DeGroat v The Commonwealth of PA
Filing
37
MEMORANDUM (Order to follow as separate docket entry) re 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Derek Felsman, Wayne Thomas, Christopher Cole, Michael Oakes, Benjamin W Clark, Brett Ast, James A Hitchcock, Brian E Rickard, James E Travis. Signed by Honorable A. Richard Caputo on 5/17/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL DEGROAT, Individually
and as Administrator of the Estate of
Derek DeGroat, Sheila Marie DeGroat,
Breeanna DeGroat, and Derek Edward
Michael DeGroat by Lindsey Erk as parent
and natural guardian,
CIVIL ACTION NO. 3:16-cv-1186
(JUDGE CAPUTO)
Plaintiffs,
v.
SERGEANT PAUL V. CAVALLARO, et
al.,
Defendants.
MEMORANDUM
Presently before the Court is a Motion to Dismiss (Doc. 26) filed by Defendants
Trooper Brian E. Rickard, Corporal Benjamin W. Clark, Corporal Christopher Cole, Corporal
James E. Travis, Trooper Wayne Thomas, Corporal Derek Felsman, Trooper James A.
Hitchcock, Trooper Brett Ast, and Trooper Michael Oakes (collectively, the “moving
Defendants”). For the reasons that follow, the moving Defendants’ Motion will be granted
in part and denied in part.
I. Background
The well-pleaded facts as set forth in Plaintiffs’ Amended Complaint (Doc. 24) are
as follows:
This action stems from the death of Derek DeGroat (the “decedent”), who was shot
eleven (11) times and killed by members of the Pennsylvania State Police (“PSP”). (Compl.
¶ 19.) On December 21, 2015, the decedent was visiting Plaintiff Sheila DeGroat, his
mother, and Plaintiff Breeanna DeGroat, his sister, at the family’s home in Wayne County,
Pennsylvania. (Id. ¶¶ 2, 17.) During this visit, the decedent lawfully possessed an unloaded
firearm. (Id. ¶ 19.) A verbal disagreement took place between the decedent and his thengirlfriend, Lindsey Erk. (Id. ¶ 18.) At some point, members of the PSP arrived at the family
home, including the moving Defendants. (Id. ¶ 13.) Around 11:53 P.M., one or more of the
PSP officers on the scene fired thirty-nine (39) shots in the direction of the decedent,
striking him eleven (11) times and killing him. (Id. ¶¶ 2, 19.) The decedent did not point or
aim his unloaded firearm at the PSP officers at any time leading up to the shooting. (Id. ¶
19.)
This suit is brought by Michael DeGroat, individually as the decedent’s father and as
Administrator of the Estate for the decedent; Sheila Marie DeGroat, the decedent’s mother;
Breeanna DeGroat, the decedent’s sister; and Derek Edward Michael DeGroat, the
decedent’s son, by his parent and natural guardian Lindsey Erk. (Id. ¶¶ 2-3.) The Amended
Complaint named as Defendants Sergeant Paul V. Cavallaro, Station Commander of the
Wayne County Honesdale Troop R Barracks of the PSP; Captain Christopher L. Paris, the
“Troop R” Commanding Officer of the PSP; the moving Defendants, all of whom are PSP
officers who were present at the DeGroat family home on the night of the incident; and John
Doe’s numbered 1-15, who are presently unknown PSP officers who were also present at
the DeGroat family home on the night of the incident. (Id. ¶¶ 11-14.)1 The moving
Defendants are being sued in their official and individual capacities. (Id. ¶ 13.)
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 her claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
1
On February 10, 2017, the Court approved a stipulation of discontinuance to
Defendants Cavallaro and Paris without prejudice. (Doc. 34.)
2
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)(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, 664 (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. Cty. 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.
3
“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. Corp.,
998 F.2d at 1196. The Court need not assume that 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
Plaintiffs’ Amended Complaint (Doc. 24) lists nine causes of action: (1) a claim
under 42 U.S.C. § 1983 for a violation of the Fourth and Fourteenth Amendments
(Count I); (2) an additional claim under § 1983 for a violation of the Fourth Amendment
(Count II); (3) a claim for negligent infliction of emotional distress (“NIED”) (Count III); (4)
a claim labeled as “intentional tort” (Count IV); (5) a claim alleging a breach of the duty
of care (Count V); (6) a claim alleging a failure to intervene against Defendants
Cavallaro and Paris (Count VI); (7) a claim for wrongful death (VII); (8) claims for assault
and battery (Count VIII); and (9) a claim labeled as “zone of danger” (Count IX2). The
moving Defendants filed their Motion to Dismiss on November 30, 2016, seeking to
dismiss Plaintiffs’ Amended Complaint in part. (Doc. 26.) The moving Defendants argue
2
Irrespective of the label, it appears that Plaintiffs are raising a claim for intentional
infliction of emotional distress (“IIED”) in this Count.
4
that the Fourteenth Amendment substantive due process claim asserted in Count I
should be dismissed because Plaintiffs’ federal-law claim is governed by the Fourth
Amendment and its “reasonableness” standard. (Doc. 27, at 3-4.) Additionally , the
moving Defendants contend that the state-law claims contained in Counts III-IX should
be dismissed as barred by state sovereign immunity. (Id. at 4-5.) Plaintiffs filed a Brief in
Opposition on February 10, 2017. (Doc. 35.) The Motion is ripe for disposition.
A.
Plaintiffs’ Fourth and Fourteenth Amendment Claims in Count I
Count I of Plaintiffs’ Amended Complaint alleges that the moving Defendants
violated the decedent’s Fourth and Fourteenth Am endment rights by causing him to be
shot and killed without justifiable reason and with the use of unreasonable and
excessive force. (Compl. ¶ 28.) Similarly, Count II of Plaintiffs’ Amended Complaint
alleges that the moving Defendants violated the decedent’s Fourth Amendment right by
engaging in “conduct that is shocking to the conscience” and “offensive to the
community’s sense of fair play and decency,” resulting in the decedent “sustain[ing] life
ending injuries.” (Id. ¶¶ 37, 40.) Both Counts clearly concern the violation of the
decedent’s federal rights with respect to the fatal shooting.
In Albright v. Oliver, 510 U.S. 266 (1994), the Supreme Court held that “[w]here a
particular amendment provides an explicit textual source of constitutional protection
against a particular sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide for analyzing these
claims.” Id. at 273 (internal quotation marks and citations omitted). Specific to the
present case, “‘[c]laims of unreasonable search and seizure are . . . governed by the
explicit constitutional text in the Fourth Amendment and may not therefore, [be] brought
as claims for violation of the right to substantive due process.’”3 Mitchell v. Luckenbill,
3
The facts alleged in the Amended Complaint make clear that Plaintiffs are raising
a claim for a violation of substantive due process, not procedural due process.
(See also Doc. 35 ¶ 16.)
5
680 F. Supp. 2d 672, 688 (M.D. Pa. 2010) (quoting McDonald v. Darby Borough, Civ. A.
No. 07-4588, 2008 WL 4461912, at *6 (E.D. Pa. Oct. 3, 2008)). “T he Third Circuit has
held ‘that Albright commands that claims governed by explicit constitutional text may not
be grounded in substantive due process.” Id. at 689 (quoting Torres v. McLaughlin, 163
F.3d 169, 172 (3d Cir. 1998)).
Here, Counts I and II allege that the moving Defendants violated the decedent’s
Fourth and Fourteenth Amendment rights when they fatally shot him. (Compl. ¶¶ 28, 40.)
The Fourth Amendment’s reasonableness standard explicitly governs claims alleging
unlawful seizures, including “deadly seizures.” See Soldal v. Cook Cty., Ill., 506 U.S. 56,
71 (1992); Curley v. Klem, 499 F.3d 199, 203 n.4 (3d Cir. 2007) (“[T]here is ‘no question’
that a shooting constitutes a seizure under the Fourth Amendment.” (quoting Tennessee
v. Garner, 471 U.S. 1, 7 (1985))); Zion v. Nassan, 283 F.R.D. 247, 255-56 (W.D. Pa.
2012). Accordingly, because Plaintiffs’ federal-law claim is grounded in the Fourth
Amendment, the Fourteenth Amendment substantive due process claim contained in
Count I will be dismissed with prejudice. See O’Malley v. Lukowich, No. 3:08-CV-0680,
2008 WL 4861477, at *6-*7 (M.D. Pa. Nov. 7, 2008) (“The Fourth Amendment . . .
provides an explicit textual source of constitutional protection to Plaintiff, so any reliance
on the substantive component of the Due Process Clause is misplaced.”).
Furthermore, Count I also appears to include a claim against the moving
Defendants for the failure to intervene. (Compl. ¶ 29.) However, in order to state a §
1983 claim for failure to intervene, “a plaintiff must show that an officer had a reasonable
opportunity to intervene in the face of a constitutional violation and (s)he simply refused
to do so.” Walters v. Pa. State Police, No. 1:13-CV-2275, 2014 W L 3908150, at *11
(M.D. Pa. Aug. 11, 2014) (citing Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002)).
That is, “an officer is only liable if there is a realistic and reasonable opportunity to
intervene.” Smith, 293 F.3d at 651. Here, the Amended Complaint is insufficient because
it fails to allege any facts demonstrating that any Defendant(s) had a reasonable
6
opportunity to intervene and prevent a constitutional violation but failed or refused to do
so. See Walters, 2014 WL 3908150, at *12 n.6. Accordingly, to the extent Count I also
attempts to assert a claim for failure to intervene against the moving Defendants, this
claim will be dismissed without prejudice.
Accordingly, Count I will be dismissed. Plaintiffs’ Fourteenth Amendment
substantive due process claim will be dismissed with prejudice. Plaintiffs’ failure to
intervene claim will be dismissed without prejudice. Because Plaintiffs’ Fourth
Amendment claims in Counts I and II are redundant, the Court will dismiss Count I and
allow Plaintiffs to proceed on their Fourth Amendment claim in Count II against the
moving Defendants and John Doe Defendants, based on the well-pleaded allegations
contained in both Counts.
B.
Plaintiffs’ State-Law Claims in Counts III-IX
Counts III-IX of the Amended Complaint are predicated on state-law claims. The
moving Defendants contend that these claims should be dismissed because they are
barred by state sovereign immunity. (Doc. 27, at 4-5.) In response, Plaintiffs argue that
state sovereign immunity does not bar these claims because the moving Defendants
were not acting within the scope of their duties. (Doc. 35 ¶¶ 22–26.) The Court will deny
the moving Defendants’ Motion to Dismiss these claims based on state sovereign
immunity at this time.
The Pennsylvania General Assembly has enacted 1 Pa. Cons. Stat. Ann. § 2310,
which provides in pertinent part:
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is
hereby declared to be the intent of the General Assembly that the
Commonwealth, and its officials and employees acting within the scope of
their duties, shall continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the General Assembly
shall specifically waive the immunity.
7
(emphasis added). Section 2310 thus generally “shields Commonwealth officials
and employees from civil liability for torts committed ‘within the scope of their
duties.’” Zion v. Nassan, 283 F.R.D. 247, 265 (W.D. Pa. 2012) (citation omitted);
see Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 681-82 (M.D. Pa. 2010)
(“Sovereign immunity bars claims that are asserted against the Commonwealth,
its agencies, and Commonwealth employees acting within the scope of their
office or employment.”) (citing § 2310). “Even where a plaintiff asks for monetary
damages against a [Commonwealth] defendant in his individual capacities,
sovereign immunity applies.” Jackson v. Nassan, No. 2:08-cv-1054, 2009 WL
2707447, at *6 (W.D. Pa. Aug. 26, 2009). Unlike employees and officers of
municipal agencies, employees of the Commonwealth “acting within the scope of
[their] employment or duties [are] protected by sovereign immunity from the
imposition of liability for intentional tort claims.” Holt v. Nw. Pa. Training P'ship
Consortium, Inc., 694 A.2d 1134, 1140 (Pa. Commw. Ct. 1997) (citing LaFrankie
v. Miklich, 618 A.2d 1145 (Pa. Commw. Ct. 1992)). The General Assembly has
enumerated only nine strictly construed exceptions to Pennsylvania’s sovereign
immunity statute. See 42 Pa. Cons. Stat. Ann. § 8522(b). 4
Here, it is undisputed that the moving Defendants are employees of the
Commonwealth. See also Zion, 283 F.R.D. at 264. Plaintiffs do not contend that
any of the narrow exceptions to state sovereign immunity apply to their claims.
Instead, Plaintiffs argue that the moving Defendants were not acting within the
scope of their employment and, consequently, sovereign immunity does not
4
Under § 8522, sovereign immunity is not a valid defense in certain limited
situations involving the negligence of a Commonwealth official or employee in
suits for damages caused by: (1) vehicle liability; (2) medical-professional
liability; (3) care, custody, or control of personal property; (4) Commonwealth
real estate, highways and sidewalks; (5) potholes and other dangerous conditions;
(6) care, custody or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoids and vaccines.
8
apply. See Schell v. Guth, 88 A.3d 1053, 1067 (Pa. Commw. Ct. 2014) (“[I]f a
defendant who is a Commonwealth employee was not acting within the scope of
employment, he cannot claim the affirmative defense of sovereign immunity.”). In
order to determine whether a Commonwealth employee was acting within the
scope of his or her employment, courts must consider whether the employee’s
conduct: (a) is of a kind and nature that the employee is employed to perform; (b)
occurs substantially within the authorized time and space limits; and (c) is
actuated, at least in part, by a purpose to serve the employer. Natt v. Labar, 543
A.2d 223, 225 (Pa. Commw. Ct. 1988). Additionally, “if force is intentionally used
by the employee against another,” courts must considered whether “it is not
unexpected by the employer.” Id. (emphasis added).
Under Pennsylvania law, “an assault committed by an employee upon
another for personal reasons or in an outrageous manner is not actuated by an
intent to perform the business of the employer and, as such, is not within the
scope of [his or her] employment.” Costa v. Roxborough Mem’l Hosp., 708 A.2d
490, 493 (Pa. Super. Ct. 1998). Specific to this case, “[t]he relevant question in
determining whether an officer acted outside the scope of his employment is
whether the force used by the officer was ‘of the kind that may reasonably be
expected of a police officer under similar circumstances.’” Meadows v. Se. Pa.
Transp. Auth., No. 16-2074, 2017 WL 412806, at *3 (E.D. Pa. Jan. 31, 2017)
(quoting Ickes v. Grassmeyer, 30 F. Supp. 3d 375, 397-99 (W .D. Pa. 2014)).
“Since an employee is generally authorized to use only ‘reasonable’ measures to
achieve a result desired by his or her employer, an ‘outrageous' act may lie
beyond the scope of his or her employment even where it constitutes ‘a means of
accomplishing an authorized result.’” Zion, 283 F.R.D. at 267 (citing Lunn v.
Yellow Cab Co., 169 A.2d 103, 104 (Pa. 1961)).
9
“Courts in this district do not presume that ‘immunity is automatically
warranted’ in every circumstance for every Commonwealth employee.” Mobley v.
Lantz, No. 1:13-cv-1804, 2014 WL 3810119, at *23 (M.D. Pa. July 31, 2014)
(quoting Shipman v. Gelso, 3:11-cv-1162, 2011 WL 5554252, at *5 (M.D. Pa.
Nov. 15, 2011)). As such, “[a] court may deny a motion to dismiss on the basis of
state sovereign immunity where it is unclear from the facts of the case whether
the Commonwealth employees were actually acting within the scope of their
employment.” Id.
Here, the Court concludes that it would be premature to dismiss Plaintiffs’
state-law claims against the moving Defendants in their individual capacities on
the basis of sovereign immunity. The Amended Complaint alleges that the moving
Defendants fired thirty-nine bullets in the direction of the decedent, striking him
eleven times and killing him. The Amended Complaint further alleges that the
decedent did not engage in conduct warranting the moving Defendants’ use of
deadly force against him. The severity of the harm and the nature of the
encounter as alleged suggest, at the pleading stage, that the decedent was
“seized . . . under circumstances not calculated to serve the interests of the PSP.
. . .” Strothers v. Nassan, No. 08-1624, 2009 WL 976604, at *10 (W.D. Pa. Apr. 9,
2009). Accordingly, the Court will deny the moving Defendants’ Motion to Dismiss
Counts III-IX based on the defense of state sovereign immunity at this time. See
id.; see also Zion, 283 F.R.D. at 267 (denying motion for judgment on the
pleadings based on state sovereign immunity when the complaint asserted tort
claims stemming from the fatal shooting of a fleeing motorist by a PSP officer,
noting that “[a] high degree of ‘outrageousness’ can take an employee's actions
‘outside the scope’ of his or her employment) (citations omitted); cf. Ickes v.
Grassmeyer, 30 F. Supp. 3d 375, 399 (W .D. Pa. 2014) (granting motion to
dismiss based on state sovereign immunity when the plaintiff’s tort claims only
alleged that PSP officers used “roughhouse tactics” and did not suggest that the
10
officers “used deadly weapons or otherwise placed [plaintiff] at serious risk of
permanent injury”). The Court will be in a better position to consider this defense
when the record is fully developed. The moving Defendants remain free to raise
this defense in a motion for summary judgment.
However, although the Court declines to dismiss Plaintiffs’ state-law claims
against the moving Defendants in their individual capacities based on state
sovereign immunity, the Court will dismiss without prejudice Counts IV and VI for
the reasons that follow, and will dismiss with prejudice all claims pursuant to 42
U.S.C. § 1983 against the PSP officers in their official capacities for retrospective
monetary relief, as well as all state-law claims against the PSP officers in their
official capacities.
Count IV is entitled “intentional tort,” and alleges that the moving
Defendants “intentionally committed tortious activity against [the decedent] in that
they intentionally used excessive force causing his death.” (Compl. ¶ 51.) This
Count further alleges that on the night of the incident, the moving Defendants
“committed assault and battery upon [the decedent]. . . .” (Id. ¶ 52.) Although it is
unclear from the label, it appears Count IV raises claims for assault and battery
against the moving Defendants. However, these intentional-tort claims are
already expressly asserted in Count VIII. Accordingly, the Court will dismiss Count
IV without prejudice to Plaintiffs filing a second amended complaint that alleges a
different, specific intentional tort more clearly.
Additionally, Count VI is entitled “failure to intervene,” and appears to raise
state-law claims against Defendants Cavallaro and Paris only. The parties have
11
agreed to discontinue this action without prejudice against these two Defendants.
(Doc. 34.) Therefore, the Court will dismiss Count VI without prejudice. 5
Separately, Count IX is entitled “zone of danger.” The Court reads this
Count to allege a claim for intentional infliction of emotional distress (“IIED”), as it
specifically uses this language in the body of the Count and asserts that the
Defendants’ conduct was “extreme and outrageous.” (Compl. ¶¶ 76-77); see
Mohammed v. John Doe Pa. State Police Sup'rs, No. 11-5004, 2013 WL
5741788, at *11 (E.D. Pa. Oct. 23, 2013). Plaintif fs invocation of the phrase “zone
of danger” refers to Plaintiffs “witnessing” the incident “and being traumatized
thereby.” (Compl. ¶ 76.) Although unclear, the Court reads Plaintiffs’ use of the
phrase “zone of danger” in this context as attempting to reference one factual
scenario in which a plaintiff may be eligible to bring a claim for negligent infliction
of emotional distress (“NIED”). See Weiley v. Albert Einstein Med. Ctr., 51 A.3d
202, 217 (Pa. Super. Ct. 2012) (citation omitted) (explaining that, under
Pennsylvania law, “the cause of action for [NIED] is restricted to four factual
scenarios,” one of which is when “the plaintiff was in a zone of danger, thereby
reasonably experiencing a fear of impending physical injury,” and another of
which is when “the plaintiff observed a tortious injury to a close relative”); see also
Burnett v. Swift Transp., Inc., No. 3:07-cv-1490, 2011 WL 533603, at *11 (M.D.
Pa. Feb. 8, 2011) (explaining the latter theory of NIED). However, Plaintiffs
expressly assert a claim for NIED in Count III. Thus, in the interest of clarity,
Plaintiffs may proceed on their claim for IIED in Count IX. To the extent Count IX
also attempts to raise a claim for NIED, it will be dismissed with prejudice
because such a claim is redundant to Count III.
5
Likewise, to the extent Count III attempts to assert unique claims of negligence
against Defendants Cavallaro and Paris, these claims will be dismissed without
prejudice based on the stipulation of discontinuance. (Compl. ¶¶ 45-48.)
12
Lastly, the Court will dismiss with prejudice all claims pursuant to 42 U.S.C.
§ 1983 seeking retrospective monetary relief against the Defendants in their
official capacities, as these claims are “in all respects other than name, to be
treated as a suit against the entity,” Kentucky v. Graham, 473 U.S. 159, 166
(1985), and therefore are barred by the Eleventh Amendment. The relevant entity
in this case is the PSP, which is an arm of the Commonwealth of Pennsylvania.
See Walters v. Pa. State Police, No. 1:13-CV-2275, 2014 W L 3908150, at *6
(M.D. Pa. Aug. 11, 2014). Because the Commonwealth has not waived its
Eleventh Amendment immunity for purposes of suits like the one at bar, and
because the Commonwealth’s immunity has not been abrogated in this case, the
Eleventh Amendment bars Plaintiffs’ § 1983 claims for retrospective monetary
damages against the PSP officers in their official capacities. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 70-71 (1989) (holding that a state official sued
in her official capacity is not a “person” under § 1983); Larsen v. State Emps.’
Ret. Sys., 553 F. Supp. 2d 403, 411 (M.D. Pa. 2008). Additionally , all of Plaintiffs’
state-law claims against members of the PSP in their official capacities are barred
as well. See Pa. State Police v. Klimek, 839 A.2d 1173, 1174 n.1 (Pa. Commw.
Ct. 2003) (noting that the PSP enjoys sovereign immunity “except for those
actions where immunity is specifically waived,” which is not the case here); see
also Walters, 2014 WL 3908150, at *6; Larsen, 553 F. Supp. 2d at 415.
C.
Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to a 12(b)(6)
dismissal, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir.
2008); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane
v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). Here, because Plaintif fs might be able to
allege facts sufficient to state a claim for the failure to intervene against one or more of
13
the moving Defendants, the Court will grant leave to amend that claim. Additionally, the
Court will grant Plaintiffs leave to amend Count IV to state a claim for a specific
intentional tort that is not already asserted in a separate Count. Amendments to all other
dismissed claims, however, would be futile because they fail as a matter of law.6
IV. Conclusion
For the above stated reasons, the moving Defendants’ Motion to Dismiss (Doc. 26)
will be granted in part and denied in part.
An appropriate order follows.
May 17, 2017
Date
6
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
This does not include the claims against Defendants Cavallaro and Paris, which
the Court will dismiss without prejudice based on the parties’ stipulation.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?