Pecorella-Fabrizio et al v. Boheim et al

Filing 23

MEMORANDUM and ORDER granting in part and denying in part defendants' 8 10 Motions to Dismiss. Signed by Honorable James M. Munley on 12/15/08 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CARYN PECORELLA-FABRIZIO, and : No. 3:08cv348 ANDREW FABRIZIO, : Plaintiffs : (Judge Munley) : v. : : CHRISTOPHER BOHEIM, : individually and in his official : capacity, and : POCONO MOUNTAIN REGIONAL : POLICE DEPARTMENT, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendants' motions to dismiss plaintiffs' complaint (Doc. 8, 10). Having been fully briefed, the matters are ripe for disposition. B a c k g ro u n d T h is case arises out of a dispute between plaintiffs, who own a pet grooming b u s in e s s , and Bonnie D'Angelo, an independent contractor who formerly worked at th e ir business. (Complaint (hereinafter "Cmplt.") Doc. 1 at ¶¶ 8-9). According to the p la in tiffs ' complaint, they terminated D'Angelo's employment at Kozy Nozes Pet G ro o m in g & More ("Kozy Nozes") on December 31, 2007 after discovering D'Angelo s te a lin g blank pay stubs. (Id. at ¶ 11). D'Angelo had previously asked plaintiffs to fa lsify pay stubs to bolster a personal injury claim, a request the plaintiffs rebuffed. (Id.). After terminating D'Angelo's employment, Plaintiff Caryn Pecorella-Fabrizio

c a lle d the alarm company that provided security for her business to inform them that D 'A n g e lo no longer worked for the store. (Id. at ¶ 12). Pecorella-Fabrizio also d ire c te d the company to deactive D'Angelo's security entry code and to change all e n try codes at Kozy Nozes. Plaintiff Pecorella-Fabrizio informed D'Angelo that she should come to Kozy N o z e s to pick up her pet grooming equipment when the store was open. (Id. at ¶ 1 3 ). On January 3, 2008, during a time when the store was closed, D'Angelo re tu r n e d to the store. (Id. at ¶ 14). Defendant Christopher Boheim, employed as a p o lic e office with the Defendant Mount Pocono Regional Police Department, a c c o m p a n ie d D'Angelo to Kozy Nozes. (Id.). Kozy Nozes was closed for business a n d the premises locked when D'Angelo and Defendant Boheim arrived. (Id.). Neither Pecorella-Fabrizio nor Plaintiff Andrew Fabrizio, co-owner of the store, were p re s e n t when the two arrived. (Id.). The burglar alarm at Kozy Nozes went off when D'Angelo attempted to enter th e store. (Id. at ¶ 15). The security company called Defendant Mount Pocono R e g io n a l Police Department. (Id. at ¶ 16). Defendant Boheim received this call and in fo rm e d the security company that the Police Department was already on the s c e n e . (Id. at ¶ 17). The security company informed Boheim that D'Angelo had b e e n fired and that if her entry code did not work, she was not allowed to enter the b u ild in g . (Id. at ¶ 18). W h e n Boheim discovered that D'Angelo's entry code did not a llo w her access, he told the security company that he would take responsibility for

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a llo w in g D'Angelo to enter the building. (Id. at ¶¶ 19-20). Boheim then entered Kozy N o z e s with D'Angelo and without permission from plaintiffs, the business's owners. (Id. at ¶ 20). Boheim likewise lacked a warrant to search the premises, and lacked the exigent circumstance required to make a warrantless entry. (Id. at ¶¶ 21-23). O n c e she entered Kozy Nozes, D'Angelo stole numerous pieces of equipment th a t were the plaintiffs' property. (Id. at ¶ 24) D'Angelo also took cash from the b u s in e s s . (Id.). Defendant Boheim observed D'Angelo abscond with this property a n d did nothing to intervene. (Id.). Indeed, Boheim assisted D'Angelo in carrying tw o dog grooming tables from the property. (Id. at ¶ 25). Plaintiffs contend that D 'A n g e lo stole these tables from them. (Id.). This stolen property limited the a m o u n t of business plaintiffs could do, since they could book fewer appointments b e c a u s e they had less space on which to work. (Id. at ¶ 26). Plaintiffs experienced a substantial loss of income as a result. (Id.). Plaintiffs allege that Defendant B o h e im "acted willfully deliberately and with conscious disregard for Plaintiffs' c o n s titu tio n a l and statutory rights" in assisting D'Angelo in her theft of their property. (Id. at ¶ 27). On February 25, 2008, plaintiffs filed the instant five-count complaint. Count I, b ro u g h t pursuant to 42 U.S.C. § 1983, alleges that Defendant Boheim violated p la in tiffs ' right to be free from unlawful searches and seizures pursuant to the Fourth a n d Fourteenth Amendments of the United States Constitution. Count II alleges that D e fe n d a n t Boheim violated plaintiff's rights under the Fifth and Fourteenth

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A m e n d m e n ts by depriving them of their property without due process of law. Count III accuses Defendant Boheim of denying plaintiffs of their procedural due process rig h ts under the Fourteenth Amendment. In Court IV, plaintiffs allege that Defendant P o c o n o Mountain Regional Police Department violated their rights by failing to train o ffic e rs not to make warrantless searches or assist private citizens in committing c rim e s and circumventing the judicial process, and by failing to discipline police o ffic e r s who violate rights. Count V raises state law claims for negligence, trespass, c o n ve rs io n and unlawful search and seizure against both defendants. Plaintiffs c o n te n d that the Defendant Police Department is liable to them under a respondeat s u p e rio r theory. As relief, plaintiffs seek compensatory and nominal damages, p u n itive damages and attorney's fees and costs. O n April 29, 2008, defendants filed the instant motions to dismiss.1 The p a rtie s then briefed the motions, bringing the case to its present posture. J u r i s d ic t i o n A s this case is brought pursuant to 42 U.S.C. § 1983, we have jurisdiction u n d e r 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil a c tio n s arising under the Constitution, laws, or treaties of the United States."). W e h a ve jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) ("In

Defendants filed two motions to dismiss. Defendant Boeheim filed a separate motion to dismiss addressing the claims raised against him in his individual capacity (Doc. 8). Defendant Pocono Mountain Police Department's motion to dismiss that also included claims raised against Defendant Boeheim in his official capacity (Doc. 10). 4

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a n y civil action of which the district courts have original jurisdiction, the district courts s h a ll have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or c o n tro v e rs y under Article II of the United States Constitution."). L e g a l Standard W h e n a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are te s te d . The issue is whether the facts alleged in the complaint, if true, support a c la im upon which relief can be granted. In deciding a 12(b)(6) motion, the court m u s t accept as true all factual allegations in the complaint and give the pleader the b e n e fit of all reasonable inferences that can fairly be drawn therefrom, and view th e m in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 1 3 2 F.3d 902, 906 (3d Cir. 1997). Discussion D e fe n d a n ts raise several grounds in their motions to dismiss. We will address th e m in turn. a . Official Capacity Claims D e fe n d a n ts argue that the claims against him in his official capacity should be d is m is s e d , since those claims are duplicative of the claims against the Pocono M o u n ta in Regional Police Department. Plaintiffs do not respond to this argument. Since Defendant Boheim correctly states the general rule, the court will grant the m o tio n to dismiss on this point. See, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991) 5

(h o ld in g that "[s]uits against state officials in their official capacity . . . should be tre a ted as suits against the State."). b . Fifth Amendment Claims D e fe n d a n t Boheim also argues that plaintiffs' claims under the Fifth Amendment in counts II and IV should be dismissed, since such claims can be b ro u g h t only against the federal government, not against a state agency or e m p lo ye e . Since the plaintiffs do not complain of any federal government action, D e fe n d a n t contends, any claims pursuant to the Fifth Amendment should be d ism iss e d . The court will grant the defendants' motion to the extent that it seeks to d is m is s plaintiffs' Fifth Amendment due process claims, as those claims are more p ro p e rly brought against state officials pursuant to the Fourteenth Amendment. See, e .g ., Mendez v. Bolton, 739 F.2d 15, 18 n.1 (1st Cir. 1984) (holding that "Defendants' a c tio n s that could be fairly attributable to the federal government would constitute g o ve rn m e n t action for Fifth Amendment purposes. Defendants' actions fairly a ttrib u ta b le to state or local government would constitute state action under § 1983 a n d the Fourteenth Amendment.). At the same time, however, "[t]he standards for d e te r m in in g the existence of federal or state action are identical." Id. Since p la in tiffs have alleged a deprivation of their rights to due process of law pursuant to th e Fourteenth Amendment in both Count II and Count IV, the court will not dismiss th o s e counts entirely.

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c . Procedural Due Process C o u n t III raises a procedural due process claim against Defendant Boheim. Boheim argues that plaintiffs' procedural due process claim brought pursuant to the F o u rte e n th Amendment should be dismissed. He argues that the claim here does n o t sound in procedural due process because plaintiff does not point to any p a rtic u la r procedural deficiencies in the way that plaintiffs were deprived of their p ro p e rty. A Fourteenth Amendment due process claim requires a two-part analysis "in q u irin g (1) whether `the asserted individual interests are encompassed within the fo u rte e n th amendment's protection of `life, liberty, or property'; and (2) whether the p ro c e d u re s available provided the plaintiff with `due process of law.'" Alvin v. Suzuki, 2 2 7 F.3d 107, 116 (3d Cir. 2000) (quoting Robb v. City of Philadelphia, 733 F.2d 2 8 6 , 292 (3d Cir. 1984)). In cases where the plaintiff alleges that process was in s u ffic ie n t, the court must "look to the private interest, the governmental interest, a n d the value of the available procedure in safeguarding against erroneous d e p riva tio n ." Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3d C ir. 2000). This process is context-specific, and "`calls for such procedural p ro te c tio n s as the particular situation demands.'" Id. (quoting Greenholtz v. Inmates o f Nebraska Penal and Corr. Complex, 442 U.S. 1, 12-13 (1979)). The court finds th a t plaintiffs have stated a procedural due process claim. The claim alleges that d e fe n d a n t Boeheim assisted in the recovery of material that belonged to plaintiffs

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w ith o u t obtaining a warrant or any sort of permission to gain in that activity. Making a ll inferences in the plaintiffs' favor, the complaint therefore alleges plaintiffs were d e p rive d of their property without any process at all. While discovery may reveal th a t plaintiffs received all of the process they were due under the circumstances or tha t Defendant Boehaim enjoys some form of immunity from these claims, the court fin d s that plaintiffs have stated a claim on this matter. The motion to dismiss will be d e n ie d on this point. d. Failure to Train D e fe n d a n t Pocono Mountain Regional Police Department seeks dismissal of C o u n t IV of the complaint­the only count raised against that defendant. The police d e p a rtm e n t points out that plaintiffs' complaints concern the failure of the department to provide proper training to officers. Despite the fact that such failure-to-train claims s o u n d in substantive due process, the Defendant Police Department points out that p la in tiffs raise them as procedural due process claims. Moreover, defendant argues th a t plaintiffs have not pointed to any specific training that caused their injuries, but in s te a d makes only conclusory allegations. As such, defendant argues that these c la im s should be dismissed. W h e n a plaintiff asserts liability on the basis of a failure to train,2 "[a] plaintiff

While the court agrees that plaintiffs should have pled these claims as substantive rather than procedural due process claims, the court will not grant the motion to dismiss on this point, but will instead consider whether plaintiff has stated a due process claim for failure to train. The Federal Rules of Civil Procedure "reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept 8

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p r e s s in g a § 1983 claim must identify a failure to provide specific training that has a c a u s a l nexus with their injuries and must demonstrate that the absence of that s p e c ific training can reasonably be said to reflect a deliberate indifference to whether c o n s titu tio n a l deprivations occurred." Reitz v. County of Bucks, 125 F.3d 139, 145 (3 d Cir. 1997). The Third Circuit Court of Appeals has noted that "liability" for failure to train "could be imposed `only where there are both (1) contemporaneous k n o w le d g e of the offending incident or knowledge of a prior pattern of similar in c id e n ts , and (2) circumstances under which the supervisor's inaction could be fou n d to have communicated a message of approval to the offending subordinate.'" Colburn v. Upper Darby Twp., 838 F.2d 663, 673 (3d Cir. 1988). In Colburn, the C o u rt concluded that plaintiff's allegations "that defendants had a custom of in a d e q u a te ly monitoring the jails for potential suicides" properly stated a failure-totra in claim against a prison but that an allegation that a failure "to train police officers . . . in proper search techniques" did not. Id. at 673. That case concerned a prison s u ic id e where the decedent had secreted a handgun in her clothing and searches at th e jail failed to discover it. Id. at 665. Here, the allegations argue that the defendant police department lacked p ro p e r training for police officers in securing authority to enter a building and obtain p ro p e rty. According to the complaint, then, defendant did not provide Officer Boheim

the principle that the purpose of pleading is to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48 (1957). 9

w ith training that taught him he lacked authority to enter a building unless in p o s s e s s io n of a search warrant or some other legally valid excuse. The training that th e defendant police department failed to provide, the complaint contends, was tra in in g that a police officer cannot simply accept the claims of a non property-holder to a right of entry, as a well as a right to seize property. While the facts may d e m o n s tra te that such training existed or was unnecessary, at this point in the litig a tio n plaintiffs' allegations are sufficient to survive a motion to dismiss. The court w ill deny the motions on this point. e. Intentional Infliction of Emotional Distress D e fe n d a n t Boeheim argues that the court should dismiss plaintiff's claims for in ten tio n a l infliction of emotional distress because the facts as alleged do not support s u c h a claim. Plaintiffs respond by contending that they do not raise a separate c la im for intentional infliction of emotional distress, but instead merely seek damages fo r the emotional harm caused by defendants' actions. As the plaintiffs appear to a g re e that they cannot make out a claim for intentional infliction of emotional d is tre s s , the court will grant the motion to dismiss. To the extent that plaintiff alleges s u c h claims, they are dismssed.3 C o n c l u s io n A s stated above, the defendants' motions to dismiss will be granted in part

Neither defendant appears to challenges plaintiff's state-law claims raised in Count V. Regardless, plaintiffs can recover for emotional distress pursuant to Section 1983. 10

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a n d denied in part. Defendant Pocono Mountain Police Department's motion to d is m is s will be granted as it pertains to any claims against Defendant Boeheim in his o ffic ia l capacity and claims pursuant to the Fifth Amendment, and will be denied in a ll other respects. Defendant Boeheim's motion will be granted with respect to c la im s against him in his official capacity and with respect to the Fifth Amendment a n d denied in all other respects. To the extent that plaintiffs bring any claims for in te n tio n a l infliction of emotional distress, those claims will be dismissed. As such, p la in tiffs ' claims in Counts I and III remain in the case, as do plaintiffs' claims p u rs u a n t to the Fourteenth Amendment in Counts II and IV and the state-law claims in Count V. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CARYN PECORELLA-FABRIZIO, and : No. 3:08cv348 ANDREW FABRIZIO, : Plaintiffs : (Judge Munley) : v. : : CHRISTOPHER BOHEIM, : individually and in his official : capacity, and : POCONO MOUNTAIN REGIONAL : POLICE DEPARTMENT, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 15th day of December 2008, Defendant Boeheim's m o tio n to dismiss (Doc. 8) is hereby GRANTED with respect to any claims against h im in his official capacity and pursuant to the Fifth Amendment and hereby DENIED in all other respects. Defendants Pocono Mountain Regional Police Department's m o tio n to dismiss (Doc. 10) is hereby GRANTED with respect to any claims against D e fe n d a n t Boeheim in his official capacity and pursuant to the Fifth Amendment and D E N IE D in all other respects. Any separate claims that plaintiffs raise with respect to intentional infliction of emotional distress are hereby DISMISSED.

BY THE COURT:

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s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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