Zavec v. Collins et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry) re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM.Signed by Honorable A. Richard Caputo on 7/27/2017. (arcsec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN ZAVEC, et al.
NO. 3:16-cv-00347

Plaintiffs,

(JUDGE CAPUTO)

v.
ROBERT COLLINS, BRIAN GIST, and
CITY OF WILKES-BARRE,
Defendants.

MEMORANDUM
Presently before me is a partial motion to dismiss (Doc. 23) Plaintiffs Dawn Zavec,
individually, o/b/o M.Z., a minor, and as administrator of the estate of Joseph Zavec’s
Second Amended Complaint (Doc. 22) filed by Defendants Robert Collins ("Officer Collins"),
Brian Gist ("Officer Gist"), and City of Wilkes-Barre (collectively “Defendants”).
For the reasons that follow, Defendants' partial motion to dismiss the Second
Amended Complaint will be granted in part and denied in part.
I. Factual Background
The pertinent facts, as set forth in Plaintiffs’ Second Amended Complaint (Doc. 22),
are as follows:
On November 10, 2014, at approximately 9:30 p.m., Wilkes-Barre Police Officers
Robert Collins and Gist encountered Plaintiffs Dawn Zavec ("Mrs. Zavec"), Joseph Zavec
("Mr. Zavec"),1 and their daughter, M.Z., at their home on Weston Lane in the City of
Wilkes-Barre while responding to a parking complaint involving Mr. Zavec and a neighbor.
Doc. 22, at ¶ 11.
Officers Collins and Gist approached the Zavecs’ door and spoke to them about the
parking issue. Id. at ¶¶ 13, 14, 16, 17. The Officers became aware of both Mr. and Mrs.

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On June 11, 2016, Mr. Zavec passed away. On July 29, 2016, Mrs. Zavec became the
administrator of Mr. Zavec’s estate. Although Mr. Zavec is now deceased, I will refer to his
claims using his name, rather than referring each time to his estate or administrator.

Zavec’s disabilities during the encounter. Id. at ¶¶ 15, 18, 19, 20, 24-28. Mrs. Zavec was
injecting medicine into her stomach within plain view of Officer Collins as he spoke to Mr.
Zavec at the front door of the home. Id. at ¶ 14. A disposal container for Mrs. Zavec’s
needles and injection equipment was located in plain view as well. Id. at ¶ 15. Further, Mrs.
Zavec explained to the Officers that she was holding an ice pack on her stomach because
she had just given herself an injection of multiple sclerosis medication. Id. at ¶¶ 18-20. Mr.
Zavec’s speech disability, a pronounced stutter, was also apparent. Id. at ¶¶ 13, 14, 24-28.
While speaking to Mr. Zavec about his neighbor's parking complaint, Officers Collins
and Gist began inspecting Mr. Zavec's vehicle and informed him that his window tint and
tires were illegal. Id. at ¶ 21. Mr. Zavec, who was a licensed vehicle safety inspector in
Pennsylvania, told the Officers that, in his opinion, the tints and tires were legal. Id. at ¶ 23.
At some point during the conversation, Officer Collins began mocking Mr. Zavec's
speech impediment. Id. at ¶ 24-25. At that time, Mr. Zavec was inside his home and was
conversing with the Officers, who were on the sidewalk in front of the home, through the
front screen door. Id. at ¶ 26. Mrs. Zavec, who was inside the home seated on the couch,
witnessed Officer Collins mocking Mr. Zavec's speech. Id. at ¶ 27.
Officer Gist then joined Officer Collins in mocking Mr. Zavec, and began to video and
audiotape Mr. Zavec with a cell phone. Id. at ¶ 29. Officer Gist angled his cell phone in such
a way as to film the conversations and activities which were occurring inside the Zavec
home, including conversations Mr. and Mrs. Zavec were conducting privately with each
other. Id. at ¶¶ 29, 31, 33, 34.
According to Plaintiffs, Officer Gist did not have a warrant to record the inside of the
Zavecs’ home and the conversations therein. Id. at ¶ 32. Moreover, Plaintiffs allege that
they did not consent to any such recording. Id. at ¶ 35, 39, 55. Plaintiffs further contend that
there was no reason for the Officers to continue interacting with them because the parking
dispute had already been resolved. Id. at ¶ 41.
Mr. Zavec eventually ceased talking to the Officers. While still inside the home, he
began speaking to Mrs. Zavec, at one point telling her "he [Officer Collins] just did it again,"
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which was apparently a reference to Officer Collins continuing to mock Mr. Zavec's speech.
Id. at ¶ 34. Shortly thereafter, Mrs. Zavec came out of the home and onto the front porch
and asked Officers Collins and Gist to "[p]lease just go because I did see you do that [mock
Mr. Zavec's speech impediment]. Please. Look, I am very sick and I don't need it. Just
please leave. You did what you had to do, now you're just trying to antagonize him. Please
leave." Id. at ¶ 40.
Mr. Zavec remained inside the home and observed the interaction between Mrs.
Zavec and the Officers through the screen door. Id. at ¶ 46. Officer Collins then asked Mrs.
Zavec if she thought Mr. Zavec was being "unruly" and whether she heard Mr. Zavec tell the
Officers to "go fuck themselves." Id. at ¶ 47, 49. Mr. Zavec confirmed that he had, indeed,
said that. Id. at ¶ 50. Mr. Zavec further expressed anger that Officer Gist was recording the
incident on his cell phone. Id. at ¶ 51. During the entire encounter, Officer Collins continued
to mock and ridicule Mr. Zavec's speech impediment. Id. at ¶ 53.
Mrs. Zavec remained on the porch near the screen door and Mr. Zavec was now
standing just outside the door next to Mrs. Zavec. Id. at ¶ 54. Frustrated and embarrassed
by Officer Collins' mockery, Mr. Zavec threatened Officer Collins that, if the Officer
continued to mock him, Mr. Zavec would "knock [his] black fucking head off." Id. at ¶ 56, 58.
After Mr. Zavec levied the threat, Officer Collins began screaming, "Now you're
threatening! Now you're threatening!" and immediately charged at Mrs. Zavec, tackling her
onto the living room floor. Id. at ¶ 59-60.
Officer Gist stopped recording the incident with his cell phone and entered Plaintiffs'
home to join Officer Collins in his attack on Mrs. Zavec. Id. at ¶ 61, 63. One of the Officers
pinned Mrs. Zavec to the ground and "trampled" on top of her while she cried that they were
hurting her, screamed for help, and begged them to stop. Id. at ¶ 62, 64. One of the Officers
also stepped on Mrs. Zavec's stomach, which is where she had earlier given herself an
injection, and Officer Collins put his knees in Mrs. Zavec's eyes. Id. at ¶ 65-66. While
Officers Collins and Gist were "trampling" on Mrs. Zavec, Mr. Zavec was telling the Officers
that Mrs. Zavec had multiple sclerosis and that they were going to "kill" her. Id. at ¶ 67. Mrs.
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Zavec was able to get up off the ground, but her left leg was completely numb from the
Officers' assault and, at some point, she lost control of her bladder. Id. at ¶ 68, 71- 72.
It was at this point that Officers Collins and Gist turned their attention to Mr. Zavec
and pinned him to the floor as well. Id. at ¶ 68, 73. Mrs. Zavec yelled at the Officers to get
Mr. Zavec off his stomach because he also has medical conditions when, suddenly, Officer
Collins removed his Taser from its holster and pointed it at Mrs. Zavec' s face with his finger
on the trigger, saying "I'm not telling you again," as he pulled her head back by her hair. Id.
at ¶ 74, 76. M.Z., the Zavecs’ daughter, attempted to assist Mrs. Zavec, but Officer Gist
grabbed M.Z. by her shirt and threw her against a wall, breaking a hot wax warmer which
dripped hot was on M.Z.'s back. Id. at ¶ 77. In the midst of all the commotion, the Zavecs’
puppy broke free from its crate which led Officer Collins to draw his firearm and threaten to
shoot the puppy. Id. at ¶ 78-79. As a result of the Officers’ actions, Plaintiffs’ personal
property was damaged. Id. at ¶ 80.
Eventually, a neighbor called an ambulance for Mrs. Zavec. Id. at ¶ 71-72, 84-85.
Before it arrived, Officers Collins and Gist left with Mr. Zavec in custody. Id. at ¶ 87.
Following the incident, neither Mrs. Zavec nor M.Z. were charged with any crimes relating
to this incident. Id. at ¶ 89. Mr. Zavec, on the other hand, was charged with misdemeanor
terroristic threats, misdemeanor resisting arrest, summary disorderly conduct, and summary
defiant trespass. Id. at ¶ 90. Mr. Zavec subsequently pled guilty to one count of summary
disorderly conduct. Id. at ¶ 58, 92. The remaining charges were dismissed. Id. at ¶ 92.
In light of the above, Plaintiffs instituted the instant lawsuit (Docs. 1, 15, 22),
asserting the following causes of action: (1) unreasonable search in violation of 42 U.S.C.
§ 1983, stemming from Officer Gist's video and audio recording of the encounter, Doc. 22,
¶¶ 96-99; (2) unreasonable entry into Plaintiffs' home in violation of 42 U.S.C. § 1983, id.
at ¶¶ 100-103; (3) unreasonable seizure in violation of 42 U.S.C. § 1983, id. at ¶¶ 104-107;
(4) use of excessive force in violation of 42 U.S.C. § 1983, id. at ¶¶ 108-111; (5) deprivation
of personal property without due process of law in violation of 42 U.S.C. § 1983, id. at ¶¶
112-115; (6) First Amendment retaliation against Mr. Zavec in violation of 42 U.S.C. § 1983,
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id. at ¶¶ 116-119; (7) failure to accommodate in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act § 504, 29 U.S.C. § 794, id. at
¶¶ 120-144; (8) assault, id. at ¶¶ 145-148; (9) battery, id. at ¶¶ 149-152; and (10) trespass,
id. at ¶¶ 153-155.
Defendants have filed a partial motion to dismiss Plaintiffs' Second Amended
Complaint. See Doc. 23. The motion has been fully briefed and is now 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. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their 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. 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). 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, 127 S. Ct. 2197
(2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955
(2007)). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S. Ct.
1955. 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, 129 S. Ct. 1937, 1950
(2009). As such, “[t]he touchstone of the pleading standard is plausibility.” Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012).
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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, 127 S. Ct. 1955, meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556, 127 S. Ct. 1955). “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, 129 S. Ct. 1937. “When there are wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S. Ct. 1937.
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See 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. Id. 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
A.

Claims Pursuant to 42 U.S.C. § 1983
42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute,
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ordinance, regulation, custom, or usage...subjects, or causes to be subjected, any
citizen...or other person...to the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party injured[.]” 42 U.S.C. § 1983. “To
establish liability under § 1983, a plaintiff must show that the defendant, acting under color
of law, violated the plaintiff's federal constitutional or statutory rights, and thereby caused
the complained of injury.” Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005) (citing Sameric
Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998)).
1.

Count I - Unreasonable Search

In Count I of the Second Amended Complaint, Plaintiffs allege that Officer Gist's
audio and video recording of the inside of their home and the conversations therein
constituted an unreasonable search in violation of the Fourth Amendment as the recording
was made without a warrant and without the presence of any exception to the warrant
requirement. (Doc. 22, ¶ 38).
The Fourth Amendment to the United States Constitution guarantees "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures" by governmental actors. U.S. Const. amend. IV. The threshold
question, thus, is whether the conduct complained of amounted to a search or a seizure
within the meaning of the Fourth Amendment.
As the Supreme Court has held, "[a] 'search' occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466
U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984); Illinois v. Andreas, 463 U.S. 765, 771, 103 S.
Ct. 3319, 3324 (1983) ("If the inspection by police does not intrude upon a legitimate
expectation of privacy, there is no 'search'[.]"). Because individuals ordinarily possess the
highest expectation of privacy within the “curtilage” of their home, that area typically is
"afforded the most stringent Fourth Amendment protection." United States v.
Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084 (1976). However, "'[w]hat a person
knowingly exposes to the public, even in his own home ..., is not a subject of Fourth
Amendment protection.'" California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 1813
7

(1986) (quoting Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511 (1967)). Thus,
an "officer's observations from a public vantage point where he has a right to be" and from
which the activities or objects he observes are "clearly visible" do not constitute a search
within the meaning of the Fourth Amendment. Id.
Here, at all relevant times to Count I, Officers Collins and Gist were standing on a
sidewalk in front of Plaintiffs' home (Doc. 22, at ¶ 26), and Mr. Zavec was speaking with the
Officers from inside his home through the front screen door. Id. at ¶ 26. The Officers were
able to observe activities occurring inside Plaintiffs' home from where they were positioned.
Id. at ¶¶ 26, 29. The interior of the home was visible from the street to anyone walking by.
Moreover, Plaintiffs did not seek to confine their activities to the interior of their home where
they could not been seen by those standing at the front door; Plaintiffs do not even maintain
that they exhibited an expectation of privacy in their living room and the objects located in
their home by shielding them from public view. I thus find that the visual observation at issue
was not a “search” within the meaning of the Fourth Amendment. See United States v.
Hersh, 464 F.2d 228, 230 (9th Cir.) (per curiam), cert. denied, 409 U.S. 1008, 93 S.Ct. 442
(1972) (holding that observations by law enforcement officers through window adjacent to
front door and on porch did not constitute a search within the meaning of the Fourth
Amendment because the officers "were in a place where they had a right to be, and ...
whatever they saw through the window was in plain sight"); see also United States v. Taylor,
90 F.3d 903, 908 (4th Cir. 1996) (holding that officers did not conduct a search by looking
into an open window because there was no expectation of privacy in the area and the items
seen through the window provided the officers with probable cause and exigent
circumstances to enter the home).
Plaintiffs concede that "[Officer] Gist can record any discussions between themselves
and the police which occurred on the front porch of their home, as those discussions were
clearly public." (Doc. 31, at 17). They claim, however that their "Fourth Amendment claim
arises because [Officer] Gist did not simply choose to record those conversations and
activities which the Zavecs made public. [Officer] Gist chose to aim his phone to video and
8

audiotape the interior of the Zavecs' home, where private conversations and activities were
occurring." Id. at 17-18.
The use of the cell phone camera, however, is immaterial here because “the
technology in question is in general public use”. See Kyllo v. United States, 533 U.S. 27,
40, 121 S. Ct. 2038, 2046 (2001) (holding that [w]here . . . the Government uses a device
that is not in general public use, to explore details of the home that would previously have
been unknowable without physical intrusion, the surveillance is a "search" and is
presumptively unreasonable without a warrant"). More importantly, as I have already
explained, the Zavecs’ activities were visible from a lawful vantage point. The depiction of
the activities as "private" clashes with the fact that they could have been seen by any
person passing by Plaintiffs' home. Plaintiffs' argument would be similarly unconvincing and
lacking in precedential support had Plaintiffs argued that "[Officer] Gist chose to aim his
[eyes] to [see] the interior of the Zavecs' home, where private conversations and activities
were occurring." See California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809 (1986) ("The
Fourth Amendment protection of the home has never been extended to require law
enforcement officers to shield their eyes when passing by a home on public
thoroughfares."). Plaintiffs' argument that "[Officer] Gist did not possess a warrant" and "[n]o
exception to the warrant requirement existed" is equally flawed because it incorrectly
presupposes that a "search" occurred. (Doc. 31, at 18).
Having exposed the interior of their home to anyone positioned at its entranceway,
Plaintiffs possessed no reasonable expectation of privacy in the home or its plainly visible
contents. Accordingly, the observations the Officers made through the front door, recorded
by Officer Gist on his cell phone, did not constitute a search within the meaning of the
Fourth Amendment. As such, Count I will be dismissed with prejudice.
2.

Count II - Unreasonable “Entry” Into Plaintiffs’ Home

Defendants next argue that “Count II . . . fails to state a claim for relief under 42
U.S.C. § 1983 that is plausible on its face for the alleged unreasonable ‘entry’ into Plaintiffs’
home.” (Doc. 28, at 29). They argue that Officers Collins and Gist had probable cause to
9

believe that Mr. Zavec's words and actions, namely, the conditional threat that Plaintiff
Zavec would "come out of the house and knock [Collins's] black fucking head off" if he
continued to mock Zavec, “amounted to, at a minimum, disorderly conduct and terroristic
threats under the Pennsylvania Crimes Code.” (Id. at 31). As such, Defendants argue,
“because these offenses were committed outside Plaintiffs' home in public view, they were
committed in a ‘public place’ where the Fourth Amendment does not recognize a
reasonable expectation of privacy . . . . Thus, when Officers Collins and Gist followed Mr.
Zavec into his home in order to effectuate an arrest which had ‘been set in motion in a
public place,’ they did not violate the Fourth Amendment.” (Id. at 31-32) (citations omitted).
a.

Exigency2

A warrantless search or arrest made within a home is presumptively unreasonable.
See Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371 (1980). Nonetheless, such a
search may be sustained where probable cause and exigent circumstances exist. Kentucky
v. King, 563 U.S. 452, 459, 131 S.Ct. 1849 (2011). "Examples of exigent circumstances
include, but are not limited to, hot pursuit of a suspected felon, the possibility that evidence
may be removed or destroyed, and danger to the lives of officers or others." United States
v. Coles, 437 F.3d 361, 366 (3d Cir. 2006).
As the Third Circuit has held,
[f]actors that support a finding of exigent circumstances include: (1) the gravity
of the crime that has been committed; (2) a reasonable belief that the suspect
is armed; (3) a clear showing of probable cause based upon reasonably
trustworthy information; (4) a strong belief that the suspect is in the premises;
(5) "a likelihood that the suspect will escape if not swiftly apprehended"; and
(6) peaceable entry, affording the suspect "an opportunity to surrender ...
without a struggle and thus to avoid the invasion of privacy involved in entry
into the home."
United States v. Anderson, 644 F. App'x 192, 194-95 (3d Cir.), cert. denied, 137 S. Ct. 130
(2016) (nonprecedential) (citing Dorman v. United States, 435 F.2d 385, 392-93

2

As discussed in the following section, I find that the Officers had probable cause to arrest
Mr. Zavec.
10

(D.C.Cir.1970) (en banc)). See also Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct.
2091, 2099 (1984)“([A]pplication of the exigent-circumstances exception in the context of
a home entry should rarely be sanctioned when there is probable cause to believe that only
a minor offense . . . has been committed.”).
I find that the exigencies of the situation in the instant case do not justify the Officers’
conduct. The alleged threat by Mr. Zavec was a minor offense, and there was no risk that
he would have escaped if not immediately apprehended. Mr. Zavec did not retreat into his
home, but, rather, Officer Collins “charged at the Zavecs and tackled Mrs. Zavec through
the door to the ground on her living room floor,” immediately following Mr. Zavec’s threat,
and Officer Gist followed. (Doc. 22) at ¶¶ 59, 61. There was also no danger of evidence
destruction or a reasonable belief on the part of the Officers that Mr. Zavec was armed.
Moreover, the police forcefully entered the Zavecs’ residence rather than attempt a peaceful
entry to afford Mr. Zavec an opportunity to surrender without a struggle. The Complaint also
plausibly alleges that the Officers’ conduct was both deliberate and culpable. As such, I do
not endorse Defendants’ theory that the Officers were in "hot pursuit" which would have
justified a warrantless entry into Plaintiffs' home, and I find that the allegations in Count II
state a plausible claim for relief.
b.

Qualified Immunity

Defendants claim that Count II should nevertheless be dismissed because the
Officers are entitled to qualified immunity. I agree.
As the Supreme Court has held, the defense of qualified immunity shields
government officials performing discretionary functions "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). The standard for
applying qualified immunity is an objective one. In Hunter v. Bryant, 502 U.S. 224 (1991),
the Supreme Court recognized that "the qualified immunity standard gives ample room for
mistaken judgments by protecting all but the plainly incompetent or those who knowingly
violate the law." Id. at 229 (citation and internal quotation marks omitted).
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The Third Circuit has held that "qualified immunity will be upheld on a 12(b)(6) motion
only when the immunity is established on the face of the complaint." Leveto v. Lapina, 258
F.3d 156, 161 (3d Cir. 2001). In order to defeat an assertion of qualified immunity, a plaintiff
must allege that the official violated a "clearly established" right. Anderson, 483 U.S. at 635.
A plaintiff does not fulfill this requirement simply by alleging that the defendant violated
some constitutional provision. McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001).
Rather, "the right the official is alleged to have violated must have been 'clearly established'
in a more particularized, and hence more relevant, sense." McLaughlin, 271 F.3d at 571
(quoting Anderson, 483 U.S. at 640). As the Third Circuit has explained, "clearly established
rights" are those with contours sufficiently clear that a reasonable official would understand
that what he is doing violates that right. McLaughlin, 271 F.3d at 571. "Although officials
need not predic[t] the future course of constitutional law, they are required to relate
established law to analogous factual settings." Id. (citations omitted). The essential inquiry
is whether a reasonable official in the defendant's position at the relevant time "could have
believed, in light of clearly established law, that [his or her] conduct comported with
established legal standards." Id. (citations omitted). In a qualified immunity analysis, the
court must examine: (1) whether officials violated a constitutional right and (2) whether that
right was clearly established at the time. Wright v. City of Phila., 409 F.3d 595, 599–600 (3d
Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982))
As I have already found, the Complaint establishes that a constitutional violation
occurred when the Officers entered the Zavecs’ home. Taking the allegations in the
Complaint as true, Defendants illegally and forcibly entered Mr. Zavec’s home to effectuate
an arrest for a minor crime. The general constitutional rule and prohibition against
unreasonable entries into homes has long been established. See Payton v. New York, 445
U.S. 573, 576, 100 S. Ct. 1371, 1375 (1980) (“The Fourth Amendment . . . prohibits the
police from making a warrantless and nonconsensual entry into a suspect's home in order
to make a routine felony arrest.”) (internal citation omitted); see also Welsh v. Wisconsin,
466 U.S. 740, 750, 104 S. Ct. 2091, 2098 (1984).
12

The issue in the instant case, however, is more narrow. The law is clearly established
that, in order to effectuate the arrest for a crime that occurred in the Officers’ presence, the
Officers needed both probable cause and exigent circumstances, justifying the entry into
the home. The Officers, however, may have believed that the crime occurred in a “public
space,” given where Mr. Zavec was positioned, while making the split-second decision to
apprehend him following the threat.
As the Supreme Court has explained, “qualified immunity gives government officials
breathing room to make reasonable but mistaken judgments,” and “protects ‘all but the
plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd, 563 U.S.
731, 743, 131 S. Ct. 2074, 2085 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106
S.Ct. 1092 (1986)). Here, I find that the Officers deserve neither label.
Although an arrest in the home is subject to the warrant requirement and probable
cause alone is insufficient, Payton v. New York, 445 U.S. 573, 589–90, 100 S.Ct. 1371
(1980), it is by now clear that an arrest conducted in a public place must be supported by
probable cause only, and it does not require a warrant. United States v. Watson, 423 U.S.
411, 417 & n. 6, 96 S.Ct. 820 (1976). It is true, of course, that “[i]n terms that apply equally
to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm
line at the entrance to the house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton, 445 U.S. at 589–90, 100 S.Ct. 1371
(emphases removed). Here, however, as the Complaint alleges, “Mr. Zavec was standing
just outside the door next to Mrs. Zavec” before Officer Collins “charged at the Zavecs,”
entering their living room. (Doc. 22, at ¶¶ 54, 59).
Defendants argue that the entry was justified under United States v. Santana, 427
U.S. 38, 96 S.Ct. 2406 (1976), and that Santana, not Payton, controls. According to
Plaintiffs, however, Santana is distinguishable from the instant case because it is a “hot
pursuit” case, and has been cited as such. See, e.g., Brigham City v. Stuart, 547 U.S. 398,
126 S.Ct. 1943, 1947 (2006). Plaintiffs, however, fail to appreciate Santana’s two-part
holding. The first part concerned the expectation of privacy under the Fourth Amendment;
13

the second addressed the permissibility of the subsequent police entry into the home.
In Santana, the police suspected the defendant, Dominga Santana, of distributing
heroin and received a tip that she was holding marked money to make a heroin buy. 427
U.S. at 40. Officers drove to Santana's house and observed her standing in the doorway
holding a paper bag. The officers “pulled up to within 15 feet of Santana and got out of their
van, shouting 'police,' and displaying their identification.” Id. As the officers approached,
“Santana retreated into the vestibule of her house.” Id. The officers followed through the
open door and caught Santana in the vestibule of her home, arrested her, and seized heroin
and the marked bills. Id.
The Supreme Court first assessed whether Santana had a reasonable expectation
of privacy while standing in the threshold of her home. The Court held that a criminal
suspect who is standing in the doorway to her home and is “not merely visible to the public”
but also “exposed to public view, speech, hearing, and touch as if she had been standing
completely outside her house” is considered to be in a public place where she has no
expectation of privacy. Id. at 42 (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct.
507 (1967) (“What a person knowingly exposes to the public, even in his own house or
office, is not a subject of Fourth Amendment protection.”)).
Similarly, here, Mr. Zavec was “as exposed to public view, speech, hearing, and
touch as if [he] had been standing completely outside [his] house.” Santana, 427 U.S. at 42.
“Thus, when the police, who concededly had probable cause to do so, sought to arrest [Mr.
Zavec], they merely intended to perform a function which we have approved in Watson,”
namely, to make a “warrantless arrest of an individual in a public place upon probable
cause” which does “not violate the Fourth Amendment.” Santana, 427 U.S. at 42 (citing
United States v. Watson, 423 U.S. 411, 96 S.Ct. 820 (1976)).
Although I have already found that Plaintiffs established that the Officers’ conduct
in Count II amounted to a constitutional violation, my only inquiry here is whether the
constitutional violation was clearly established at the time of the incident, in November
2014. This inquiry “must be undertaken in light of the specific context of the case, not as a
14

broad general proposition.” Saucier, 533 U.S. at 201. “[T]he relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 20102. Because I am unable to find any relevant case law applying the pertinent constitutional
legal principle to a concrete factual context such that it would have been obvious to a
reasonable government actor in each of the Officers' positions that their actions violated
federal law, I find that the Officers are entitled to qualified immunity.
3.

Count III - Unreasonable Seizure of Mr. Zavec

In Count III of the Second Amended Complaint, Plaintiffs assert an "unreasonable
seizure" claim in violation of the Fourth and Fourteenth Amendments. See Doc. 22 at ¶¶
105-106. Defendants move only to dismiss Mr. Zavec’s claim in Count III; they do not move
to dismiss Mrs. Zavec’s claim.
a.

Probable Cause

A claim under § 1983 for false arrest/false imprisonment is grounded in the Fourth
Amendment guarantee against unreasonable seizures. Groman v. Twp. of Manalapan, 47
F.3d 628, 636 (3d Cir. 1995). To maintain a false arrest claim, a plaintiff must show that the
arresting officer lacked probable cause to make the arrest. Thus, the proper inquiry in a
Section 1983 claim based on false arrest is “ ‘whether the arresting officers had probable
cause to believe the person arrested had committed the offense.’ ”Id. at 634. See also
Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (“It is well-established that the Fourth
Amendment ‘prohibits a police officer from arresting a citizen except upon probable cause.”)
(citations omitted).
However, unlike a malicious prosecution claim, for which each criminal charge is
analyzed independently, a false arrest claim will fail if there was probable cause to arrest
for at least one of the offenses involved. Johnson v. Knorr, 477 F.3d 75, 85 (3d Cir.2007);
Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (holding that for an arrest to
be justified, “[p]robable cause need only exist as to any offense that could be charged under
the circumstances”); see also Cummings v. City of Phila., 137 Fed. Appx. 504, 506 (3d Cir.
15

2005). Moreover,“[t]he proper inquiry in a section 1983 claim based on false arrest or
misuse of the criminal process is not whether the person arrested committed the offense,
but whether the arresting officers had probable cause to believe the person arrested had
committed the offense.” Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988).
Probable cause exists when “the facts and circumstances within [the agents']
knowledge and of which they had reasonably trustworthy information [are] sufficient in
themselves to warrant a man of reasonable caution in the belief that an offense has been
or is being committed.” Brinegar v. United States, 338 U.S. 160, 175–176, 69 S.Ct. 1302,
1311 (1949); see also United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002). Whether
probable cause existed for an arrest is generally a question of fact for the jury. Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (citations omitted). Where,
however, the court finds that the evidence, viewed in the light most favorable to the plaintiff,
reasonably would not support a contrary factual finding, the court may conclude that
probable cause exists as a matter of law. Id. at 788–89 (citation omitted).
Here, Plaintiff was arrested for the offenses of disorderly conduct (18 Pa. Cons. Stat.
Ann. § 5503(a)) and terroristic threats (18 Pa. Cons. Stat. Ann. § 2706). The latter charge
was subsequently dropped.
The Pennsylvania Crimes Code defines disorderly conduct as follows:
A person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1)
engages in fighting or threatening, or in violent or tumultuous
behavior;
(2)
makes unreasonable noise;
(3)
uses obscene language, or makes an obscene gesture; or
(4)
creates a hazardous or physically offensive condition by any act which
serves no legitimate purpose of the actor.
Specifically, the “fighting words” provision of Pennsylvania's disorderly conduct statute
sanctions an individual who “engages in fighting or threatening, or in violent or tumultuous
behavior.” 18 Pa. Cons. Stat. Ann. § 5503(a)(1). Fighting words “by their very utterance
inflict injury or tend to incite an immediate breach of peace.” Victory Outreach Ctr. v. Melso,
313 F.Supp.2d 481, 491 (E.D. Pa. 2004) (quoting Commonwealth v. Hock, 556 Pa. 409,
16

728 A.2d 943, 946 n. 3 (1999)). “ ‘[P]rofane’ words alone, unaccompanied by any evidence
of violent arousal, are not ‘fighting words' and are therefore protected speech.” Id.
Here, the Officers had a sufficient basis for arresting Mr. Zavec for the offense of
disorderly conduct because Mr. Zavec’s statement warning Officer Collins that if he
continued the mockery, Mr. Zavec would “knock [the Officer’s] black fucking head off,” (Doc.
22, at ¶ 58), constituted a threat by an already agitated person. The threat was made
publicly and audibly, and was directed specifically at a law enforcement officer. Mr. Zavec,
in clear language, expressed his willingness and readiness to resort to violence. Mr. Zavec’s
earlier aggression during the exchange, (See Doc. 22, at ¶¶ 49-50), and the subsequent
verbal threat lead me to find that a reasonable officer, faced with the circumstances
presented in the instant action, could have reasonably believed that Mr. Zavec committed
the offense of disorderly conduct.
b.

The Heck Preclusion

Defendants also argue that Mr. Zavec's “unreasonable seizure” claim is barred by
the holding in Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny. According to
Plaintiffs, however, Heck is “inapposite” because, while the case “precludes § 1983
malicious prosecution claims in cases where there has been a criminal conviction . . . [,] Mr.
Zavec did not raise a malicious prosecution claim. Mr. Zavec’s claim is a Fourth
Amendment claim for seizure without probable cause.” (Doc. 31 at 49).
However, many courts have dismissed § 1983 false arrest claims relying on the
general rule that a guilty plea establishes the existence of probable cause, thus applying
Heck to false arrest claims. See, e.g., Mitchell v. Grynkewicz, 2012 WL 580164, at *4 (M.D.
Pa. Jan. 31, 2012), report and recommendation adopted sub nom. Mithcell v. Grynkewicz,
2012 WL 580159 (M.D. Pa. Feb. 21, 2012); Kokinda v. Breiner, 557 F. Supp. 2d 581, 592
(M.D. Pa. 2008); Burke v. Twp. of Cheltenham, 742 F. Supp. 2d 660, 670 (E.D. Pa. 2010);
Rose v. Mahoning Twp., 2008 WL 918514, at *6 (M.D. Pa. Mar. 31, 2008); see also Ocasio
v. Turner, 19 F. Supp. 3d 841, 852 (N.D. Ind. 2014) (“”[F]alse arrest claim is not
automatically Heck-barred by a subsequent conviction for the same offense, but, in those
17

cases in which the grounds for the conviction flow from the same facts underlying the
allegations of false arrest, the claim is barred.”); Hendrix v. City of Trenton, 2009 WL
5205996, at *5 (D.N.J. Dec. 29, 2009); Frederick v. Hanna, 2006 WL 3489745, at *8 (W.D.
Pa. Dec. 1, 2006) (“A guilty plea establishes the existence of probable cause.”). Moreover,
the Third Circuit has also applied Heck to cases not involving malicious prosecution. See,
e.g., Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005) (claims that arrest and conviction
violated the First Amendment); Ashton v. City of Uniontown, 459 F. App'x 185, 188 (3d Cir.
2012) (First Amendment retaliation and excessive force claims).
Indeed, the Supreme Court in Heck did not limit its reasoning to “malicious
prosecution” claims; rather, it invoked a much broader language when it barred challenges
to the “unlawfulness of [the] conviction or confinement” through a civil, § 1983 action. 512
U.S. at 486. Specifically, the Court held that
in order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal court's
issuance of a writ of habeas corpus[.]
Id. at 486-487.
It is true that Heck does not restrict civil rights claims that have no collateral effect
on the underlying criminal conviction. Such claims might include those for excessive force
or unlawful search. See id. at 487 n. 7 (“[A] suit for damages attributable to an allegedly
unreasonable search may lie even if the challenged search produced evidence that was
introduced in a state criminal trial ... [b]ecause of doctrines like independent source and
inevitable discovery.”); Nelson v. Jashurek, 109 F.3d 142, 146 (3d Cir. 1997) (opining that
the plaintiff's success on an excessive force claim would not call into doubt his criminal
conviction obtained after the allegedly improper arrest).
Here, however, the unreasonable seizure claim would call into doubt Mr. Zavec’s
criminal conviction obtained after the allegedly unconstitutional arrest. As such, Mr. Zavec’s
claim, which bears a relationship to a conviction that has not been invalidated, is not
18

cognizable under § 1983 because Mr. Zavec’s argument in support of his false arrest claim
is that the underlying disorderly conduct charge lacked probable cause. Thus, Heck is fully
applicable to the instant case.
Mr. Zavec pled guilty to the offense of disorderly conduct, and his conviction3 has not
been reversed, expunged, declared invalid or called into question; Mr. Zavec also does not
argue that his plea was not voluntary. Cf. Unger v. Cohen, 718 F.Supp. 185, 187
(S.D.N.Y.1989) (allowing plaintiff to maintain his § 1983 false arrest claim even though he
had pled guilty to disorderly conduct because plaintiff had alleged in his § 1983 action that
his conviction on guilty plea was invalid); Pouncey v. Ryan, 396 F.Supp. 126, 127 (D. Conn.
1975) (“[V]alid conviction precludes subsequent false arrest suit.”). Moreover, the instant
case does not involve any allegations or evidence of fraud, perjury, undue influence or other
corrupt means in obtaining the plea or conviction.
Therefore, I will dismiss Mr. Zavec’s claim in Count III of the Complaint because a
favorable judgment on Mr. Zavec’s instant claim would necessarily imply the invalidity of his
disorderly conduct conviction.
Leave to amend will be denied as futile because I have already found that “the
arresting officers had probable cause to believe the person arrested had committed the
offense.” Groman, 47 F.3d at 634 (citation omitted).
4.

Count V - Deprivation of Plaintiffs’ Personal Property

In Count V, Plaintiffs assert a cause of action under § 1983 for the alleged
deprivation of their personal property without due process of law in violation of the
Fourteenth Amendment which provides, in pertinent part, that “[n]o state shall . . . deprive
any person of . . . property, without due process of law[.]” U.S. Const., amend. XIV,§ 1; see

3

“[A] plea of guilty is more than an admission of conduct; it is a conviction.” Boykin v.
Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712 (1969).

19

Doc. 22 at ¶ 113. Specifically, as the Complaint alleges, “[d]uring their illegal entry into the
Zavec’s home and during their illegal use of force against the Zavecs, [Officers] Collins and
Gist damaged personal property and furniture in the Zavec home. Additionally, [Officer] Gist
broke a hot wax warmer when he grabbed M.Z. by her shirt and threw her against a wall.”
(Doc. 31, at 51) (internal citations omitted).
Plaintiffs appear to allege a procedural due process claim based on intentional
conduct. Cf. Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 141 (3d Cir. 2000) (limiting
“non-legislative substantive due process review to cases involving real property ownership”);
Indep. Enterprises Inc. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir.
1997) (stating that “only fundamental property interests are worthy of substantive due
process protection”).4
In order to determine whether an individual has been deprived of his property
without due process “it is necessary to ask what process the State provided, and whether
it was constitutionally adequate.” Zinermon v. Burch, 494 U.S. 113, 126, 110 S.Ct. 975
(1990). “This inquiry . . . examine[s] the procedural safeguards built into the statutory or
administrative procedure of effecting the deprivation, and any remedies for erroneous
deprivations provided by statute or tort law.” Id. Although a pre-deprivation hearing is
generally required before a state seizes a person's property, “[i]n some circumstances ...
the Court has held that a statutory provision for a postdeprivation hearing, or a common-law
tort remedy for erroneous deprivation, satisfies due process.” Id. at 128. Thus, Plaintiffs
cannot prevail on their procedural due process claim if the state's post-deprivation
procedures, including state tort remedies, are adequate. See Revell v. Port Auth. of New

4

Plaintiffs also cite Daniels v. Williams, 474 U.S. 327, 332 (1986) for the proposition that the
Officers’ “deprivations flowed from their ‘abuse of power,’ which is the exact concern the
Fourteenth Amendment endeavors to address.” (Doc. 31, at 52). This is not sufficient to state
a substantive due process claim because it ignores the antecedent requirement that
Plaintiffs establish a property interest that falls within the protection of the substantive Due
Process Clause. Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000).
20

York & New Jersey, 598 F.3d 128, 139 (3d Cir. 2010).
In addition to the instant Count, Defendants included in the Complaint a state law
claim for trespass in Count X, alleging that Plaintiffs suffered damages when the Officers
entered Plaintiffs’ home without consent, invitation, or permission. (Doc. 22 at ¶¶ 153-155).
Defendants did not move to dismiss Plaintiffs’ state law trespass claim.
Plaintiffs concede that “[s]hould the Court decide that plaintiffs’ state law trespass
claim adequately provides post-deprivation due process to the Zavecs, the Zavecs are
satisfied to seek relief through that claim.” (Doc. 31, at 53). Count X does not, in and of
itself, provide adequate post-deprivation remedy because it encompasses only the Officers’
act of entering and remaining in the home, not any damage to personal property found
within the home. Rather, what would provide a more adequate remedy is an action for
conversion, which is “the deprivation of another's right of property in, or use or possession
of, a chattel, or other interference therewith, without the owner's consent and without lawful
justification.” McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 659 n. 3 (Pa. Super.
2000) (citation omitted); see Revell, 598 F.3d at 139 (“We have recognized that a civil
cause of action for wrongful conversion of personal property under state law is a sufficient
postdeprivation remedy when it extends to unauthorized seizures of personal property by
state officers.”) (citing Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009)).
Thus, I will dismiss Count V with prejudice, but grant leave to amend the Complaint
to add any state law tort claims that provide Plaintiffs with a more adequate post-deprivation
remedy.
5.

Count VI - Fist Amendment Retaliation

In Count VI of the Second Amended Complaint, Plaintiffs allege that Officers Collins
and Gist illegally and unreasonably entered Plaintiffs' home and seized Mr. Zavec through
the use of excessive and unreasonable force in retaliation for Mr. Zavec' s exercise of his
First Amendment free speech rights. (Doc. 22 at ¶ 117).
To establish a First Amendment retaliation claim, a plaintiff must prove: “first, that
she engaged in protected activity; second, that the government responded with retaliation;
21

third, that this protected activity was the cause of the government's retaliation.” Pulice v.
Enciso, 39 F. App'x 692, 696 (3d Cir.2002). Dispositive here is an antecedent inquiry
whether, in light of the Supreme Court’s case in Heck v. Humphrey, Mr. Zavec can maintain
a § 1983 First Amendment retaliation claim at all. 512 U.S. at 487; see also Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). Put differently, the essential inquiry
is whether the retaliation claim asserted by Mr. Zavec would “necessarily imply the invalidity
of his conviction.” Wallace v. Kato, 549 U.S. 384, 398, 127 S.Ct. 1091 (2007) (Stevens, J.,
concurring) (quoting Heck, 512 U.S. at 486-87).
The Third Circuit in Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005) addressed Heck 's
applicability to First Amendment retaliation claims. In Gilles, the plaintiff was cited and found
criminally liable for disorderly conduct ancillary to his speech activity. Id. at 202-03. He
subsequently brought a claim under § 1983, alleging First Amendment claims against the
officers who arrested him. Id. The Gilles court rejected those claims, holding that Heck
prevented the plaintiff from challenging his criminal prosecution by alleging that it was the
result of retaliatory motive rather than in response to his criminal activity. Id. at 211. The
Third Circuit explained,
[a]s Heck noted, § 1983 “creates a species of tort liability.” 512 U.S. at 483,
114 S.Ct. 2364. Thus, common law bars to suit apply to claims brought
under § 1983. Id. In Heck, the Court held a § 1983 malicious prosecution
claim was subject to the common law requirement that the plaintiff show the
prior criminal proceeding terminated in his favor. Id. at 484, 114 S.Ct. 2364.
The purpose of the requirement, the Court explained, is to avoid parallel
litigation of probable cause and guilt. Id. It also prevents the claimant from
succeeding in a tort action after having been convicted in the underlying
criminal prosecution, which would run counter to the judicial policy against
creating two conflicting resolutions arising from the same transaction. Id.
These reasons are equally applicable in this context. [Plaintiff’s] underlying
disorderly conduct charge and his § 1983 First Amendment claim require
answering the same question—whether [Plaintiff’s] behavior constituted
protected activity or disorderly conduct.
Id. at 209. Thus, the Third Circuit held that entering into a program permitting expungement
of criminal records was not “favorable termination” for purposes of Heck v. Humphrey, and
barred the plaintiff’s § 1983 First Amendment retaliation claim.
Gilles directly controls my analysis as it demonstrates the Third Circuit’s approach
22

to the “favorable termination” rule announced in Heck. Because Mr. Zavec has not
demonstrated “favorable termination” of his disorderly conduct conviction, his retaliation
claim is barred. See Ashton v. City of Uniontown, 459 F. App'x 185, 188 (3d Cir. 2012)
(“Because we would have to decide whether [the appellant’s] conduct on June 12, 2008
constitutes protected activity under the First Amendment, permitting his claim to proceed
would necessarily impugn the validity of his underlying convictions for disorderly conduct
and harassment.”).
Leave to amend will be denied as futile except that Mr. Zavec may amend his
complaint to assert the claim if he provides evidence in the form of certified court records
demonstrating that his "conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas
corpus." Heck, 512 U.S. at 487.
B.

Count VII - Claim Pursuant to the Americans with Disabilities Act and
Rehabilitation Act Against Defendant City of Wilkes-Barre
In Count VII, Plaintiffs allege a claim against Defendant City of Wilkes-Barre pursuant

to Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”) and the
Rehabilitation Act § 504, 29 U.S.C. § 794 (“RA”).5 To make a prima facie case under the
ADA, a plaintiff must establish that: “(1) he is a qualified individual; (2) with a disability6; (3)
he was excluded from participation in or denied the benefits of the services, programs, or
activities of a public entity, or was subjected to discrimination by any such entity; (4) by

5

The substantive standards for determining liability under the ADA and RA are the same, and
are analyzed together. McDonald v. Pa. Dep't of Pub. Welfare, 62 F.3d 92, 94–95 (3d Cir.
1995). I will, thus, be referring to both Acts under the label “ADA” or “Title II.”
6

At the outset, I note that Defendants did not move to dismiss Mr. Zavec's ADA claim, and
do not contest whether Mrs. Zavec qualifies as a disabled individual under the ADA.
23

reason of his disability.” Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 553 n. 32
(3d Cir. 2007).
Although the Third Circuit has not yet addressed the application of the ADA to police
activities and procedures, district courts in this circuit have endorsed two theories under
which police actions have been found to fall under the ADA: the “wrongful arrest” theory and
the “reasonable accommodation” theory. Schorr v. Borough of Lemoyne, 243 F. Supp. 2d
232, 238-39 (M.D. Pa. 2003) (citing Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir.1999)).
The “wrongful arrest” theory is applicable when “police wrongly arrested
someone with a disability because they misperceived the effects of that
disability as criminal activity.” Alternatively, the “reasonable
accommodations” theory applies when police investigate and arrest a person
with a disability for a crime unrelated to that disability, but fail to “reasonably
accommodate the person's disability in the course of investigation or arrest,
causing the person to suffer greater injury or indignity in that process than
other arrestees.”
Young v. Sunbury Police Dep't, 160 F. Supp. 3d 802, 810 (M.D. Pa. 2016) (internal
footnotes omitted).
Both parties concede that the ADA applies to arrests. Indeed, most courts to
consider whether interactions between law enforcement and disabled individuals are
“services, programs, or activities” subject to the requirement of accommodation under Title
II of the ADA have generally found that Title II applies. See, e.g., Sheehan v. City & Cty. of
San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part, cert. dismissed in part
sub nom. City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765 (2015); Gohier
v. Enright, 186 F.3d 1216 (10th Cir.1999); see also Yeskey v. Commonwealth of
Pennsylvania Dep't of Corrections, 118 F.3d 168, 170 (3d Cir. 1997), aff'd, 524 U.S. 206,
118 S.Ct. 1952 (1998) (finding that Congress intended the terms “program” and “activity,”
as used in Title II of the ADA, to be “all-encompassing”).
Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. A “public entity” includes “any department, agency, special
24

purpose district, or other instrumentality of a State or States or local government.” Id. at §
12131(1)(B).
Most courts which have found that law enforcement officers who are acting in an
investigative or custodial capacity are performing “services, programs, or activities” within
the scope of Title II have nevertheless held that the reasonableness of the accommodation
required must be assessed in light of the totality of the circumstances of the particular case.
Thus, for instance, the Fifth Circuit has held that Title II applied "[o]nce the area was secure
and there was no threat to human safety” and that “deputies would have been under a duty
to reasonably accommodate Hainze's disability in handling and transporting him to a mental
health facility." Hainze v. Richards, 207 F.3d 795, 802 (5th Cir.2000). More broadly, the
Eleventh Circuit focused on “whether, given criminal activity and safety concerns, any
modification of police procedures is reasonable before the police physically arrest a criminal
suspect, secure the scene, and ensure that there is no threat to the public or officer's
safety.” Bircoll v. Miami–Dade Cnty., 480 F.3d 1072, 1085–86 (11th Cir.2007).
Recently, the Ninth Circuit also found that Title II claims apply to arrests, but
“agree[d] with the Eleventh and Fourth Circuits that exigent circumstances inform the
reasonableness analysis under the ADA, just as they inform the distinct reasonableness
analysis under the Fourth Amendment.” Sheehan, 743 F.3d at 1232; see also Hogan v. City
of Easton, 2004 WL 1836992 (E.D. Pa. Aug.17, 2004) (finding a claim under Title II
because the situation was secure when the officers arrived on the scene); Vincent v. Town
of Scarborough, 2003 WL 22757940, *25-26 (D. Me. Nov. 20, 2003) (finding that exigent
circumstances prohibited the existence of a Title II claim); Thompson v. Williamson County,
219 F.3d 555, 556 (6th Cir.2000) (“[I]f the decedent was denied access to medical services
it was because of his violent, threatening behavior, not because he was mentally
disabled.”).

25

Thus, although I note my skepticism about fitting an arrest7 into the ADA, Plaintiffs’
ability to recover appears to depend upon the existence of exigencies at the time of the
seizure as well as, to recover compensatory damages, a showing of deliberate indifference,
both of which are highly fact-specific inquiries inappropriately raised at the motion to dismiss
stage. Put differently, the critical question for purposes of this aspect of the ADA claim is
whether such exigent circumstances existed as would temporarily lift the normal ADA
requirement of reasonable accommodations. This would require me to conduct a
reasonableness analysis in light of the confrontation between Mrs. Zavec and the Officers
to assess the existence, seriousness, and duration of any exigencies, what
accommodations, if any, were due, and the adequacy of any precautions taken by the
Officers, to determine whether the Officers “failed to reasonably accommodate [Mrs.
Zavec’s] disability” causing her “to suffer greater injury or indignity in that process than other
arrestees.” Gohier v. Enright, 186 F.3d at 1220. This, at a motion to dismiss, I cannot do.
In the Complaint, Mrs. Zavec sufficiently alleges that Officers Collins and Gist, who,
according to the Complaint, were aware that Mrs. Zavec suffered from multiple sclerosis,
(Doc. 22, at ¶ 65), tackled her onto the floor, (Id. at ¶ 58), physically attacked her (Id. at ¶
61), pinned her to the ground (Id. at ¶ 64), trampled on her (Id.), stepped on her (Id. at ¶
65), and Officer “Collins put his knees in Mrs. Zavec’s eyes.” (Id. at ¶ 66). Moreover, Officer
Collins “pointed [a Taser gun] at Mrs. Zavec’s face with his finger on the trigger” and “pulled
her head down by her hair.” (Id. at ¶ 76).
At this stage of the proceedings, it cannot be established conclusively as a matter
of fact or law that the police conduct in question did not constitute an “arrest” or “seizure,”

7

Or a claim for failure to train, also alleged in the Complaint. See, e.g., Waller v. City of
Danville, Virginia, 515 F. Supp. 2d 659, 665 (W .D. Va. 2007), aff'd sub nom. Waller ex rel.
Estate of Hunt v. Danville, VA, 556 F.3d 171 (4th Cir. 2009) (“By its plain language, a
violation of Title II does not occur until there has been an exclusion or denial of participation
in, or the benefits of, a public entity's services, which manifestly occurs well after any training
of the public entity's agents.”).
26

or that the Officers’ actions did not constitute deliberate indifference, finding of which would,
according to both parties, preclude Plaintiffs’ ADA claims. These are disputed issues and
on a motion to dismiss, the facts must be taken in a light most favorable to Plaintiffs as the
nonmoving party. See Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). At this
stage, my only duty is to find whether Plaintiffs state a claim, not resolve any factual
disputes. I find that Plaintiffs state a plausible claim for relief in Count VII in that they allege
sufficient facts to survive the Rule 12(b)(6) challenge.
IV. Conclusion
For the above-stated reasons, Defendants’ Partial Motion to Dismiss (Doc. 23) will
be granted in part and denied in part. Counts I, II, and V will be dismissed with prejudice.
Count III, as it relates to Plaintiff Joseph Zavec's claim only, will be dismissed with prejudice
as well. Count VI will be dismissed without prejudice. Finally, Count VII properly states a
claim, and, as such, Defendants' motion will be denied as to this Count.
An appropriate order follows.8

July 27, 2017
Date

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

8

I must note two observations. First, I encourage Plaintiffs’ counsel to refrain from
characterizing the opposing party’s position as “absurd,” “false,” and “nonsense.” It is
unhelpful and undermines the merit of the position advanced. Second, Plaintiffs’ counsel
failed to cite to important, binding, on-point Third Circuit precedent, such as Gilles v. Davis,
427 F.3d 197 (3d Cir. 2005), among others.
27