Plonka et al v. Borough of Susquehanna et al
Filing
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MEMORANDUM (Order to follow as separate docket entry) re 10 Amended Complaint filed by Andreas Plonka, Caroline Plonka. Signed by Honorable A. Richard Caputo on 4/5/17. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREAS PLONKA and CAROLINE
PLONKA,
Plaintiffs,
CIVIL ACTION NO. 3:17-CV-00262
(JUDGE CAPUTO)
v.
BOROUGH OF SUSQUEHANNA et al.,
Defendants.
MEMORANDUM
Presently before the Court is an Amended Complaint (Doc. 10) filed by Plaintiffs
Andreas and Caroline Plonka, proceeding in forma pauperis. Because Plaintiffs are
proceeding in forma pauperis, the Court must screen the Amended Complaint pursuant to
28 U.S.C. § 1915(e)(2)(B) to assess whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief. For the reasons set forth
below, the Court concludes that the Amended Complaint should be dismissed in its entirety.
I. Background
Plaintiffs Andreas and Caroline Plonka, through counsel, originally filed this lawsuit
on February 10, 2017. (Doc. 1.) The Court granted Plaintiffs’ application to proceed in forma
pauperis, dismissed the original Complaint in part without prejudice pursuant to its
screening obligation under 28 U.S.C. § 1915(e)(2)(B), and granted Plaintiffs leave to file an
amended complaint. (See Doc. 7.) On March 29, 2017, Plaintiffs filed an Amended
Complaint, naming the Borough of Susquehanna (the “Borough”) and Susquehanna
Borough Police Chief Robert Sweet (“Chief Sweet”) as Defendants. (Doc. 10.) In their
Amended Complaint, Plaintiffs allege that a discussion between Plaintiffs and the
Susquehanna Borough Council during a January 15, 2015 Council meeting became
argumentative. In response, councilmembers requested the Borough Police to escort
Plaintiffs out of the Susquehanna Borough Building. Chief Sweet proceeded to grab Mr.
Plonka’s arm and twist it behind his back while physically pushing Mr. Plonka toward the
exit. Upon reaching the exit door, Chief Sweet pushed Mr. Plonka into the door in an
attempt to force him out of the building. As a result of this collision, Mr. Plonka suffered an
open wound injury to his leg, which has yet to heal completely and has required treatment
from multiple medical providers. Plaintiffs allege that Chief Sweet has used excessive force
in other unspecified matters and that the Borough was aware of these prior incidents.
Plaintiffs further assert that the Borough failed to take any action to implement proper
training procedures in order to eliminate the use of excessive force by the Borough police
force.
Plaintiffs assert a claim under 42 U.S.C. § 1983 alleging the use of excessive force
in violation of Mr. Plonka’s Fourth Amendment right against Chief Sweet in his official
capacity and the Borough, a failure-to-train claim against the Borough, state-law claims for
assault and battery against Chief Sweet, and a state-law claim for loss of consortium
against Chief Sweet on behalf of Mrs. Plonka.
II. Legal Standard
The Court has an ongoing statutory obligation to conduct a preliminary review of
complaints filed by plaintiffs proceeding in forma pauperis. An application to proceed in
forma pauperis is governed by 28 U.S.C. § 1915. This section provides,1 in pertinent part:
(a)(1) Subject to subsection (b), any court of the Untied States
may authorize the commencement, prosecution or defense of
any suit, action or proceeding, civil or criminal, or appeal
therein, without prepayment of fees or security therefor, by a
person who submits an affidavit that includes a statement of all
assets such prisoner possesses that the person is unable to
pay such fees or give security therefor. Such affidavit shall state
the nature of the action, defense or appeal and affiant’s belief
that the person is entitled to redress.
....
(e)(2) Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
1
Although subsection (a)(1) refers to “prisoners,” courts examining the
statute have concluded that the statute also applies to indigent nonprisoners proceeding in forma pauperis in federal court. See Douris v.
Middletown Twp., 293 Fed. Appx. 130, 132 n.1 (3d Cir. 2008).
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time if the court determines that (A) the allegation of poverty is
untrue; or (B) the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief.
To effectuate § 1915, the Third Circuit Court of Appeals has established a two-step
process for reviewing in forma pauperis applications. See Deutsch v. United States, 67 F.3d
1080, 1084 n.5 (3d Cir. 1995); see also Garland v. U.S. Airways, Inc., No. 05-140, 2007 WL
895139, at *2 (W.D. Pa. Mar. 21, 2007) (noting that the screening provisions of 28 U.S.C.
§ 1915(e)(2) “appl[y] to both prisoner and non-prisoner in forma pauperis complaints”). First,
leave to proceed in forma pauperis is based on a showing that the litigant is unable to pay
court costs and filing fees. See Douris v. Middletown Twp., 293 Fed. Appx. 130, 132 (3d Cir.
2008). Second, if in forma pauperis status is granted, the Court determines whether the
Complaint should be dismissed pursuant to § 1915(e)(2)(B). Id.; Garland, 2007 WL 895139,
at *2.
Because the Court already granted Plaintiffs leave to proceed in forma pauperis , the
Court now turns to the second step to assess whether the Amended Complaint should be
dismissed.
III. Discussion
Upon screening the Amended Complaint, the Court concludes that Plaintiffs’
federal-law claims must be dismissed pursuant to § 1915(e)(2)(B)(ii). 2 Consequently, the
2
Section 1915(e)(2)(B)(ii) states that the district court “shall dismiss the case at any
time if the court determines that . . . the action . . . fails to state a claim on which
relief may be granted.” This language “is substantially similar to that used in
Federal Rule of Civil Procedure 12(b)(6).” Garland v. U.S. Airways, Inc., No. 05140, 2007 WL 895139, at *3 (W.D. Pa. Mar. 21, 2007); see Baker v. Reitz, 1:CV12-1452, 2012 WL 6055591, at *1 (M.D. Pa. Dec. 6, 2012) (“Section
1915(e)(2)(B)(ii) provides this ground for summary dismissal of a complaint
(before service)—failure to state a claim under Rule 12(b)(6) principles.”). “In
deciding whether to dismiss a complaint under Rule 12(b)(6) (and hence under the
IFP statute), all factual allegations, and all reasonable inferences therefrom, must
be accepted as true and viewed in the light most favorable to the plaintiff.”
Garland, 2007 WL 895139, at *3 (citing Colburn v. Upper Darby Twp., 838 F.2d
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Court will decline to exercise supplemental jurisdiction over Plaintiffs remaining state-law
claims. See 28 U.S.C. 1367(c)(3). Plaintiffs’ Amended Complaint therefore will be
dismissed in its entirety.
A.
The Amended Complaint Fails to State a Claim Under 42 U.S.C. § 1983
1.
Excessive Force Claim Against Defendant Police Chief Sweet in His
Official Capacity and the Borough of Susquehanna
The Amended Complaint states that Chief Sweet is being sued in his official
capacity. (Am. Compl. ¶ 7.) As the Court explained in its prior Memorandum, an official
capacity suit against a municipal officer is simply another way of pleading the same
action against the municipality itself. See Kentucky v. Graham, 473 U.S. 159, 165
(1985). That is, "an official-capacity suit is, in all respects other than name, to be treated
as a suit against the [municipal] entity." Id. at 166. Accordingly, Plaintiffs' Fourth
Amendment claim against Chief Sweet in his official capacity is treated appropriately as
a claim against the Borough of Susquehanna.3 But in order for a municipality to be liable
for damages under 42 U.S.C. § 1983, Plaintiffs must sufficiently plead that they were
deprived of a federally-protected right pursuant to a municipal policy or custom. Monell
v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). A municipal policy is a
“statement, ordinance, regulation, or decision officially adopted and promulgated by [a
663, 666 (3d Cir. 1988)).
3
In its prior opinion dismissing Plaintiffs’ original Complaint in part, the Court,
resolving all doubts in favor of Plaintiffs, assumed they were also suing Chief
Sweet in his individual capacity. (Doc. 6, at 6 n.3; see Doc. 7, at 3(A).) However,
Plaintiffs’ Amended Complaint once again states explicitly, and exclusively, that
they are suing Chief Sweet in his official capacity. (See Am. Compl. ¶ 7.) As such,
the Court no longer assumes that Plaintiffs are intending to sue Chief Sweet in his
individual capacity. Considering Plaintiffs are represented by counsel, and
considering the clarity provided by the Court in its prior Memorandum and Order
with respect to this issue, the fact that Plaintiffs’ Amended Complaint continues
to exclusively state that Chief Sweet is being sued in his “official capacity”
forecloses any other interpretation. See Brandt v. Monte, 626 F. Supp. 2d 469,
494-95 (D.N.J. 2009) (citing Edelman v. Jordan, 415 U.S. 651, 666–67 (1974)).
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local governing] body's officers.” Id. at 690. A municipal custom, on the other hand, “is
an act 'that has not been formally approved by an appropriate decision-maker,' but that
is 'so widespread as to have the force of law.’” Natale v. Camden Cty. Corr. Facility, 318
F.3d 575, 584 (3d Cir. 2003) (quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520
U.S. 397, 404 (1997)).
Plaintiffs’ Amended Complaint again fails to plausibly allege that the deprivation
of Mr. Plonka’s Fourth Amendment right was effectuated pursuant to any municipal
policy, custom, or the like. The Amended Complaint fails to identify any ordinance,
regulation, or official decision adopted by the Borough, and its conclusory references to
the existence of a municipal custom seemingly acknowledge the pleading’s deficiencies.
(See, e.g., Am. Compl. ¶ 30 (“Upon information and belief, Plaintiff alleges that the
Defendants adhered to a custom of allowing police officers to use excessive force
against citizens.”); id. ¶ 31 (“Defendant’s custom of permitting the use of excessive force
by police officers is likely to have evidentiary support after a reasonable opportunity for
further investigation or discovery.”); see also id. ¶¶ 21, 26.) These naked assertions and
legal recitations fail to satisfy the contemporary pleading requirements for a municipal
liability claim. See, e.g., Niblack v. Murray, No. 12-6910, 2013 WL 4432081, at *8
(D.N.J. Aug. 14, 2013) (dismissing a municipal liability claim because the plaintiff only
alleged “‘a formulaic recitation of the elements of a [municipal liability] claim’” without
asserting any facts supporting such bald allegations (quoting Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009)); cf. Boyden v. Twp. of Upper Darby, 5 F. Supp. 3d 731, 743-44 (E.D.
Pa. 2014) (declining to dismiss a municipal liability claim when the complaint alleged
sufficient facts to support the allegation that the officers acted pursuant to a custom of
allowing excessive force).
Consequently, Plaintiffs have not stated a plausible excessive force claim against
Chief Sweet in his official capacity, which is simply another way of advancing this claim
against the Borough directly. Accordingly, this claim will be dismissed.
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2.
Failure-to-Train Claim Against Defendant Borough of Susquehanna
Plaintiffs again attempt to allege a municipal liability claim against the Borough for
the failure to train its police officers. (Am. Compl. ¶¶ 21-22, 26-28.) In order to succeed
on a failure-to-train claim under § 1983, Plaintiffs must “(1) identify the deficiency in
training; (2) prove that the deficiency caused the alleged constitutional violation; and (3)
prove that the failure to remedy the deficiency constituted deliberate indifference on the
part of the municipality.” Lapella v. City of Atl. City, No. 10-2454, 2012 WL 2952411, *6
(D.N.J. July 18, 2012) (citations omitted). Plaintiffs must identify a specific deficiency,
rather than general ineffectiveness of training, and there “must be an affirmative link
between the alleged inadequacies of the training and the constitutional violation at
issue.” Niblack, 2013 WL 4432081, at *7; see Shultz v. Carlisle Police Dep’t, 706 F.
Supp. 2d 613, 624-25 (M.D. Pa. 2010) (“W hen plaintiff asserts liability on the basis of a
failure to train, ‘[a] plaintiff pressing a § 1983 claim must identify a failure to provide
specific training that has a causal nexus with their injuries and must demonstrate that
the absence of that specific training can reasonably be said to reflect a deliberate
indifference to whether constitutional deprivations occurred.’” (quoting Reitz v. Cty. of
Bucks, 125 F.3d 139, 145 (3d Cir. 1997)) (emphasis added). The Supreme Court has
noted that a “municipality's deliberately indifferent failure to train is not established by (1)
presenting evidence of the shortcomings of an individual; (2) proving that an otherwise
sound training program occasionally was negligently administered; or (3) showing,
without more, that better training would have enabled an officer to avoid the
injury-causing conduct.” Simmons v. City of Phila., 947 F.2d 1042, 1060 (3d Cir. 1991)
(citing City of Canton v. Harris, 489 U.S. 378, 391 (1989)) (emphasis in original).
Plaintiffs’ Amended Complaint fails to identify any specific deficiency in any
training program that caused the constitutional violation alleged. Instead, Plaintiffs once
again advance conclusory allegations and formulaic recitations that fall far short of
stating a plausible claim against the Borough for the failure to train its police force. (See,
e.g., Am. Compl. ¶ 21 (“Upon information and belief, Plaintiff will be able to show prior
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incidents through discovery to establish pattern or practice of excessive force by the
police which the Borough of Susquehanna has allowed over the years.”); id. ¶ 22 (“Upon
information and belief, Susquehanna Borough failed to take any action to implement
proper training procedure in order to eliminate excessive force being used by Police
Chief Robert Sweet and other officers of Susquehanna Borough.”)); see Niblack, 2013
WL 4432081, at *9 (dismissing failure-to-train claim when plaintiff “does not identify any
facts detailing specific deficiencies in any training programs”). Accordingly, Plaintiffs’
failure-to-train claim under § 1983 against the Borough will be dismissed.
B.
State-Law Claims Against Defendant Police Chief Sweet
The Amended Complaint also asserts claims for both assault and battery against
Chief Sweet and a claim for loss of consortium against Chief Sweet on behalf of Plaintiff
Mrs. Plonka. (Am. Compl. Counts II-III.) However, because Plaintiffs’ federal-law claims
have been dismissed, the Court will decline to exercise supplemental jurisdiction over
these remaining state-law claims. See 28 U.S.C. § 1367(c)(3). Accordingly, they will be
dismissed.
C.
Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to 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, considering that the Amended
Complaint suffers from the same pleading defects as the original Complaint, the Court
finds that leave to further amend Plaintiffs’ failure-to-train claim under § 1983 against the
Borough would be futile. Additionally, for the same reason, leave to further amend
Plaintiffs’ Fourth Amendment excessive force claim under § 1983 against the Borough
would also be futile.4 Accordingly, the Court will not grant leave to amend these
4
To reiterate, this claim against the Borough is identical to the Fourth Amendment
excessive force claim under § 1983 against Chief Sweet in his official capacity.
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dismissed claims.
However, Plaintiffs will be given leave to file a second amended complaint to
properly allege a Fourth Amendment excessive force claim under § 1983 against Chief
Sweet in his individual capacity. If Plaintiffs choose to file a second amended complaint
properly alleging a Fourth Amendment claim against Chief Sweet in his individual
capacity, they may also advance the state-law claims against Chief Sweet that the Court
dismissed pursuant to 28 U.S.C. § 1367(c)(3) herein.
IV. Conclusion
For the above stated reasons, Plaintiffs’ Amended Complaint (Doc. 10) will be
dismissed. The Court will grant Plaintiffs’ leave to file a second amended complaint in
accordance with this Memorandum and accompanying Order.
An appropriate order follows.
April 5, 2017
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
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