FORD v. CITY OF PITTSBURGH et al
Filing
84
MEMORANDUM ORDER granting in part and denying in part 34 Motion to Dismiss for Failure to State a Claim; for the reasons set forth in the Memorandum Order, IT IS HEREBY ORDERED that the Motion to Dismiss Defendants Nate Harper and Regina McDonald, in their official capacities, and the City of Pittsburgh Bureau of Police, is GRANTED and the Clerk shall terminate these parties from the docket of this action; IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to Plaintiff's claims alleging unreasonable search and seizure, the use of excessive force in violation of the Fourth Amendment, and assault and battery, asserted against Defendants Andrew Miller, Michael Kosko and David Derbish ; IT IS FURTHER ORDERED that the Motion t o Dismiss is DENIED as to Defendants' assertion of qualified immunity as a complete defense to Plaintiff's action; IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to the claims asserted against the City of Pittsburgh. Signed by Magistrate Judge Maureen P. Kelly on 12/22/2014. (ndf )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEON D. FORD,
)
Plaintiff,
)
)
vs.
)
)
CITY OF PITTSBURGH; CITY OF
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PITTSBURGH BUREAU OF POLICE;
)
REGINA McDONALD; NATE HARPER; )
POLICE OFFICER DAVID DERBISH;
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POLICE OFFICER MICHAEL KOSKO
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and POLICE OFFICER ANDREW
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MILLER,
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Defendants. )
Civil Action No. 13-1364
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 35
MEMORANDUM ORDER
Pending before the Court is a “Joint Motion to Dismiss” (ECF No. 35), 1 filed on behalf of
all Defendants, who are alleged to have had a role in shooting and paralyzing the Plaintiff, Leon
D. Ford (“Plaintiff” or “Ford”), in the course of a routine traffic stop. For the reasons set forth in
this Memorandum Order, the Joint Motion to Dismiss is granted in part and denied in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In the Amended Complaint (ECF No. 34), Plaintiff sets forth civil rights claims against
City of Pittsburgh Police Officers David Derbish (“Derbish”), Michael Kosko (“Kosko”) and
Andrew Miller (“Miller”) for injuries sustained by him in the course of a traffic stop on the
evening of November 11, 2012. The claims against these Defendants include unreasonable
search and seizure, false arrest, false imprisonment, the use of excessive force in violation of the
1
To lessen confusion, in the future, counsel for Defendants shall refrain from captioning any
document or motion as “joint” unless the document or motion is filed on behalf of all parties.
1
Fourth and Fourteenth Amendments of the United States Constitution, and state law claims for
assault and battery.
Plaintiff also alleges claims against the City of Pittsburgh, the City of Pittsburgh Bureau
of Police, Assistant Chief of Police McDonald and former Chief of Police Harper, named as
defendants solely in their official capacities. Plaintiff alleges that these defendants participated in
an ongoing deliberate failure to train, supervise and discipline City of Pittsburgh Police Officers.
In addition, Plaintiff alleges these supervisory defendants wrongfully implemented customs and
policies authorizing the use of racial profiling to effectuate arrests and traffic stops. Plaintiff
alleges that the supervisory defendants failed to prevent and/or adopted customs or practices
resulting in the frequent use of excessive force in the course of police interaction with African
American males, who have been stopped on the erroneous suspicion that they are involved in
criminal activity. Plaintiff further alleges that the supervisory defendants acted with deliberate
indifference to City of Pittsburgh police officers’ violation of the constitutional rights of the
citizens of the City of Pittsburgh generally, and the rights of Plaintiff in particular.
With regard to the events at issue, Plaintiff alleges well-pleaded facts in the Amended
Complaint. Specifically, on November 11, 2012, Officers Kosko and Miller were on patrol near
Larimer Avenue in the City of Pittsburgh, when Officer Miller allegedly saw Plaintiff’s vehicle
driving at a high rate of speed. Officer Kosko activated the lights and siren of the patrol vehicle
and initiated a traffic stop. When approached by the officers, Plaintiff gave Officer Kosko his
Pennsylvania driver’s license, proof of ownership of the vehicle and proof of insurance. The
officers did not believe that Plaintiff was who he identified himself to be, and held him at the
scene while they called Officer David Derbish to confirm his identity. After approximately 20
minutes, Officer Derbish arrived and was unable to provide any additional information regarding
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Plaintiff’s identity. Thereafter, Officer Derbish claimed that he saw a bulge in Plaintiff’s sweat
pants and believed it to be the barrel of a handgun. Officer Miller and Kosko opened Plaintiff’s
driver side door and attempted to yank him out of the vehicle, while Officer Derbish opened the
passenger side door to push Plaintiff out. Shortly thereafter, the car suddenly lurched forward,
with Plaintiff and Officer Derbish in the car. Seconds later, Officer Derbish shot the Plaintiff
multiple times in the chest. As a result of the shooting, Plaintiff suffered paralysis and other
critical injuries. Plaintiff alleges that the actions of Defendants Derbish, Miller and Kosko
constitute the unconstitutional use of excessive force, as well as false arrest, false imprisonment,
and assault and battery.
II.
STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all of the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). A complaint
must be dismissed pursuant to Rule 12(b)(6) 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. 544, 570 (2007)
(rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)).
See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond
the context of the Sherman Act).
A court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). A plaintiff's
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factual allegations “must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 556, citing 5C Wright & Miller, Federal Practice and Procedure § 1216,
pp. 235–236 (3d ed. 2004). Although the United States Supreme Court does “not require
heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to
relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008). “This ‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of the necessary element.’” Id. at 234, quoting Twombly, 550 U.S. at 556 n.
3.
The United States Court of Appeals for the Third Circuit has expounded on the
Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, the Court
must take the following three steps:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a
claim.’ Second, the court should identify allegations that, ‘because they are no
more than conclusions, are not entitled to the assumption of truth.’ Finally, ‘where
there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement for relief.’
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
III.
DISCUSSION
A.
Unreasonable Search and Seizure, Excessive Use of Force and Assault
and Battery
Defendants seek the dismissal of Plaintiff’s claims arising out of the alleged unreasonable
search and seizure of Plaintiff, the excessive use of force in effectuating his detention, and
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assault and battery. “To state a claim for excessive force as an unreasonable seizure under the
Fourth Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was
unreasonable.” Estate of Smith, 318 F.3d 497, 515 (3d Cir. 2003)(quoting Abraham v. Raso, 183
F.3d 279, 288 (3d Cir.1999)). The test of reasonableness under the Fourth Amendment is
whether under the totality of the circumstances, “the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to their
underlying intent or motivations.” Graham v. Connor, 490 U.S. 386, 397 (1989). Thus, if a use of
force is objectively reasonable, an officer’s good faith is irrelevant and any bad faith motivation
on his part is immaterial. See Estate of Smith, 318 F.3d at 515; Abraham, 183 F.3d at 289.
Factors to consider in making a determination of reasonableness include 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 actively is resisting arrest or
attempting to evade arrest by flight. See Graham, 490 U.S. at 396, 109 S.Ct. at
1872. A court in making a reasonableness assessment also may consider the
possibility that the persons subject to the police action are violent or dangerous,
the duration of the action, whether the action takes place in the context of
effecting an arrest, the possibility that the suspect may be armed, and the number
of persons with whom the police officers must contend at one time. See Sharrar v.
Felsing, 128 F.3d 810, 822 (3d Cir.1997). As the Supreme Court has stated,
[t]he ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.... The 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.
Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir. 2004)(quoting Graham, 490 U.S. at 396–97).
“There can be no question that apprehension by the use of deadly force is a seizure subject to the
reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7
(1985). Accordingly, the issue is whether the actions of the Defendants, in shooting Plaintiff, in
the course of a traffic stop, were reasonable.
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Because such a determination depends on “all of the relevant facts and circumstances
leading up to the time that the officers allegedly used excessive force,” the United States Court
of Appeals for the Third Circuit has held that “[t]he reasonableness of the use of force is
normally an issue for the jury.” Rivas v. City of Passaic, 365 F.3d 181,198 (3d Cir. 2004) (citing
Abraham v. Raso, 183 F.3d 279, 290–91 (3d Cir. 1999)). In cases removing any issue of fact
after the completion of discovery, summary judgment may be appropriate. See, e.g., Plumhoff v.
Rickard, No. 12-1117, 134 S. Ct. 2012, 2022 (2014) (in light of the circumstances presented, it is
beyond serious dispute that Plaintiff’s flight posed a grave public safety risk, and district court
erred by failing to find that the police acted reasonably in using deadly force to end that risk).
Here, before any discovery has been completed, it is surely premature to expect the Court
to make such a resolution at the motion to dismiss stage, when the only issue before it is to
determine whether Plaintiff’s Complaint alleges facts that “plausibly give rise to an entitlement
for relief.” Connelly v. Steel Valley Sch. Dist., 706 F.3d 201, 212 (3d Cir. 2013). In this case,
Plaintiff’s Complaint clearly meets this standard. Accordingly, Defendants’ Motion to Dismiss
on this basis is DENIED.
B. Qualified Immunity
The Police Officer Defendants assert that they are entitled to qualified immunity as to
Plaintiff’s claims arising out of his detention and the alleged excessive use of force to effectuate
his arrest, contending that they acted reasonably in response to the circumstances surrounding the
incident. Government officials performing discretionary functions are entitled to immunity
where their “conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
A defendant has the burden to establish that he is entitled to qualified immunity. Kopec v. Tate,
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361 F.3d 772, 776 (3d Cir. 2004). To determine whether qualified immunity applies, the Court
must consider whether the facts alleged, taken in the light most favorable to the plaintiff, “show
the officer’s conduct violated a constitutional right” and also “ask whether the right was clearly
established.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
“An official sued under § 1983 is entitled to qualified immunity unless it is shown that
the official violated a statutory or constitutional right that was ‘clearly established’ at the time of
the challenged conduct. And a defendant cannot be said to have violated a clearly established
right unless the right’s contours were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating it. In other words, ‘existing
precedent must have placed the statutory or constitutional question’ confronted by the official
‘beyond debate.’ Ibid.” Plumhoff v. Rickard, ___ U.S. ___, 134 S. Ct. 2012, 2023 (2014)
(quoting, Ashcroft v. al–Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074, 2080, 2083–2084 (2011)).
Defendants make a cursory and broad sweeping claim to their entitlement to qualified
immunity, contending that the allegations are insufficient to establish that any Defendant
knowingly violated a clearly established constitutional right. However, the United States Court
of Appeals for the Third Circuit has cautioned that “it is generally unwise to venture into a
qualified immunity analysis at the pleading stage as it is necessary to develop the factual record
in the vast majority of cases.” Newland v. Reehorst, 328 F. App’x. 788, 791 n. 3 (3d Cir. 2009).
Likewise, unless a complaint discloses that a police officer did not violate clearly established law
when firing at a suspect, dismissal on qualified immunity grounds is premature. See, e.g.,
Debrew v. Auman, 354 F. App’x. 639, 642 (3d Cir. 2009) (citing Thomas v. Independence Twp.,
463 F.3d 285, 291 (3d Cir. 2006)). At this time, it appears that the present case is one of the
“vast majority of cases” in which a determination of qualified immunity is inappropriate at the
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pleading stage. Defendants’ Motion to Dismiss on the basis of qualified immunity for the
conduct at issue is DENIED.
C. Supervisory Liability – Regina McDonald, Nate Harper and the City of
Pittsburgh Bureau of Police
Plaintiff alleges claims against the City of Pittsburgh Bureau of Police, former Chief of
Police Nate Harper and Assistant Chief of Police Regina McDonald. Plaintiff’s claims against
Defendants Harper and McDonald are brought their official capacities only, as the former Chief
of Police and Assistant Chief of Police, respectively. See, ECF No. 34, ¶¶ 4, 5, 49 – 50; and see,
Plaintiff’s Brief in Opposition to Defendants’ Joint Motion to Dismiss, ECF No. 39, p. 17
(“Because Plaintiff has demonstrated liability of former police chief Nate Harper and acting
police chief Regina McDonald in their official capacity, a motion to dismiss is
improper.”)(italics added).
1. Official Capacity Claims – Harper and McDonald
Defendants argue that Plaintiff fails to state a claim against Defendants Harper and
McDonald in their official capacities. Official capacity claims against state and local officials
are, essentially, another way of proceeding against a municipality. As summarized by a colleague
of this Court:
Official-capacity suits ... “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Monell, infra, 436 U.S. at
690, n. 55. On the merits, to establish personal liability in a § 1983 action, it is
enough to show that the official, acting under color of state law, caused the
deprivation of a federal right. See, e.g., [Kentucky v. Graham, 473 U.S. 159, 166
(1985)]. More is required in an official-capacity action, however, for a
governmental entity is liable under § 1983 only when the entity itself is a
“‘moving force’” behind the deprivation, id. (quotations omitted); thus, in an
official-capacity suit the entity’s “policy or custom” must have played a part in
the violation of federal law. Monell, infra; Oklahoma City v. Tuttle, 471 U.S. 808,
817–818,... “[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those
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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.” Monell,
infra, at 694.
Cahill ex rel. Cahill v. Live Nation, 866 F. Supp.2d 503, 520-521 (W.D. Pa. 2011) (parallel and
additional citations omitted). Therefore, “[a]s long as the government entity receives notice and
an opportunity to respond, an official capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citing
Brandon, 469 U.S. at 471–72). Because Defendants Harper and McDonald are sued solely in
their official capacities as the Chief of Police and Assistant Chief of Police during the time
period at issue, and the City of Pittsburgh is already named as a Defendant, Plaintiff’s claims
against them are duplicative. Accordingly, Defendant’s Motion to Dismiss Plaintiff’s official
capacity claims against Defendants Harper and McDonald is GRANTED.
2. Claims against the City of Pittsburgh Bureau of Police
As indicated by Defendants, the City of Pittsburgh Bureau of Police is an improper party
to this action. The United States Court of Appeals for the Third Circuit has held that a municipal
police department is not a separate entity from the municipality such that it can be sued for
purposes of Section 1983 liability. Briggs v. Moore, 251 F. App’x 77, 79 (3d Cir. 2007). See,
also, Johnson v. City of Erie, 834 F. Supp. 873, 878–79 (W.D. Pa.1993) (holding that the police
department was both “improper” and “unnecessary” when the municipality itself has been sued);
Schor v. N. Braddock Borough, No. 02:11–cv–397, 2011 WL 2745999, at *4 (W.D. Pa. July 12,
2011) (citing Johnson, 834 F. Supp. at 878–79) (“It is well settled that a municipal police
department is not a proper party in a suit in which the municipality itself is a party.”); Martin v.
Red Lion Police Dept., 146 F. App’x 558, 562 n. 3 (3d Cir. 2005) (citing Johnson, 834 F. Supp.
at 878–79) (“Red Lion Police Department, as the subdivision of defendant Red Lion Borough
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through which the Red Lion Borough fulfills its policing functions, was not a proper defendant in
an action pursuant to 42 U.S.C. § 1983.”). Because the City of Pittsburgh has been named as a
Defendant in this action, the Motion to Dismiss the City of Pittsburgh Bureau of Police, a subunit of the City of Pittsburgh, is GRANTED.
C. Monell Liability – City of Pittsburgh
To state a valid claim under Section 1983, a plaintiff must meet two threshold
requirements. First, the plaintiff must allege that the misconduct was committed by a person
acting under the color of state law. Second, the plaintiff must allege that, as a result of the
misconduct, he was deprived of specific rights, privileges, or immunities secured by the
Constitution or laws of the United States. Collins v. City of Harker Heights, 503 U.S. 115, 120,
(1992); Albright v. Oliver, 510 U.S. 266, 271 (1994).
A municipality cannot be held liable for its employees’ bad acts on the basis of
respondeat superior. Monell v. Dept. of Social Services, 436 U.S. 658, 694-95 (1978); Panas v.
City of Philadelphia, 871 F. Supp.2d 370, 377-78 (E.D. Pa. May 14, 2012). Rather, the
“government itself, through its policies or practices, must be sufficiently culpable before” a court
imposes Section 1983 liability. Id. However, merely alleging the existence of a policy, practice,
or custom is not enough. The plaintiff in a Section 1983 action must show an “affirmative link”
between the occurrence of police misconduct and the municipality’s policy, custom, or practice.
Rizzo v. Goode, 423 U.S. 362, 371 (1976). Thus, consistent with Monell, in order to impose
liability on a local governmental entity for failing to act to preserve constitutional rights, a
Section 1983 plaintiff must establish not only that he was deprived of a constitutional right, but
that: (1) the municipality had a policy; (2) the policy “amounts to deliberate indifference” to the
plaintiff’s constitutional right; and (3) the policy is the “moving force behind the constitutional
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violation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389–91, 109 S.Ct. 1197, 103 L.Ed.2d
412 (1989).
Courts have held municipalities liable for their policies, practices, or customs in two
scenarios that appear relevant to the instant case. First, liability may attach where a
municipality’s course of conduct is considered to be a “custom” when, though not authorized by
law, “practices of state officials [are] so permanent and well-settled as to virtually constitute
law.” Id. This may occur when “policymakers were aware of similar unlawful conduct in the
past, but failed to take precautions against future violations, and that this failure, at least in part,
led to [plaintiff's] injury.” Beck, 89 F.3d at 971 (citing Bielevicz v. Dubinon, 915 F.2d 845, 851
(3d Cir. 1990)).
Second, a municipality may be held liable for the constitutional violations of employee
police officers when the municipality fails to adequately supervise or train its officers. City of
Canton, Ohio, 489 U.S. at 388. In this case, where the basis for Section 1983 liability rests upon
a municipality’s alleged failure to adequately train or supervise its officers, the claim will only
succeed if the failure to train or supervise amounts to “deliberate indifference” to the rights of
persons with whom the police come into contact. Id. at 388. “Deliberate indifference” exists
where “the need for more or different training is so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that the policymakers of the city can reasonably be
said to have been deliberately indifferent to the need.” Id. at 390. Only then can “such a
shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under Section
1983.” Id. at 389.
In addition to establishing a policy or custom of constitutional violations, or a lack of
supervision or training amounting to deliberate indifference, Plaintiff also bears the “burden of
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proving that the municipal practice was the proximate cause of the injuries suffered.” Bielevicz
v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). “To establish the necessary causation, a plaintiff
must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality’s custom
and the specific deprivation of constitutional rights at issue.” Id. at 850. Causation is normally a
jury question. Panas, 871 F. Supp.2d at 378. “As long as the causal link is not too tenuous, the
question whether the municipal policy or custom proximately caused the constitutional
infringement should be left to the jury.” Bielevicz, 915 F.2d at 851.
At this initial stage of the proceeding, while broadly stated, Plaintiff’s allegations of
official policy or custom and failure to train or supervise, based upon an alleged pattern of
similar constitutional violations, have been sufficiently pled to withstand Defendants’ Rule
12(b)(6) challenge. Accordingly, Defendants’ Motion to Dismiss the City of Pittsburgh is
DENIED without prejudice.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss [ECF No. 35] is GRANTED,
in part, only as to the claims asserted against Defendants Nate Harper and Regina McDonald, in
their official capacities, and the City of Pittsburgh Bureau of Police. The Motion to Dismiss is
DENIED in all other respects.
ORDER
AND NOW, this 22nd day of December 2014, upon consideration of Defendants’ Motion
to Dismiss, ECF No. 35, and the briefs filed in support and in opposition thereto, and for the
reasons set forth in the accompanying Opinion, IT IS HEREBY ORDERED that the Motion to
Dismiss is granted only as to Defendants Nate Harper and Regina McDonald, in their official
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capacities, and the City of Pittsburgh Bureau of Police, and the Clerk shall terminate these
parties from the docket of this action.
IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to Plaintiff’s
claims alleging unreasonable search and seizure, the use of excessive force in violation of the
Fourth Amendment, and assault and battery, asserted against Defendants Andrew Miller,
Michael Kosko and David Derbish.
IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to Defendants’
assertion of qualified immunity as a complete defense to Plaintiff’s action.
IT IS FURTHER ORDERED that the Motion to Dismiss is DENIED as to the claims
asserted against the City of Pittsburgh.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of
Appellate Procedure, if the Plaintiff wishes to appeal from this Order he or she must do so within
thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P.
BY ORDER OF COURT:
/s/ Maureen P. Kelly
CHIEF U.S. MAGISTRATE JUDGE
Dated: December 22, 2014
cc:
All counsel of record by Notice of Electronic Filing
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