Dunn et al v. Graham et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) re 6 MOTION to Dismiss filed by Pittston Township, James Graham Signed by Honorable A. Richard Caputo on 2/17/15. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY and ANNA DUNN,
Plaintiffs,
v.

CIVIL ACTION NO. 3:CV-14-1736
(JUDGE CAPUTO)

JAMES GRAHAM and PITTSTON
TOWNSHIP,
Defendants.
MEMORANDUM
Presently before the Court is a Motion to Dismiss Plaintiffs’ Complaint (Doc. 1)
pursuant to Federal Rule of Civil Procedure 12(b) filed by Defendants Pittston Township (“the
township”) and Officer James Graham (“Officer Graham”), a police officer employed by the
township (Doc. 6). Plaintiffs Jeffrey and Anna Dunn (“the Dunns”) claim violations of
Pennsylvania law, the Pennsylvania Constitution, and theUnited States Constitution arising
from an incident in which Mr. Dunn was allegedly injured by Defendant Graham. Because
Plaintiffs’ Complaint fails to plausibly state a claim that Defendants violated their rights to
procedural and substantive due process of the law as protected by the Fourteenth
Amendment, the Motion to Dismiss (Doc. 6) will be granted with respect to Count II.
Because a plaintiff may not recover monetary damages for violations of the Pennsylvania
Constitution, the Motion to Dismiss will be granted with respect to all claims arising under the
commonwealth’s constitution in Count III. Because a municipality may not be held liable
under a theory of respondeat superior for civil rights violations, the motion to dismiss all
claims against Pittston Township brought under this theory will be granted. With respect to
all other claims, the Motion to Dismiss will be denied.

I. Background
A. Factual Background
The facts as stated in the Complaint (Doc. 1) are as follows:
Plaintiffs Jeffrey and Anna Dunn (“the Dunns”) are adults who reside in Pittston
Township, Pennsylvania, and are husband and wife. (Doc. 1, ¶ 3.) Defendant James
Graham was, at all relevant times, employed as a police officer by the township. (Id., ¶ 4.)
The Dunns own real estate in Pittston Township. (Id., ¶ 7.) Plaintiffs assert that this
land is located in an I-1 Industrial District as set out by a zoning ordinance of the township.
(Id.) In March 2009, Plaintiffs were issued a building permit by the township for the
construction of a garage, which they then built. (Id., ¶ 8.) In July 2012, the garage burned
down as the result of an arson. (Id., ¶ 9.) The Dunns immediately attempted to repair what
remained of the building–the foundation and floor were not destroyed–and began to rebuild
the garage in the same location and with the same dimensions and materials. (Id., ¶ 10.)
On September 7, 2012, Defendant Graham accompanied the township’s Zoning
Officer to serve the plaintiffs a “stop work order” that had been issued against them. (Id.,
¶ 11.) This order was issued on the grounds that construction to rebuild the garage was in
violation of the Pennsylvania Uniform Code, and the previous permit had been issued in
error, because the real estate was situated in an R-1 Residential District. The Dunns used
the garage for industrial purposes. (Id.)
Plaintiffs believed then, and believe now, that this stop work order was erroneously
issued. (Id., ¶ 12.) When the order was served, Mr. Dunn took out his cell phone to call the
Pennsylvania State Police. (Id., ¶ 13). Plaintiffs allege that “without uttering a single word,”
Officer Graham “violently” and “with great force” punched and slammed Mr. Dunn’s right arm,
wrist, and hand, causing Mr. Dunn to sustain severe personal injuries. (Id., ¶ 14.) This
caused Mr. Dunn’s cell phone to fall to ground with such force that it broke apart. (Id.)
Plaintiff maintains that throughout this, he was unarmed and made no furtive movements or
gestures. (Id., ¶ 15.)

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B. Procedural Background
Plaintiffs Jeffrey and Anna Dunn filed the Complaint on September 6, 2014 (Doc. 1).
The Complaint contains five (5) counts: Count I alleges assault and battery and the
use of excessive force in violation of the Fourth Amendment. (Id., ¶¶ 16-27.) Count II
alleges a violation of the right to Procedural and Substantive Due Process of Law, as
guaranteed by the Fourth and Fourteenth Amendments, and a claim of malicious
prosecution. (Id., ¶¶ 28-37.) Count III alleges a violation of Plaintiffs’ rights to the security
and privacy of their home, pursuant to the Fourth Amendment and the Pennsylvania
Constitution. (Id., ¶¶ 38-45.) Count IV alleges inadequate supervision and training by
Pittston Township, in violation of 42 U.S.C. § 1983. (Id., ¶¶ 46-52.) Count V alleges loss of
consortium on the part of Anna Dunn. (Id., ¶¶ 53-58.) Plaintiffs request compensatory and
punitive damages, and attorneys’ fees pursuant to 42 U.S.C. § 1988. (Id., 11.)
On December 19, 2014, Defendants filed this Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b) (Doc. 6), and a Brief in Support (Doc. 7). On January 2, 2015, Plaintiffs filed
a Brief in Opposition (Doc. 8). On January 14, Defendants filed a Reply Brief (Doc. 9). This
motion 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
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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
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
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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)).
III. Discussion
In their Motion to Dismiss (Doc. 6), Defendants seek dismissal of all five (5) counts
in the Complaint (Doc. 1). Defendants also seek to have stricken the allegations of
respondeat superior in paragraph 6.
A. Count I
Count I alleges a state law claim of assault and battery, as well as a federal
Constitutional claim under 42 U.S.C. § 1983. Defendants argue that the state law claim of
assault and battery should be dismissed because Plaintiffs did not state in the Complaint that
they provided notice of their claim within six (6) months, as required by 42 Pa. C.S.A. § 5522.
Under this statute, if notice is not provided, an action filed more than six (6) months after the
date of injury must be dismissed. 42 Pa. C.S.A. § 5522. However, Plaintiffs did provide
such a letter to Defendants by certified mail within the required time period. (Doc. 8, 10.)
Thus, this claim will not be dismissed on those grounds.
Defendants argue that the excessive force in violation of the Fourth Amendment claim
should be dismissed because Plaintiffs have not alleged that there was an unreasonable
seizure, a necessary component. (Doc. 7, 5-6.) The Fourth Amendment provides that "[t]he
right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures, shall not be violated. . . ." U.S. Const. amend. IV.
"To state a claim for excessive force as an unreasonable seizure under the Fourth
Amendment, a plaintiff must show that a ‘seizure' occurred and that it was unreasonable."

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Curley v. Klem, 499 F.3d 199, 203 n.4 (3d Cir. 2007) (citing Abraham v. Raso, 183 F.3d 279,
288 (3d Cir. 1999)). “The use of excessive force is itself an unlawful ‘seizure' under the
Fourth Amendment.” Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006) (citing Graham v.
Connor, 490 U.S. 386, 395 (1989); Carswell v. Borough of Homestead, 381 F.3d 235, 240
(3d Cir. 2004)). Thus, Plaintiffs have sufficiently alleged that a seizure occurred, which leads
to the second point of inquiry: was the use of force reasonable?
“A police officer's ‘use of force contravenes the Fourth Amendment if it is excessive
under objective standards of reasonableness.’” Suarez v. City of Bayonne, 566 F. App'x
181, 186 (3d Cir. 2014) (quoting Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (citing
Graham, 490 U.S. 386)). In determining whether an officer’s use of force is reasonable, the
Third Circuit Court of Appeals has set out number of factors to examine:
the severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officer or others, . . . whether he is actively resisting arrest or
attempting to evade arrest by flight[,] . . . the duration of the [officer's] 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.
Suarez, 566 F. App'x 186 (quoting Couden, 446 F.3d 496–97 (alterations by and internal
quotation marks and citations omitted by the court in Suarez)).
Taking as true all facts in the complaint and resolving all inferences in favor of
Plaintiffs, Officer Graham’s use of force against Mr. Dunn was unreasonable. According to
the complaint, Officer Graham “violently” and “with great force” punched and slammed Mr.
Dunn’s right arm, wrist, and hand, causing Mr. Dunn to sustain severe personal injuries.
(Doc. 1, ¶ 14.) This was done with such force that Mr. Dunn’s cell phone fell to the ground
and broke apart. (Id.) Plaintiff’s injuries include “injury to muscles, nerves, bones and
ligaments . . . some or all of which are or may be permanent in nature.” (Id., ¶ 24.) Plaintiff
was unarmed and made no furtive movements or gestures.
Examining the factors set out in Couden and reiterated by Suarez, Defendant
Graham’s use of force was unreasonable. This did not occur in the context of effecting

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arrest, and Mr. Dunn was not charged with a serious or dangerous crime. He did not pose
any threat to the safety of officers or others, and was one of two people that Officer Graham
was contending with at the time. Mr. Dunn was simply placing a call to the Pennsylvania
State Police about Officer Graham. Thus, Plaintiffs have alleged sufficient facts to state a
claim of excessive force, and this claim will be permitted to proceed.
B. Count II
1. Excessive Force and Unreasonable Seizure
Count II alleges that the actions of Defendant Graham violated the Plaintiff’s right to
procedural and substantive due process of the law. To the extent that this count states a
claim of excessive force and unreasonable seizure pursuant to the Fourteenth Amendment,
it is more properly asserted as in Count I, as a violation of the Fourth Amendment right to be
free from unreasonable search and seizure. The Third Circuit Court of Appeals (“Third
Circuit”) has determined that “‘if a constitutional claim is covered by a specific constitutional
provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the
standard appropriate to that specific provision, not under the rubric of substantive due
process.’” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (quoting
United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)).
Because Plaintiffs’ allegations fall within the Fourth Amendment's unreasonable
seizure prohibition, the “more-specific-provision rule” forecloses their due process claim.
See, e.g., Lawson v. City of Coatesville, --- F. Supp. 2d ---, WL 4080708, at *7 (E.D. Pa.
Aug. 19, 2014) (“where the Fourth Amendment covers alleged misconduct–such as searches
and seizures without probable cause–a plaintiff's claims must be analyzed under the Fourth
Amendment, not under the rubric of substantive due process.”); Piazza v. Lakkis, No.
11-2130, WL 2007112, at *5-6 (M.D. Pa. June 5, 2012) (dismissing a Fourteenth
Amendment excessive force claim under the more-specific-provision rule). Therefore, the
Fourteenth Amendment claim against Defendants will be dismissed insofar as it addresses
excessive force and seizure.
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2. Malicious Prosecution
Count II also alleges that Defendants’ actions created “a type of malicious
prosecution, which violated Mr. Dunn’s Due Process rights under the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution” and under the Pennsylvania
Constitution. (Doc. 1, ¶ 31.) Plaintiff Dunn asserts that he was denied notice of accusation,
the right to confront his accusers, and the presumption of innocence. (Id., ¶ 31.)
At a minimum, a plaintiff bringing a malicious prosecution claim must have been
prosecuted. The Third Circuit has explicitly stated that “a plaintiff seeking to recover for
malicious prosecution pursuant to § 1983 must show that a defendant initiated criminal
proceedings against him without probable cause.” Pritchett v. Warrender, 546 F. App'x 66,
67-68 (3d Cir. 2013) (emphasis added). At no point in the Complaint does Plaintiff assert
that criminal proceedings were ever instituted against him. Thus, his claims of malicious
prosecution will be dismissed.
3. Stop Work Order
Additionally, Plaintiffs allege that the defendants’ actions–presumably the stop work
order–deprived Plaintiffs of liberty and property interests without due process, in violation of
the Fourth and Fourteenth Amendments. Plaintiffs appear to assert that the issuance of the
stop work order, based upon what the Dunns deemed to be false information, violated their
liberty and property interests in that it prevented them from building a garage. Furthermore,
they contend that they were deprived of the required due process before this stop work order
was issued by the town. Plaintiffs do not allege that they were denied the process typically
provided by the state with respect to zoning ordinances.
The Third Circuit Court of Appeals has held:
To state a claim that a municipal land use decision violates substantive due process
pursuant to section 1983, plaintiff must meet two requirements. First, plaintiff must
allege that the particular property interest at issue is worthy of substantive due
process protection. Second, plaintiff must allege that the government's deprivation
of that protected property interest shocks the conscience.

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Siegmond v. Fedor, No. 3:CV-01-2266 WL 1490430, at *4 (M.D. Pa. June 29, 2004) (quoting
Nicolette v. Caruso, 315 F. Supp. 2d 710, 721 (W.D. Pa. 2003) (internal quotations and
further citations omitted)).
Taking all facts in the Complaint as true and resolving all inferences in Plaintiffs’ favor,
the Dunns have alleged sufficient facts to demonstrate an interest protected by the
substantive due process clause. The government’s action–the issuance of the stop work
order–prevented them from rebuilding a garage that had burned down on their property.
“Use and enjoyment of property are indeed interests protected by the substantive component
of the Fourteenth Amendment due process clause.” Siegmond at *4.
However, the Dunns have not alleged that the government’s deprivation “shocks the
conscience,” as required. Plaintiffs “must adduce sufficient evidence to at least infer that the
conduct at issue is conscience-shocking.” Id. at * 5. The Dunns allege that they were
denied the permit and issued a stop work order because the town believed that the area was
zoned for residential use only, and the prior permit had been issued in error. (Doc. 1, ¶ 11.)
The Complaint asserts that this was erroneous, and the area was zoned for industrial use
(the Dunns wished to use the garage for industrial purposes). (Id.)
The town’s actions in issuing a stop work order based upon what the Plaintiffs
describe as an “erroneous contention” does not rise to the level of conscience-shocking.
Conscience-shocking is a high bar. “[T]he ‘shocks the conscience’ standard encompasses
‘only the most egregious official conduct.’” Siegmond, at *5 (citations omitted.) “[A]ctions
that suggest ‘a bad motive’ or are found to be ‘senseless and spiteful’ are insufficient to
shock the conscience.” Id., quoting Levin v. Upper Makefield Twp., No. 99-CV-5313, WL
21652301, at *9 (E.D. Pa. Feb. 25, 2003) aff'd sub nom. Levin v. Upper Makefield Twp.,
Bucks Cnty., Pa., 90 F. App'x 653 (3d Cir. 2004). In Siegmond, the Third Circuit found that
“improper motive” did not rise to the level of conscience-shocking, nor did, at times, “illegal
practices by a Township regarding its handling of land-use matters.” Siegmond at *5. The
Plaintiffs do not allege that the decision to issue the order “shocks the conscience.”
Even viewing all statements in the Complaint as true and resolving all inferences in
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favor of Plaintiffs, they have failed to allege sufficient facts to show that the township’s
decision was conscience-shocking, and so this claim will be dismissed.
C. Count III
1. Federal Constitution
Count III alleges a violation of the security and privacy of Plaintiffs’ home, as protected
by the U.S. Constitution’s Fourth Amendment (applied to the states by the Fourteenth
Amendment) and the Pennsylvania Constitution.
Plaintiffs assert that the Defendants improperly used police to serve a stop work order
to the plaintiffs on their property, which violated the plaintiffs’ reasonable expectation of
privacy. (Doc. 1, ¶ 39.) Plaintiffs assert that Officer Graham did not have the right to intrude
upon their land to carry out a civil administrative action.
In their Motion to Dismiss and accompanying brief, Defendants do not address Count
III independently from their argument for dismissing Count II. (Doc. 6, 3; Doc. 7, 6-9.)
Defendants focus on Count II, and argue that this claim should be dismissed because it does
not state sufficient facts to establish a due process claim as guaranteed by the Fourteenth
Amendment. (Doc. 7, 6-9.) However, in their complaint, Plaintiffs argue that their right to
privacy as guaranteed by the Fourth Amendment was violated. (Doc. 1, ¶ 39.) Thus,
Defendants’ motion to dismiss this claim will not be granted, as they have failed to meet their
burden of establishing that Plaintiffs fail to state a claim.
2. Pennsylvania Constitution
With respect to their claim under the Pennsylvania Constitution, Plaintiffs do not
specify under which section of the Pennsylvania Constitution they bring this claim. However,
Plaintiffs seek only monetary damages, which are not available for violations of the
Pennsylvania Constitution. Huberty v. U.S. Ambassador to Costa Rica, No. 3:07-CV-1420,
WL 3119284, at *5 (M.D. Pa. Oct. 22, 2007) aff'd, 316 F. App'x 120 (3d Cir. 2008) (citing
Jones v. City of Phila., 890 A.2d 1188, 1215-16 (Pa. Commw. Ct. 2006)). According,
Plaintiffs’ claim under the Pennsylvania Constitution will be dismissed.
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C. Count IV
Count IV asserts a claim of municipal liability against Defendant Pittston Township for
the constitutional violations alleged pursuant to § 1983 in the above counts. Specifically, the
Dunns argue that the use of police to accompany the zoning officer while serving a civil
administrative order was the result of the policy, practice and custom of Pittston Township,
and that Defendant Graham and the zoning officer who served the stop work order were not
adequately supervised. (Doc. 1, ¶¶ 47-48.) They assert that the use of force against Mr.
Dunn was the result of inadequate supervision and training of Defendant Dunn and the
zoning officer. (Id., ¶ 49.) Defendants argue that Plaintiffs did not establish that the
municipality failed to train officers or acted with deliberate indifference. (Doc. 7, 9.)
“Local 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 v. Dep't of Soc. Servs. of N.Y.C.,
436 U.S. 658, 690 (1978). Pursuant to Monell, a failure to train employees 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.
While Plaintiffs do not maintain that the use of excessive force was a formal policy of
the department, “an act performed pursuant to a “custom” that has not been formally
approved by an appropriate decisionmaker may fairly subject a municipality to liability on the
theory that the relevant practice is so widespread as to have the force of law.” Bd. of Cnty.
Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
Resolving all inferences in their favor, Plaintiffs have alleged sufficient facts to show
that Officer Graham used excessive force on Plaintiff Dunn because it was the policy or
practice of Pittston Township not to discipline officers who use excessive force–thus, in
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effect, sanctioning the use of excessive force and establishing the use of such force as a
custom of the Town’s police department. This excessive force caused Plaintiff Dunn’s
injuries. Accordingly, Plaintiffs’ claim in Count IV will be permitted to proceed.
D. Count V
Count V asserts a claim for loss of consortium on the part of Plaintiff Anna Dunn, the
wife of Jeffrey Dunn. Plaintiffs allege that Ms. Dunn loss the consortium of her husband as
a result of the incident giving rise to the action.

In their brief in favor of dismissal,

Defendants argue that this claim must be dismissed “inasmuch” as Mr. Dunn has failed to
state a claim in counts I-IV, because a spouse’s loss of consortium claim is dependant on
the underlying claim. (Doc. 7, 8.) However, because Plaintiffs have stated a claim upon
which relief can be granted in Counts I, III, and IV, Count V of the Complaint will be permitted
to proceed to the extent it is connected with those claims.
E. Respondeat Superior
Plaintiffs assert that Defendant Pittston Township is liable for their injuries under a
theory of respondeat superior. (Doc. 1, ¶ 6.) In their motion to dismiss, Defendants argue
that relief cannot be granted against a Defendant in a civil rights action on a theory of
respondeat superior. (Doc. 6, ¶ 2.)
Municipalities and their employees cannot be held liable under § 1983 pursuant to a
theory of respondeat superior. Monell, 436 U.S. 658; see also Bd. of Cnty. Comm'rs of
Bryan Cnty., Okl., 520 U.S. at 403. “It is well-recognized that ‘[g]overnment officials may not
be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.’” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014)
(quoting Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012)). Thus, Defendants’ motion
to dismiss claims brought pursuant to respondeat superior will be granted.

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F. Leave to Amend
Defendants request that Plaintiffs not be granted leave to amend, as amendment
would be futile. (Doc. 7, 10.) In deciding a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), a plaintiff should be granted leave to amend unless such an amendment would be
inequitable or futile. Defendants make no argument and provide no support as to why
amendment would be futile in this action. Based on the pleadings and facts, there is no
indication that amendment would be futile or inequitable, and so I will grant Plaintiffs leave
to cure the defects identified in this order.
IV. Conclusion
For the above reasons, Defendants’ Motion to Dismiss (Doc. 6) will be granted with
respect to Count II, claims brought under the Pennsylvania Constitution in Count III, and
claims against Pittston Township under a theory of respondeat superior. It will be denied
with respect to Counts I, V, and IV, and claims brought under the United States Constitution
in Count III. An appropriate order follows.

February 17, 2015
Date

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

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