THOMPSON et al v. HOWARD et al
Filing
88
MEMORANDUM AND OPINION on the Motions to Dismiss filed by Defendant Broadwater at ECF No. 73, Defendant Mehalik at ECF No. 75, and the Partial Motion to Dismiss by Defendant Howard at ECF No. 79. The Motions to Dismiss will be granted except for Mehalik's motion as it relates to Plaintiff's claim for excessive force relating to those events after Mehalik arrived on the scene. An appropriate Order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on 05/29/2013. (vad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAMES S. THOMPSON,
Plaintiff
v.
NORMAN HOWARD, ROY
MEHALIK, TROOPER
BROADWATER,
)
)
)
)
)
)
)
)
)
)
Civil Action No. 09-1416
Chief Magistrate Judge Lenihan
ECF Nos. 73, 75, 79
Defendants.
MEMORANDUM OPINION
Presently before the Court are the Motions to Dismiss filed by Defendant Pennsylvania
State Trooper Broadwater (“Broadwater”) at ECF No. 73, Defendant Officer Roy Mehalik
(“Mehalik”) at ECF No. 75, and the partial Motion to Dismiss filed by Defendant Officer
Norman Howard (“Howard”) at ECF No. 79 (collectively “Defendants”). The Motions to
Dismiss will be granted except for Mehalik’s motion as it relates to Plaintiff’s claim for
excessive force relating to those events after Mehalik arrived on the scene.
FACTUAL AVERRMENTS
Plaintiff, James S. Thompson (“Plaintiff” or “Thompson”), proceeding pro se, avers the
following in his Amended Complaint at ECF No. 65. Around March 2008, Plaintiff became the
victim of excessive force, false arrest, malicious prosecution, fabrication of false evidence,
conspiracy and “cruel punishment.” (ECF No. 65 at 1.) Plaintiff avers that he was riding in a car
driven by Rae Lynn Sigwalt (“Sigwalt”), when they were stopped by Officer Howard. Howard
asked for Sigwalt’s identification. (ECF No. 65 at 2.) Howard ran a background check on
Sigwalt in his police car and determined that she had an outstanding warrant. (ECF No. 65 at 2.)
Howard returned to the driver’s side of the car and placed Sigwalt into custody. (ECF No. 65 at
2.) Upon placing Sigwalt into the police car, Plaintiff avers that Howard made the following
remark: “What’s a pretty white woman like you doing with a nigger?” (ECF No. 65 at 2.)
Officer Howard then approached the passenger side of the vehicle and told Plaintiff to
step out of the vehicle. (ECF No. 65 at 3.) Plaintiff avers that Howard patted him down and
found nothing. Howard asked Plaintiff if he had any outstanding warrants and Plaintiff replied
that he did not. Howard told Plaintiff that he was going to run a warrants check on Plaintiff, and
that if no warrants were found, Howard would let Plaintiff go. Howard’s check revealed no
outstanding warrants. (ECF No. 65 at 3.)
Just before returning to Plaintiff, Howard received a radio call from Defendant Officer
Mehalik who told Howard that Plaintiff was dangerous and to be careful. (ECF No. 65 at 3.)
Howard then told Plaintiff that he was going to place handcuffs on him. (ECF No. 65 at 3.)
When Plaintiff inquired with Howard as to why he was being cuffed, Howard simply responded
that “I want to.” (ECF No. 65 at 4.) Plaintiff protested, telling Howard that he had no right to
handcuff him. Plaintiff avers that Howard told him that if Plaintiff did not go into cuffs, that
Howard would tase him. (ECF No. 65 at 4.) Plaintiff avers that at this point, Howard’s actions
amounted to a Fourth Amendment false arrest violation. (ECF No. 65 at 4-5.)
Plaintiff alleges that Howard became frustrated with Plaintiff and told Plaintiff he was
going to tase him. Plaintiff warned Howard that he had heart and lung disease and that a taser
would probably kill him. Plaintiff alleges that Howard then attempted to tase him but was
unable to do so after two attempts. Plaintiff then avers that Howard became very angry, pulled
out his baton and began beating him, while shouting the following: “Get the f___ down you
2
f_____ nigger. Get the f___ down or I’ll kill you you f_____ nigger. Get the f___ down you
f_____ nigger. You f_____ black bastard.” (ECF No. 65 at 5-6.) Plaintiff concludes that he was
afraid for his life and afraid that Officer Mehalik, his childhood menace, would arrive on the
scene. (ECF No. 65 at 6.)
Next, Plaintiff avers that he has “an agonizing morbid fear of Officer Mehalik
steming[sic] from childhood torment and terror.” (ECF No. 65 at 6.) Plaintiff avers in great
detail facts from his childhood that precipitated his “agonizing morbid fear of Officer Mehalik.”
(ECF No. 65 at 6-8.) Plaintiff states that because of these childhood experiences with Mehalik,
Plaintiff suffers from Post-Traumatic Stress Disorder. (ECF No. 65 at 8.) Plaintiff continues
that because of this agonizing morbid fear of Mehalik, Plaintiff felt he had to flee in order to save
his own life “from two racist policemen with a reputation for having racist attitudes and conduct
for brutality.” (ECF No. 65 at 8.) Plaintiff continues that he then jumped back into the car to
flee. At this point, Howard approached the driver’s side door and smashed out the driver’s side
window. Plaintiff avers that the glass hit him in the face, blinded him momentarily, as he ducked
toward the passenger side of the car to avoid being hit in the face by the police baton. (ECF No.
65 at 9.) Plaintiff alleges that he started the car from this “ducked” position and drove away. He
avers that he could not see what was in front of him as he drove away because he was afraid of
being shot. He heard something hit the driver’s side of the car but never saw “what hit [him].”
(ECF No. 65 at 9.)
Plaintiff continues that as he drove away “a sudden barrage of gunfire hit the car . . . .”
(ECF No. 65 at 10.) Plaintiff alleges that Mehalik and Howard shot at the car. According to
Plaintiff, the car, at that point, was in a densely populated area and Mehalik and Howard nearly
shot a woman in the head in her home nearby. Plaintiff also avers that he was unarmed. Plaintiff
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states that this behavior by Mehalik and Howard violated the Eighth Amendment as to himself
and the woman Mehalik and Howard almost shot. Plaintiff continues that this conduct also
violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. (ECF
No. 65 at 10.)
With regard to Trooper Broadwater and Officer Howard, Plaintiff states that it his theory
that Broadwater and Howard conspired “to create inflammatoy[sic] news releases that had the
possibility to incite uncontroled[sic] rage in other police and so-called vigilantes desiring to help
police capture or kill a wanna-be cop killer.” (ECF No. 65 at 11.) This rage was precipitated by
the actions of Broadwater and Howard when, after consulting with one another, “they both
released false or fabricated news releases.” (ECF No. 65 at 11.) The false news release issued
by Howard indicated that Plaintiff was armed and fired shots at police. (ECF No. 65-2.) The
false news release issued by Broadwater indicated that Plaintiff had a previous homicide
conviction. (ECF No. 65-3.) Plaintiff avers that contrary to the news releases attached to the
Amended Complaint, Plaintiff shot at no one. Plaintiff states that he “never had a gun to do
anything except to flee in self-defense to save my life.” (ECF No. 65 at 11.) Further, Plaintiff
avers that he has never had a previous homicide conviction. (ECF No. 65 at 11.) Plaintiff
continues that these false news releases created “hysteria that generated overwhelming fear” in
Plaintiff and violated the Eighth Amendment against cruel and unusual punishment. Plaintiff
also avers that this conduct by Broadwater and Howard violated the Fifth and Fourteenth
Amendments. Plaintiff continues that Broadwater and Howard knew from the very beginning of
the investigation that Plaintiff never shot at Howard or any police, and that Plaintiff had no
previous homicide convictions. (ECF No. 65 at 12.) In support of his conspiracy theory,
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Plaintiff notes that the press releases came out within one day of each other, evidencing a
concerted effort on the part of Broadwater and Howard. (ECF No. 65 at 13.)
In his prayer for relief, Plaintiff seeks a declaration that Defendants violated his
constitutional rights, compensatory damages of $100,000, and punitive damages in the amount of
$200,000. (ECF No. 65 at 14.)
Finally, attached to Plaintiff’s Amended Complaint is the October 2, 2009 Order of Judge
Steve P. Leskinen of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal
Division. (ECF No. 65-1 at 1.) Judge Leskinen indicated that Plaintiff, the criminal defendant in
state court, was charged with resisting arrest, aggravated assault, and criminal mischief. (ECF
No. 65-1 at 1.) Judge Leskinen ordered that the resisting arrest charge be dismissed because
Howard’s attempt to handcuff Plaintiff was not a lawful arrest. The charges of aggravated
assault, and criminal mischief, however, were not dismissed by Judge Leskinen because Plaintiff
placed Officer Mehalik in danger of serious bodily injury or death, and because the vehicle
Plaintiff was driving caused approximately $1,000.00 in damage to the police vehicle. (ECF No.
65-1 at 4.) Judge Leskinen determined that Plaintiff was not privileged to remove Sigwalt’s
vehicle from the scene, because Sigwalt had been stopped pursuant to a lawful warrant and the
arresting officer had not yet had the opportunity to perform a lawful search of the passenger
compartment of the vehicle. (ECF No. 65-1 at 3.) Judge Leskinen also found that Plaintiff
“intentionally drove the car directly into the side of [Mehalik’s] patrol vehicle, another action he
was not privileged to do . . . .” (ECF No. 65-1 at 3.)
After a jury trial, Plaintiff was found guilty of 1 count of aggravated assault, 1 count of
simple assault, and 1 count of criminal mischief. (State Court Docket No. CP-26-CR-00005272008, ECF No. 80-1; ECF No. 65 at 4 n.1.) Plaintiff avers that he is undertaking an appeal of
5
these convictions. (ECF No. 65 at 4 n.1); see also State Court Docket No. CP-26-CR-00005272008 at 19 (Plaintiff filed Post-Conviction Relief Act (“PCRA”) Petition on July 5, 2011). It
appears from the state court docket sheet that Plaintiff’s PCRA Petition is pending.
LEGAL STANDARD
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
tests the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A
complaint must be dismissed for failure to state a claim if it does not allege “enough facts to state
a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556
(2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 4546 (1957)); Ashcroft v. Iqbal, 129 S. Ct.1937, 1949 (May 18, 2009) (citing Twombly, 550 U.S. at
555-57). “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.”
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). The Supreme Court further
explained:
The plausibility standard is not akin to a “probability requirement,”
but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where 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.’”
Id. (citing Twombly, 550 U.S. at 556-57).
In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. Aug. 18, 2009), the United States
Court of Appeals for the Third Circuit discussed its decision in Phillips v. County of Allegheny,
515 F.3d 224, 232-33 (3d Cir. 2008) (construing Twombly in a civil rights context), and
described how the Rule 12(b)(6) standard had changed in light of Twombly and Iqbal as follows:
6
After Iqbal, it is clear that conclusory or “bare-bones” allegations
will no longer survive a motion to dismiss: “threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. To prevent
dismissal, all civil complaints must now set out “sufficient factual
matter” to show that the claim is facially plausible. This then
“allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 1948. The
Supreme Court's ruling in Iqbal emphasizes that a plaintiff must
show that the allegations of his or her complaints are plausible. See
Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n. 3.
Fowler, 578 F.3d at 210.
Thereafter, In light of Iqbal, the United States Court of Appeals for the Third Circuit in
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), set forth the following two-prong test
to be applied by the district courts in deciding motions to dismiss for failure to state a claim:
First, the factual and legal elements of a claim should be separated.
The District Court must accept all of the complaint's well-pleaded
facts as true, but may disregard any legal conclusions. [Iqbal,129
S. Ct. at 1949]. Second, a District Court must then determine
whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a “plausible claim for relief.” Id. at 1950. In
other words, a complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such an
entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the
Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts
do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not ‘show [n]’‘that the pleader is entitled to relief.’” Iqbal, 129 S. Ct. at 1949.
This “plausibility” determination will be “a context-specific task
that requires the reviewing court to draw on its judicial experience
and common sense.” Id.
Fowler, 578 F.3d at 210-11.
Courts generally consider only the allegations of the complaint, the attached exhibits, and
matters of public record in deciding motions to dismiss. Pension Benefit Guar. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Factual allegations within documents described
7
or identified in the complaint may also be weighed if the plaintiff’s claims are based upon those
documents. Id. (citations omitted). A district court may consult those documents without
converting a motion to dismiss into a motion for summary judgment. In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Finally, the Court must liberally construe the factual allegations of Plaintiff’s complaints
because pro se pleadings, “however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines
v. Kerner, 404 U.S. 519, 520-21 (1972). Further, Federal Rule of Civil Procedure 8(e) requires
that all pleadings be construed “so as to do justice.” Fed. R. Civ. P. 8(e).
ANALYSIS
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or any other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. ' 1983. To state a claim for relief under this provision, a plaintiff must demonstrate
that the conduct in the complaint was committed by a person or entity acting under color of state
law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the
Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36
F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a
remedy for violations of those rights created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
8
False Police Reports and Conspiracy to File False Police Reports
In support of their Motions to Dismiss, Defendants Broadwater and Howard argue that
there is no constitutional right to a correct police report, and no constitutional violation resulted
from the allegedly false reports. (ECF No. 74 at 3-4; ECF No. 80 at 9-10.) Plaintiff responds
that the false statements in the police reports amount to malicious prosecution, and Plaintiff was
harmed thereby because he suffered severe emotional distress as a result of the false police
reports. (ECF No. 82 at 1-3.)
First, the law is clear that there is no constitutional right to a correct police report. Jarrett
v. Twp. Of Bensalem, 312 Fed. Appx. 505, 507 (3d Cir. 2009); Bush v. City of Philadelphia, No.
Civ. A. 98-0994, 1999 WL 554585, at *4 (E.D. Pa. July 15, 1999) (surveying cases and finding
no civil rights violation for filing of false police reports in absence of some evidence that
plaintiff was actually harmed by false reports). See also Landrigan v. City of Warwick, 628 F.2d
736, 744-45 (1st Cir. 1980) (mere existence of false police report does not state cognizable
constitutional injury).
Plaintiff avers that as a result of the false police reports, he suffered severe anguish and
overwhelming fear, and that the false reports were meant to create wide spread hysteria among
other police because the reports falsely indicated that Plaintiff was a “wanna be cop killer and
former killer.” (ECF No. 65 at 12.) Plaintiff’s claim, however, fails as a matter of law.
“Defamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is
accompanied by a change or extinguishment of a right or status guaranteed by state law or the
Constitution.” Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis,
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424 U.S. 693, 701-12 (1976)); see also Sturm v. Clark, 835 F.2d 1009, 1012 (3d Cir. 1987)
(“Absent the alteration or extinguishment of a more tangible interest, injury to reputation is
actionable only under state defamation law.”) (internal citations omitted). Here, Plaintiff avers
only that he suffered severe emotional distress and fear that the false reports would create “wide
spread hysteria among other police[,] news media and the surrounding public.” (ECF No. 65 at
12.) Plaintiff does not attempt to aver that he was denied a “liberty” or “property” interest
protected by the Due Process Clause of the Fourteenth Amendment as a result of the false police
reports. See Paul, 424 U.S. at 712. Further, the facts and circumstances giving rise to Plaintiff’s
excessive force claim occurred before Broadwater and Howard allegedly filed the false police
reports. That is, Plaintiff’s excessive force claim is not related in any way to the issuance of the
reports.
Likewise, although Plaintiff may recover damages for emotional distress pursuant to §
1983, Plaintiff “must first show an underlying violation of his constitutional rights in order to
recover emotional distress damages . . . .” Bush, 1999 WL 554585, at *7. Hence, because there
is no cognizable constitutional claim for filing a false police report, Jarrett, 312 Fed. Appx. at
507, Plaintiff may not recover damages for emotional distress sustained as a result of the filing of
a false police report. See Bush, 1999 WL 554585, at *7. Therefore, Plaintiff’s claim for the
issuance of false police reports will be dismissed as a matter of law. Any attempt to amend the
Complaint would be futile as a matter of law.1
Finally, because Plaintiff is unable to make out a claim against Broadwater and Howard
for filing false police reports, Plaintiff’s claim against Broadwater and Howard for conspiracy to
1
The United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a
district court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte
“permit a curative amendment unless such an amendment would be inequitable or futile.” 515 F.3d 224, 245 (3d
Cir. 2008).
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file false police reports must also fail as a matter of law. That is, there can be no § 1983
conspiracy claim without an underlying constitutional violation. White v. Brown, 408 F. App’x
595, 599 (3d Cir. 2010). Therefore, Plaintiff’s claims against Broadwater and Howard for
conspiracy to file false police reports will be dismissed. Likewise, any attempt to amend would
be futile as a matter of law.
False arrest
In support of his Motion to Dismiss the Amended Complaint as it relates to Plaintiff’s
claim of false arrest, Howard advances several arguments. First, Howard argues that Plaintiff’s
claim for false arrest should be dismissed with prejudice because probable cause for Plaintiff’s
arrest is conclusively established by his conviction of several of the offenses with which he was
charged.2 Howard, on supplemental brief, also argues that he is protected by qualified immunity
because his actions in handcuffing Plaintiff after receiving the radio warning from Mehalik that
Plaintiff was dangerous was not unreasonable, incompetent, or a violation of a clearly
established right under the circumstances. Plaintiff responds that when Howard attempted to
place handcuffs on him, Howard’s actions amounted to a false arrest. In support of this
assertion, Plaintiff directs the Court to the October 2, 2009 Order of Judge Leskinen. In his
response to Howard’s supplemental brief, Plaintiff also argues that Plaintiff is not protected by
qualified immunity for those claims brought against him in his personal capacity.
The Fourth Amendment=s prohibition against unreasonable seizures protects individuals
from arrest without probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d
Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). “Probable
2
The Court agrees with Defendant Mehalik that Plaintiff avers no facts to suggest that Mehalik was involved in the
events giving rise to Plaintiff’s claim for false arrest. (ECF No. 76 at 15.)
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cause exists whenever reasonably trustworthy information or circumstances within a police
officer=s knowledge are sufficient to warrant a person of reasonable caution to conclude that an
offense has been committed by the person being arrested.” United States v. Myers, 308 F.3d
251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). The law of the state
where the arrest occurred controls whether the arrest is valid. Myers, 308 F.3d at 255 (citing Ker
v. California, 374 U.S. 23, 37 (1963)). In determining whether probable cause exists to support
an arrest, the analysis must be based upon the totality of circumstances including “the objective
facts available to the officers at the time of the arrest.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d
Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). Subjective intentions of police
officers are irrelevant to a Fourth Amendment probable cause analysis. Whren v. United States,
517 U.S. 806, 813 (1996).
It is important to note that “[t]he Constitution also allows officers to reasonably detain
and even handcuff [vehicle] occupants without probable cause to protect the officers’ safety.”
United States v. Seigler, 484 Fed. App’x 650, 654 (3d Cir. 2012) (citing Arizona v. Johnson, 555
U.S. 323, 331-32 (2009); Brendlin v. California, 551 U.S. 249, 258 (2007); United States v.
Johnson, 592 F.3d 442, 447-48 (3d Cir. 2010) (“[P]lacing a suspect in handcuffs while securing
a location or conducting an investigation [does not] automatically transform an otherwise valid
Terry stop into a full-blown arrest.”)).
State officials performing discretionary acts enjoy “qualified immunity” from money
damages in § 1983 causes of action when their conduct does not violate “clearly established”
statutory or constitutional rights of which a “reasonable person” would have known at the time
the incident occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The first inquiry under a
12
qualified immunity analysis is whether the plaintiff has established a violation of a “clearly
established constitutional right” as follows:
The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates
that right. This is not to say that an official action is protected by
qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.
Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).
The second inquiry concerns the reasonableness of the defendant=s actions. The test for
qualified immunity is based on objective reasonableness, that is, “whether a reasonable officer
could have believed [the challenged action] to be lawful, in light of clearly established law and
the information the [ ] officers possessed.” Giuffre v. Bissell, 31 F.3d 1241, 1255 (3d Cir. 1994)
(quoting Anderson, 483 U.S. at 641). “The ultimate issue is whether, despite the absence of a
case applying established principles to the same facts, reasonable officers in the defendants=
position at the relevant time could have believed, in light of what was in the decided case law,
that their conduct was lawful.” Giuffre, 31 F.3d at 1255 (internal quotation omitted). It is the
defendant=s burden to establish that they are entitled to qualified immunity. See Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989).
In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court clarified the
two-step qualified immunity inquiry. The Court directed that, in deciding whether a defendant is
protected by qualified immunity, a court first must determine whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the officer=s conduct
violated a constitutional right.” Id. at 201. If the facts do not establish the violation of a
constitutional right, no further inquiry concerning qualified immunity is necessary. Id. If the
plaintiff=s factual allegations do show a violation of his rights, then the court must proceed to
13
determine whether the right was “clearly established,” that is, whether the contours of the right
were already delineated with sufficient clarity to make a reasonable officer in the defendant=s
circumstances aware that what he was doing violated the right. Id. at 201-02. Finally, in
Pearson v. Callahan, 555 U.S. 223 (2009), the United States Supreme Court concluded that
while the two-step sequence identified in Saucier “is often appropriate, it should no longer be
regarded as mandatory.” Id. at 236.
Here, even though Judge Leskinen dismissed the resisting arrest charge because
there was no probable cause to arrest Plaintiff at that point (ECF No. 87-1 at 2), Howard’s
actions in attempting to handcuff Plaintiff were reasonable under the circumstances and
protected by qualified immunity. As averred by Plaintiff, Howard received a warning from
Mehalik over the police radio that Plaintiff was dangerous and that Howard should be careful.
(ECF No 65 at 3.) Consequently, in an effort to protect himself while completing his duties at
the scene, Howard attempted to handcuff Plaintiff. According to the averments of the Amended
Complaint, Howard had just placed Ms. Sigwalt in custody after discovering she had an
outstanding warrant. Immediately thereafter, he received the warning concerning Plaintiff.
Consequently, even though the facts of the Amended Complaint suggest that there was no
probable cause to arrest Plaintiff at the time he was initially approached by Howard, the officer
did not violate clearly established law when he attempted to handcuff Plaintiff so as to
reasonably protect his own safety while securing the scene after Sigwalt’s arrest. Therefore,
Defendant Howard is protected by qualified immunity as to Plaintiff’s claim for false arrest.
Hence, Howard’s Motion to Dismiss Plaintiff’s false arrest claim will be granted. Any attempt
to amend as to the false arrest claim would be futile as a matter of law.
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Malicious Prosecution
As noted above, Plaintiff also avers that the actions of Broadwater and Howard in issuing
false police reports amounted to malicious prosecution. (ECF No. 65 at 13; ECF No. 82 at 1-3.)3
In order to establish a Fourth Amendment malicious prosecution claim pursuant to §
1983, a plaintiff must show the following: 1) the defendant initiated a criminal proceeding; 2) the
criminal proceeding ended in the plaintiff’s favor; 3) the proceeding was initiated without
probable cause; 4)the defendant acted maliciously or for a purpose other than bringing the
plaintiff to justice; and 5) the plaintiff suffered a deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding. McKenna v. City of Philadelphia,
582 F.3d 447, 461 (3d Cir. 2009) (citing Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir.
2003)).4
Here, Plaintiff’s averments concerning malicious prosecution are limited to the
following:
Lastly, your plaintiff was nothing less than a victim of Malicious
Prosecution with a hoped outcome of grave injury or hopeful
death. With wide spread belief your plaintiff quickly became an
intended cop killer with a previous homicide conviction. This was
nothing less than a prescription for death for all whom may have
come across your plaintiff to shoot and kill him out of the hyped
up dear that your plaintiff was armed and dangerous. Both news
releases said this.
(ECF No. 65 at 13.) Clearly, Plaintiff’s averments of malicious prosecution against Howard and
Broadwater have nothing to do with a criminal proceeding.5 Therefore, Defendants’ Motion to
3
Again, the Court agrees with Defendant Mehalik that Plaintiff avers no facts concerning his involvement in the
events that may give rise to the claim for malicious prosecution. (ECF No. 76 at 15.)
4
The elements of a state law claim for malicious prosecution are the same but for the fifth element, which is not
required to make out a claim for malicious prosecution under Pennsylvania state law. Kossler v. Crisanti, 564 F.3d
181, 186 n.2 (3d Cir. 2009) (citing Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir. 2000).
5
Even if the Court affords Plaintiff’s averments their most liberal construction and interprets his malicious
prosecution claim as attacking his prosecution for aggravated assault and criminal mischief, Plaintiff’s malicious
15
Dismiss Plaintiff’s malicious prosecution claim will be granted. Any attempt to amend will be
futile as a matter of law.
Official Capacity Claims
Defendants Mehalik and Howard argue that the claims against them made in their official
capacities must be dismissed because they are essentially claims against the entity for which they
are employed, and Plaintiff avers no facts to make out a claim of municipal liability. Plaintiff
does not respond to this argument.
The law is clear that official capacity suits “‘generally represent only another way of
pleading an action against an entity of which an officer is an agent.’” Kentucky v. Graham, 473
U.S. 159, 165-66 (1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658,
690 n.55 (1978)). Plaintiff, however, avers no facts to make out a claim against these officers’
employing entities for municipal liability. That is, Plaintiff avers no facts to suggest that a
“policy or custom, whether made by [] lawmakers or by those whose edicts or acts may fairly be
said to represent official policy, inflict[ed Plaintiff’s] injury.@6 Monell, 436 U.S. at 694.
Therefore, the Court will dismiss all official capacity claims against Howard and Mehalik. Any
further attempt to amend would be futile as a matter of law.
prosecution claim fails as a matter of law because Plaintiff will be unable to show that the criminal proceeding
ended in his favor.
6
In fact, the docket sheet in this case reflects that on August 20, 2012, Luzerne Township, the Pennsylvania State
Police, Redstone Township, and the Commonwealth of Pennsylvania were terminated as parties to this action.
16
Fourth and Fourteenth Amendment Excessive Force claim against Mehalik7
First, Defendant Mehalik argues that many of the facts concerning allegations of
excessive force occurred prior to his arrival on the scene. Consequently, Mehalik argues that the
Motion to Dismiss Plaintiff’s excessive force claims should be granted as to those facts for
which Mehalik was not present. The Court agrees. A § 1983 defendant must have some
personal involvement in the actions giving rise to the complaint. Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1998) (civil rights defendant must have personal involvement in alleged
wrongdoing; personal involvement can be shown through allegations of personal direction or
actual knowledge and acquiescence). Here, Plaintiff avers no facts to suggest Mehalik’s
personal involvement before he arrived on the scene.8 Hence, Plaintiff’s excessive force claim
against Mehalik as to any activities that occurred at the scene before his arrival will be
dismissed.
Next, as to those facts and circumstances for which Mehalik was present, Mehalik
contends that these actions were reasonable because Plaintiff was resisting arrest, and therefore
protected by qualified immunity. (ECF No. 76 at 10, 12-15.)
Plaintiff responds that Mehalik used excessive force when he fired gunshots at Plaintiff
when he was attempting to flee, even though Plaintiff did nothing to place Mehalik in danger.
(ECF No. 82 at 4-10.)
In evaluating a Fourth Amendment excessive force claim, the Court must determine
whether the force used to effect a seizure was “reasonable” under the circumstances. Graham v.
7
Defendant Howard notes that the excessive force claim, as pled, is not appropriate for disposition at the motion to
dismiss stage, although he disputes Plaintiff’s allegations regarding the alleged force used in the incident. (ECF No.
80 at 4 n.2.) Hence, Defendant Mehalik is the only movant on the excessive force claim.
8
Plaintiff only avers that when speaking to Howard on the police car radio, Mehalik warned Howard that Plaintiff
was dangerous and to be careful. (ECF No. 65 at 3.)
17
Connor, 490 U.S. 386, 396 (1989). Although not easily defined or mechanically applied, the test
for determining whether the force was reasonable “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.” Graham, 490 U.S. at 396 (citing
Bell v. Wolfish, 441 U.S. 520, 559 (1979) and Tennessee v. Garner, 471 U.S. 1, 8-9 (1985)). The
test is an objective one: “the question is whether the officers’ actions are ‘objectively reasonable’
in light of the facts and circumstances confronting them, without regard to their underlying intent
or motivation.” Graham, 490 U.S. at 397 (other citations omitted).
Here, Plaintiff has alleged “enough facts to state a claim [for excessive force] that is
plausible on its face.” Twombly, 550 U.S. at 556. Plaintiff avers that as he was attempting to
flee the scene, he was subjected to a “barrage of shooting.” Plaintiff was not under arrest, he was
unarmed, and did not pose an immediate threat to the safety of the officers or others. Hence,
Mehalik’s Motion to Dismiss as it relates to Plaintiff’s Fourth Amendment claim of excessive
force concerning the events after Mehalik arrived on the scene will be denied.
Further, the facts as alleged do not demonstrate that Mehalik’s conduct was objectively
reasonable; that is, whether a reasonable police officer in Mehalik’s situation could have
believed that his conduct comported with established legal standards regarding the use of
excessive force. Discovery may reveal otherwise, but the Court must deny the grant of qualified
immunity at this time.
Finally, with regard to Plaintiff’s invocation of the Fourteenth Amendment relating to his
excessive force claim, the Court notes that in Graham, the United States Supreme Court held as
follows:
18
[A]ll claims that law enforcement officers have used excessive
force- deadly or not-in the course of an arrest, investigatory stop,
or other “seizure” of a free citizen should be analyzed under the
Fourth Amendment and its “reasonableness” standard, rather than
under a substantive due process” approach. Because the Fourth
Amendment provides an explicit textual source of constitutional
protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing these
claims.
490 U.S. at 395 (emphasis in original) (footnote omitted). Consequently, Plaintiff’s claims
against Defendants must be brought under the Fourth Amendment, rather than the Fourteenth.
Therefore, Plaintiff’s Fourteenth Amendment excessive force claim will be dismissed. Any
attempt to amend will be futile as a matter of law.
Cruel Punishment—Eighth, Fourteenth, and Fifth Amendments
Defendants Howard and Mehalik argue that Plaintiff has failed to plead facts sufficient to
state a plausible claim that he was subjected to “cruel punishment.” Specifically, Defendants
argue that the protections against cruel and unusual punishment are afforded to convicted
prisoners through the Eighth Amendment, and to pretrial detainees through the Fourteenth
Amendment. Further, Defendants argue that Plaintiff’s claim for alleged “acts of cruelty”
pursuant to the Fifth Amendment must likewise be dismissed because the Fifth Amendment only
protects against federal pretrial detainee violations.
The Eighth Amendment provides as follows: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.
In Whitley v. Albers, 475 U.S. 312 (1986), the United States Supreme Court noted that the “Cruel
and Unusual Punishments Clause ‘was designed to protect those convicted of crimes,’ and
19
consequently the Clause applies ‘only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions.’” 475 U.S. at 318 (quoting
Ingraham v. Wright, 430 U.S. 651, 664, 671 n.40 (1977) (other citations omitted)). Therefore,
the Eighth Amendment has no application to Plaintiff’s averments of “cruel punishment.”
Consequently, Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment claim will be
granted.
The protections of the Fourteenth Amendment against cruel and unusual punishment are
directed to pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 538 (1979) (applies Fourteenth
Amendment due process principles to pretrial detainees, rather than the cruel and unusual
punishment standard of the Eighth Amendment). Langella v. Cnty. of McKean, Civ. A. No. 09cv-311E, 2010 WL 3824222, *13 (W.D. Pa. Sept. 23, 2010) (citing Hubbard v. Taylor, 399 F.3d
150 165-66 (3d Cir. 2005)). See also Montgomery v. Ray, 145 F. App’x 738, 739-40 (3d Cir.
2005) (vacating an order and remanding case where district court evaluated pretrial detainee’s
claim involving inadequate medical treatment under the same standards as Eighth Amendment
claims). In Montogmery, the court of appeals noted its recent decision in Hubbard, which
clarified the following:
[T]he Eighth Amendment only acts as a floor for due process
inquiries into medical and non-medical conditions of pretrial
detainees. While “the due process rights of a [pre-trial detainee]
are at least as great as the Eighth Amendment protections available
to a convicted prisoner,” Hubbard, 399 F.3d at 166 (citation
omitted), the proper standard for examining such claims is the
standard set forth in Bell v. Wolfish, . . . i.e., whether the conditions
of confinement (or here, inadequate medical treatment) amounted
to punishment prior to an adjudication of guilt, Hubbard, 399 F.3d
at 158.
145 F. App’x at 740 (emphasis and brackets in original). Here, Plaintiff’s claims for “cruel
punishment” do not involve facts or circumstances relating to his status as a pretrial detainee.
20
Hence, Plaintiff’s claims for “cruel punishment” pursuant to the Fourteenth Amendment will
also be dismissed.
Finally, Plaintiff’s Fifth Amendment claim regarding “cruel punishment” must also fail
because it pertains only to federal pre-trial detainees. Hubbard, 399 F.3d at 158 n.13.
Any attempt by Plaintiff to amend his claims regarding “cruel punishment” relating to the
Eighth, Fourteenth, or Fifth Amendments would be futile as a matter of law.
Punitive Damages
Defendants Howard and Mehalik argue that Plaintiff’s claim for punitive damages
against them in their official capacities should be dismissed because official capacity claims are
really claims against the municipality for which a defendant is employed, and municipalities are
immune from punitive damages. (ECF No. 80 at 13; ECF No. 76 at 16.) Plaintiff does not
respond to this argument.
It is well settled that municipal entities are immune from punitive damages
pursuant to § 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). See also
Vermont Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 784-85 (2000) (holding
punitive damages inappropriate in suits against governmental entities); Bolden v. Southeastern
Pa. Transp. Auth., 953 F.2d 807, 830 (3d Cir. 1991) (holding municipalities immune from
punitive damages under § 1983); Malone v. Econ. Borough Mun. Auth., 669 F. Supp. 2d 582,
612 (W.D. Pa. 2009) (“Section 1983 precludes punitive damages against a municipality.”).
Based on the nature of § 1983 claims, the immunity from punitive damages would naturally
extend to any state or municipal actors sued in their official capacities. As noted above, a “suit
against a state official in his or her official capacity is not a suit against the official but rather is a
21
suit against the official's office.” Will, 491 U.S. at 71. See also Brandon v. Holt, 469 U.S. 464,
471 (1985). Therefore, a suit against a government employee in his or her official capacity is no
different than a suit against the governmental entity itself. Will, 491 U.S. at 71. Hence, punitive
damages are not available against individual municipal actors sued in their official capacity.
Therefore, the Court will grant Defendants’ Motion to Dismiss as it relates to Plaintiff’s claim
for punitive damages against the individual Defendants in their official capacities. Any attempt
to amend on this issue would be futile as a matter of law.
Plaintiff’s Attempt to Raise an Additional Claim in his Responsive Brief
In Plaintiff’s Response to Defendants’ Motions to Dismiss at ECF No. 82, Plaintiff sets
forth averments relating to a claim that is not included in his Amended Complaint. Specifically,
Plaintiff states that Defendants Howard and Mehalik conspired to falsify their statements that
Plaintiff rammed Mehalik’s police car. (ECF No. 82 at 5.) Plaintiff attaches trial transcript
excerpts from two trial witnesses and a hand written document that appears to be written by
Plaintiff, setting forth the statement of Rae Lynn Sigwalt. Plaintiff contends that these
documents demonstrate that it was Mehalik that rammed the Plaintiff’s car. Consequently,
Plaintiff contends that Howard and Mehalik conspired to falsify their version of events, and that
such conspiracy constitutes “a fabrication of false evidence and conspiracy as well as cruel
punishment.” (ECF No. 82 at 5.)
Any attempt by Plaintiff to include these new averments as part of this civil action would
be futile as a matter of law. This Court is bound by the jury’s findings in the Court of Common
Pleas of Fayette County, Criminal Division, where a jury found Plaintiff guilty of aggravated
assault, simple assault and criminal mischief.
22
The Full Faith and Credit Act provides as follows:
The records and judicial proceedings of any court of any such
State, Territory or Possession . . . shall have the same full faith and
credit in every court within the United States and its Territories
and Possessions as they have by law or usage in the courts of such
State, Territory or Possession from which they are taken.
28 U.S.C. § 1738. In other words, it requires “federal courts to give the same preclusive effect to
a state-court judgment as would the courts of the State rendering the judgment.” Minnick v. City
of Duquesne, 65 F. App’x 417, 420 (3d Cir. 2003) (quoting McDonald v. City of West Branch,
466 U.S. 284, 287 (1984)). “The federal court, in determining the collateral estoppel effect of a
state court proceeding, should apply the law of the state where the criminal proceeding took
place. . . . .” Grier v. Scorpine, No. 04-1888, 2008 WL 655865, at *5 n.1 (W.D. Pa. 2008)
(quoting Anela v. City of Wildwood, 790 F.2d 1063, 1068 (3d Cir. 1986)).
Here, the jury convicted Thompson of aggravated assault, simple assault, and criminal
mischief. 18 Pa. Cons. Stat. Ann. § 2702 (a)(1) provides that a person is guilty of aggravated
assault if he “attempts to cause serious bodily injury to [a police officer], or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to
the value of human life.” In his Order of October 2, 2009 on pretrial motion, Judge Leskinen
stated that “Thompson intentionally drove the car directly into the side of the other officer’s
patrol vehicle, another action he was not privileged to do, causing substantial damage and
endangering the officer in the car.” (ECF No. 65-1 at 3.) Judge Leskinen indicated that the basis
for the aggravated assault charge was the fact that “[Plaintiff] placed the other officer in danger
of serious bodily injury or death.” (ECF No. 65-1 at 4.) 18 Pa. Cons. Stat. Ann. § 3304(a) (2)
provides that a person is guilty of criminal mischief if he “intentionally or recklessly tampers
with tangible property of another so as to endanger person or property.” Judge Leskinen
23
indicated that the basis for this charge was the fact that “the vehicle [Plaintiff] was driving
caused approximately $1,000.00 in damage to the police vehicle.” (ECF No. 65-1 at 4.) The
jury convicted Plaintiff of these charges on August 4, 2010. “Operative facts necessary for
criminal convictions are admissible as conclusive facts in civil suits arising from the same events
and circumstances.” DiJoseph v. Vuotto, 968 F. Supp. 244, 247 (E.D. Pa. 1997) (citing Folino v.
Young, 568 A.2d 171, 172 (Pa. 1990)). In Pennsylvania, “it is well established that a criminal
conviction collaterally estops a defendant from denying his acts in a subsequent civil trial.”
Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996). Therefore, under Pennsylvania law, the facts
underlying Plaintiff’s jury trial conviction for aggravated assault and criminal mischief are
conclusive and may not be disputed. Hence, Plaintiff may not attempt to raise this new claim in
his responsive brief because an attempt to amend his complaint to include the claim would be
futile as a matter of law.
CONCLUSION
For the above reasons, Defendants’ Motions to Dismiss at ECF Nos. 73, 75 and 79 will
be granted except for Mehalik’s motion at ECF No. 75 as it relates to Plaintiff’s claim for
excessive force relating to those events after Mehalik arrived on the scene.
An appropriate order will follow.
Dated: May 29, 2013
s/ Lisa Pupo Lenihan
LISA PUPO LENIHAN
Chief United States Magistrate Judge
24
cc: All counsel of record
Via electronic filing
James S.Thompson
JS-4542
S.C.I. Dallas
1000 Follies Road
Dallas, PA 18612
25
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