 497, 515 (2003). The
Fourth Amendment “governs all seizures of the person, including seizures that
involve only a brief detention short of traditional arrest.” United States v. Smith, 575
F.3d 308, 312 (3d Cir. 2009) (quoting United States v. Mendenhall, 446 U.S. 544,
551 (1980) (internal quotation marks omitted)).
A person is seized “when the officer by means of physical force or show of
authority, terminates or restrains his freedom of movement . . . through means
intentionally applied.” Brendlin v. California, 551 U.S. 249, 254 (2007) (quotation
marks, emphasis, and internal citations omitted). In fact, “the application of physical
force to the body of a person with intent to restrain is a seizure even if the person
does not submit and is not subdued.” Torres v. Madrid, 141 S. Ct. 989, 1003 (2021);
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United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (“A seizure occurs when
there is either (a) ‘a laying on of hands or application of physical force to restrain
movement, even when it is ultimately unsuccessful,’ or (b) submission to ‘a show of
authority.’”) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)). “The
appropriate inquiry is whether the challenged conduct objectively manifests an intent
to restrain . . . . While a mere touch can be enough for a seizure, the amount of force
remains pertinent in assessing the objective intent to restrain.” Torres, 141 S. Ct. at
Accepting the complaint’s factual averments as true and drawing all
reasonable inferences in Gross’s favor, the complaint adequately alleges a seizure.
The complaint’s assertion that Cairo struck Gross with enough force to cause severe
pain and hemorrhaging sufficiently alleges that Cairo manifested an objective intent
to restrain Gross’s movements. Courts generally find that a seizure occurred where,
as here, an application of physical force temporarily immobilizes or causes injury.
See El v. City of Pittsburgh, 975 F.3d 327, 332, 336 (3d Cir. 2020) (seizure occurred
where officer grabbed the plaintiff by the wrist and neck, slammed him into a wall,
and took him to the ground, which bruised the plaintiff’s hip); Acevedo v.
Canterbury, 457 F.3d 721, 724–25 (7th Cir. 2006) (seizure occurred where an officer
rushed toward the plaintiff and struck him “hard in the side of the head with his fist,”
causing him “to reel backwards and fall to the ground”); Slusher v. Carson, 540 F.3d
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449 (6th Cir. 2008) (seizure occurred where an officer grabbed the plaintiff’s hand,
which exacerbated an existing injury and impaired the use of her hand for months);
Kyle v. Bedlion, 177 F. Supp. 3d 380, 392 (D.D.C. 2016) (seizure occurred where an
officer grabbed the plaintiff and threw her to the ground). Moreover, any inference
from the allegations that Cairo merely intended to prevent entry in the home would
be drawn impermissibly in Cairo’s favor, and the fact that Gross was not subdued
by the punch or unable to immediately seek medical care without assistance in no
way precludes a finding that she was seized.1 See Torres, 141 S. Ct. at 1003; Brown,
448 F.3d at 245. The complaint therefore states a Fourth Amendment claim.2
Cairo cites to cases holding that “keep out orders” or escorted removals are not seizures because
they do not demonstrate “intent to restrain.” (See Doc. 10 at 11–12.) These cases are
distinguishable because the complaint alleges that Cairo forcefully punched Gross, not that he
merely applied insubstantial force or threatened force to prevent her entry. See Abuomar v.
Commonwealth of Pa. Dep’t of Corr., No. 14-CV-01036, 2017 WL 2972825 (M.D. Pa. July 12,
2017), aff’d 754 F. App’x 102 (3d Cir. 2018) (no physical contact); Smith v. Dep’t of General
Servs., 181 F. App’x 327, 330 (3d Cir. 2006) (grabbed elbow while escorting from room);
Ostrowski v. Killion, No. 14-CV-1727, 2015 WL 5286622, at *6 (M.D. Pa. Sept. 10, 2015)
(“placed one or both hands” on plaintiff while escorting from courtroom); Robinson v. Town of
Colonie, 878 F. Supp. 387, 402 (N.D.N.Y. 1995) (threats of arrest). Furthermore, it is not
significant whether Cairo in fact only intended to keep Gross out because the “intent to restrain”
is an objective determination. See United States v. Pratt, 355 F.3d 1119, 1124 (8th Cir. 2004) (“An
officer’s uncommunicated subjective intent is irrelevant to the question of whether an individual
has been seized.”) (citing Mendenhall, 446 U.S. at 554 n.6)).
While Cairo’s motion does not argue that any seizure of Gross was reasonable, the court finds
that the complaint contains sufficient facts to support that Gross was unreasonably seized. A brief
seizure is reasonable if “the officer has a reasonable, articulable suspicion that criminal activity is
afoot.” Illinois v. Wardlow, 52 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
Even if justified at its inception, a seizure may nevertheless be unreasonable if the officer uses
more force than is necessary under the circumstances. See Estate of Smith, 318 F.3d at 515. To
assess whether a particular use of force is reasonable, the Third Circuit considers “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight,”
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The court further finds that the complaint adequately alleges a Fourteenth
Amendment substantive due process claim, as an alternative to the Fourth
Amendment claim. Although Fourteenth Amendment analysis is generally
inapplicable if the conduct is “covered” by the Fourth Amendment, see Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 843 (1998), the court’s finding that a seizure
was adequately alleged depends on an inference in Gross’s favor that may or may
not be borne out by discovery. Should discovery reveal that she was not seized,
Gross may nevertheless proceed on her § 1983 claim based on the alleged Fourteenth
Amendment violation. To state a substantive due process claim, the plaintiff must
allege that (1) the particular interest at issue is protected by the Fourteenth
Amendment, and (2) the government's deprivation of that protected interest shocks
the conscience. Connection Training Serv. v. City of Phila., 358 F. App’x 315, 319
as well as physical injury to the plaintiff, “the possibility that [the suspect is] 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.” El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989), Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.
1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209–11 (2007)). There is no
indication in the complaint that Cairo had any reason to suspect that Gross committed a criminal
offense. Nor does it appear from the face of the complaint that Gross posed any true threat to Cairo,
particularly considering that Gross was visibly pregnant and took the time to explain her intention
prior to moving toward to the door. Despite the lack of threat, Cairo’s alleged use of force, however
brief, caused placental hemorrhaging and necessitated additional obstetric care. The sole factor
that weighs in Cairo’s favor is that he alone had to simultaneously contend with Jacobs and Gross,
but there is no indication that Jacobs was not compliant during the home check. The complaint’s
allegations permit a reasonable inference that Gross’s seizure was unreasonable.
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(3d Cir. 2009). Cairo’s punch to Gross’s stomach implicated her constitutional
liberty interests by invading her bodily integrity, see K.S.S. v. Montgomery Cnty. Bd.
of Comm’rs, 871 F. Supp. 2d 389, 398 (E.D. Pa. 2012), and the alleged facts are such
that the court, at this early stage of litigation, cannot determine as a matter of law
that Cairo’s conduct did not shock the conscience. Lewis, 523 U.S. at 850–53
(contemplating a context-specific inquiry to determine whether conduct shocks the
conscience when culpability for the action falls on the spectrum between negligence
and intentional conduct that is intended to harm).
B. Cairo has not established that he is entitled to qualified immunity.
Cairo also argues that he is entitled to qualified immunity, which shields
“government officials performing discretionary functions . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.
2000). Qualified immunity requires a two-prong inquiry: “(1) whether the facts
alleged by the plaintiff show the violation of a constitutional right, and (2) whether
the law was clearly established at the time of the violation.” Jefferson v. Lias, 21
F.4th 74, 80 (3d Cir. 2021) (internal citation omitted).
To determine whether a right is clearly established, the court must first “define
the right allegedly violated at the appropriate level of specificity . . . in light of the
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specific context of the case.” Jefferson, 21 F.4th at 81 (quoting Peroza-Benitez v.
Smith, 994 F.3d 157, 165 (3d Cir. 2021)). Then, the court must examine existing
case law to determine whether the “[t]he contours of the right [are] sufficiently clear
that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “Existing precedent is sufficient
to place a constitutional question beyond debate and to defeat qualified immunity
only if it is controlling authority in the relevant jurisdiction, or if a robust consensus
of cases of persuasive authority in the Court of Appeals has settled the question.”
Sauers v. Borough of Nesquehoning, 905 F.3d 711, 719 (3d Cir. 2018) (internal
citations, quotation marks, and brackets omitted). Absent such case law, only “an
obvious case” will defeat qualified immunity. See White v. Pauly, 137 S. Ct. 548,
552 (2017) (The Graham factors alone do not “create clearly established law outside
an obvious case” because Graham is “cast at a high level of generality.”) (citing
Plumhoff v. Rickard, 572 U.S. 765, 779).
Gross’s allegations are analogous to the facts presented in El v. City of
Pittsburgh, 975 F.3d 327, 332, 336 (3d Cir. 2020), and although the decision postdates the circumstances alleged in the complaint, the Third Circuit’s grounds for
denying qualified immunity in El apply with equal force here. In El, a police officer
suspected the two plaintiffs, brothers Will and Beyshaud El, had committed a
marijuana offense. 975 F.3d at 332. She radioed for back up and initiated an
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investigative stop, ordering the men to sit on the stoop of a vacant storefront. Id.
During the stop, the Els voluntarily emptied their pockets to show that they did not
have marijuana. Id. However, when only Will could produce identification, the
officer began to suspect that Beyshaud had made an underage tobacco purchase. Id.
She returned Will’s identification by tossing it on the ground and then stepped on it
when Beyshaud tried to retrieve it. Id. The brothers complained that they were being
harassed, and a newly arrived back-up officer, Officer Welling, retorted, “[D]o you
want to know what it feels like to be harassed?” Id. In response, Will stood up and
began arguing and gesticulating. Id. When Will took two steps toward the other
officers, Officer Welling “grabbed [him] . . . by his wrist and neck and slammed him
back into the wall of the vacant storefront . . . and on to the pavement.” Id. Beyshaud
came to Will’s defense and was tased. Id. The two brothers were then arrested, and
upon release from jail, Will sought emergency medical services and was found to
have a bruised hip. Id.
Relying on a robust consensus of persuasive authority from sister circuits, the
Third Circuit found that Officer Welling was not entitled to qualified immunity for
his use of excessive force. See id. at 336. The Third Circuit held that “an unarmed
individual who is not suspected of a serious crime—including one who is verbally
uncooperative or passively resists the police” has a clearly established right not to
be subjected to non-trivial force. Id. (citing Deville v. Marcantel, 567 F.3d 156, 161
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(5th Cir. 2009) (per curiam) (no qualified immunity where officers conducting a
traffic stop pulled the plaintiff out of her car, threw her up against it, and handcuffed
her when she had argued with officers, rolled up her windows, and refused to get out
of the car); Shreve v. Jessamine Cnty. Fiscal Ct., 453 F.3d 681, 683–84 (6th Cir.
2006) (no qualified immunity where officers pepper sprayed, struck with a stick, and
took a knee to the back of a misdemeanant who hid to evade arrest and disobeyed
instructions to come out); Montoya v. City of Flandreau, 669 F.3d 867, 869 (8th Cir.
2012) (no qualified immunity where an officer responding to a domestic dispute took
a woman to the ground by sweeping her legs out from under her when she had made
a fist and stepped toward the other disputant); Thornton v. City of Macon, 132 F.3d
1395, 1398 (11th Cir. 1998) (per curiam) (no qualified immunity where officers,
while retrieving a woman’s property from the home of her former co-habitant, threw
him to the floor, handcuffed him, dragged him outside, and shoved him into a police
car when he had refused to return the property and told them to leave)).
In this case, Cairo is not entitled to qualified immunity because the
circumstances alleged in the complaint provided even less justification for Cairo to
punch Gross than Officer Welling had to use a similar amount of force in El. As with
the unarmed El brothers, there is no indication that Gross had any weapons.
However, unlike the El plaintiffs, who were suspected of a minor offense and were
ultimately convicted of summary offenses stemming from the altercation, Cairo at
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most suspected that Gross was on the verge of committing a misdemeanor trespass
to property and there is no indication that she was charged or convicted of any
offense from the incident. Even if Gross’s movement toward the door after
explaining her benign intentions could be characterized as resistance, her actions are
even more passive than Will’s standing up and taking steps toward the officers
during a dispute. Although Officer Welling’s force in taking Will to the ground
likely exceeds Cairo’s punch, the extent of Gross’s injury appears more severe than
Will’s bruised hip.
Finding no compelling factual distinctions between El and the complaint’s
allegations, the court therefore concludes that the same precedents that clearly
established the El plaintiff’s rights in 2013 also provided notice to Cairo in 2020 that
punching Gross under these circumstances constituted unlawfully excessive force.
Accordingly, Cairo is not entitled to qualified immunity at this juncture.
For the reasons explained above, the court will deny Defendant Peter Cairo’s
motion to dismiss. (Doc. 9.) An appropriate order shall follow.
s/ Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: September 15, 2022
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