SWANEY et al v. JORDAN et al
Filing
36
MEMORANDUM OPINION indicating that, for reasons more fully stated within, because the allegations made in the Amended Complaint, when construed in the light most favorable to Plaintiffs, could plausibly entitle Plaintiffs to relief under the tort law of Pennsylvania, Defendants' Partial Motion to Dismiss 19 is denied, without prejudice. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 4/19/11. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SCOTT R. SWANEY and CHARLENE
SWANEY,
Plaintiffs,
v.
NICHOLAS JORDAN and
MELINDA CITERO,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
Civil No. 10-521
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
Plaintiffs Scott R. Swaney and Charlene Swaney (collectively, ―Plaintiffs‖; individually,
―Mr. Swaney‖ or ―Mrs. Swaney‖) brought this action against Defendants Nicholas Jordan and
Melinda Citero (collectively, ―Defendants‖; individually, ―Jordan‖ or ―Citero‖), in their
individual capacities, for alleged constitutional violations of the Fourth and Fourteenth
Amendments of the United States Constitution, along with pendent state law tort claims, related
to conduct that occurred on May 25, 2009. (See Docket No. 15). Currently pending before the
Court is a Partial Motion to Dismiss filed by Defendants pursuant to Federal Rule of Civil
Procedure 12(b)(6). (Docket No. 19). For the reasons that follow, that Motion is denied.
II.
FACTUAL BACKGROUND
Since this matter comes before the Court on a motion to dismiss, the factual allegations
contained in Plaintiffs‘ Amended Complaint are assumed to be true. Hemi Group, LLC v. City of
N.Y., 130 S.Ct. 983, 986-87 (2010) (citing Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 164 (1993)). According to the Amended Complaint,
Plaintiffs are adult individuals who reside in Fairchance, Pennsylvania. (Docket No. 15 at ¶¶ 4,
1
5). Defendants are officers of the Pennsylvania State Police who are based in Fayette County,
Pennsylvania. (Id. at ¶¶ 6, 7).
On the evening of May 25, 2009, Defendants arrived at the home of Tim Pechatsko, who
is one of Plaintiffs‘ neighbors. (Id. at ¶¶ 12, 13). At that time, Plaintiffs were outside on their
front porch and observed Defendants proceed to the rear entrance of Mr. Pechatsko‘s home. (Id.
at ¶ 13). Shortly thereafter, Plaintiffs heard Jordan screaming and also heard a scuffle. (Id.).
Plaintiffs then watched as Defendants escorted Mr. Pechatsko out of his home in handcuffs.
(Id.).
While Mr. Pechatsko was in handcuffs, Plaintiffs witnessed Jordan deliberately choke the
already restrained man. (Id. at ¶ 14). To this, Mr. Swaney told Jordan that ―I saw what you did
to him,‖ and advised Mr. Pechatsko that he would testify for him. (Id. at ¶ 15). In response,
Jordan yelled at Plaintiffs to go inside and further instructed them that they did not see a
―fucking thing.‖ (Id. at ¶ 16). Mr. Swaney complied with Jordan‘s initial demand and went into
the home. (Id.). Following this exchange, Citero went to Plaintiffs‘ home for the purpose of
ascertaining their respective names. (Id. at ¶ 18). In fear that she was being harassed, Mrs.
Swaney followed her husband into the home to call a superior officer. (Id.).
After placing Mr. Pechatsko into his police vehicle, Jordan drove to Plaintiffs‘ home. (Id.
at ¶ 18). While exiting his vehicle, he yelled to the Plaintiffs that ―you are going to fucking jail.‖
(Id. at ¶ 18). He then attempted to open a latched gate.1 (Id. at ¶ 19). Because the gate was
latched, Jordan reached over the gate and ripped the telephone from Mrs. Swaney‘s hand,
disconnecting the line in the process. (Id.) Jordan then threw the phone across the porch. (Id.).
1
It is unclear from Plaintiffs‘ Amended Complaint where the gate in question was located or to what it was
connected. (See Docket No. 15 at ¶ 19).
2
While screaming that he could ―do whatever I want,‖ Jordan grabbed Mrs. Swaney by the
arm and attempted to physically pull her over the gate. (Id. at ¶ 20). Jordan then discharged his
taser gun in the direction of Mr. Swaney. (Id. at ¶ 21). The first probe hit Mr. Swaney in the
forehead, while the second probe hit him in the chest. (Id.). Mr. Swaney attempted to reach for
the phone to call for help, but was stopped from doing so when Jordan jumped the fence and
climbed on to the porch. (Id. at ¶ 22). At that point, Jordan shot Mr. Swaney for a second time
with his taser gun. (Id. at ¶ 23). The probes entered his left hand and his left arm. (Id.). In total,
Jordan attempted to his discharge his taser gun on four occasions; however, a malfunction
prevented the taser gun from working more than twice. (Id. at ¶ 26).
After he had been shot with the taser gun, Jordan struck Mr. Swaney on the head with his
club or stick, which knocked him to the ground and caused him to lose consciousness. (Id. at ¶
27). Thereafter, Jordan drew his service revolver and pointed it at Mrs. Swaney‘s face. (Id. at ¶
28). Jordan pushed Mrs. Swaney to the floor of the porch, where she was then handcuffed by
Citero. (Id. at ¶¶ 28, 29).
Around this time, Mr. Swaney began to regain consciousness and was bleeding profusely.
(Id. at ¶ 30). Mrs. Swaney informed Defendants that her husband suffered from cancer and, as
such, needed immediate medical attention. (Id.). In response, Jordan, still pointing his service
revolver at Mrs. Swaney, placed his boot on top of her head, pushing it further onto the porch
floor while shouting ―shut up you fucking dumb bitch, he is tough, he can take it.‖ (Id. at ¶ 31).
Jordan then grabbed Mr. Swaney from the floor and threw him into a chair on the porch. (Id. at ¶
32). He told Plaintiffs that ―I am no longer an officer,‖ and that the situation was ―fucking
personal.‖ (Id. at ¶ 32).
3
Finally, other police officers arrived on the scene. (Id. at ¶ 33). The other officers called
for a paramedic and Mr. Swaney was placed into an ambulance. (Id.). Mrs. Swaney repeatedly
requested to speak to a superior officer regarding Defendants‘ conduct.
(Id. at ¶ 34).
Specifically, she asked to speak with a corporal in the police department, who had arrived on the
scene. (See Id.). This request was denied by Jordan. (Id.).
Mrs. Swaney, while still in handcuffs, was initially placed in the back of Citero‘s police
car. (Id. at ¶ 36). She was then asked to sign a document and was released from the vehicle.
(Id.). Thereafter, Jordan told Mrs. Swaney that if he saw her at the hospital, he would arrest her.
(Id. at ¶ 37). Jordan then released Mr. Pechatsko after he also signed a document. (Id. at ¶ 38).
Mr. Swaney‘s injuries were severe and he required immediate medical treatment. (Id. at
¶ 39). He was transported to the Emergency Room at Uniontown Hospital, where he was treated
for a deep gash to his head that required staples and wounds to his hands where the taser probe
had lodged. (Id.). His injuries have caused him near blindness and extreme headaches. (Id. at ¶
40). He has had to seek recurrent medical treatment. (Id. at ¶ 41). Similarly, Mrs. Swaney
sought treatment for bruises and an injured left shoulder. (Id. at ¶ 42).
Both Plaintiffs were eventually charged with disorderly conduct, and Mr. Swaney was
also charged with resisting arrest. (Id. at ¶¶ 43, 44). In an effort to have the charges against his
wife dropped, and to allow his entrance into the state‘s ARD Probation Program, Mr. Swaney
pled guilty to these charges. (Id. at ¶ 44). The charges against Mrs. Swaney were reinstated two
weeks later, but were again dropped at a subsequent magistrate hearing. (Id.). Ultimately, Mr.
Swaney applied for and was accepted into the probation program. (Id.).
III.
PROCEDURAL HISTORY
4
On April 23, 2010, Plaintiffs commenced this action against Defendants in the Western
District of Pennsylvania, alleging violations of the Fourth and Fourteenth Amendments to the
United States Constitution and the tort law of Pennsylvania. (Docket No. 1 at ¶¶ 50-99). Their
federal constitutional claims were brought pursuant to 42 U.S.C. § 1983, (Id. at ¶¶ 51, 74), and
their state-law claims were brought under Pennsylvania common law for intentional infliction of
emotional distress, assault and battery, and loss of consortium.
(Id. at ¶¶ 64-72, 87-99).
Defendants filed both a Partial Motion to Dismiss, seeking the dismissal of all of Plaintiffs‘ tort
claims along with Plaintiffs‘ Fourteenth Amendment claims, as well as a Partial Answer on
October 13, 2010. (Docket Nos. 10, 12).
Subsequently, Plaintiffs filed an Amended Complaint on November 2, 2010.2 (Docket
No. 15). That same day, Plaintiffs filed a second document, titled ―Plaintiffs‘ Response to
Defendants‘ Partial Motion to Dismiss,‖ wherein they withdrew any substantive claims made
under the Fourteenth Amendment and agreed that their constitutional claims should be analyzed
under a Fourth Amendment standard.3 (Docket No. 16 at 1). Additionally, within the later
filing, Plaintiffs also clarified that their loss of consortium claims relate solely to their pendent
state law claims and not to the alleged civil rights violations.4 (Id. at 3). Given the filing of
2
The Court notes that Plaintiffs did not seek leave of Court prior to filing their Amended Complaint, (see
Docket No. 15), however, the filing of the Amended Complaint was in accord with Federal Rule of Civil Procedure
15(a)(1)(B) as it was filed within 21 days after service of Defendants‘ partial Answer. Fed. R. Civ. P. 15(a)(1)(B).
3
The Supreme Court has held that where a particular provision of the Bill of Rights provides an explicit
source of constitutional protection against a specific category of governmental action, the more generalized notion
of ―substantive due process‖ is inapplicable. Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion). Here,
the Court understands Plaintiffs to agree that the Fourth Amendment provides the ―explicit textual source of
constitutional protection‖ against an officer‘s use of excessive force. Graham v. Connor, 490 U.S. 386, 395 (1989)
(holding that all claims that law enforcement officers have used excessive force in the course of an arrest,
investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and not under
a ―substantive due process‖ approach).
4
Indeed, ―[u]nder Pennsylvania law, a spouse‘s right to recover for loss of consortium derives only from
the other spouse‘s right to recover in tort.‖ Melencheck v. HCR Manor Care, Civ. No. 08-966, 2009 U.S. Dist.
LEXIS 74207, at *6 (W.D. Pa. Mar. 10, 2009) (internal quotation omitted). The Court notes that civil rights
5
Plaintiffs‘ Amended Complaint, the Court terminated Defendants‘ initial Partial Motion to
Dismiss, as moot, on November 3, 2010.
As in the original Complaint, the Amended Complaint names Jordan and Citero as
Defendants in their individual capacity. (Compare Docket No. 1 at ¶¶ 6, 7, with Docket No. 15
at ¶¶ 6, 7). On November 11, 2010, Defendants again filed a Partial Motion to Dismiss, along
with a supporting brief, wherein they argue that they are entitled to sovereign immunity on all of
Plaintiffs‘ state law tort claims.5 (Docket Nos. 19, 20). Subsequently, Plaintiffs filed a series of
motions requesting extensions of time within which to file their response, (see Docket Nos. 26,
28, 30, 32), which the Court granted for good cause shown, (see Docket Nos. 27, 29, 31, 33,
34).6 Ultimately, on March 8, 2011, Plaintiffs filed their response to Defendants‘ motion.
(Docket No. 35). As the motion is now fully briefed, it is ripe for disposition.
IV.
STANDARD OF REVIEW
In light of the United States Supreme Court‘s decision in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), a complaint may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6) if it does not allege ―enough facts to state a claim to relief that is plausible on its face.‖
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at
violations cannot support loss of consortium claims. See Id. at *6-7 (―Here, Plaintiff has only asserted a claim for
violation of her civil rights. Absent a viable tort claim asserted by Plaintiff, her husband cannot bring a claim for
loss of consortium.‖) (citing Danas v. Chapman Ford Sales, Inc., 120 F. Supp. 2d 478, 489 (E.D. Pa. 2000)); see
also Taylor v. Pilewski, Civ. No. 08-611, 2008 U.S. Dist. LEXIS 86396, at *7 (W.D. Pa. Sept. 8, 2008) (―It is well
established that a spouse has no standing to assert Section 1983 claims based on violations of the other spouse‘s civil
rights.‖).
5
Defendants also filed a second Partial Answer on November 11, 2010. (Docket No. 21).
6
Pursuant to the Local Rules for the Western District of Pennsylvania, this case was referred to Early
Neutral Evaluation, with said ADR Conference occurring on December 21, 2010. (See Docket Nos. 24, 25). After
the conclusion of same, the Court was initially advised – both in filings and in correspondence with the Court‘s law
clerk – that the parties planned to participate in a follow-up mediation session in the hopes of resolving this matter.
(See Docket Nos. 28, 30). More recently, however, the Court was advised, via email received on March 3, 2011,
that it did not appear that a subsequent ADR session was going to be conducted, at which time it was indicated that
no further extensions would be granted. (See Docket Nos. 33, 34).
6
570). This standard requires more than ―a formulaic recitation of the elements of a cause of
action.‖ Twombly, 550 U.S. at 555. The complaint must allege a sufficient number of facts ―to
raise a right to relief above the speculative level.‖ Id. This requirement is designed to facilitate
the notice-pleading standard of Federal Rule of Civil Procedure 8(a)(2), which requires ―a short
and plain statement of the claim showing that the pleader is entitled to relief.‖ Fed. R. Civ. P.
8(a)(2).
In considering a motion to dismiss, a court accepts all of the plaintiff‘s allegations as true
and construes all inferences drawn from those allegations in the light most favorable to the
plaintiff. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Nonetheless, a
court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the
form of factual averments. Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 906 n.8 (3d Cir.
1997). The primary question in deciding a motion to dismiss is not whether the plaintiff will
ultimately prevail, but rather whether he or she is entitled to offer evidence to establish the facts
alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000). The purpose of a
motion to dismiss is to ―streamline[] litigation by dispensing with needless discovery and
factfinding.‖ Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). In addition to the allegations
contained in the complaint, a court may consider matters of public record, exhibits attached to
the complaint, and other items appearing in the record of the case. Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).
V.
DISCUSSION
7
Defendants contend that Plaintiffs‘ state law tort claims for intentional infliction of
emotional distress, assault and battery, and loss of consortium should be dismissed because they
are barred under the doctrine of sovereign immunity.7 (See Docket Nos. 19 at ¶ 2, 20 at 3-5).
Article I, § 11 of the Pennsylvania Constitution provides:
All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right and
justice administered without sale, denial or delay. Suits may be brought against
the Commonwealth in such manner, in such courts and in such cases as the
Legislature may be law direct.
Pa. Const. Art. I, § 11. As the language of this constitutional provision indicates, it is the
prerogative of the Pennsylvania Legislature to specify the types of ―cases‖ which warrant suits
against the Commonwealth of Pennsylvania. See Lingo v. Phila. Hous. Auth., 820 A.2d 859, 861
(Pa. Commw. Ct. 2003). In accordance with this authority, the Pennsylvania Legislature has
enacted 1 Pa. Cons. Stat. § 2310, which provides:
Pursuant to section 11 of Article I of the Constitution of Pennsylvania, it is hereby
declared to be the intent of the General Assembly that the Commonwealth, and its
officials and employees acting within the scope of their duties, shall continue to
enjoy sovereign immunity and official immunity and remain immune from suit
except as the General Assembly shall specifically waive the immunity. When the
General Assembly specifically waives sovereign immunity, a claim against the
Commonwealth and its officials and employees shall be brought only in such
manner and in such courts and in such cases as directed by the provisions of Title
42 (relating to judiciary and judicial procedure) or 62 (relating to procurement)
unless otherwise specifically authorized by statute.
1 Pa. Cons. Stat. § 2310. Pursuant to the plain language of this provision, employees of the
Commonwealth are entitled to sovereign immunity (except where specifically provided to the
7
Defendants do not challenge the sufficiency of the Amended Complaint with respect to Plaintiffs‘ Fourth
Amendment claims. (See Docket Nos. 19 at ¶ 2, 20 at 5). To this end, the Court notes that an immunity afforded to
a state official under state law cannot defeat a cause of action arising under federal law. Martinez v. California, 444
U.S. 277, 284 n.8 (1980) (―Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. §
1983 … cannot be immunized by state law.‖).
8
contrary by a separate statutory provision) when they act ―within the scope of their duties.‖
Story v. Mechling, 412 F. Supp. 2d 509, 518-19 (W.D. Pa. 2006).
The Sovereign Immunity Act makes it clear that, except as specifically provided therein,
no statutory provision shall constitute a waiver of the Commonwealth‘s sovereign immunity. 42
Pa. Cons. Stat. § 8521(a). The relevant statutory language is codified at 42 Pa. Cons. Stat. §
8522(a), which provides:
The General Assembly, pursuant to section 11 of Article I of the Constitution of
Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only
and only to the extent set forth in this subchapter and within the limits set forth in
section 8528 (relating to limitations on damages), sovereign immunity as a bar to
an action against Commonwealth parties, for damages arising out of a negligent
act where the damages would be recoverable under the common law or a statute
creating a cause of action if the injury were caused by a person not having
available the defense of sovereign immunity.
42 Pa. Cons. Stat. § 8522(a).8
The term ―Commonwealth party‖ is defined as ―[a]
commonwealth agency and any employee thereof, but only with respect to an act within the
scope of his office or employment.‖9 42 Pa. Cons. Stat. § 8501. Plaintiffs do not dispute that
8
Section 8528(b) of the Sovereign Immunity Act provides that ―[d]amages arising from the same cause of
action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed
$250,000 in favor of an plaintiff or $1,000,000 in the aggregate.‖ 42. Pa. Cons. Stat. § 8528(b). Section 8528(c)
limits the types of damages recoverable from a Commonwealth party to past and future loss of earnings capacity,
pain and suffering, medical and dental expenses, loss of consortium, and property losses. 42 Pa. Cons. Stat. §
8528(c)(1)-(5). Medical and dental expenses recoverable from Commonwealth parties include ―the reasonable value
of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital,
professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of
the claimant.‖ 42 Pa. Cons. Stat. § 8528(c)(3). Damages for property losses are not available in actions ―relating
to potholes and other dangerous conditions.‖ 42 Pa. Cons. Stat. § 8528(c)(5).
9
The term ―act‖ includes ―a failure to act.‖ 42 Pa. Cons. Stat. § 8501. The term ―employee‖ is defined as
follows:
Any person who is acting or who has acted on behalf of a government unit whether on a
permanent or temporary basis, whether compensated or not and whether within or without the
territorial boundaries of the government unit, including any volunteer fireman and any elected or
appointed officer, member of a governing body or other person designated to act for the
government unit. Independent contractors under contract to the government unit and their
employees and agents and persons performing tasks over which the government unit has no legal
right of control are not employees of the government unit.
9
none of the ―instances set forth in subsection (b)‖ are applicable in this case.10 (Compare Docket
Nos. 16, 35, with Docket No. 20 at 4).
Therefore, the dispositive question is whether
Defendants‘ actions, as alleged in the Amended Complaint, were ―within the scope of their
duties‖ as officers of the Pennsylvania State Police. If so, they are immune from Plaintiffs‘ state
law tort claims.
Under Pennsylvania law, even unauthorized actions taken by an employee can fall within
the scope of his or her employment if they are ―clearly incidental‖ to his or her employer‘s
objectives. Brumfield v. Sanders, 232 F.3d 376, 381 (3d Cir. 2000). In Natt v. Labar, the
Pennsylvania Commonwealth Court explained:
Conduct of an employee is within the scope of employment if it is of a kind and
nature that the employee is employed to perform; it occurs substantially within the
authorized time and space limits; it is actuated, at least in part, by a purpose to
serve the employer; and if force is intentionally used by the employee against
another, it is not unexpected by the employer.
543 A.2d 223, 225 (Pa. Commw. Ct. 1988) (citing Fitzgerald v. McCutcheon, 410 A.2d 1270,
1272 (Pa. Super. Ct. 1979).11 The extent to which the intentional use of ―force‖ is properly
Id.
10
Subsection (b) enumerates nine categories of actionable ―acts‖ for which a Commonwealth party is not
entitled to sovereign immunity. 42 Pa. Cons. Stat. § 8522(b). These categories are referenced in the statutory
language as follows: (1) Vehicle liability; (2) Medical-professional liability; (3) Care, custody or control of personal
property; (4) Commonwealth real estate, highways and sidewalks; (5) Potholes and other dangerous conditions; (6)
Care, custody or control of animals; (7) Liquor store sales; (8) National Guard activities; and (9) Toxoids and
vaccines. 42 Pa. Cons. Stat. § 8522(b)(1)-(9). Defendants‘ actions clearly do not fall within any of these categories
of conduct. Moreover, intentional infliction of emotional distress, assault and battery are all intentional torts. See
Acker v. Spangler, 500 A.2d 206, 207 n.2 (Pa. Commw. Ct. 1985). Consequently, none of the three can fairly be
characterized as a ―negligent act‖ within the meaning of 42 Pa. Cons. Stat. § 8522(a).
11
This language appears to come directly from the Restatement (Second) of Agency, § 228. Indeed, as
recognized by the United States Court of Appeals for the Third Circuit, the Pennsylvania Superior Court has adopted
the standard set forth in Restatement (Second) of Agency § 228 to determine whether an employee‘s conduct is
within the scope of employment. Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir. 1993) (citing Butler v. Flo-Ron
Vending Co. 557 A.2d 730, 736 (Pa. Super. Ct. 1989)). In the absence of any contrary decisions or pronouncements
by the Supreme Court of Pennsylvania, the Court of Appeals has predicted that the state Supreme Court will follow
this holding. See Aliota, 984 F.2d at 1358; see also Brumfield, 232 F.3d at 380 (―Pennsylvania has accepted the
Restatement (Second) of Agency‘s definition of conduct ‗within the scope of employment.‘‖). Likewise, the Court
10
characterized as an act within the scope of one‘s employment depends on the extent of an
employer‘s expectation of force rather than on the extent of an employer‘s authorization of
force. See Strothers v. Nassan, Civ. No. 08-1624, 2009 U.S. Dist. LEXIS 30208, at *26-27
(W.D. Pa. Apr. 9, 2009). While the question of whether an individual has acted within the scope
of his employment is typically a question of fact for a jury, the issue can be decided as a matter
of law where the facts and inferences drawn from the complaint are not in dispute. Id. at *27.
Ultimately, an act by a Commonwealth official or employee that does not satisfy the criteria
identified in Natt is outside the scope of employment and is not covered by state sovereign
immunity. See Bowman v. Reilly, Civ. No. 09-1322, 2009 U.S. Dist. LEXIS 48505, at *10 (E.D.
Pa. June 10, 2009) (referencing the standard set forth in § 228 of the Restatement (Second) of
Agency).
Within this framework, Defendants argue that they were acting within the scope of their
employment during the entirety of the incident. (See Docket No. 20). Specifically, they assert
that ―[s]ubduing persons who refuse to follow police orders, filing charges against people, and
participating in prosecutions are definitely several of the many types of acts law enforcement
officers are employed to perform.‖ (Id. at 3-4). They further assert that ―the use of force in the
commission of their duties, if necessary, is also one of the many acts law enforcement officers
are employed to perform.‖ (Id. at 4). Plaintiffs dispute these assertions. (See Docket No. 35).
In particular, Plaintiffs respond that statements made by Jordan at the scene, accompanied with
Citero‘s failure to respond or intervene on their behalf, establish that neither Defendant was
of Appeals has predicted that the Supreme Court of Pennsylvania will adopt other related provisions of the
Restatement (Second) of Agency. See Aliota, 984 F.2d at 1358.
11
acting within the scope of his or her employment duties.12 (Id. at 3). Moreover, Plaintiffs cite
the following allegations as actions that fall outside of Defendants‘ scope of authority: (1) using
excessive force; (2) committing an assault; (3) committing a battery; (4) bringing false criminal
charges; and (5) participating in an unlawful prosecution.13 (See Docket Nos. 16 at 2; 35 at 2
n.3)
Accepting Plaintiffs‘ factual allegations as true, the Court concludes that a reasonable
reading of the Amended Complaint establishes that Defendants may have acted outside the scope
of their employment in a manner sufficient to overcome Defendants‘ sovereign immunity
defense at the pleading stage. See Revak v. Lieberum, Civ. No. 08-691, 2008 U.S. Dist. LEXIS
91029, at *11-12 (W.D. Pa. Nov. 10, 2008).
12
In their ―Response to Defendants‘ Second Partial Motion to Dismiss,‖ Plaintiffs also contend that
Defendants are not entitled to qualified immunity. (See Docket No. 35 at 2). The Supreme Court has explained the
doctrine of qualified immunity as follows:
The doctrine of qualified immunity protects 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.‖ [Internal citation omitted.]. Qualified immunity
balances two important interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and liability
when they perform their duties reasonably. The protection of qualified immunity applies
regardless of whether the government official‘s error is ―a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.‖
Pearson v. Callahan, 129 S.Ct. 808, 815 (2009) (citing and quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
also citing and quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting) (citing Butz v.
Economou, 438 U.S. 478, 507 (1978) (noting that qualified immunity covers ―mere mistakes in judgment, whether
the mistake is one of fact or one of law‖)). However, Defendants do not rely on qualified immunity in their Partial
Motion to Dismiss. (See Docket Nos. 19, 20). Therefore, the Court will not further entertain Plaintiffs‘ argument at
this time.
13
Notably, under 42 Pa. Cons. Stat. § 8550, employees of local agencies are not immune from suits based
on acts constituting ―willful misconduct.‖ There is no similar provision waiving the immunity of ―Commonwealth
parties‖ who engage in ―willful misconduct.‖ Holt v. Nw. Pa. Training P’ship Consortium, Inc., 694 A.2d 1134,
1140 (Pa. Commw. Ct. 1997) (―Unlike for local agency employees, willful misconduct does not vitiate a
Commonwealth employee‘s immunity because sovereign immunity protects a Commonwealth employee acting
within the scope of his or her employment from liability, even for intentional acts which cause emotional distress.‖);
see also Yakowicz v. McDermott, 548 A.2d 1330, 1333 (Pa. Commw. Ct. 1988), appeal denied, 565 A.2d 1168 (Pa.
1989) (noting that Commonwealth employees are immune from liability even for intentional torts but that local
agency employees lose their immunity defense where their actions constitute a crime, actual fraud, actual malice or
willful misconduct). Consequently, unlike local agencies and their employees, ―Commonwealth employee[s] [are]
protected by sovereign immunity from the imposition of liability for intentional tort claims,‖ provided they have
acted within the scope of their duties. La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992).
12
In making this determination, the Court recognizes that other district courts have found
that the conduct of an officer may be so excessive that he is not acting within the scope of his
employment. See, e.g., Bowman, 2009 U.S. Dist. LEXIS 48505, at *11-15 (denying a motion to
dismiss on the grounds that the defendant state police officer‘s act of shooting the plaintiff in the
neck during a traffic stop may have been outside the scope of his employment). For instance, in
Wesley v. Hollis, the district court stated that ―[w]here the alleged intentional tort was
unprovoked, unnecessary or unjustified by security concerns or penological goals, courts have
ruled that such conduct does not, as a matter of law, fall within the scope of employment.‖ Civ.
No. 03-3130, 2007 U.S. Dist. LEXIS 41562, at *50 (E.D. Pa. June 7, 2007). Similarly, in
Strothers v. Nassan, this Court acknowledged the principle that ―an assault committed by an
employee upon another for personal reasons or in an outrageous manner is not actuated by an
intent to perform the business of the employer and, as such, is not within the scope of
employment.‖ 2009 U.S. Dist. LEXIS 30208, at *31 (quoting R.A. v. First Church of Christ, 748
A.2d 692, 700 (Pa. Super. Ct. 2000)). In addition, ―[t]he fact that an assault has been carried out
by an employee in an ‗outrageous manner‘ may be indicative that the employee has acted out of
‗private malice‘ rather than out of an intent to perform his or her duties.‖ Strothers, 2009 U.S.
Dist. LEXIS 30208, at *31 (citing Lunn v. Yellow Cab Co., 169 A.2d 103, 105 (Pa. 1961)).
Counseled by these decisions, and the factual averments in the Amended Complaint, this
Court concludes that Plaintiffs are entitled to engage in discovery concerning the ―reasons‖ for
Defendants‘ actions. Consequently, Defendants‘ Partial Motion to Dismiss is denied, without
prejudice. (See Docket No. 19). Defendants remain free to move for summary judgment with
respect to this issue if discovery reveals that they acted pursuant to their employment
responsibilities rather than pursuant to personal motives unrelated to law enforcement. See
13
Strothers, 2009 U.S. Dist. LEXIS 30208, at *32 (citing Pizzuto v. County of Nassau, 239 F.
Supp. 2d 301, 314-16 (E.D.N.Y. 2003)).
VI.
CONCLUSION
Because the allegations made in the Amended Complaint, when construed in the light
most favorable to Plaintiffs, could plausibly entitle Plaintiffs to relief under the tort law of
Pennsylvania, Defendants‘ Partial Motion to Dismiss, (Docket No. 19), is DENIED, without
prejudice. An appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: April 19, 2011
cc/ecf: All counsel of record.
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?