Plonka et al v. Borough of Susquehanna et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Andreas Plonka, Caroline Plonka, 5 MOTION for Leave to File Application to proceed without prepaying fees or costs filed by Andreas Plonka, Caroline Plonka. Signed by Honorable A. Richard Caputo on 3/17/17. (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 a second Motion for Leave to Proceed In Forma
Pauperis (Doc. 5) filed by Plaintiffs Andreas and Caroline Plonka. For the reasons that
follow, the Court will grant Plaintiffs’ Motion and allow Plaintiffs to proceed in forma
pauperis. As such, the Court must screen the 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 Complaint should proceed in part at this time.
I. Background
Plaintiffs Andreas and Caroline Plonka, through counsel, filed this lawsuit against the
Borough of Susquehanna, Susquehanna Borough Mayor Nancy Hurley, and Susquehanna
Borough Police Chief Robert Sweet on February 10, 2017. (Doc. 1.) Plaintiffs bring this
action pursuant to, inter alia, 42 U.S.C. § 1983, alleging a violation of the Fourth
Amendment to the United States Constitution. On February 17, 2017, Plaintiff Andreas
Plonka filed the first Motion for Leave to Proceed In Forma Pauperis. (Doc. 2.) This Court
denied without prejudice Mr. Plonka’s first Motion because it failed to include the relevant
financial information of his spouse and co-plaintiff, Mrs. Caroline Plonka. (See Doc. 4.) On
March 7, 2017, Plaintiffs filed the instant Motion along with an amended application for in
forma pauperis status.

In support of the instant Motion, Plaintiffs executed Form AO 240, in which they
attested that they are currently unemployed, receive a collective income of $735.00 per
month via supplemental security income, have only $37.00 in combined cash and savings,
own a 1999 Lincoln Town Car, have roughly $700.00 in monthly living expenses, and
contribute $410.00 a month in support of their twenty-year-old dependent son. Both
Plaintiffs signed the form under penalty of perjury.
II. Legal Standard
Whether to grant or deny a request to proceed in forma pauperis lies within the
sound discretion of the trial court. See Jones v. Zimmerman, 752 F.2d 76, 78 (3d Cir. 1985).
“[I]n order for a court to grant in forma pauperis status, the litigant seeking such status must
establish that he is unable to pay the costs of his suit.” Walker v. People Express Airlines,
Inc., 886 F.2d 598, 601 (3d Cir. 1989). However, “[a] person need not be absolutely
destitute to proceed in forma pauperis.” Hurst v. Shalk, 659 Fed. Appx. 133, 134 (3d Cir.
2016). The applicant bears the “burden to ‘provid[e] the [Court] with the financial information
it need[s] to make a determination as to whether he qualifie[s] for in forma pauperis status.’”
Freeman v. Edens, No. 07–1227, 2007 WL 2406789, at *1 (D.N.J. Aug. 17, 2007) (quoting
Thompson v. Pisano, No. 06-1817, slip op. at 1 (3d Cir. Nov. 15, 2006)). “A supporting
affidavit must state the facts of the affiant's poverty with some degree of particularity,
definiteness, or certainty.” Shahin v. Del. Transit Corp., No. 10-1147, 2011 WL 2847383,
at *2 (D. Del. July 14, 2011).
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

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).
2

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
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.
III. Discussion
A.

In Forma Pauperis Status is Appropriate
The Court finds that Plaintiffs have met their burden of establishing they are

unable to pay the requisite court fees. Plaintiffs have sworn that they are currently
unemployed and have received only supplemental security income over the past twelve
months. Plaintiffs further attested that their modest monthly expenses roughly meet or
exceed their monthly income, and that they have essentially no savings. Plaintiffs only
significant asset is a 1999 Lincoln Town Car.
The Court therefore finds that payment of the filing fee would present Plaintiffs
with an undue hardship or deprive them of life’s necessities. See Adkins v. E.I. DuPont

3

de Nemours & Co., 335 U.S. 331, 339 (1948). Accordingly, the Court concludes that
Plaintiffs qualify for in forma pauperis status.
B.

The Complaint May Proceed in Part
As to the second-step of review, the Court concludes that the Complaint may

proceed only in part because some of Plaintiffs’ claims must be dismissed pursuant to §
1915(e)(2)(B)(ii).2 The Complaint alleges that Defendant Police Chief Sweet pushed Mr.
Plonka into a door in an attempt to force him out of a Borough Council meeting, which
resulted in an open wound injury to Mr. Plonka’s leg. Plaintiffs assert claims pursuant to
42 U.S.C. § 1983 for excessive force in violation of Mr. Plonka’s Fourth Amendment
rights against all Defendants, claims for assault and battery against Defendant Police
Chief Sweet, and a claim for loss of consortium on behalf of Mrs. Plonka.
1.

Excessive Force Claim

As to Mr. Plonka’s excessive force claim as against Defendant Police Chief
Sweet, the Court finds the Complaint states a claim against the Defendant in his
individual capacity. To state a claim for excessive force as an unreasonable seizure
under the Fourth Amendment, a plaintiff must show (1) that a “seizure” occurred and (2)
that the use of force was objectively “unreasonable.” Kopec v. Tate, 361 F.3d 772, 776
(3d Cir. 2004).
A Fourth Amendment “seizure” occurs when an officer “restrains the freedom of a
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 upon
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.
05-140, 2007 WL 895139, at *3 (W.D. Pa. Mar. 21, 2007); see Baker v. Reitz,
1:CV-12-1452, 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
663, 666 (3d Cir. 1988)).
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person to walk away.” Tennessee v. Garner, 471 U.S. 1, 7 (1985). That is, “[a] seizure
occurs when there is either (a) ‘a laying on of hands or application of physical force to
restrain movement, even when it is ultimately unsuccessful,’ or (b) submission to ‘a show
of authority.’” United States v. Brown, 448 F.3d 239, 245 (3d Cir. 2006) (quoting
California v. Hodari D., 499 U.S. 621, 626 (1991)). “Put another way, when a seizure is
effected by even ‘the slightest application of physical force,’ it is immaterial whether the
suspect yields to that force.” Id. (quoting Hodari D., 499 U.S. at 625-26).
“[A] free citizen's claim that law enforcement officials used excessive force in the
course of making an arrest, investigatory stop, or other ‘seizure’ of his person . . . [is]
properly analyzed under the Fourth Amendment's ‘objective reasonableness' standard.”
Graham v. Connor, 490 U.S. 386, 388 (1989). In order to assess whether the force at
issue was excessive, the “court must determine the objective ‘reasonableness' of the
challenged conduct, considering ‘the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.’” Couden v. Duffy, 446
F.3d 483, 496-97 (3d Cir. 2006) (quoting Carswell v. Borough of Homestead, 381 F.3d
235, 240 (3d Cir. 2004) (quoting Graham, 490 U.S. at 396)). Courts also consider “‘the
duration of the [officer's] action, whether the action takes place in the context of effecting
an arrest, the possibility that the suspect may be armed, and the number of persons with
whom the police officers must contend at one time.’” Id. (quoting Sharrar v. Felsing, 128
F.3d 810, 822 (3d Cir. 1997)).
The Complaint alleges that a discussion between Plaintiffs and the Susquehanna
Borough Council during a January 15, 2015 Council meeting became argumentative. In
response, councilmembers requested that Chief Sweet 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 door, Chief Sweet pushed Mr. Plonka into the door in an attem pt to force
him out of the building. As a result of this push, Mr. Plonka suffered an open wound
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injury to his leg, which has yet to heal completely and has required treatment from
multiple medical providers.
When construed in a light most favorable to Plaintiffs, the Complaint sufficiently
alleges that Mr. Plonka was temporarily seized by Chief Sweet when the Defendant
placed his hands on Mr. Plonka’s person, twisted Mr. Plonka’s arm behind his back, and
maintained control over Mr. Plonka’s movements while pushing him toward the exit, all
without Mr. Plonka’s consent. See Salmon v. Blesser, 802 F.3d 249, 251 (2d Cir. 2015)
(“[W]here . . . an official uses physical force to effect the ejection, so that for a time,
however brief, he intentionally restrains the person and controls his movements, a
plaintiff can plausibly plead a seizure subject to the Fourth Amendment's
reasonableness requirement.”); cf. Laverdi v. Jenkins Twp., 49 Fed. Appx. 362, 364 (3d
Cir. 2002) (noting that the plaintiff likely was not “seized” when an officer escorted him
out of a township meeting because the evidence “strongly suggest[ed] that [plaintiff]
consented to leave,” and because plaintiff’s “compliance with the officer's escort was
insufficient to establish actual submission” to a show of authority). Additionally, the
allegations suggest that any crimes Plaintiffs were committing by disrupting the Council
meeting were nonviolent and relatively nonsevere. Couden, 446 F.3d at 496.
Furthermore, there is no reason to believe Plaintiffs posed an immediate safety threat to
Chief Sweet or others. Id. at 497. Accordingly, at the pleading stage the Court finds that
the Complaint alleges a plausible excessive force claim against Chief Sweet in his
individual capacity.
However, the Complaint also states that Chief Sweet is being sued in his official
capacity. (Compl. ¶ 8.)3 An official capacity suit against a municipal officer is simply

3

Resolving all doubts in favor of Plaintiffs, the Court will assume they are also
suing Chief Sweet in his individual capacity. Notably, Plaintiffs seek punitive
damages from Chief Sweet on the excessive force claim (See Compl. Count I),
which cannot be recovered from a township defendant in his official capacity. See
Gregory v. Chehi, 843 F.2d 111, 119–20 (3d Cir. 1988) (finding a similar request
for punitive damages to be sufficient in establishing that plaintiff was suing the
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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 a claim against the Borough of Susquehanna. 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 local governing] body's officers.” Id. at 690. A municipal custom, on
the other hand, “is an act 'that has not been f ormally 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 do not plausibly allege that the deprivation of Mr. Plonka’s Fourth
Amendment right was effectuated pursuant to a municipal policy, custom, or the like.
The Complaint’s only reference to the existence of a municipal policy or custom is the
conclusory assertion that “Defendants were responsible for creating, implementing, and
enforcing regulations and policies regarding officers’ interaction with citizens and
ensuring officers’ training and compliance with such policies.” (Compl. ¶¶ 7, 23.) This
naked assertion fails to satisfy the 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 failed to “identify any
ordinance, regulation or official decision adopted and promulgated by [the] Borough” and
instead only alleged “‘a formulaic recitation of the elements of a [municipal liability]
claim’” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)); cf. Boyden v. Twp. of

defendants in their individual capacities).
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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, there is no plausible claim against the Borough of Susquehanna, and that
claim will be dismissed.
2.

Failure-to-Train Claim

Plaintiffs also attempt to assert a municipal liability claim against the Borough of
Susquehanna for the failure to train. (Compl. ¶ 24.) In order to bring 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) (“When 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)).
Plaintiffs have failed to identify any specific deficiency in training that caused the
constitutional violation raised in their Complaint. Instead, Plaintiffs merely allege in
conclusory fashion that “Defendants failed to train officers on the appropriate and
permissible force which may be used against citizens,” (Compl. ¶ 24), and periodically
invoke the term “deliberate indifference” in their Complaint without alleging any facts that
would support such a claim. See Niblack, 2013 WL 4432081, at *9. Accordingly,
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Plaintiffs’ failure-to-train claim under § 1983 against the Borough of Susquehanna will be
dismissed.4
3.

Supervisory Liability Claim

To the extent Plaintiffs attempt to bring a supervisory liability claim under § 1983
against Defendant Mayor Hurley, they fail to state a claim. To state a claim of
supervisory liability under § 1983, a plaintiff must allege “(1) that the supervisor
participated in violating the plaintiff's rights; (2) that he ‘directed others to violate her
rights’ and that his subordinates did in fact violate those rights; or (3) that he ‘had
knowledge of and acquiesced in his subordinates' violations.’” Karmo v. Borough of
Darby, No. 14-cv-2797, 2014 WL 4763831, at *8 (E.D. Pa. Sept. 25, 2014) (q uoting
Santiago v. Warminster Twp., 629 F.3d 121, 129-30 (3d Cir. 2010)).
Here, the Complaint does not allege that Mr. Plonka’s constitutional right was
violated due to an order or directive from Mayor Hurley. Additionally, there is no claim
that Mayor Hurley participated in the alleged violation of Mr. Plonka’s Fourth Amendment
right. Moreover, there is no plausible allegation that Mayor Hurley knew of and
acquiesced in Chief Sweet’s purported violation of Mr. Plonka’s constitutional right. See
Niblack, 2013 WL 4432081, at *10 (“Plaintiff does not allege that the supervisory
Defendants were present during the incident, directed the alleged incident, or even knew
of the incident at the time. There are simply no allegations of fact that would support a
plausible inference that the supervisory Defendants knew of the level of force used
against Plaintiff.”). Although the Complaint alleges that Mayor Hurley was “put on notice”
about Chief Sweet’s “misconduct in the past,” the two instances of past misconduct

4

To the extent Plaintiffs attempt to allege a failure-to-train claim against Mayor
Hurley in her individual capacity, such a claim likewise fails. There is simply no
showing that Mayor Hurley was deliberately indifferent toward persons who come
into contact with Borough police officers generally, or Police Chief Sweet
specifically. See Mohney v. Pennsylvania, 809 F. Supp. 2d 384, 391 (W.D. Pa.
2011). Furthermore, Plaintiffs fail to “specifically identify what [Mayor Hurley]
failed to do.” Hewitt v. Luquis, No. 12-cv-312, 2012 WL 3704814, at *3 (E.D. Pa.
Aug. 28, 2012).
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raised in the Complaint concern Chief Sweet’s alleged failure to document a police
report on behalf of Plaintiffs and Chief Sweet’s alleged false accusation against Mr.
Plonka of harassing his neighbor (Compl. ¶¶ 17-18.) There is no plausible claim that
Mayor Hurley had “contemporaneous knowledge of the offending incident or knowledge
of a prior pattern of similar incidents.” Campbell v. Gibb, No. 10-6584, 2012 WL 603204,
at *10 (D.N.J. Feb. 21, 2012) (quoting Colburn v. Upper Darby Twp., 838 F.2d 663, 673
(3d Cir. 1988)). Accordingly, Plaintiffs’ supervisory liability claim against Mayor Hurley
will be dismissed.
B.

Assault and Battery Claims Against Police Chief Sweet
The Complaint also asserts claims for both assault and battery against Chief

Sweet. (Compl. Count II.) Under Pennsylvania law, “[a]ssault is an intentional attempt by
force to do an injury to the person of another, and a battery is committed whenever the
violence menaced in an assault is actually done, though in ever so small a degree, upon
the person.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting Cohen v.
Lit Bros., 70 A.2d 419, 421 (Pa. Super. Ct. 1950)).
Because the Complaint plausibly states a claim for excessive force against Chief
Sweet, it likewise states a claim for assault and battery against the Defendant. See
Boyden, 5 F. Supp. 3d at 744; Garey v. Borough of Quakertown, No. 12-799, 2012 WL
3562450, at *5 (E.D. Pa. Aug. 20, 2012). Accordingly, Plaintiffs may proceed on their
assault and battery claims against Chief Sweet.
C.

Loss of Consortium
The final Count of the Complaint asserts a claim for loss of consortium on behalf

of Plaintiff Mrs. Plonka. (Compl. Count III.) Plaintiffs allege that, as a result of the injuries
to Mr. Plonka’s leg, Mrs. Plonka has suffered a loss of services, and the Plaintiffs’
marriage has suffered.
Although a § 1983 claim does not support a derivative loss of consortium claim,
see Yates v. Thiel, No. 3:15-cv-1505, 2016 WL 2897624, at *5 (M.D. Pa. May 18, 2016),
because the Complaint plausibly alleges claims for assault and battery against Chief
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Sweet, the Court will not dismiss Mrs. Plonka’s loss of consortium claim against this
Defendant. See Williams v. Gilgallon, 3:13-CV-02945, 2016 W L 2892490, at *20 (M.D.
Pa. May 17, 2016). Of course, because Plaintiffs have not stated any claim against the
Borough of Susquehanna or Mayor Hurley, there is no loss of consortium claim against
either of these Defendants.
D.

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, because it is not clear w hether an
amendment would be futile with respect to Plaintiffs’ excessive force claim against the
Borough of Susquehanna, failure-to-train claim against the Borough of Susquehanna
and/or Mayor Hurley, or supervisory liability claim against Mayor Hurley, Plaintiffs will be
granted leave to file an amended complaint if they so choose.
IV. Conclusion
For the above stated reasons, Plaintiffs’ Motion to Proceed In Forma Pauperis (Doc.
5) will be granted. Pursuant to the screening provisions of 28 U.S.C. § 1915(e)(2)(B), the
Court will dismiss without prejudice Plaintiffs’ claims against the Borough of Susquehanna
and Mayor Hurley. Plaintiffs’ claim alleging the use of excessive force in violation of Mr.
Plonka’s Fourth Amendment rights will be allowed to proceed at this time as against Police
Chief Sweet in his individual capacity. Plaintiffs’ state-law claims against Chief Sweet also
may proceed at this time.
An appropriate order follows.
March 17, 2017
Date

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