Garay v. Colasardo et al

Filing 25

MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION to Dismiss Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) filed by Michael Colasardo, Scott Nicholas, Joe Yannuzzi, Frank Deandrea, City of Hazleton Signed by Honorable A. Richard Caputo on 1/30/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
VERONICA GARAY,
CIVIL ACTION NO. 3:CV-14-1332

Plaintiff,

(JUDGE CAPUTO)

v.
OFFICER MICHAEL COLASARDO, et al.,
Defendants.

MEMORANDUM
Presently before the Court is Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint (Doc. 19). Defendants Michael Colasardo et al. move to dismiss, in part,
Plaintiff Veronica Garay’s Amended Complaint (Doc. 18) for failure to state a claim upon
which relief can be granted, pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(6).
Plaintiff Garay is the administratrix of the estate of her brother, Jonathan Garay. Plaintiff
Garay alleges that the rights of Jonathan Garay were violated when he was shot by a
Hazleton City Police Officer. She brings suit pursuant to 42 U.S.C. §§ 1981, 1983, 1985,
1986, the Pennsylvania Constitution, and pendent state tort law. Because the amended
complaint fails to set forth claims of § 1985 conspiracy and failure to prevent actions taken
under § 1985 (counts XI and XII), a claim of civil conspiracy (count VII) against Defendants
Mayor Joe Yannuzzi, Police Chief Frank DeAndrea, and John/Jane Doe; claims of state
constitutional violations, assault and battery, and trespass, false arrest, and illegal
imprisonment (counts XIII, XIV and XV) for monetary damages; and state law conspiracy
(count XVI) against Defendants City of Hazleton and Doe, Defendants’ Motion to Dismiss
(Doc. 19) will be granted with respect to these claims. Because the amended complaint
states sufficient facts to establish all other challenged claims, Defendants’ Motion to
Dismiss will be denied with respect to these claims.

I. Background
Plaintiff Veronica Garay (“Ms. Garay,” “Plaintiff Garay”) brings suit individually and
as the administratrix of the estate of her brother, Jonathan Garay (“the decedent,” “Mr.
Garay”). The defendants are the City of Hazleton (“Hazleton”), Hazleton Police Officers
Michael Colasardo and Scott Nicholas, Chief of Hazleton Police Frank DeAndrea, Mayor
of Hazleton Joe Yannuzzi, and John/Jane Doe #1-X, member(s) of Hazleton law
enforcement. All defendants are sued individually and in their official capacities.
A. Factual Background
The facts as alleged in the Amended Complaint (Doc. 18) are as follows:
1. The Parties
Defendant City of Hazleton (“Hazleton,” “City”) is a municipal corporation and
governmental entity within the Commonwealth of Pennsylvania.

(Id. at ¶ 10.) It is

empowered to establish, regulate, and control its police department in the enforcement of
laws and ordinances within its jurisdiction, and for the purpose of protecting and preserving
the persons, property and constitutional rights of individuals within its jurisdiction.
Defendants Officer Michael Colasardo and Officer Scott Nicholas are sworn officers
of the Hazleton Police Department, and at all relevant times were serving in their official
capacity. (Doc. 18, ¶ 5-6.) They were entrusted with power to enforce the law and to
protect the constitutional rights of those they encountered. (Id.)
Defendant Frank DeAndrea was at all relevant times the Police Chief for the
Hazleton Police department, and was responsible for the formulation and implementation
of practices, policies, and procedures. (Id. at ¶ 7.) He is also responsible for discipline and
assignment of officers, hiring and firing, and the daily operation, command, and control of
the police department. (Id.) At all relevant times, he was acting within the scope of his
duties and authority. (Id.) He supervised or controlled one or more of the other defendants
herein. (Id.) Plaintiff avers that Defendant DeAndrea, along with Defendant Yannuzzi, are
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the ultimate authority for staffing, promotions, discipline and operational functions of the
police department, with the final decision-making authority of a policymaker. (Id.)
Defendant Joe Yannuzzi is the elected Mayor of Hazleton. (Id. at ¶ 8.) He directly
supervises the police department and its members. (Id.) He oversees the selection of the
supervisory personnel for the police department, who are, through him, responsible for the
formulation and implementation of practices, policies, customs and procedures, as well as
the day to day operation, command, and control of all segments of the police department.
(Id.) Mayor Yannuzzi is responsible for promulgating and enforcing laws, rules and
regulations concerning the police department. (Id.) At all relevant times, he was acting
within the scope of his duties and authority, and supervised or controlled one or more of the
defendants herein. (Id.) Yannuzzi exercises authority over the selection, staffing, retention,
training, promotions, discipline and operational functions of the police department. (Id.)
Defendant(s) John/Jane Doe #1-X (“Doe”) are law enforcement officers.
Defendant(s) was/were at all relevant times serving in their official capacity as (a) sworn
officer(s), and had the power to enforce city and state laws. (Id. at ¶ 9.)
2. The Shooting
On or about the night of October 4, 2013, into the early morning of October 5, the
decedent, Jonathan Garay, was socializing with friends in Hazleton. (Id. at ¶ 11.) Mr.
Garay, who is Latino, was nearby his home, which is located at 521 Alter Street in Hazleton,
Pennsylvania. (Id. at ¶ 12.) At approximately 2:30 a.m. on October 5, 2013, a fight
involving around 10-15 people occurred outside of the Capri Bar on Alter Street in Hazleton.
(Id. at ¶ 13-14.) Mr. Garay was not one of the people involved in this fight. (Id. at ¶ 16.)
This was told to Defendants Nicholas and Colasardo, though it is not clear at what point.
(Id.) Hazleton Police were called in response to this fight. (Id. at ¶ 15.)
While the police arrived at Capri Bar, Mr. Garay walked on Alter Street toward his
home at 521 Alter Street. (Id. at ¶ 17.) Mr. Garay and a friend turned off of Alter Street
onto First Street, and entered the backyard of Mr. Garay’s home, enclosed by a gated
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fence. (Id. at ¶ 18.) Police were clearing the area on Alter Street near the fight. (Id. at ¶
19.) No one requested that Mr. Garay or his friend remain on Alter Street. (Id.)
The fence surrounding Mr. Garay’s backyard had thatching on it, so one could not
see into the backyard from the street. (Id. at ¶ 20.) After Mr. Garay and his friend entered
the backyard, he latched the gate behind him and proceeded to his back door. His friend
walked to the opposite side of the yard. (Id. at ¶ 21.) Mr. Garay walked up his back steps,
opened the screen door, placed his keys into the lock of his door, and tried to open it. (Id.
at ¶ 22.)
Plaintiff alleges that at the same time, Defendant Nicholas entered Mr. Garay’s
backyard through the closed gate, without permission. (Id. at ¶ 23.) Defendant Nicholas
approached Mr. Garay from behind, and assaulted him on the back porch and inside the
doorway to Mr. Garay’s home. (Id. at ¶ 27.) At approximately the same time, Defendant
Colasardo entered Mr. Garay’s backyard and drew and fired his weapon, hitting him twice,
in the head and body. (Id. at ¶ 28-29.)
Plaintiff asserts that one of the bullets entered Mr. Garay’s head on the left side and
exited from the left lateral chin area, fracturing the decedent’s left mandibular ramus. (Id.
at ¶ 30-31.) The bullet traveled downward, slightly from left to right, with “essentially no
change of direction from front to back or back to front.” (Id. at ¶ 32.) No stippling or
gunpowder residue from the bullet was found in the surrounding soft tissue or skin. (Id. at
¶ 33.) The other bullet entered Mr. Garay’s right posterior flank, traveling right to left and
slightly downward and slightly forward. (Id. at ¶ 34.) Mr. Garay was shot in the back. (Id.
at ¶ 35.) The bullet was found in the soft tissue of decedent’s left pelvis. (Id. at ¶ 36.)
Mr. Garay was taken to hospital, where he was admitted at 3:23 a.m. (Id.) He was
pronounced dead at 3:35 a.m. on October 5, 2013. (Id. at ¶ 38.) Dr. Gary Ross, M.D.
performed an autopsy of the decedent that morning. (Id. at ¶ 39.) After this autopsy, the
Luzerne County Coroner ruled his death a homicide, with multiple gunshot wounds the
cause of death. (Id. at ¶ 40-41.)

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3. After the Shooting
After Mr. Garay was shot, he was lying on the floor of the kitchen of his home,
bleeding heavily, when police and paramedics arrived. (Id. at ¶ 58.) Mr. Garay’s family
members were present while he was bleeding in the kitchen, and heard him speak prior to
his death. (Id. at ¶ 59.) Immediately following the shooting, while Mr. Garay was on the
kitchen floor, one of the defendant officers removed a firearm from Mr. Garay’s waistband
and threw it to the side. (Id. at ¶ 60.) Plaintiff argues that this shows that Mr. Garay did not
remove his firearm from his waistband. (Id. at ¶ 61.) Mr. Garay had a valid license to carry
a firearm. (Id. at ¶ 62.)
After the shooting, police officers kicked in the bedroom door of Mr. Garay’s brother,
who was asleep upstairs. (Id. at ¶ 65.) Officers woke him from sleep, put him on the
ground, and used a taser on him. (Id.) All of Mr. Garay’s family members were forcibly
removed by the defendants and other law enforcement from the kitchen, and were not
permitted to help Mr. Garay as he bled to death in the kitchen. (Id. at ¶ 63.) Plaintiff alleges
that the occupants of Mr. Garay’s home were “corralled” in the “family room,” feet away from
Mr. Garay. (Id. at ¶ 64.) Plaintiff asserts that at this time, police department members
insulted the Garay family, and forced them remain in the living room as Mr. Garay bled
heavily. (Id. at ¶ 68.) Plaintiff alleges that Hazleton Police Department members, including
Defendants, had harassed members of the Garay Family prior to the shooting, and also did
so following the shooting. (Id. at ¶ 69-70.)
Plaintiff maintains that this conduct is typical of the Hazleton Police Department’s
treatment of racial minorities. (Id. at ¶ 66.) Plaintiff alleges that Defendants Colasardo and
Nicholas have “a history of violence and Constitutional violations that were known to their
supervisors and Defendant City.” (Id. at ¶ 71.) Plaintiff asserts that Colasardo and Nicholas
were not disciplined for past acts, which amounted to condonation and encouragement from
their supervisors and the City to continue to engage in constitutional violations. (Id.)
Plaintiff alleges that further evidence of these unconstitutional acts was destroyed by
Defendant(s) Doe. (Id. at ¶ 74.)
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No discipline was issued by supervisors following the shooting of Garay, which
Plaintiff asserts further demonstrates that the city and police supervisors condoned and
encouraged such behavior. (Id. at ¶ 72.)
Plaintiff argues that the Police Department and the City provided no training to the
defendants on appropriate entry onto private property, the appropriate use of force in given
circumstances, the use of deadly force, or the safe handling of firearms. (Id. at ¶ 75-76.)
Plaintiff alleges that many Hazleton police officers “routinely” use excessive force, and have
been nominally disciplined, if at all. (Id. at ¶ 77.)
Plaintiff alleges that prior to the death of Mr. Garay, the police department had no
written policies regarding the appropriate use of force in circumstances regularly
encountered by law enforcement. (Id. at ¶ 78.) If such policies did exist, it was the
department’s common practice to ignore them. (Id.) Plaintiff asserts that there were
repeated incidents of and complaints about excessive use of force by Hazleton police
officers prior to this event, and despite this, no significant efforts were made to establish use
of force standards or to ensure constitutional rights were not violated. (Id. at ¶ 79.) Plaintiff
maintains that many of these incidents and complaints involved people of a racial minority.
(Id. at ¶ 80.) Plaintiff argues that this shows a deliberate indifference to the rights of
individuals.
Plaintiff asserts that the defendant supervisors, city administration, and the mayor
ignored citizens’ repeated complaints about officers’ repeated violations of constitutional
rights, and ignored these violations (Id. at ¶ 80.) Plaintiff alleges that they failed to adopt
and enforce policies and procedures to end the culture of abuse and indifference to the
rights and safety of others. (Id. at ¶ 89). Plaintiff maintains that Defendants encouraged
the custom and practice of indifference to constitutional rights by: rewarding improper
actions; failing to promulgate appropriate rules, regulations and policies; failing to enforce
existing rules and regulations; failing to discipline illegal conduct; inappropriate hiring,
training supervision and promotions; and reinforcing the culture of deliberate indifference.
(Id. at ¶ 89.) Plaintiff asserts that the individual defendants assisted each other in
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performing these actions, and lent their physical presence and authority in support of each
other. (Id. at ¶ 90.)
3. The Investigation of the Shooting
After Mr. Garay’s death, the State Police and the Luzerne County District Attorney
conducted an investigation into the shooting of Mr. Garay. (Id. at ¶ 43.) On October 16,
2013, the Luzerne County District Attorney, Stefanie J. Salavantis, issued a report regarding
the shooting. (Id. at ¶ 44.) Plaintiff notes that this was eleven (11) days after the shooting,
and before the autopsy report was completed and issued. (Id.) Salavantis stated that she
issued the report after interviewing Defendants Nicholas and Colasardo. (Id. at ¶ 46.)
Plaintiff disputes the version of events as described in this report–particularly, that
Mr. Garay was pointing a gun at Defendant Colasardo when he was shot, and that he was
shot in his front, outside, and then stumbled back into the doorway. (Id. at ¶ 46-51.)
Plaintiff argues that the wounds suggest that the decedent was not facing Colasardo when
he was shot; rather, he was shot in the back while trying to enter–or already inside–his
home. (Id. at ¶ 52.) Plaintiff asserts that the decedent did not point a gun at Defendant
Colasardo, and it is impossible that he did so, based on the trajectory of the bullets and the
fact that he was shot in the back. (Id. at ¶ 54.) Plaintiff maintains that the absence of
gunpowder residue, blackening, and stippling surrounding the two sites where the bullets
entered the decedent’s body indicate that the bullets were fired from a distance beyond 2436 inches, which contradicts the report. (Id. at ¶ 55.) Plaintiff also argues that the porch
where the decedent was shot was very small, too small for a struggle between Defendants
Colasardo and Nicholas and the decedent (as stated in the report) to have occurred, and
not leave gunpowder residue, blackening, and stippling at the bullets’ entry points. (Id. at
¶ 56-57.) Plaintiff maintains that the report contradicts the autopsy report.
Plaintiff asserts that the decedent was only trying to gain entry into his home, and did
not physically resist, threaten, or assault the Defendants, and was not a threat to the safety
of himself or others. (Id. at ¶ 84-85.)
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B. Procedural Background
Plaintiff Veronica Garay instituted this action by filing a Complaint (Doc. 1) on July
11, 2014. After Defendant filed two Motions to Dismiss (Docs. 12 and 16), which were later
terminated, Plaintiff filed an amended complaint on August 18, 2014 (Doc. 18).
In her Complaint, Plaintiff Garay asserts the following eighteen (18) counts:
Counts I-IV, VI, VII, IX: unlawful entry, unlawful seizure, excessive force and physical
brutality, false imprisonment, failure to intervene, civil conspiracy, and fourteenth
amendment equal protection, respectively, pursuant to 42 U.S.C. § 1983, against all
individual defendants.
Count V: Supervisory-Policymaker Liability, pursuant to 42 U.S.C. § 1983, against
Defendants Yannuzzi, DeAndrea and Doe.
Count VIII: Municipal Liability, pursuant to 42 U.S.C. § 1983, against the City of
Hazleton.
Count X: Denial of Equal Rights Under the Law, in violation of 42 U.S.C. § 1981,
against all defendants.
Count XI: Conspiracy to Interfere with Civil Rights, in violation of 42 U.S.C. § 1985,
against all defendants.
Count XII: 42 U.S.C. § 1985 - § 1986, Failure to Prevent Actions Taken Under §
1985, against all defendants.
Count XIII: State constitutional violations (Article I, Section 8), against all individual
defendants.
Counts XIV -XVI: assault and battery; trespass, false arrest and illegal imprisonment;
and civil conspiracy, respectively, in violation of state law, against Defendants Colasardo,
Nicholas, City, and Doe.
Counts XVII and XVIII: Wrongful Death and a survival action, respectively, in violation
of state law, against all defendants.
On August 25, 2014, Defendants filed this partial Motion to Dismiss for failure to state
a claim pursuant to FRCP 12(b)(6) (Doc. 19) and an accompanying Brief (Doc. 20).
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Defendants seek to dismiss counts I, II, III, IV, and VI against Defendants Yannuzzi and
DeAndrea; and counts XIV and XV against Defendant City. Defendants seek dismissal in
entirety of counts V, VII, IX, X, XI, XII, XIII, and XVI.
On September 11, 2014, Plaintiff Garay filed a Brief in Opposition to Defendant’s
Motion (Doc. 23). This matter is fully briefed and ripe for disposition.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. When
considering such a motion, the Court's role is limited to determining if a plaintiff is entitled
to offer evidence in support of his claims. See Semerenko v. Cendant Corp., 223 F.3d 165,
173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail.
See id. A defendant bears the burden of establishing that a plaintiff’s complaint fails to
state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
statement required by Rule 8(a)(2) must “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Detailed
factual allegations are not required. Twombly, 550 U.S. at 555. However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff's entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint
must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662,(2009). As such, “[t]he touchstone of the pleading standard
is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
The inquiry at the motion to dismiss stage is “normally broken into three parts: (1)
identifying the elements of the claim, (2) reviewing the complaint to strike conclusory
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allegations, and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’” each necessary element.
Phillips v. Cnty of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S.
at 556). “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.” Iqbal, 556 U.S. at 678.
“When there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679.
In deciding a motion to dismiss, the Court should consider the complaint, exhibits
attached to the complaint, and matters of public record. Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)). The Court may also consider “undisputedly authentic”
documents when the plaintiff’s claims are based on the documents and the defendant has
attached copies of the documents to the motion to dismiss. Pension Benefit Guar., 998
F.2d at 1196. The Court need not assume the plaintiff can prove facts that were not alleged
in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n. 13
(3d Cir. 1998), or credit a complaint's “‘bald assertions'” or “‘legal conclusions.’” Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).

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III. Discussion
Defendants assert that Plaintiff’s Complaint fails to state a claim upon which relief
can be granted with respect to fifteen of the eighteen counts, at least in part. Taking all
facts in a light most favorable to the plaintiff, and resolving all possible inferences in her
favor, I examine whether she has alleged sufficient facts to plausibly state a claim. I will
address the counts in the order set out by Defendants in the brief accompanying their
Motion to Dismiss (Doc. 20).
A. Counts I, II, II, IV, V, VI
Defendants seek dismissal as to Defendants Yannuzzi and DeAndrea of counts I,
II, II, IV and VI: unlawful entry, unlawful seizure, excessive force and physical brutality, false
imprisonment, failure to intervene, civil conspiracy, and fourteenth amendment equal
protection, respectively, in violation of U.S.C. § 1983. Defendants seek dismissal in the
entirety of count V, which alleges supervisory liability-policymaker liability pursuant to §
1983 against defendants Yannuzzi, DeAndrea, and Does.
Defendant Yannuzzi is the mayor of Hazleton. Defendant DeAndrea is the police
chief. Plaintiff asserts that Yannuzzi and DeAndrea are liable for the above violations under
a theory of municipal liability, and policymaker and supervisory liability (as set out in Monell
v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978)).
Defendants argue that the plaintiff cannot allege that Yannuzzi and DeAndrea
violated § 1983 under a theory of municipal, policymaker, or supervisory liability. They
argue that “as there is no claim that either of these defendants set foot on the Garay
property, seized or used any force whatsoever against decedent, these claims should be
dismissed.” (Doc. 20, 6.) Defendants do not argue that Plaintiff has failed to state a claim
in counts I-IV and VI against Officers Colasardo and Michael, only that she has not stated
a claim against Mayor Yannuzzi and Police Chief DeAndrea.
Municipalities and their employees cannot be held liable under § 1983 pursuant to
a theory of respondeat superior. Monell, 436 U.S. 658. Under Monell, however, “[l]ocal
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governing bodies . . . can be sued directly under § 1983 for monetary, declaratory, or
injunctive relief where . . . the action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body's officers.” Monell, 436 U.S. at 690. Pursuant to Monell, a failure
to train police officers can cause a municipality to be liable under § 1983. City of Canton
v. Harris, 489 U.S. 378, 388 (1989). “[W]hile claims . . . alleging that the city's failure to
provide training to municipal employees resulted in the constitutional deprivation [a plaintiff]
suffered are cognizable under § 1983, they can only yield liability against a municipality
where that city's failure to train reflects deliberate indifference to the constitutional rights of
its inhabitants.” Id. at 392.
[I]n light of the duties assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need. In that event, the failure to
provide proper training may fairly be said to represent a policy for which the city is
responsible, and for which the city may be held liable if it actually causes injury.
Id. at 390.
Plaintiff alleges that Defendants Yannuzzi and DeAndrea are liable for the failure of
the police department and the city to train police on the proper ways to enter property,
conduct a seizure, use force, conduct arrests, and intervene. All of these are common
situations that police officers face, and are all situations in which violations of citizens’
constitutional rights are likely to occur. Furthermore, many citizens had made complaints
to the city and the department about the conduct of police officers in these situations prior
to the event at issue here. Plaintiff asserts that the failure to train police officers to respect
the constitutional rights of citizens in situations that police officers very frequently face, and
the decision to ignore complaints about their practices, amounts to deliberate indifference.
Taking all of the Plaintiff’s factual assertions as true, and resolving all inferences in
her favor, she has stated a claim for which relief can be granted with respect to Yannuzzi
and DeAndrea. In Monell, the Supreme Court made clear that officials may be held liable,
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and sued, in such suits:
Since official-capacity suits generally represent only another way of pleading an
action against an entity of which an officer is an agent . . . our holding today that local
governments can be sued under § 1983 necessarily decides that local government
officials sued in their official capacities are “persons” under § 1983 in those cases
in which, as here, a local government would be suable in its own name.
Monell, 436 U.S. at 691 (1978).
Thus, in asserting that these claims against Yannuzzi and DeAndrea should be
dismissed merely because they did not personally physically participate in the alleged
constitutional violations, Defendants have not shown that the claims should be dismissed,
and the motion will be denied.
B. Counts XIV and XV
Defendants seek dismissal for failure to state a claim of counts XIV and XV against
Defendant City. Count XIV asserts a state law tort claim for assault and battery. Count XV
asserts state law claims of trespass, false arrest and illegal imprisonment. Both counts are
against Officers Colasardo and Nicholas, the Doe defendants, and the City. Defendants
argue that the City cannot be liable for the torts of its employees. Plaintiff concedes that
she may not request monetary damages from the city for these counts; however, she may
maintain a request for injunctive relief. (Doc. 23, 16.)
Under the Pennsylvania Political Subdivision Tort Claims Act (PSTCA), local
agencies are immune from state law tort claims (with some exceptions not applicable here).
42 Pa. Cons. Stat. §§ 8541 et seq. The City of Hazleton qualifies as a local agency under
the PSTCA. See id., § 8501. Therefore, it has immunity under the statute. However,
Plaintiff is correct that the statute only grants governmental immunity against actions for
damages. Thus, Plaintiff may proceed to the extent that her claims ask for injunctive relief.

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C. Count VII
Defendants seek dismissal in entirety of count VII, which alleges civil conspiracy
pursuant to § 1983 against all individual defendants. In the alternative, Defendants seek
dismissal as to Defendants Yannuzzi and DeAndrea only. Defendants argue that this
allegation “fails for lack of specificity.” (Doc. 20, 10.)
To state a claim of civil conspiracy in violation of § 1983, “a plaintiff must assert facts
from which a conspiratorial agreement can be inferred.” Coulter v. Ramsden, 510 F. App'x
100, 103 (3d Cir. 2013) (citing D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch.,
972 F.2d 1364, 1377 (3d Cir. 1992)). “Conspiracy requires a ‘meeting of the minds.’” Great
W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (quoting
Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008) (further citations omitted)). “This
holding remains good law following Twombly and Iqbal, which, in the conspiracy context,
require ‘enough factual matter (taken as true) to suggest that an agreement was made,’ in
other words, ‘plausible grounds to infer an agreement.’” Great W. Mining & Mineral Co.,
615 F.3d at 178 (quoting Twombly, 550 U.S. at 556.)
With respect to Officers Colasardo and Nicholas, Plaintiff has asserted sufficient
facts to state a plausible claim of conspiracy with enough specificity. The officers appear
to have agreed to coordinate their actions: both entered decedent’s fenced-in property at
the same time, and both assaulted the decedent. Plaintiff alleges that both officers
unlawfully entered the Garay home, insulted Garay family members, did not provide aid as
the decedent lay dying, did not allow family members to provide aid, and forced family
members to remain in the living area.
With respect to the other defendants–Yannuzzi, DeAndrea and Doe–Plaintiff has not
stated sufficient facts to state a claim for conspiracy. Plaintiff does not allege any plausible
grounds to infer an agreement, as required by Twombly. Plaintiff alleges that Mayor
Yannuzzi and Police Chief DeAndrea created policies and a culture that were indifferent to
constitutional rights, and failed to adequately train officers, which encouraged the violation
of civil rights and led to Mr. Garay’s death. Plaintiff does not allege that they reached an
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agreement to cause the death of Mr. Garay or the specific events that took place at the
Garay home the night of Mr. Garay’s death. Plaintiff has not stated any specific facts from
which one could draw an inference that Defendant(s) Doe acted in agreement with the other
parties, beyond conclusory or vague statements.
D. Counts IX, X
Defendants seek dismissal of count IX, which is brought against all individual
defendants. In their motion, Defendants state that count IX is brought pursuant to the
substantive due process protections of the fourteenth amendment. Defendants argue that
the count should be dismissed because it is duplicative of other due process counts.
However, count IX is brought pursuant to the equal protection clause of t he fourteenth
amendment. Thus, the motion to dismiss this count will be denied.
Similarly, Defendants seek dismissal in entirety of count X. Defendants write in their
motion to dismiss that it is brought pursuant to the fourteenth amendment of the constitution
and 42 U.S.C. § 1983. (Doc. 20, 13.) However, Plaintiff brings this claim pursuant to 42
U.S.C. § 1981, alleging denial of equal rights under the law. (Doc. 18, ¶ 226-241.)
Because Defendants’ argument in their Motion to Dismiss is directed at the incorrect section
of the code, they have not shown that Plaintiff has violated FRCP12(b)(6), and the motion
to dismiss this count will be denied.
E. Counts XI, XII
Defendants seek dismissal of count XI, which alleges conspiracy to interfere with civil
rights pursuant to § 1985 against all defendants. Under § 1985(3), it is illegal to conspire
for the purpose of depriving any person of the equal protection or rights of the law.
To state a claim under § 1985(3), a plaintiff must allege:
(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus
designed to deprive, directly or indirectly, any person or class of persons to the equal
protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury
to person or property or the deprivation of any right or privilege of a citizen of the
United States.

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Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997), see also Griffin v. Breckenridge, 403 U.S.
88, 102–03 (1971).
As discussed above in section (C), Plaintiff has stated sufficient facts in her
complaint to establish that a conspiracy existed between Officers Colasardo and Nicholas.
Furthermore, Plaintiff has shown an act in furtherance of this conspiracy, and an injury and
deprivation of rights. Thus, the question is whether Plaintiff has stated sufficient facts to
show that the agreement to deprive the decedent of his rights was motivated by racially
discriminatory animus. Plaintiff has not demonstrated any facts that show that Officers
Colasardo and Nicholas were motivated by racial animus.
Plaintiff states that it was “customary” for Hazleton officers to engage in
“Constitutional deprivations directed at a targeted member of the unprotected
Latino/Hispanic community.” (Doc. 18, ¶ 249.) However, Plaintiff does not tie this into the
incidents surrounding Mr. Garay’s death.
Plaintiff does not point to any statements or actions on the part of the officers to
indicate that their actions on the night in questions were motivated by racial animus. The
allegations in the complaint are too vague to draw an inference that the words demonstrate
racial animus. For example, the Complaint states that the “racially based discriminatory
animus” was “evidenced by their own words spoken contemporaneously with the deprivation
of Decedent’s, an Hispanic/Latino, Constitutional rights.” (Id. at ¶ 254.) At no point in the
complaint does Plaintiff offer a description or approximation of what these words were.
Plaintiff asserts that members of law enforcement insulted and harassed members of the
Garay Family prior to the incident, and immediately following the shooting (Id. at ¶ 68-70.)
However, Plaintiff does not assert that the insults or harassment were of a racial nature or
racially motivated. Thus, count XI will be dismissed.
Defendants also seek dismissal of count XII, which alleges failure to prevent actions
taken under § 1985 against all defendants. Because I do not find a properly alleged
violation of § 1985 as stated in count XI, I do not find that Plaintiff has properly stated a
claim for neglecting to prevent a violation of § 1985. Count XII will be dismissed.
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F. Count XIII
Defendants seek dismissal of count XIII, which alleges violations of Pennsylvania
Constitution Article I, Section 8 against all individual defendants. Defendants correctly
argue that Plaintiff may not request monetary damages for violations of the Pennsylvania
Constitution. (Doc. 20, 18). “No Pennsylvania statute establishes, and no Pennsylvania
court has recognized, a private cause of action for damages under the Pennsylvania
Constitution.” Pocono Mtn. Charter Sch. v. Pocono Mtn. Sch. Dist., 442 F. App'x 681, 687
(3d Cir. 2011) (citing Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Commw. 2006)).
However, the United States Court of Appeals for the Third Circuit has established
that: “[a]lthough monetary relief is barred for claims under the Pennsylvania Constitution,
equitable remedies are available.” Pocono Mtn. Charter Sch., 442 F. App'x at 688 (citing
Moeller v. Bradford Cnty., 444 F. Supp. 2d 316, 320–21 (M.D. Pa. 2006) (“[I]t is well settled
that individual plaintiffs may bring suit for injunctive relief under the Pennsylvania
Constitution”)). Plaintiff may proceed with her claim under the Pennsylvania Constitution
for equitable relief.
G. Count XVI
Defendants seek dismissal of count XVI, which alleges a state law civil conspiracy
claim against Defendants Colasardo, Nicholas, City, and Does. In order to sufficiently state
a claim of civil conspiracy under Pennsylvania state law:
‘It must be shown that two or more persons combined or agreed with intent to do an
unlawful act or to do an otherwise lawful act by unlawful means.’ Proof of malice,
i.e., an intent to injure, is an essential part of a conspiracy cause of action; this
unlawful intent must also be without justification. Furthermore, a conspiracy is not
actionable until ‘some overt act is done in pursuance of the common purpose or
design . . . and actual legal damage results.’
Grose v. Procter & Gamble Paper Prods., Pa. Super. 8, ¶ 7, 866 A.2d 437, 440-41 (2005)
(internal citations omitted) (citing Rutherfoord v. Presbyterian-Univ. Hosp., 612 A.2d 500,
508 (1992) (quoting Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211 (1979))).

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Taking as true all facts averred by the Plaintiff, and resolving all inferences in her
favor, Plaintiff has stated sufficient facts to allege a conspiracy under state law against
Defendants Colasardo and Nicholas. As discussed above in section (C), Plaintiff has stated
enough facts to show that Colasardo and Nicholas agreed to coordinate their acts to violate
the constitutional rights of the decedent, and an overt act was taken, resulting in damage.
Again, however, Plaintiff has not stated any specific facts from which one could draw an
inference that Defendant(s) Doe destroyed documents pertaining to this event, beyond
conclusory statements. Furthermore, Plaintiff’s allegations against the City all center on
policies and practices, and Plaintiff does not allege any agreement involving the City. Thus,
this count will be dismissed against Defendants City and Doe, and permitted to proceed
against Defendants Colasardo and Nicholas.

IV. Conclusion
For the above reasons, Defendants’ Motion to Dismiss (Doc. 19) will be granted in
part and denied in part. An appropriate order follows.

January 30, 2015
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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