Campbell et al v. Balon et al

Filing 55

MEMORANDUM (Order to follow as separate docket entry) re 28 MOTION to Dismiss Amended Complaint filed by Auchter, Town of Bloomsburg, Pennsylvania, Szkodny, Charles Balon, Roger F. VanLoan, 36 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Berger, III, 37 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Marlene Butters, 38 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jason Gregas, and 50 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Chumley's Bar and Grille. Signed by Honorable Matthew W. Brann on 7/6/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRUCE M. CAMPBELL, and KIM L.:
CAMPBELL, husband and wife,
:
:
Plaintiffs,
:
:
v.
:
:
CHARLES BALON, individually as :
police officer of the Bloomsburg
:
Police Department; OFFICER
:
AUCHTER, individually as police
:
Officer of Bloomsburg Police
:
Department; OFFICER SZKODNY, :
Individually as police officer of the :
Bloomsburg Police Department;
:
ROGER VANLOAN, individually as :
Police chief of the Bloomsburg Police :
Department; TOWN OF
:
BLOOMSBURG; CHUMLEY’S
:
BAR AND GRILLE, LLC, and
:
CAPITOL BG LLC, d/b/a CAPITOL :
BAR AND GRILL a/k/a CAPITOL :
RESTAURANT AND BAR; JOHN :
BERGER, III, MARLENE
:
BUTTERS; and JOHN GREGAS,
:
:
Defendants.
:

No. 4:16-CV-00779

(Judge Brann)

MEMORANDUM OPINION
JULY 6, 2017
Plaintiffs Bruce M. Campbell and Kim L. Campbell were patrons of
Defendant Capitol Bar and Grill on May 9, 2014. The following day—May 10,
2014—Plaintiffs’ daughter was scheduled to graduate from Bloomsburg
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University. Ostensibly a celebration of their daughter’s impending graduation, this
patronage took an unforeseen turn that night with the ordering of a Glenlivet–neat,
and ultimately resulted in the arrest, imprisonment, and prosecution of Bruce
Campbell. Plaintiffs now seek damages related to this turn of events from various
involved Defendants, and aver, within their fifty-two (52) page complaint, twenty
causes of action with that aim.
Currently before the Court for disposition are the following Motions to
Dismiss filed by Defendants to this action:
1. Defendants Charles Balon, Officer Auchter, Officer Szkodny, Roger F.
VanLoan, and Town of Bloomsburg’s (“Bloomsburg Defendants”) Motion
to Dismiss the Amended Complaint;
2. Defendant John Berger, III’s Motion to Dismiss the Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6);
3. Defendant Marlene Butters’s Motion to Dismiss the Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6);
4. Defendant Jason Gregas’s Motion to Dismiss the Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6); and
5. Defendant Chumley’s Bar and Grille’s Motion to Dismiss the Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6).

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In accordance with the foregoing reasoning, the above Motions will be granted in
part and denied in part, with limited leave to amend as detailed more fully bellow.
I.

BACKGROUND

The facts presented in Plaintiffs’ Complaint, taken as true and with all
inferences construed in the light most favorable, relay the following unusual tale.
On May 9, 2014 at approximately 10:30 p.m., Plaintiffs Bruce M. Campbell
(“Plaintiff BC”) and Kim L. Campbell (“Plaintiff KC”) (collectively “Plaintiffs”)
were enjoying drinks at Defendant Chumley’s Bar and Grill a/k/a Capitol BG, LLC
d/b/a Capitol Bar and Grill a/k/a Capitol Restaurant and Bar (“Defendant
Chumley”).1 In Bloomsburg, Pennsylvania for the celebration of their daughter’s
college graduation, Plaintiffs were accompanied by their daughter Nicole, her
boyfriend Sean, and son Cory.2 Plaintiff BC ordered a Glenlivet–neat, and, after
determining that the drink was “watered down,” stated as such to the bartender on
duty and placed the glass on the bar.3 To confirm his suspicion, Plaintiff BC drank
from the glass again a few minutes later and this time placed it on the edge of the
bar.4 Plaintiff BC was thereafter refused service by the bartender, forcing his

1

Compl. (ECF No. 26) ¶ 14, at 4.

2

Id. ¶¶ 14-15.

3

Id. ¶ 17.

4

Id. ¶ 18.

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daughter to order more drinks for the group.5 When Plaintiff BC was subsequently
presented with a bill including charges for the Glenlivet–neat, he paid the bill in
full without a gratuity.6
Following his payment of the bill, Plaintiff BC was approached by
Defendant James Berger, III (“Defendant Berger”)—part owner of Defendant
Capitol—who requested that he join him across the room.7 Once across the room
with Plaintiff BC, Defendant Berger, unidentified by nametag or verbal
communication, grabbed Plaintiff BC’s elbow and yelled “who the f--k do you
think you are?”8 Believing Defendant Berger to be just an intoxicated patron,
Plaintiff BC avoided confrontation and simply walked away.9 Defendant Berger
returned—this time accompanied by two men. Defendant Berger again tapped
Plaintiff BC on the shoulder to direct him to the other side of the room.10 Plaintiff
BC, however, ignored this physical cue.11

5

Id. ¶ 19, at 5.

6

Compl. (ECF No. 26) ¶ 20.

7

Id. ¶ 21.

8

Id. ¶ 22.

9

Id. ¶ 23.

10

Id. ¶ 24.

11

Compl. (ECF No. 26) ¶ 25.

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The third time Defendant Berger approached Plaintiff BC brought greater
force as he grabbed Plaintiff BC’s shirt and yanked him off balance.12 This action
caused Plaintiff BC’s drink to splash on Plaintiff KC and Defendant Berger.13
After Defendant Berger tightened his hold on Plaintiff BC’s shirt with both hands,
Plaintiff BC reciprocated by grabbing Defendant Berger’s shirt to push him
away.14 Three employees of the bar then joined in attacking and choking Plaintiff
BC.15 Following an indication to her children that their father was being attacked,
Plaintiff KC and her two children came to Plaintiff BC’s defense by trying to pull
the men off of him.16 During this melee, Defendant Berger and the other men
involved did not identify themselves as employees of Defendant Chumley.17
During this upright altercation with Defendant Berger and other employees
of the bar, Plaintiff BC did not strike these men or relinquish full control of his
beer glass.18 However, Plaintiff BC, along with Defendant Berger, was eventually
slammed to the floor by a Defendant Chumley employee.19 These two men were
joined on the floor in this skirmish by a growing knot of other Defendant Chumley
12

Id. ¶ 27.

13

Id.

14

Id. ¶¶ 28–29, at 6.

15

Id. ¶ 30.

16

Compl. (ECF No. 26) ¶¶ 31–33.

17

Id. ¶ 35.

18

Id. ¶¶ 36–37.

19

Id. ¶ 38.

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employees, including a bartender who leaped onto the men from atop a bar stool.20
Shortly after landing on the floor of the bar, Plaintiff was pulled off the floor by a
Defendant Capitol employee and escorted outside.21 As a result of this skirmish,
Plaintiff BC asserts the following injuries: (1) a bloody nose, (2) nerve damage to
his neck running down his left arm, (3) a black eye, (4) a bruised thigh, (5) anxiety,
and (6) sleep disturbances.22 Plaintiff KC, in turn, asserts that she suffered
emotional distress as a result of witnessing this altercation involving both her
husband and son.23
Outside the bar, Plaintiff BC began walking in the opposite direction from
his son in an attempt to locate Plaintiff KC and their daughter.24 At this moment,
Plaintiff BC heard a police officer of the Bloomsburg Police Department believed
to be either Defendant Officer Auchter or Defendant Officer Szkodny shout behind
him.25 Plaintiff BC turned around to see a police officer with his handgun drawn
and aimed directly at his person.26 At the time, Plaintiff BC was wearing a shirt

20

Id. ¶ 39, at 7.

21

Compl. (ECF No. 26) ¶ 42.

22

Id. ¶ 40.

23

Id. ¶ 41.

24

Id. ¶ 43.

25

Id. ¶¶ 43–44.

26

Compl. (ECF No. 26) ¶ 45.

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and slacks and his hands were free.27 He was nevertheless ordered to the ground
and handcuffed with his hands behind his back.28 He was thereafter transported to
Bloomsburg Police Department Station by either Defendant Auchter or Defendant
Szkodny.29
At the barracks, Plaintiff BC was confined in a room by himself with his
hands cuffed behind his back and his legs shackled to the floor.30 Due to his “great
discomfort” in this position during his two hour confinement, Plaintiff BC
requested that Defendant Charles Balon (“Defendant Balon”) loosen his
handcuffs.31 Defendant Balon refused this request after placing a finger on
Plaintiff BC’s palm and commenting “they are not tight.”32 Defendant Balon
further admonished Plaintiff BC to “stop being a baby” and “stop crying.”33
Defendant Balon also declined to move Plaintiff BC to a different room to
accommodate a request before speaking, and repeatedly told him that he was
“going to jail.”34 Defendant Balon later relayed that he had viewed the videotape

27

Id.

28

Id. ¶ 46, at 8.

29

Id. ¶ 47.

30

Id. ¶ 47.

31

Compl. (ECF No. 26) ¶ 48.

32

Id.

33

Id.

34

Id. ¶ 49.

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from the earlier altercation and repeated that Plaintiff BC was “going to jail.”35
Plaintiff BC responded by asserting his innocence.36
In the early morning hours of May 10, 2014, Plaintiff BC was transported to
Columbia County Prison where he was temporarily incarcerated.37 At 9:00 a.m. on
May 10, 2014, Plaintiff BC was arraigned and informed that he was being charged
with Simple Assault and harassment with bail set at $ 20,000.00.38 Plaintiff posted
bail later that morning.39 On May 13, 2014, additional charges of felony
Aggravated Assault and misdemeanor or summary Disorderly Conduct were
entered against Plaintiff BC.40 Attached to the Criminal Complaint was an
Affidavit of Probable Cause completed and verified as truthful by Defendant
Balon.41 In this Affidavit, Defendant Balon asserts (1) that he and Defendant
Szkodny had met with the co-owner of Defendant Chumley, Defendant Marlene
Butters, together with Defendant Gregas;42 (2) that he also has met with Defendant
Berger who had a large laceration on his forehead from the incident;43 and (3) that

35

Id. ¶ 50.

36

Compl. (ECF No. 26) ¶ 51.

37

Id. ¶ 52, at 8–9.

38

Id.

39

Id. ¶ 53.

40

Id. ¶ 54, at 9.

41

Compl. (ECF No. 26) ¶ 56.

42

Id. ¶ 57.

43

Id. ¶ 58, at 10.

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he and Defendants Szkodny, Butters, and Gregas jointly reviewed a shortened
video of the incident, agreed what happened, and what criminal action would be
taken.44 Plaintiff BC, however asserts that this Affidavit is a “monumental
fabrication and falsification” not supported by a full video of the incident, and
includes, within the Complaint, ten alleged discrepancies or falsifications.45 These
alleged discrepancies contradicted by video include, among other things,
representations that (1) Plaintiff BC threw his drink in Defendant Berger’s face; (2)
Plaintiff BC smashed his beer glass on Berger’s forehead; and (3) Plaintiff BC’s
actions in some way initiated the altercation.46
From the date Plaintiff BC was additionally charged to the date his case was
finally tried to verdict on September 25, 2015, Plaintiff BC suffered fear,
embarrassment, and physical distress caused by both the physical injuries
stemming from the arrest and anxiety of facing trial.47 Plaintiff KC avers a similar
emotional impact resulting from the events in question. Specifically, in May 2015,
Plaintiff KC attempted suicide and was hospitalized for eight (8) days due to her
observation of the physical skirmish and the contemplation of her husband’s

44

Id. ¶ 60.

45

Id. ¶¶ 63–64, at 10–12.

46

Id.

47

Compl. (ECF No. 26) ¶ 67, at 13.

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rapidly approaching trial date.48 On September 25, 2015, Plaintiff BC stood trial in
the Court of Common Pleas of Columbia County on the aforementioned criminal
charges.49 At the close of the prosecution’s case, Plaintiff BC’s counsel made an
unopposed motion to dismiss the felony aggravated assault charge, and the motion
was granted.50 Plaintiff BC was subsequently acquitted of both the additional
misdemeanor offenses of simple assault and disorderly conduct, and the summary
offense of harassment.51
II.

LAW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a
motion to dismiss for “failure to state a claim upon which relief can be granted.”
Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation
by dispensing with needless discovery and factfinding.”52 “Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”53
This is true of any claim, “without regard to whether it is based on an outlandish

48

Id. ¶¶ 71–73.

49

Id. ¶ 75, at 14.

50

Id. ¶ 77.

51

Id. ¶ 78.

52

In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

53

Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

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legal theory or on a close but ultimately unavailing one.”54
Beginning in 2007, the Supreme Court of the United States initiated what
some scholars have termed the Roberts Court’s “civil procedure revival” by
significantly tightening the standard that district courts must apply to 12(b)(6)
motions.55 In two landmark decisions, Bell Atlantic Corporation v. Twombly and
Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by
“signal[ing] to lower-court judges that the stricter approach some had been taking
was appropriate under the Federal Rules.”56 More specifically, the Court in these
two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v.
Gibson and replaced it with a more exacting “plausibility” standard.57
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”58 “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”59 “Although the

54

Neitzke, 490 U.S. at 327.

55

Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313 (2012).

56

550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

57

Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).

58

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

59

Iqbal, 556 U.S. at 678.

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plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”60 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”61
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”62 No
matter the context, however, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”63
When disposing of a motion to dismiss, a court must “accept as true all
factual allegations in the complaint and draw all inferences from the facts alleged
in the light most favorable to [the plaintiff].”64 However, “the tenet that a court
must accept as true all of the allegations contained in the complaint is inapplicable
to legal conclusions.”65 “After Iqbal, it is clear that conclusory or ‘bare-bones’

60

Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal
quotations and citations omitted).

61

Twombly, 550 U.S. at 556.

62

Iqbal, 556 U.S. at 679.

63

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

64

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

65

Iqbal, 556 U.S. at 678 (internal citations omitted).

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allegations will no longer survive a motion to dismiss.”66 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”67
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.68
III.

ANALYSIS

Plaintiffs BC and KC allege a plethora of federal claims brought pursuant to
42 U.S.C. § 1983 and state law claims against both the Bloomsburg Defendants
and Defendants Berger, Butters, Gregas, and Chumley (collectively “Capitol
Defendants”). For ease of understanding, my analysis of the plausibility of each
claim pursuant to Twombly/Iqbal will proceed according to defendant group.
A.

Bloomsburg Defendants’ Motion to Dismiss
1.

Section 1983

66

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

67

Iqbal, 556 U.S. at 678.

68

Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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Section 1983 provides a cause of action to redress violations of federal law
committed by state officials.69 Section 1983 is not a source of substantive rights;
rather, it merely provides a remedy for violations of constitutional rights.70 To
establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that: (1) the
conduct complained of was committed by a person acting under color of state law;
and (2) the conduct deprived the complainant of rights secured under the
Constitution or federal law.71 Here, Plaintiffs BC and KC bring their Section 1983
claims for alleged violations of the Fourth and Fourteenth Amendments to the
United States Constitution.
(a)

Counts I–III: Bruce Campbell’s Section 1983 Claims for
Malicious Prosecution, False Arrest, and False
Imprisonment against Defendant Charles Balon72

In Counts I through III, Plaintiff BC alleges claims for (1) malicious
prosecution, (2) false arrest, and (3) false imprisonment against Defendant Balon
pursuant to Section 1983. In his Motion to Dismiss, Defendant Balon argues that
69

See 42 U.S.C. § 1983.

70

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815 (1985).

71

See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.
1998).

72

To the extent Plaintiff BC is asserting a substantive due process Fourteenth Amendment
claim for malicious prosecution, false arrest, and false imprisonment claims, those claims are
subsumed by his Fourth Amendment claims and dismissed. See Berg v. Cty. of Allegheny,
219 F.3d 261, 268 (3d Cir. 2000)(“The Supreme Court has held that when government
behavior is governed by a specific constitutional amendment, due process analysis is
inappropriate. Although not all actions by police officers are governed by the Fourth
Amendment, (citation omitted) the constitutionality of arrests by state officials is governed
by the Fourth Amendment rather than due process analysis.”).

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said claims should be dismissed because probable cause was present at the time of
arrest and affirmed throughout Plaintiff BC’s continued prosecution. Even if such
probable cause was lacking, Defendant Balon argues that he is nevertheless
entitled to qualified immunity for any resulting constitutional violation. Having
reviewed Plaintiff BC’s claims, I am of the opinion that, while Defendant Balon’s
arguments concerning probable cause and qualified immunity may eventually be
vindicated, disposition of that issue at this early stage of litigation would be
premature.
Plaintiff BC’s malicious prosecution, false arrest, and false imprisonment
claims all rest on the lack of probable cause—an element essential to all three.73
“[P]robable cause to arrest exists when the facts and circumstance within the
arresting officer’s knowledge are sufficient in themselves to warrant a reasonable
person to believe that an offense has been or is being committed by the person to
be arrested.”74 As such, there can be no liability on the part of the arresting officer
unless “no reasonably competent officer” would conclude that probable cause
73

See Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)(stating that “initiation of
the proceeding without probable cause is an essential element of a malicious prosecution
claim); Dowling v. Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988)(“The proper inquiry in
a section 1983 claim based on false arrest or misuse of the criminal process is not whether
the person arrested in fact committed the offense but whether the arresting officers had
probable cause to believe the person arrested had committed the offense.”); Groman v. Twp.
of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)(“[W]here the police lack probable cause to
make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a
detention pursuant to that arrest.”).

74

Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995).

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existed.75 Courts should make their probable cause determination on the “totality
of the circumstances ... [which means] that a court should not isolate pieces of
evidence when it determines whether there was probable cause for a
prosecution.”76 Though the existence of probable cause is customarily an issue of
fact to be determined by a jury, a court can conclude that probable cause did exist
as a matter of law if the evidence, viewed most favorably to the plaintiff, would not
reasonably support a contrary factual finding.77
In the instant matter, Plaintiff BC alleges that probable cause to arrest,
imprison, and prosecute him for the alleged assault was lacking under the totality
of the circumstances.78 Defendant Balon, in turn, argues that probable cause
existed as a matter of law based on both (1) the facts as alleged and accepted
within Plaintiffs’ Complaint, and (2) Plaintiff BC’s subsequent prosecution in
which the issue of probable cause was raised repeatedly.79 First, while Defendant
Balon argues that factual allegations of Plaintiff BC’s Complaint are themselves
sufficient to establish probable cause, I note that Plaintiff BC vigorously contests
many findings within the supporting “Affidavit of Probable Cause.” In Wilson v.

75

Malley v. Briggs, 475 U.S. 335, 341 (1986).

76

Halsey v. Pfeiffer, 750 F.3d 273, 301–02 (3d Cir.2014).

77

See Sherwood, 113 F.3d at 401 (citing Groman v. Township of Manalapan, 47 F.3d 628, 635
(3d Cir. 1995)).

78

ECF No. 32, at 2–5.

79

ECF No. 31, at 3–9.

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Russo, the Honorable Edward R. Becker writing for the Third Circuit stated that a
plaintiff may succeed in a Section 1983 action for false arrest if the plaintiff shows:
“(1) that the police officer ‘knowingly and deliberately, or with a reckless
disregard for the truth, made false statements or omissions that create a falsehood
in applying for a warrant;’ and (2) that ‘such statements or omissions are material,
or necessary, to the finding of probable cause.’ ”80 Here, Plaintiff BC appears to
proceed under this theory of liability by arguing the “Affidavit of Probable Cause”
contains numerous falsehoods and/or omissions which could negate the existence
of probable cause. A full development of the factual record will therefore be
necessary to properly vet this argument, and otherwise determine whether the
application of qualified immunity is appropriate.81
Second, Defendant Balon argues that Plaintiff BC’s criminal prosecution in
which the existence of probable cause was raised repeatedly precludes this issue
from again being litigated. While the probable cause determinations made during
Plaintiff BC’s prior criminal prosecution are “weighty evidence” tending to
indicate the presence of probable cause in a subsequently filed civil suit, they are

80

Wilson v. Russo, 212 F.3d 781, 786-87 (3d Cir. 2000)(quoting Sherwood v. Mulvihill, 113
F.3d 396, 399 (3d Cir. 1997)).

81

See also Toribio v. Spece, Civil Action No. 10-CV-2441, 2011 WL 6027000, at *3 (M.D.Pa.
Dec. 5, 2011)(Munley, J.)(denying a motion to dismiss where plaintiff asserted that
defendant provided inaccurate or incomplete information in the affidavit of probable cause).

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not wholly dispositive.82 By raising this issue in his Motion to Dismiss, Defendant
Balon specifically draws into question whether Plaintiff BC’s claims involving
probable cause are subject to the doctrine of issue preclusion, or collateral
estoppel.83 The doctrine of collateral estoppel requires that the following elements
be met:
(1) the issue decided in the prior adjudication was identical to the one
presented in the later action; (2) there was a final judgment on the
merits; (3) the party against whom the plea is asserted was a party or
in privity with a party to the prior adjudication; and (4) the party
against whom it is asserted had a full and fair opportunity to litigate
the issue in question in a prior action.84
Defendant’s argument concerning probable cause fails the fourth requirement of
this analysis. In James v. Heritage Valley Federal Credit Union, the Third Circuit
recognized that “the ability to appeal an adverse ruling is indispensable to a finding
that there existed a full opportunity to litigate the issue.”85 Therefore, because
Plaintiff BC’s acquittal prevented him from appealing pretrial determinations, he is
not collaterally estopped from arguing a lack of probable cause in the instant civil
matter.86
82

Zimmerman v. Corbett, Civil Action No. 13-CV-2788, 2015 WL 539783, at *5 (M.D.Pa.
Feb. 10, 2015)(Kane, J.).

83

ECF No. 31, at 4.

84

Walker v. Horn, 385 F.3d 321, 337 (3d Cir. 2004).

85

197 F.App’x. 102, 106 (3d Cir. 2006)(citing Dixon v. Richer, 922 F.2d 1456, 1459 (10th Cir.
1991)).

86

Kline v. Hall, Civil Action No. 12-CV-1727, 2013 WL 1775061, at * 4 (M.D.Pa. Apr. 25,
2013)(Caldwell, J.).

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Defendant Balon’s Motion to Dismiss will therefore be denied with regard
to Counts I through III.
(b)

Count IV: Bruce Campbell’s Section 1983 Claim for
Excessive Use of Force Against Defendant Charles Balon

The Fourth Amendment governs a claim that law enforcement officers used
excessive force in the course of making an arrest.87 To state a claim
for excessive use of force under the Fourth Amendment, a plaintiff must show: (1)
that a seizure occurred; and (2) that the use of force was objectively
unreasonable.88 “A ‘seizure’ triggering the Fourth Amendment's protections
occurs only when government actors have, ‘by means of physical force or show of
authority, . . . in some way restrained the liberty of a citizen.’ ”89 The
reasonableness standard, in turn, “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.”90
Here, Plaintiff BC’s excessive use of force claim against Defendant Balon is
based on injuries he suffered as the result of excessively tight handcuffs employed
87

Graham v. Connor, 490 U.S. 386, 395 (1989).

88

Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004).

89

Graham, 490 U.S. at 395 n. 10 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968))

90

Graham, 490 U.S. at 396.

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during his imprisonment. In Kopec v. Tate, the Third Circuit determined that the
alleged tightness of the plaintiff's handcuffs, if credited by a jury, could establish
an excessive use of force claim under the Fourth Amendment.91 The Kopec Court
reached this conclusion because the plaintiff had repeatedly complained of extreme
pain to the arresting officer, fell to the ground, began to faint, and alleged
permanent nerve damage in one wrist.92 The Third Circuit, however, cautioned
that its holding “should not be overread as we do not intend to open the floodgates
to a torrent of handcuff claims,” and emphasized the “rather benign circumstances
that hardly justified [the officer's] failure to respond more promptly to Kopec’s
entreaties, at least to the extent to ascertain if the handcuffs were too tight.”93 In
fact, in an opposite holding rendered a year later, the Third Circuit in Gilles v.
Davis affirmed the issuance of summary judgment in favor of defendants where
plaintiff’s complaint concerning the tightness of the handcuffs was unaccompanied
by “obvious visible indicators of Gilles’ pain” and “medical treatment after the
fact.”94
The Third Circuit has held that “[t]he reasonableness of the use of force is
normally an issue for the jury” upon consideration of “all of the relevant facts and

91

361 F.3d 772, 777 (3d Cir. 2004).

92

Id. at 774.

93

Id.

94

427 F.3d 197, 208 (3d Cir. 2005).

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circumstances leading up to the time that the officers allegedly used excessive
force.”95 Here, such a factual development has not yet occurred, and the Court is
instead tasked with determining the plausibility of Plaintiff BC’s claim for relief. I
find that Plaintiff has failed that test. In Shumate v. Maturo, the Honorable C.
Darnell Jones, II of the Eastern District of Pennsylvania dismissed a plaintiff’s
claim for excessive use of force based on the use of handcuffs where the sole
allegations were that (1) the plaintiff told the troopers he was in “extreme pain”
and requested that they loosen them, (2) the troopers twice ignored this request,
and (3) the plaintiff thereafter did not seek treated for at least seven months.96
Judge Jones specifically held that plaintiffs had “failed to sufficiently demonstrate
that Defendants Maturo and Voetelink's actions were not “objectively reasonable”
in light of the facts and circumstances confronting them.”97 Judge Jones reasoned
that:
Unlike the situation in Kopec, Plaintiff herein did not begin to faint or
fall to the ground from pain. He didn’t tell the troopers he was losing
feeling in his hand. He did not moan from excruciating pain.
Moreover, when Mr. Shumante after being transported to the hospital
to have his blood drawn shortly after his arrest, he never told anyone
at the hospital he was in any discomfort despite the “extreme pain” he
was allegedly suffering from. (citation omitted). He similarly does not
claim that he told anyone at the PSP Media Barracks that he was in

95

Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004).

96

Civil Action No. 13-CV-6610, 2014 WL 5286312, at *4–5 (E.D.Pa. Oct. 15, 2014).

97

Id.

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any discomfort after being taken there for processing. (citation
omitted).98
Viewing the allegations of the complaint in the light most favorable, I find
that Plaintiff BC has relayed less severe treatment than that presented in Shumate.
First, unlike in Shumate where the plaintiff twice complained of “extreme pain” to
no avail, Plaintiff BC’s complaints related strictly to discomfort and numbness.
These complaints were addressed by Defendant Balon when he checked the
tightness of the cuffs. Second, unlike in Shumate where the plaintiff alleged
belated treatment from injuries resulting from the placement of handcuffs, Plaintiff
BC’s complaint makes no such allegation concerning treatment. Rather, it is
instead limited to the conclusory allegation of “pain and suffering for several
months after his incarceration.”99 Significantly less egregious than the allegations
addressed in Shumate, I find that Plaintiff here has failed make plausible that
further discovery will place Defendant Balon’s actions at the Kopec end of the
Kopec-Gilles continuum of objective reasonableness in the context of handcuff
use. However, to the extent he can allege both unanswered complaints of pain
relayed to Defendant Balon and subsequent medical treatment complying with the
above detailed precedent, Plaintiff BC is granted leave to amend this claim.

98

Id. at 4.

99

Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations
contained in the complaint is inapplicable to legal conclusions.”).

- 22 -

Defendant Balon’s Motion to Dismiss will be granted with regard to Count
IV.
(c)

Count V: Bruce Campbell’s Section 1983 Claim for
Excessive Use of Force Against Officer Auchter or
Officer Szkodny

Defendant Officers Auchter and Szkodny next move for the dismissal of
Plaintiff BC’s claim for excessive use of force against them. In this claim, Plaintiff
BC argues that, after being ejected from Defendant Capitol Bar, he was subject to
excessive force when either Officer Auchter or Officer Szkodny yelled for him to
get on the ground and pointed his gun at him. Plaintiff BC alleges that said use of
force was without justification as (1) he gave no indication that he was armed, (2)
he was walking away from the officer at the time of this force, and (3) the impetus
for this arrest (the alleged assault within Defendant Capitol Bar) did not involve a
deadly weapon. Defendant Officers Auchter or Szkodny in turn respond that this
use of force was “objectively reasonable” given, inter alia, the officer’s search for
a suspect in a violent multi-person bar fight, the quickness of the interaction, the
uncertain level of aggressiveness which Plaintiff BC would show, and his status as
a lone officer during this incident.
As noted above, the reasonableness standard employed within an excessive
use of force inquiry “requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the

- 23 -

suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”100
In making this determination, the Supreme Court has cautioned that “[n]ot every
push or shove, even if it may later seem unnecessary in the peace of a judge's
chambers,” is constitutionally unreasonable.101 Instead, the Supreme Court has
explained that “[t]he calculus of reasonableness must embody allowance for the
fact that ‘police officers are often forced to make split-second judgments—in
circumstances that are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.”102
Viewing the allegations in the light most favorable to the Plaintiff, as is
required at this preliminary stage of litigation, I find that Plaintiff BC has alleged a
plausible claim of excessive use of force. In Baker v. Monroe Township, the Third
Circuit wrote that, while “[t]here is no per se rule that pointing guns at people, or
handcuffing them, constitutes an arrest,” their use “must be justified by the
circumstances.”103 In that case, plaintiffs were detained by police officers as they
arrived outside an apartment immediately prior to the commencement of a drug

100

Graham, 490 U.S. at 396.

101

Id. at 396.

102

Id. at 396–97.

103

Baker v. Monroe Tp., 50 F.3d 1186, 1193 (3d Cir. 1995).

- 24 -

raid at that address.104 As the police rushed into the residence, the three plaintiffs,
two of whom were teenagers, were pushed to the ground at gunpoint, and forced to
remain there for at least fifteen minutes.105 In reversing the issuance of summary
judgment in favor of defendants, the Court in Baker held that:
Considering the facts in the light most favorable to the Bakers, the
appearances were those of a family paying a social visit, and while it
may have been a visit to a wayward son, there is simply no evidence
of anything that should have caused the officers to use the kind of
force they are alleged to have used.106
The Court continued that, in making this determination, a court “must look at the
intrusiveness of all aspects of the incident in the aggregate.”107
In support of his claim for excessive use of force, Plaintiff BC alleges (1) he
gave no indication that he was armed, (2) the impetus for this arrest (the assault
within the bar) did not involve a deadly weapon, and (3) he was forced to the
ground at gunpoint and put in fear for his life. While Defendants nevertheless aver
that said use of such force was justified because “Mr. Campbell viciously assaulted
another man, fled the scene, and was arrested in a darkened area,”108 this recitation
of events stands in stark contrast to that asserted by Plaintiff BC, and is thus
nowhere included within the complaint. Also absent from the allegations of the
104

Id.

105

Id.

106

Id. at 1194.

107

Id.

108

ECF No. 39, at 7.

- 25 -

complaint are any facts establishing what knowledge Defendant Officers Auchter
or Szkodny had of the prior incident when effectuating this arrest. Therefore,
because it is “well-settled that in deciding a motion to dismiss, courts generally
may consider only the allegations contained in the complaint, exhibits attached
thereto, and matters of public record,”109 I will deny the motion to dismiss this
claim.
In the event Plaintiff BC were to establish a plausible constitutional violation
based on excessive use of force, Defendant Officers Auchter or Szkodny ask that
the Court nevertheless hold that they are entitled to qualified immunity. The
purpose of qualified immunity is to protect government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”110 In
Mullenix v. Luna, the Supreme Court of the United States emphasized the wide
breath of qualified immunity’s protection.111 The Mullenix Court specifically
stated that “qualified immunity protects ‘all but the plainly incompetent or those
who knowingly violate the law.’”112 Furthermore, qualified immunity is intended

109

Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir.
1993).

110

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

111

Mullenix v. Luna, 136 S.Ct. 305, 306 (2015).

112

Id.

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to be immunity from suit, rather than simply a defense to liability.113 This means
that its protection is effectively lost if a defendant is required to go to trial.114
Courts employ a two-part test to determine whether a defendant is entitled to
the protections of qualified immunity. First, the court must consider whether the
facts that the plaintiff has demonstrated make out a violation of a constitutional
right.115 If the plaintiff has satisfied that inquiry, the court must next decide
whether the constitutional right at issue was “clearly established” at the time of the
defendant’s alleged misconduct.116 The Supreme Court has stressed that there is no
mandatory order in which to consider the two prongs of this qualified immunity
analysis.117
In determining whether a constitutional right was clearly established, a broad
and generalized declaration that a clearly established federal right was violated is
insufficient.118 Rather, in order for a constitutional right to be ‘clearly established,’
113

See Saucier v. Katz, 533 U.S. 194, 200–01 (2001).

114

Id.

115

See id., 533 U.S. at 201.

116

See id.

117

See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“On reconsidering the procedure
required in Saucier, we conclude that, while the sequence set forth there is often appropriate,
it should no longer be regarded as mandatory. The judges of the district courts and the courts
of appeals should be permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”).

118

See Anderson v. Creighton, 483 U.S. 632, 640 (1987) (holding that the mere assertion that
the Fourth Amendment prohibits warrantless searches without probable cause and exigent
circumstances was not enough to demonstrate that the right was clearly established).

- 27 -

“[t]he contours of the right must be sufficiently clear that a reasonable official
would understand what he is doing violates that right.”119 Put another way, for the
purposes of the qualified immunity analysis, a right is considered clearly
established if “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”120
Here, a determination of qualified immunity would be premature. In the
recently decided case of Anthony v. Seltzer,121 the Third Circuit affirmed a district
court’s denial of qualified immunity at the motion to dismiss stage.122 The court in
Seltzer reasoned that, because appellant’s request for qualified immunity rested on
a fact not included within the amended complaint, adoption would “require
drawing an impermissible adverse inference against Anthony at the pleading
stage.”123 Defendants here ask for a similar impermissible inference, i.e. that the
Court find qualified immunity because their use for force was reasonable given
Plaintiff BC instigating a violent attack with his beverage glass. Because
resolution of this factual dispute necessarily relies upon the completion of factual

119

Id. at 640–41.

120

Saucier, 533 U.S. at 202.

121

While Third Circuit Internal Operating Procedure 5.7 instructs that non-precedential
“opinions are not regarded as precedents that bind the [Third Circuit] because they do not
circulate to the full court before filing,” I nevertheless include this citation for its persuasive
reasoning.

122

— F.Appx. — , 2017 WL 2569705, at *3 (3d Cir. 2017).

123

Id.

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discovery, I will deny Defendant’s request at this junction with leave to renew
following discovery.
Defendant Officers Auchter and Szkodny’s Motion to Dismiss Count V is
therefore denied.
(d)

Counts VI-VII: Bruce Campbell’s Section 1983 Claims
Against Police Chief Roger VanLoan and the Town of
Bloomsburg

In counts VI and VII, Plaintiff BC alleges Section 1983 claims against both
Police Chief Roger VanLoan and the Town of Bloomsburg. Liability against a
defendant in a civil rights action cannot be premised on a theory of respondeat
superior, or mere hypotheses that an individual defendant may have had
knowledge of or personal involvement.124 Rather, defendants “must have personal
involvement in the alleged wrongs . . . shown through allegations of personal
direction or of actual knowledge and acquiescence.”125 Absent from the Amended
Complaint are any facts alleging personal involvement by Defendant Roger
VanLoan. Indeed, Plaintiff BC concedes this absence, and instead appears to
allege that the immense falsifications within the “Affidavit of Probable Cause”
establish liability based on a failure by both VanLoan and the Town of
Bloomsburg to train its officers.
124

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988)); Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003).

125

Atkinson, 316 F.3d at 271.

- 29 -

In Monell v. Department of Social Services of City of New York, the
Supreme Court of the United States determined that, while municipal bodies may
not be sued solely for violations perpetrated by its employees or agents, “it is when
execution of a government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.”126 In
order to establish municipality liability under Section 1983, a plaintiff must
establish that the municipality had a policy or custom that caused his constitutional
injury.127 Finally, in order for municipal liability to exist, there must still be a
violation of the plaintiff's constitutional rights.128
A municipality or municipal official may be held liable for constitutional
violations that result from inadequate training of its employees if the failure to train
constitutes a custom of the municipality.129 Establishing municipal liability on
a failure to train claim under Section 1983, however, is difficult,130 and requires
that the “failure amounts to ‘deliberate indifference ... [of the constitutional] rights
of persons . . . ’ ”131 A showing of deliberate indifference requires that “(1)
126

436 U.S. 658, 694 (1978).

127

Id. at 694–95.

128

Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006).

129

Connick v. Thompson, 563 U.S. 51, 61 (2011).

130

Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).

131

Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 324 (3d Cir. 2005)(citations omitted).

- 30 -

municipal policymakers know that employees will confront a particular situation;
(2) the situation involves a difficult choice or a history of employees mishandling;
and (3) the wrong choice by an employee will frequently cause deprivation of
constitutional rights.”132 To establish deliberate indifference, it is “ordinarily
necessary” for plaintiff to show a “pattern of similar constitutional violations by
untrained employees.”133
Here, Plaintiff’s Complaint fails to allege such a pattern of violations.134
Rather, Plaintiff BC alleges that “[t]he ‘Affidavit of Probable Cause’ prepared by
Defendant Balon is so fraught with false statements and contradicted by the
surveillance tape that a factfinder can find that [he] had never been trained by the
Chief and the Town.”135 Recovery for Plaintiff, however, is not foreclosed as the
Supreme Court has indicated that a single incident may evince deliberate
indifference when “the need to train officers . . . can be said to be so obvious” in
itself and the lack thereof would predictably lead to recurrent rights

132

Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999).

133

Connick, 563 U.S. at 62.

134

I note that, while Plaintiff avers a “practice of ‘overcharging,’ ” there are not facts
demonstrating a pattern or custom of same. Plaintiff is therefore limited to the “single
incident” failure to train theory.

135

ECF No. 32, at 7.

- 31 -

violations.136 In explaining this theory of failure to train liability in City of Canton,
Ohio v. Harris, the Supreme Court offered the following example:
[C]ity policymakers know to a moral certainty that their police
officers will be required to arrest fleeing felons.The city has armed its
officers with firearms, in part to allow them to accomplish this task.
Thus, the need to train officers in the constitutional limitations on the
use of deadly force, (citation omitted), can be said to be “so obvious,”
that failure to do so could properly be characterized as “deliberate
indifference” to constitutional rights.137
Liability therefore “depends on ‘[t]he likelihood that the situation will recur and
the predictability that an officer lacking specific tools to handle that situation will
violate citizens’ rights.’ ”138 Finally, the Third Circuit, in Thomas v. Cumberland
County, stated that following concerning causation:
In analyzing causation, the focus must be on adequacy of the training
program in relation to the tasks the particular officers must perform.
Liability cannot rest only on a showing that the employees could have
been better trained or that additional training was available that would
have reduced the overall risk of constitutional injury. Rather, the
causation inquiry focuses on whether the injury could have been
avoided had the employee been trained under a program that was not
deficient in the identified respect.139
While this theory of establishing Monell liability undoubtedly proves the
most tenuous, I nevertheless conclude that, at this early stage of litigation, Plaintiff
136

City of Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989); see also Thomas v. Cumberland
Cty., 749 F.3d 217, 223–25 (3d Cir. 2014).

137

489 U.S. 378, 390 n. 10 (1989).

138

Thomas, 749 F.3d at 223–24 (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown,
520 U.S. 397, 409 (1997)).

139

Id. at 226 (internal citations and quotations omitted).

- 32 -

BC has met the plausibility requirements of Twombly-Iqbal. In Connick v.
Thompson, the Supreme Court held that Monell liability may flow from a
municipality’s failure to train in “narrow circumstances” involving a single
incident such as “a city that arms its police force with firearms and deploys the
armed officers into the public to capture fleeing felons without training the officers
in the constitutional limitation on the use of deadly force.”140 In this case, Plaintiff
BC has similarly based Monell liability, at least in part, on a lack of training in the
proper use of lethal weapons.141 At this stage of litigation and without the benefit
of factual discovery, this allegation, together with those concerning the excessive
use of force against Plaintiff BC, state a plausible claim for relief against
Defendants Van Loan and the Town of Bloomsburg.142
Defendants Roger Van Loan and Town of Bloomsburg’s Motion to Dismiss
Counts VI and VII is therefore denied.

140

Connick, 563 U.S. at 63 (citing Canton v. Harris, 489 U.S. 378, 390 n. 10 (1989)).

141

Compl. (ECF No. 26) ¶ 118, at 21.

142

See Blair v. City of Pittsburgh, Civil Action No. 14-CV-1473, 2015 WL 4162400, at *4
(W.D.Pa. July 9, 2015)(Fischer, J.)(“Plaintiff has stated a plausible claim for relief against
the City under Monell, i.e., that the lack of a policy governing the appropriate use of firearms
by City Police Officers and/or the failure of the Chiefs of Police to enforce any existing
policies and train the Police Officers regarding same was the moving force behind his
constitutional injuries.”). See also Watson v. Witmer, 183 F.Supp.3d 607, 615 (M.D.Pa. Apr.
25, 2016)(Conner, C.J.)(denying motion to dismiss where plaintiff alleged that the failure to
train police officers and [parole] officers regarding the proper identification of suspects and
failure to take action when presented with...exculpatory evidence was so obvious that a
plausible claim of Monell liability existed)(collecting cases).

- 33 -

(e)

Counts VIII & XI: Bruce and Kim Campbell’s Section
1983 Loss of Consortium Claim Against Charles Balon
and Bloomsburg

In Counts VIII and XI, Plaintiffs BC and KC each bring a loss of consortium
claim under Section 1983 based on the alleged violation of their spouse’s civil
rights. These claims, however, fail as a matter of law. I specifically note that:
The purpose of section 1983 claims, as intended by Congress, was to
provide a federal forum to remedy deprivations of civil rights. (citation
omitted). It was intended to create ‘a species of tort liability’ in favor of
persons deprived of federally secured rights, (citation omitted), not to
provide a mechanism for vindication of state torts derived from
another's section 1983 claim.” (citation omitted). Thus, “although there is
limited case law on this issue, the federal courts almost unanimously have
dismissed loss of consortium claims based upon federal civil rights
violations.” (citation omitted).143
I will follow this clear trend.144 Furthermore, while Plaintiffs allude to their loss of
consortium claims being based on separately brought state tort claims,145 I note that
their complaint bases these consortium claims solely on Section 1983. “Although a
court on a motion to dismiss ordinarily ‘must accept the allegations in
the complaint as true,’ it is not compelled to accept assertions in a brief without

143

Thomas v. Shutika, Civil Action No. 12-CV-692, 2012 WL 4050005 (M.D.Pa. Aug. 24,
2012), adopted by 2012 WL 4050021 (M.D.Pa. Sept. 13, 2012)(Conner, J.).

144

See Quitmeyer v. Se. Pennsylvania Transp. Auth., 740 F.Supp. 363, 370 (E.D.Pa 1990);
Stallworth v. City of Cleveland, 893 F.2d 830, 838 (6th Cir. 1990); Walsh v. American
Medical Response, Civil Action No. 13-CV-2077, 2014 WL 2109946, at *8 (E.D.Cal. May
20, 2014), adopted by 2014 WL 2890838 (E.D.Cal. July 25, 2014).

145

See ECF No. 32, at 9.

- 34 -

support in the pleadings.”146 Plaintiffs’ attempt to save their loss of consortium
claims is unavailing, and Counts VIII and XI are dismissed with prejudice.
(f)

Count IX: Bruce Campbell’s Section 1983 Conspiracy
Claim Against Defendants Charles Balon, Officer
Szkodny or Auchter, Marlene Butters, Jason Gregas, and
Capitol Bar and Grill

Defendants Balon, Szkodny, and Auchter next move to dismiss Plaintiff
BC’s Section 1983 conspiracy claim for failure to allege a plausible claim for
relief. Plaintiff, in turn, argues that plausibility has been met through the following
averments:
150. Plaintiff BC further avers that Defendants Balon and Szkodny
are familiar with the Defendant Capitol and the owners
Defendant Butters and Berger and that there is strong
familiarity and relationship amongst the officers of the
Bloomsburg Police Department and the owners of said
Defendant Capitol and the establishment’s management in
general in having provided police services and/or security to the
Defendant Capitol on prior occasions.
151. Plaintiff BC avers that in light of the large laceration suffered
by Defendant Berger on his forehead, and despite what is
reflected in the video, Defendants Balon and Szkodny agreed
with Defendants Butters and Gregas to substitute their
judgment in creating a scenario that is reflected in the Affidavit
of Probable Cause that was ultimately prepared by Defendant
Balon to which he swore was the truth.
152. Plaintiff BC avers that the Defendants Balon and Szkodny
conspired with the Defendants Butters and Gregas in creating a
146

Chavarriga v. New Jersey Dept. of Corr., 806 F.3d 210, 232 (3d Cir. 2015)(quoting Morrow
v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)).

- 35 -

scenario that would assist the Defendant Berger who, because
of his injuries, would then attempt to seek compensation in any
civil action to be pursued against the Plaintiff BC.
153. Plaintiff BC, therefore, avers that the private actors Defendants
Butters, Gregas and Capitol, as their employer, conspired with
the state actors Balon and Szkodny in preparing and creating a
scenario of criminal charges in order to not only harm and
damage the Plaintiff BC but, also, to assist the Defendant
Berger, in order to pursue compensation for his injury suffered
in the melee.147
In order to establish a conspiracy claim against the Defendants pursuant
to Section 1983, plaintiff must allege “(1) an actual violation of a right protected
under § 1983 and (2) actions taken in concert by the defendants with the specific
intent to violate the aforementioned right.”148 At the motion to dismiss stage, the
Third Circuit has held that Twombly-Iqbal requires that “a plaintiff must assert
facts from which a conspiratorial agreement can be inferred.”149 “To properly
plead such an agreement, ‘a bare assertion of conspiracy will not suffice.’
”150 Similarly insufficient are conspiracy claims based solely on “suspicion and
speculation.”151

147

Compl. (ECF No. 26) ¶¶ 150–153, at 28.

148

Williams v. Fedor, 69 F.Supp.2d 649, 665 (M.D.Pa. 1999) (Vanaskie, J.), aff'd 211 F.3d 1263
(3d Cir. 2000).

149

Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.
2010).

150

Id. (quoting Twombly, 550 U.S. at 556).

151

Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991).

- 36 -

In the instant matter, Plaintiff BC’s complaint fails to allege factual content
from which a plausible conspiratorial agreement can be inferred. Specifically,
although Plaintiff BC avers that (1) he was charged in light of the large laceration
suffered by Defendant Berger; (2) there is a familiarity and relationship amongst
the officers of the Bloomsburg Police Department and the owners of Defendant
Capitol; and (3) Defendants Balon and Szkodny conspired with the Defendants
Butters and Gregas in creating a scenario that would assist the Defendant Berger in
a civil action against Plaintiff BC, there are no actual factual averments from
which a conspiratorial agreement can be inferred. Rather, Plaintiff BC intimates
that the Court should simply accept the “suspicion and speculation” upon which
his conspiracy claim rests.152 This claim will therefore be dismissed. However,
because the Court cannot say amendment would be futile, leave to do so is granted.
(g)

Counts X & XII: Kim Campbell’s Section 1983 Claim
Against Charles Balon & Monell Claim Against the
Town of Bloomsburg

In Counts X and XII, Plaintiff KC attempts to—as Defendants state—
“stretch the fabric of Section 1983” by asserting her own claims against Defendant
Balon and the Town of Bloomsburg based on the actions taken against her
husband. Defendants Balon and the Town of Bloomsburg respond that this Court

152

Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009)(“[T]he
rule is clear that allegations of a conspiracy must provide some factual basis to support the
existence of the elements of a conspiracy: agreement and concerted action.”).

- 37 -

should dismiss Plaintiff KC’s claims against them as she is not a true party in
interest. I agree.
In Ballas v. City of Reading, the Honorable John R. Padova of the Eastern
District of Pennsylvania was presented with a procedurally analogous scenario in
which the husband of a woman alleging retaliation and wrongful termination under
Section 1983 averred that his First Amendment rights were also violated in
retaliation for his wife’s speech.153 Judge Padova dismissed this claim by
concluding that the husband lacked standing to assert a violation of section
1983 based on the deprivation of his First Amendment rights because the
defendants' alleged actions were directed against his wife, not him.154 He further
reasoned that:
Section 1983 permits suit for the abridgment only of one’s own
constitutional rights. See e.g. Berry v. City of Muskogee, 900 F.2d
1489, 1506 (10th Cir. 1990). Lessig lacks standing to sue based on
action taken against his wife, except through some derivative theory
of liability like loss of consortium. Claims for loss of consortium,
however, are not cognizable under section 1983. See Berry, 900 F.2d
at 1506–07 (plaintiffs not entitled to loss of consortium damages
because section 1983 creates a federal remedy only for the party
injured); Stallworth v. City of Cleveland, 893 F.2d 830, 838 (6th Cir.
1990) (dismissing husband's request for recovery for loss of
consortium under section 1983 claim because the wife, rather than her
husband, was the one who had suffered a deprivation of her civil
rights); Quitmeyer v. Southeastern Pa. Trans. Auth., 740 F.Supp. 363,
370 (E.D.Pa. 1990) (holding no authority to consider a loss of
153

Ballas v. City of Reading, Civil Action No. 00-CV-2943, 2001 WL 73737, at *7 (E.D.Pa.
Jan. 25, 2001).

154

Id.

- 38 -

consortium claim deriving from a claim of injury by a spouse brought
pursuant to 42 U.S.C. § 1983).155
Like the Plaintiff husband in Ballas, Plaintiff KC has similarly failed to
allege actions taken against her specifically by Defendant Balon or the Town of
Bloomsburg. As such, it is the Court’s determination that she lacks standing to
bring constitutional claims against these defendants. Because no amendment could
cure this failure as a matter of law, dismissal of Counts X and XII is therefore with
prejudice.156
(h)

Bruce Campbell’s Request for Punitive Damages

Defendants next request that Plaintiffs’ request for punitive damages be
dismissed (1) against the Town of Bloomsburg because of its status as a
government entity, and (2) against all remaining Bloomsburg defendants for failure
to allege facts rising to the level of callousness or reckless indifference. “Punitive
damages in [Section] 1983 cases are available where the defendants have acted
with a reckless or callous disregard of, or indifference to, the rights and safety of
others.”157 Punitive damages, while not recoverable against governmental
employees in their official capacities,158 are available against governmental

155

Id.

156

Accord Louder v. Lower Saucon Tp., Civil Action No. 14-CV-3860, 2015 WL 1954078, at
*3–4 (E.D.Pa. Apr. 29, 2015).

157

Keenan v. City of Philadelphia, 983 F.2d 459, 469-70 (3d Cir. 1992).

158

Kentucky v. Graham, 473 U.S. 159, 165 (1985).

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employees acting in their individual capacities.159 A plaintiff may be entitled to
punitive damages under Section 1983 when “the defendant's conduct is shown to
be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.”160
First, as a preliminary matter, I note that parties appear to be in agreement
that punitive damages cannot and have not been alleged against the Town of
Bloomsburg.161 Second, I find that, at this preliminary stage of litigation, the Court
credits as true Plaintiff’s averments concerning Defendant Balon’s falsification of
the “Affidavit of Probable Cause,” and found, as plausible, Plaintiff BC’s claim
excessive use of force against Defendant Officers Auchter or Szkodny. If the
allegations asserted are proven to be true throughout the course of litigation, they
may satisfy the above standard for imposing punitive damages against the
remaining defendants.162 As such, Plaintiff BC’s request for punitive damages will
not be dismissed at this juncture.
159

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 254 (1981); Rivera v. James, Civil
Action No. 03-CV-4631, 2004 WL 1784351, at *1 n.1 (E.D. Pa. 2004) (citation omitted)
(explaining that punitive damages in Section 1983 cases are available where defendants have
acted with a “reckless or callous disregard of, or indifference to, the rights or safety of
others”).

160

Smith v. Wade, 461 U.S. 30, 56 (1983); Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir.
1989).

161

See ECF No. 31, at 23-24; ECF No. 32, at 14.

162

Fleckenstein v. Crawford, Civil Action No. 14-CV-1085, 2015 WL 5829758, at *8 (M.D.Pa.
Oct. 1, 2015)(Kane, J.)([A]lthough Plaintiffs may not ultimately prevail on their punitive
damages claim, the allegations in the amended complaint, taken as true, do not require the
Court to dismiss the punitive damages claims at this time.”).

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2.

State Law Claim

In Count XIII, Plaintiff BC lodges a civil assault claim under Pennsylvania
law against Defendant Officers Auchter or Szkodny based on the allegation that
they yelled at him to get on the ground as he walked away after being ejected from
the bar and thereafter pointed a gun at him. Defendant Officers Auchter or
Szkodny, in turn, ask that this claim lodged against them be dismissed. 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.”163 In
making a lawful arrest the police may use “such force as is necessary under the
circumstances to effectuate the arrest.”164 Whether a police officer’s conduct
constitutes an assault and battery is therefore determined based on the
reasonableness of the force, and so “[a] claim brought under Pennsylvania law for
excessive force by a police officer is a claim for assault and battery.”165 Here,
because I previously found that Plaintiff BC has adequately stated a claim for
excessive force, it necessarily follows that Plaintiff BC has stated a state law civil

163

Renk v. City of Pittsburgh, 641 A.2d 289, 293 (1994) (quoting Cohen v. Lit Brothers, 70
A.2d 419, 421 (1950)).

164

Id.

165

Garey v. Borough of Quakertown, Civil Action No. 12-CV-799, 2012 WL 3562450, at *5
(E.D.Pa. Aug. 20, 2012)(Baylson, J.).

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assault and battery claim against Officers Auchter or Szkodny.166 Therefore, this
claim will not be dismissed.
B.

Capitol Defendant’ Motions to Dismiss

In four separate motions to dismiss filed by Defendants John E. Berger, III
(“Defendant Berger”), Marlene Butters (“Defendant Butters”), Jason Gregas
(“Defendant Gregas”), and Defendant Chumley’s Bar and Grille (“Defendant
Chumley”),167 Capitol Defendants collectively request the following relief: (1)
dismissal of the punitive damages claim against Defendant Berger; (2) dismissal of
the false imprisonment claim against Defendants Berger and Chumley; (3)
dismissal of Plaintiff KC’s claims for intentional infliction of emotional distress;
(4) dismissal of Counts XIV, XVII, and XIX as redundant; (5) dismissal of the
Section 1983 conspiracy claim;168 and (6) dismissal of Defendant Chumley from
the action entirely as barred by the statute of limitations.
1.

Dismissal of Defendant Chumley From the Action As Barred
By the Statute of Limitations

166

See Boyden v. Tp. Of Upper Darby, 5 F.Supp.3d 731, 744 (E.D.Pa. 2014); Garey, 2012 WL
3562450 at *5.

167

Collectively, the Court will refer to these four (4) defendants as “Capitol Defendants.”

168

In Defendants Butters, Gregas, and Chumley’s separately filed Motions to Dismiss, see ECF
Nos. 37, 38, and 50, they ask the court to dismiss Count IX, or Section 1983 conspiracy, for
failure to state a claim upon which relief can be granted. Having previously determined in
Section III.A.1.(f) that this claim in its current form fails to rise above simple speculation and
suspicion, I will grant these Motions in accordance with the above reasoning. As noted
above, Plaintiff BC is however granted leave to amend this claim within twenty-one (21)
days of this Memorandum Opinion to correct noted deficiencies.

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In its Motion to Dismiss, Defendant Chumley asks the Court to dismiss it
from the action because all the claims lodged against it have a two year statute of
limitations which expired prior to the filing of the Amended Complaint.169
While a statute of limitations defense generally may not be used in the
context of a Rule 12(b)(6) dismissal, “an exception is made where the complaint
facially shows noncompliance with the limitations period and the affirmative
defense clearly appears on the face of the pleading.”170 In Pennsylvania, the
limitation period begins when the cause of action accrues—i.e. when the injury
occurs.171 The “discovery rule,” however, tolls the statute of limitations period
when a plaintiff is unable, “despite the exercise of due diligence,” to know of the
injury or its cause.172 The tolling continues until “the plaintiff knows, or
reasonably should know, (1) that he has been injured, and (2) that his injury has
been caused by another party’s conduct.”173

169

See 42 Pa. C.S. § 5524 (1)(noting that assault, battery, and false imprisonment carry a two
year statute of limitations); 42 Pa. C.S. § 5524 (1)(7)(noting that intentional infliction of
emotional distress carries a two year statute of limitations); 42 Pa.C.S. § 5524(2)(noting that
negligence carries a two year statute of limitations).

170

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994).

171

Calle v. York Hosp., 232 F.Supp.2d 353, 357 (M.D.Pa. 2002)(Conner, J.)(citing Pocono Int’l
Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (1983)).

172

Mest v. Cabot Corp., 449 F.3d 502, 510 (3rd Cir. 2006) (citing Pocono Int’l Raceway, Inc.,
468 A.2d 468, 471 (1983)).

173

Mest, 449 F.3d at 510 (citing Debiec v. Cabot Corp., 352 F.3d 117, 129 (3rd Cir. 2003)).

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Here, Plaintiff BC does not and cannot, based on the dramatic events
underlying this complaint, allege that he was unaware that an injury occurred as
result of the assault and battery, false imprisonment, and negligence suffered at the
hands of Defendant Chumley. Because the applicable two year statute of
limitations began on May 9, 2014, the time allotted to file such a claim expired on
May 10, 2016—more than two months prior to the filing of the operative
complaint. Plaintiff BC nevertheless argues that amendment should be allowed
because this added claim is simple an “amplification of what has already
occurred.” I agree, but for reasons in accord with Federal Rule of Civil Procedure
15.174
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be
freely given when justice so requires.”175 If a litigant wishes to add a party after
the statute of limitations on its claim has run, “‘the essence of Rule 15(a) is not
reached,’ unless the Court finds that the requirements of ... 15(c), which governs

174

Singletary v. Pennsylvania Dept. of Corr., 266 F.3d 186, 193 (3d Cir. 2001)(“Rule 15(c) can
ameliorate the running of the statute of limitations on a claim by making the amended claim
relate back to the original, timely filed complaint.”). See also Godfrey v. Upland Borough, -F.Supp.3d--, 2017 WL 1196635, at *7 (E.D.Pa. Mar. 30, 2017)(“As the Third Circuit has
explained . . . the question of relation back is procedural and therefore properly analyzed
according to federal practice.”)(quoting Nelson v. County of Allegheny, 60 F.3d 1010, 1014
n. 5 (3d Cir. 1995)).

175

Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962).

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the relation back of amendments, have been satisfied.”176 Rule 15(c) provides, in
pertinent part:
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
...
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.177
The Third Circuit has therefore noted the following three prerequisites for
operation of the relation back doctrine:
(1) the claims in the amended complaint must arise out of the same
occurrences set forth in the original complaint, (2) the party to be
brought in by amendment must have received notice of the action
within 120 days of its institution, and (3) the party to be brought in by
amendment must have known, or should have known, that the action

176

Wine v. EMSA Ltd. P'ship, 167 F.R.D. 34, 36 (E.D.Pa. 1996) (quoting Cruz v. City of
Camden, 898 F.Supp. 1100, 1115 (D.N.J. 1995)).

177

Fed. R. Civ. P. 15(c).

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would have been brought against the party but for a mistake
concerning its identity.178
In the instant matter, I find that Plaintiffs’ addition of Defendant Chumley in
their Amended Complaint satisfies the above three requirements. First, because
the state law claims against Defendant Chumley arise from the same general melee
as those against the other Capitol Defendants, I find as a preliminary matter that
the first of the above three prerequisites is satisfied. Second, the notice
requirements are satisfied concerning Defendant Chumley under the “shared
attorney” method of imputing notice. “The ‘shared attorney’ method of
imputing Rule 15(c)(3) notice is based on the notion that, when an originally
named party and the party who is sought to be added are represented by the same
attorney, the attorney is likely to have communicated to the latter party that he may
very well be joined in the action.”179 The relevant inquiry under this method is
therefore whether notice of the institution of this action can be imputed to the
Defendant Chumley within the relevant 120 day period, by virtue of representation
it shared with Defendants originally named in the lawsuit.
Here, the facts indicate that, following the filing of the original Complaint
on May 5, 2016, Gary L. Weber, Esquire entered his appearance on behalf of the

178

Arthur v. Maersk, 434 F.3d 196, 203 (3d Cir. 2006)(citing Fed. R. Civ. P. 15(c)).

179

Singletary, 266 F.3d at 195.

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original Defendants Berger, Butters, and Gregas on June 10, 2016.180 After an
Amended Complaint was filed on August 2, 2016, Mr. Weber filed a Waiver of
Service of Summons on behalf of newly added Defendant Chumley.181 He has
since filed Motions to Dismiss this Amended Complaint on behalf of both the
original defendants and Defendant Chumley.182 Therefore, because the original
waiver of service in this case demonstrates that service was made within the 120
day period under Federal Rule 4(m) and Mr. Weber (the shared attorney) entered
his appearance on behalf of the original Defendants well before that period had
run, Defendant Chumley received notice of the institution of the action such that it
will not be prejudiced in maintaining a defense on the merits. Notice may
therefore be imputed to Defendant Chumley.
The final prerequisite pursuant to Federal Rule of Civil Procedure 15(c)(3) is
to ascertain whether the Defendant Chumley knew or should have known that, “but
for a mistake concerning the identity of the proper party, the action would have
been brought against the party.”183 In the first complaint filed in this Court,
Capitol Bar and Grill is named as a Defendant, along with alleged co-owners
Defendants Berger and Butters, and manager Defendant Gregas. In the Amended

180

See ECF No. 13.

181

See ECF No. 49.

182

ECF Nos. 36, 37, 38, & 50.

183

Fed. R. Civ. P. 15(c)(3)(B).

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Complaint, Plaintiffs added Defendant Chumley to this action as the alleged
corporate owner of Capitol Bar and Grill.184 Taken together, these averments
reveal that Defendant Chumley knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been brought
against it.
Based upon basic principles of fairness and equity under the circumstances, I
find that Plaintiff’s amended complaint does not violate the statute of limitations as
it relates to Defendant Chumley because the amendment relates back to the
original, timely filed complaint pursuant to Federal Rule of Civil Procedure 15(c).
Defendant Chumley’s request that this Court dismiss it from this action on that
basis is therefore denied.
2.

Plaintiff BC’s Request for Punitive Damages Against
Defendants Berger and Chumley in Counts XIV, XV, XVI

In their motions to dismiss, Defendants Berger and Chumley ask the Court
to dismiss Plaintiff BC’s request for punitive damages encapsulated in Counts XIV
(civil assault and battery against Capitol Bar and Grill and John Berger III), XV
(civil assault and battery against Capitol Bar and Grill), and XVI (false
imprisonment against Defendants Berger and Capitol Bar and Grill). Defendants

184

See Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977)(“[A] plaintiff's lack
of information regarding a particular defendant's identity is considered a “mistake” within the
meaning of Rule 15(c)(3)(B).”).

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further this request by arguing that Plaintiff BC has pleaded no facts justifying
and/or establishing the state of the mind of the involved actors.
Under Pennsylvania law, punitive damages are only available to compensate
“for conduct that is outrageous, because of the defendant’s evil motive or his
reckless indifference to the rights of others.”185 Fundamentally, punitive damages
are penal in nature; the objective is to punish a tortfeasor for his outrageous
conduct and to deter him from similar conduct in the future.186 Pennsylvania has
adopted Section 908(2) of the Restatement (Second) of Torts, which permits
punitive damages only for conduct that is “outrageous because of the defendant’s
evil motive or his reckless indifference to the rights of others.”187 Accordingly, a
punitive damages claim must be supported by sufficient evidence to establish: (1)
that the defendant had a subjective appreciation of the risk of harm to which the
plaintiff was exposed; and (2) that he acted or failed to act in conscious disregard
of that risk.188
Here, Plaintiff BC has alleged two claims of civil assault and battery and
false imprisonment against Defendants Capitol and Berger. While the parties

185

Hutchison v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (citing Feld v. Merriam, 485 A.2d 742,
747 (Pa. 1984)).

186

See id.; see also SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991).

187

Feld, 485 A.2d at 747 (1984) (quoting Chambers v. Montgomery, 192 A.2d 355 (1963);
RESTATEMENT (SECOND) OF TORTS, § 908(2)).

188

See Feld, 485 A.2d at 1097-98.

- 49 -

argue at length over whether the essential elements of these damages have been
plead, the supporting allegations of these claims, taken as true at this stage of the
proceeding, necessarily involve intentional conduct.189 Therefore, because this
Court has consistently held that it is premature to dismiss demands for punitive
damages prior to discovery,190 I will deny Defendants’ Motions at this time to the
extent they seek to strike Plaintiff’s request for punitive damages.
3.

Plaintiff BC’s Claim for False Imprisonment against
Defendants Berger and Chumley

Defendants Berger and Chumley next ask the Court to dismiss the false
imprisonment claim lodged against them in Count XVI. Defendants specifically
aver that this claim, not included in the original complaint filed on May 5, 2016, is
barred by the statute of limitations of false imprisonment. I agree.
While a statute of limitations defense generally may not be used in the
context of a Rule 12(b)(6) dismissal, “an exception is made where the complaint
facially shows noncompliance with the limitations period and the affirmative

189

Renk, 641 A.2d at 293 (quoting Cohen, 70 A.2d at 421)(“[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.”); Brockington v. City of Philadelphia, 354 F.Supp.2d 563, 571-72 (E.D.Pa.
2005)(“For Brockington’s false arrest and false imprisonment claim, the question is whether
Shakoor “intentionally arrested [a person] knowing that he lacked probable cause to do so.”).

190

See, e.g., Cerreta v. Red Roof Inns, Civil Action No. 4:16-CV-0706, 2016 WL 4611689, at
*3 (M.D.Pa. Sept. 6, 2016); Cobb v. Nye, Civil Action No. 14-CV-0865, 2014 WL 7067578
(M.D. Pa. Dec. 12, 2014).

- 50 -

defense clearly appears on the face of the pleading.”191 Under Pennsylvania law,
the statute of limitations for a claim of false imprisonment192 is two years.193 In
Pennsylvania, the limitation period begins when the cause of action accrues—i.e.
when the injury occurs.194 The “discovery rule,” however, tolls the statute of
limitations period when a plaintiff is unable, “despite the exercise of due
diligence,” to know of the injury or its cause.195 The tolling continues until “the
plaintiff knows, or reasonably should know, (1) that he has been injured, and (2)
that his injury has been caused by another party’s conduct.”196
Again, Plaintiff BC does not and cannot, based on the dramatic events
underlying this complaint, allege that he was unaware that an injury occurred as
result of the false imprisonment suffered at the hands of Defendants Berger and
Chumley. Because the applicable two year statute of limitations began on May 9,
2014, the time allotted to file such a claim expired on May 10, 2016—more than
191

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994).

192

Under Pennsylvania law, “[t]he elements of false imprisonment are (1) the detention of
another person, and (2) the unlawfulness of such detention.” Pope v. Rostraver, Civil Action
No. 06-CV-776115, at *3 (W.D.Pa. Mar. 9, 2007)(Hardiman, J.). “A private citizen who
‘purports to act for the purpose of securing the administration of the law without actual legal
justification,’ (citation omitted), may well be liable for false imprisonment.” Id. (quoting
Gagliardi v. Lynn, 285 A.2d 109, 111 (Pa. 1971)).

193

42 Pa. C.S. § 5524(1).

194

Calle v. York Hosp., 232 F.Supp.2d 353, 357 (M.D.Pa. 2002)(Conner, J.)(citing Pocono Int’l
Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (1983)).

195

Mest v. Cabot Corp., 449 F.3d 502, 510 (3rd Cir. 2006) (citing Pocono Int’l Raceway, Inc.,
468 A.2d 468, 471 (1983)).

196

Mest, 449 F.3d at 510 (citing Debiec v. Cabot Corp., 352 F.3d 117, 129 (3rd Cir. 2003)).

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two months prior to the filing of the operative complaint. Plaintiff BC nevertheless
argues that amendment should be allowed because this added claim is simple an
“amplification of what has already occurred.”
Although Plaintiff BC’s allegation of this false imprisonment claim within
the Amended Complaint is outside the governing statute of limitations period, this
violation can again be cured if the amendment “relates back” to the original
complaint, again in accordance with Federal Rule of Civil Procedure 15. This
Rule again provides, in pertinent part:
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
...
(B) the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought in
by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.197

197

Fed. R. Civ. P. 15(c).

- 52 -

As stated previously, the Third Circuit has noted the following three prerequisites
for operation of the relation back doctrine:
(1) the claims in the amended complaint must arise out of the same
occurrences set forth in the original complaint, (2) the party to be
brought in by amendment must have received notice of the action
within 120 days of its institution, and (3) the party to be brought in by
amendment must have known, or should have known, that the action
would have been brought against the party but for a mistake
concerning its identity.198
Analysis of the factual underpinning of the false imprisonment claim
suffered at the hands of Defendants Berger and Chumley reveals that it satisfies
this test. When determining whether a newly asserted complaint “relates back” to
the those of the original pleading, courts look for “ ‘a common core of operative
facts in the two pleadings.’ ”199 An amendment therefore “does not relate back . . .
when it asserts a new ground for relief supported by facts that differ in both time
and type from those the original pleading set forth.”200 In the instant matter,
Plaintiff BC’s false imprisonment claim against Defendants Berger and Chumley,
while first asserted beyond the statute of limitations, is saved by the relation back
doctrine. Specifically, I am satisfied that this claim arises from “a common core of
operative facts” concerning the events of May 9, 2014 already alleged in Plaintiff

198

Arthur v. Maersk, 434 F.3d 196, 203 (3d Cir. 2006)(citing Fed. R. Civ. P. 15(c)).

199

Glover v. F.D.I.C., 698 F.3d139, 145–46 (3d Cir.2012) (quoting Bensel v. Allied Pilots
Ass’n, 387 F.3d 298, 310 (3d Cir. 2004)).

200

Mayle v. Felix, 545 U.S. 644, 650 (2005).

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BC’s civil assault and battery charge against Defendants Berger and Chumley.201
Therefore, because the underlying factual allegations of the false imprisonment
claim differ in neither time nor type, I will deny Defendants Chumley and Berger’s
Motion to Dismiss to the extent they seek dismissal of this claim.
4.

Plaintiff KC’s Claim for Intentional Infliction of Emotional
Distress

Under Pennsylvania law, “[t]o state a claim for intentional infliction of
emotional distress, a plaintiff must plead that the defendant’s conduct: (1) was
intentional or reckless; (2) was extreme and outrageous; (3) actually caused the
distress; and (4) caused distress that was severe.”202 “A plaintiff seeking to
establish intentional infliction of emotional distress must also support his claim
with competent medical evidence, because it is unwise and unnecessary to permit
recovery to be predicated on an inference based on the defendant’s outrageousness
without expert medical confirmation that the plaintiff actually suffered the claimed
distress.”203

201

See Wirt v. Bon-Ton Stores, Inc., 134 F.Supp.3d 852, 859 (M.D.Pa. 2015)(Jones, J.)(citing,
inter alia, Spicer v. Villanova Univ., Civil Action No. 06–CV–1411, 2006 WL 3486465, at
*1–2 (E.D.Pa. Dec. 1, 2006) (holding that plaintiff’s added claim for disability-based
employment discrimination related back to her other claims of discrimination on the basis of
race and sex because it arose from the same factual core as the original complaint).

202

Regan v. Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa. 1999).

203

Lawson v. Pennsylvania SPCA, 124 F. Supp. 3d 394, 409 (E.D. Pa. 2015) (internal quotation
marks omitted).

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“In order to state a cognizable claim, the conduct must be so extreme in
nature as to go beyond all possible bounds of decency such that it would be
regarded as utterly intolerable to civilized society.”204 “Generally, the case must be
one with respect to which the recitation of facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim,
‘Outrageous!’”205
“The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.”206 “[P]laintiffs must
necessarily be expected and required to be hardened to a certain amount of rough
language, and to occasional acts that are definitely inconsiderate and unkind.”207
Thus, it has been said that “[t]here is no occasion for the law to intervene in every
case where someone’s feelings are hurt.”208 “Perceived unkindness has no remedy
at law.”209
Accordingly, a claim for intentional infliction of emotional distress must be
dismissed where “[t]he defendants’ alleged conduct is simply not sufficiently

204

Id. (internal quotation marks omitted).

205

Robinson, 246 F. Supp. 2d at 444 (internal quotation marks omitted).

206

Hunger v. Grand Cent. Sanitation, 447 Pa. Super. Ct. 575, 584, 670 A.2d 173, 177 (1996).

207

Id.

208

Id.

209

Zaloga v. Borough of Moosic, No. 3:10-CV-2604, 2015 WL 3755003, at *11 (M.D. Pa. June
16, 2015).

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outrageous to sustain a claim of intentional infliction of emotional distress.”210 As
such, “[w]ith regard to the element of outrageousness, it is for the court to
determine in the first instance whether the defendant’s conduct may reasonably be
regarded as so extreme and outrageous to permit recovery.”211
While Plaintiffs have exhaustively detailed the incident in question, I am
unconvinced that the scenario painted, even when viewed in the light most
favorable, is “so extreme and outrageous” that recovery under this theory may be
justified. Pennsylvania courts presented with the issue have deemed sufficiently
outrageous conduct to include: (1) killing the plaintiff's son with an automobile and
then burying the body, rather than reporting the incident to the police; (2)
intentionally fabricating documents that led to the plaintiff's arrest for murder; and
(3) knowingly releasing to the press false medical records diagnosing the plaintiff
with a fatal disease.212
Here, Plaintiff KC bases her claims for intentional infliction of emotional
distress in Counts XVII and XVIII on a physical scuffle between Defendants
210

See Goodson v. Kardashian, 413 F. App’x 417, 418 (3d Cir. 2011).

211

Johnson v. Caparelli, 425 Pa. Super. Ct. 404, 412, 625 A.2d 668, 671 (1993). See, e.g.,
Snyder v. Specialty Glass Products, Inc., 658 A.2d 366 (Pa. Super. Ct. 1995) (summary
judgment granted in favor of defendant because plaintiff employee’s suffering verbal abuse
and demotion after arriving late to work was not outrageous as a matter of law); Ruder v.
Pequea Valley Sch. Dist., 790 F.Supp.2d 377, 398 (E.D. Pa. 2011) (motion to dismiss granted
because defendant’s failure to provide the plaintiff with medical leave and benefits, and its
subsequent termination of the plaintiff, was not outrageous as a matter of law).

212

Dull v. Manchester Twp. Police Dep’t, 604 F.Supp.2d 739, 756 (M.D.Pa. 2009)(Conner,
J.)(citing Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)).

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Berger and employees of Defendant Chumley and her husband. Essentially
premised on witnessing a bar fight, I find, as a matter of law, that Plaintiff KC has
failed to allege conduct so extreme and outrageous as to justify recovery.213 In
Dorley v. South Fayette Township School District, the Honorable Mark Hornak of
the Western District of Pennsylvania dismissed an IIED claim in the context of
high school sports and noted that “recognizing the IIED tort here would necessarily
compel its application in the case of every battery.”214 I am compelled by similar
reasoning to find that recognizing a claim for IIED in this circumstance would
contradict the high standard required under Pennsylvania law, and open the
floodgates of litigation under this claim. Therefore, given the futility of
amendment in light of Plaintiff KC’s exhaustive allegations concerning this count,
I will dismiss this claim with prejudice.
5.

Plaintiffs BC and KC’s Redundant Claims Against Defendant
Capitol for Civil Assault and Battery, Intentional Infliction of
Emotional Distress, and Negligence in Counts XV, XVIII, and
XX.

Under Federal Rule of Civil Procedure 12(f), a court may strike, either sua
sponte or by motion by a party, “from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous matter.”215 The disposition

213

Id.

214

Dorley v. South Fayette Tp. Sch. Dist., 129 F.Supp.3d 220, 247 (W.D.Pa. 2015)(Hornak, J.).

215

Fed. R. Civ. P. 12(f).

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of motions to strike portions of a complaint is addressed to discretion of district
court.216 Such motions, however, are disfavored and “should be denied unless the
allegations have no possible relation to the controversy, may cause prejudice to one
of the parties, or confuse the issues.”217 That discretion, however, should be
exercised sparingly and only when those pleadings are both “redundant,
immaterial, impertinent, or scandalous” and prejudicial to the opposing party.218
In the instant matter, Defendants Berger and Chumley ask this Court not
simply to strike redundant factual pleadings, but rather counts in their totality.
Specifically, Defendants Berger and Chumley ask this Court to strike Counts XIV
(civil assault and battery), XVII (false imprisonment),219 and XIX (negligence) to
the extent they assert claims against Capitol Bar and Grill because those claims are
redundant of those separately alleged in Counts XV, XVIII, and XX where Capitol
Bar and Grill is accompanied by Defendant John Berger, III. In response,
Plaintiffs argue that this duplicative pleading is somehow necessary given
Defendant Berger and Defendant Chumley’s separate legal statuses. That
distinction is adequately recognized in Counts XV and XX where independent
216

Von Bulow v. Von Bulow, 657 F.Supp. 1134, 1146 (S.D.N.Y. 1987).

217

Balon v. Enhanced Recovery Company, Inc., 316 F.R.D. 96, 98 (M.D.Pa. Sept. 15,
2016)(Nealon, J.).

218

Ruby v. Davis Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001).

219

These claims for intentional infliction of emotional distress, brought by Plaintiff KC, are
dismissed for legal insufficiency in accordance with the above reasoning. I will therefore not
analyze any possible redundancy with regard to these claims.

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counts are alleged against Capitol Bar and Grill, and this Court strains to see how
these claims are not redundant. Defendants Berger and Chumley, however, fail to
demonstrate or argue prejudice from these claims. Therefore, in recognition that
“Relief under 12(f) is generally disfavored” and will be denied unless
the conjunction test of redundancy and prejudice is met,220 this Court will at this
time decline striking Capitol Bar and Grill as a defendant to Counts XIV and
XIX.221
IV.

CONCLUSION

Based on the above reasoning, the Court makes the following dispositions:
1. Bloomsburg Defendant’s Motion to Dismiss will be granted in part
and denied in part.
2. Defendants Butters and Gregas’ Motions to Dismiss will be granted.
3. Defendants Berger and Chumley’s Motions to Dismiss will be granted
in part and denied in part.
Plaintiff BC is granted leave to file an Amended Complaint within twenty-one (21)
days re-asserting the dismissed excessive force claim under Section 1983 against

220

Dann v. Lincoln Nat. Corp., 274 F.R.D. 139, 142–43 (E.D.Pa. 2011).

221

Sluberski v. Lakeside Manor Home for Adults, Civil Action No. 96-CV-2689, 1996 WL
1088902, at *4 (E.D.N.Y. Nov. 19, 1996)(denying a motion to strike for lack of prejudice to
defendants but noting that “defendants’ concern that plaintiff not receive double or triple
compensation for the same predicate acts.”).

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Defendant Balon, and the dismissed civil conspiracy claim under Section 1983
against Defendants Balon, Berger, Butters, and Gregas.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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