ELLIS v. REGAN et al

Filing 73

MEMORANDUM OPINION granting in part and denying in part Defendants' Motion to Dismiss Plaintiff's Amended Complaint. Signed by Judge Arthur J. Schwab on 10/10/2014. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL ELLIS,
Plaintiff,

14cv0004
ELECTRONICALLY FILED

v.
DANIEL D. REGAN, ET AL.,
Defendants.

MEMORANDUM OPINION
This is a Section 1983 case. Before the Court is Defendants’ Motion to Dismiss
Plaintiff's Amended Complaint and Brief in Support of same filed pursuant Fed.R.Civ.P.
12(b)(6). Doc. nos. 58-59. Plaintiff, who is representing himself, has filed two separate
Responses to the Motion to Dismiss. Doc. nos. 66-67. Defendants filed a Reply to Plaintiff’s
Response(s). Doc. no. 70. Defendants’ Motion and Plaintiff’s Responses include additional
documents for the Court’s consideration in deciding this Motion to Dismiss. For the reasons set
forth below, this Court will grant in part and deny in part Defendants’ Motion to Dismiss.

I. Standard of Review
In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as
opposed to the heightened standard of fact pleading. Fed. R. Civ. P. 8(a)(2) requires only “‘a
short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds on which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).

Building upon the landmark United States Supreme Court decisions in Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit
explained that a District Court must undertake the following three steps to determine the
sufficiency of a complaint:
First, the court must take 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.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).
The third step of the sequential evaluation requires this Court to consider the specific
nature of the claims presented and to determine whether the facts pled to substantiate the claims
are sufficient to show a “plausible claim for relief.” Covington v. Int'l Ass'n of Approved
Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013). “While legal conclusions can provide the
framework of a Complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at
664.
This Court may not dismiss a Complaint merely because it appears unlikely or
improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits.
Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a
reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556.
Generally speaking, a Complaint that provides adequate facts to establish “how, when, and
where” will survive a Motion to Dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d
Cir. 2009).
In short, a Motion to Dismiss should not be granted if a party alleges facts, which could,
if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563, n.8.

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Although a Court must accept as true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom in a light most favorable to the plaintiff, in addition to the
facts alleged on the face of the Complaint, a District Court may consider “documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007. Moreover, 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 School Dist., 132 F.3d 902, 906 (3d Cir.
1997)).

II. Background
The Court accepts as true all facts set forth below, as extrapolated from the Amended
Complaint, solely for the purpose of deciding this Motion to Dismiss.
The incident which led Plaintiff to file the instant Amended Complaint occurred on
December 31, 2011. Doc. no. 56, ¶ 3.
On December 31, 2011, Plaintiff was the subject of a “traffic stop.” Id., ¶¶ 34, 35. The
conduct of which Plaintiff complains took place “immediately after [he] was involved in an
automobile accident around 4am” when a City of Pittsburgh police officer (Labella) “pulled him
out [of] the window, and slammed [him] into the ground face first.” Id., ¶ 39.
After Labella pulled Plaintiff out of the vehicle and slammed him to the ground, he was
beaten, placed in handcuffs, and stomped upon by two police officers (Labella and Vitalbo),
while being subjected to “racial slurs” and threats to kill him. Id., ¶ 39. Plaintiff was taken to

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the hospital, where he was treated for broken ribs and other bones, a punctured lung, and
lacerations which required stiches. Id., ¶¶ 35-40.
The hospital’s medical records will support Plaintiff’s contention that the facial
laceration, resulting in permanent disfigurement, was not caused by the automobile accident; but
rather, was caused by the police officers’ assault on him. Id., ¶ 41.
Plaintiff was treated and released by the hospital on December 31, 2011. Plaintiff was
charged and arrested for alleged offenses that took place “immediately before the abuse” as
described above. Id., ¶ 38.
Based upon these facts, Plaintiff alleges that all of the individual persons who are named
as Defendants 1are liable for his injuries as individuals, as well as in their official capacities,
claiming that each person acted outside of their authority or acted under color of state law. Id.,
¶¶ 2-33. In addition, Plaintiff has named three City of Pittsburgh Bureau of Police “Units” – unit
numbers 341K, 3412, and 3428 – as Defendants. Id., ¶¶ 28-33.
Plaintiff alleges that the City of Pittsburgh, a municipality, is a “person” subject to
liability under 28 U.S.C. § 1983. Id., ¶ 42. The Complaint also states that the City of Pittsburgh
“has in place a policy, statement, ordinance, regulation or decision officially adopted and
promulgated by that body’s officer that official policy, custom or acquiesced custom, is
responsible for the deprivation of [rights] protected by the U.S. Constitution or U.S. Laws as in
Plaintiff[’]s tragic situation.” Id., ¶ 43.
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This list of named individual Defendants includes: former Mayor of the City of Pittsburgh, Luke
Ravenstahl; former City of Pittsburgh Police Chief, Nathan Harper; [former] acting City of Pittsburgh
Police Chief, Regina McDonald; City of Pittsburgh Solicitor, Daniel Regan; City of Pittsburgh Public
Safety Director, Michael Huss; City of Pittsburgh Assistant Police Chief, George Trosky; City of
Pittsburgh Assistant Police Chief, Maurita Bryant; City of Pittsburgh police sergeants Vollberg and
Caplan; City of Pittsburgh Council Members Darlene Harris, Theresa Kail-Smith, Bruce Kraus, Natalia
Rudiak, Corey O’Connor, R. Danielle Lavelle, Deborah Gross, William Peduto, Ricky Burgess; City of
Pittsburgh police officers Jeffrey Labella, Elizabeth Vitalbo, Kathy Degler, Matthew White, Kevin
Walters, Morton Waverly, Henry Rogowski, and Officer Monticelli.
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Plaintiff also alleges that the individual Defendants, upon execution of “the policy,” are
liable for the alleged violation of his rights. Id., ¶ 44. In addition, Plaintiff claims that the
individual Defendants have “tolerated” the illegal conduct, were deliberately indifferent and/or
took no action concerning this illegal conduct, and/or failed to “properly alter or augment their
employee training program” to adequately address the illegal conduct. Id., ¶ 44-47.
Defendants in their Brief in Support of their Motion to Dismiss, do not dispute that there
was a automobile accident involving Plaintiff on the day in question, or that he was arrested
following the automobile accident. Doc. no. 59, p. 1. Defendants proffer additional facts
surrounding the circumstances under which the automobile accident took place. Id.
Based largely on the above facts, Plaintiff asserts numerous causes of action – some of
which are not cognizable under the law. Doc. no. 56, ¶ 79. The list of claims asserted by
Plaintiff includes:


“[D]eliberate indifference to the unlawful course of corrupt conduct[;]”



Negligence;



“[A]dvertent negligence[;]”



“Hate crimes act[;]”



Hate speech;



“[B]eating while coupled with vulgar derogatory racial slurs[;]”



Racial harassment;



Ethnic Intimidation;



Threats of violence;



Threats of death;



Assault with a deadly weapon;

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

“[A]ggravated assault – or assault within maritime & territorial jurisdiction[;]”



Excessive force;



“[C]onstructive force[;]”



“[E]xtreme force[;]”



“[U]neccessary cause of wanton infliction of pain[;]”



“[C]rime of violence[;]”



“[V]iolation of an Official duty[;]”



“[F]ailure to protect[;]”



Abuse of authority;



“[E]qual protection clause[;]”



Improper professional conduct;



Gross negligence;



“[C]olor of law abuses[;]”



“[V]iolation of Governmental code of conduct[;]”



“[T]ampering with victim (Plaintiff)[;]”



Conspiracy against rights;



Terroristic threats;



“[D]iscriminatory effects due to gender & race based[;]”



“[U]nethical & while in the performance of duty as Government Officials, racial
remarks causing fear & intimidation[;]”



Harrassment – racial;



Cruel and unusual punishment;



Domestic terrorism;
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

“[C]lass based animus[;]”



Due process clause; and



Violations of Plaintiff’s Consitutional rights under the 1st, 5th, 8th and 14th
Amendments.

Id.
Plaintiff’s Amended Complaint indicates that he seeks fifty thousand dollars in
compensatory damages and twenty-four million dollars in punitive damages, plus costs.
Plaintiff’s prayer for relief also requests that the Court order a federal investigation into the
allegedly “corrupt Government Officials – including the Pittsburgh Police for their course of
corrupt conduct and remove those responsible from their Authoritative position[,]” and further
asks for an Order of Court requiring Defendants to “augment or alter its policies, procedures or
training . . . .” Id., p. 31.
In addition to the above facts taken from theAmended Complaint, this Court also takes
Judicial Notice of a docket on file with the Court of Common Pleas of Allegheny County,
Pennsylvania, which indicates that Plaintiff was convicted on July 24, 2013 (following a nonjury trial) of the following crimes, all of which occurred on December 31, 2011:


Fleeing or attempting to elude officer;



DUI – highest rate of alcohol, 4th offense;



DUI – general impairment, 1st and 2nd offense;



Recklessly endangering another person;



BAC.02 or greater, 2nd offense;



Reckless driving; and



Five counts of failing to stop at a red light.

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See docket number CP-02-CR-0003801-2012, Commonwealth v. Michael Lamont Ellis, filed in
the Court of Common Pleas of Allegheny County, Pennsylvania.
III. Discussion
A.

Overview

This Court first recognizes its duty to give Plaintiff, a pro se litigant, wide latitude when
considering the many claims he set forth in hisAmended Complaint at paragraph 79. However,
even under this lenient standard, most of those claims are not actionable, and the Court finds that
there are factual allegations that support a claim for excessive force. This is the only cognizable
cause of action in this Section 1983 case for which there are also supportive factual allegations.
The Court will now consider Defendants’ arguments in its Motion to Dismiss this singular cause
of action.
B.

Plaintiff’s Claims and Plaintiff’s Convictions

Defendants first argue the Plaintiff’s claims are barred by his convictions, relying upon
Heck v. Humphrey 512 U.S. 477 (1994) in support of this argument. The United States Supreme
Court in Heck v. Humphrey, held:
. . . [I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus,
when a state prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated. But if the district court determines that the plaintiff's
action, even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed,
in the absence of some other bar to the suit.
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Heck, 512 U.S. at 487-88 (1994) (footnotes omitted).
The United States Court of Appeals for the Third Circuit recently reiterated its holding
that the Heck decision does not bar an excessive force claim. See Sharif v. Picone, 740 F.3d 263,
269-70 (2014) (“Indeed, we held in Nelson v. Jashurek, that Heck does not bar an excessive
force claim because the claim can stand without challenging any element of the conviction. 109
F.3d 142, 145-46 (3d Cir.1997)).
In light of the Sharif and Picone decisions, the Court denies Defendants’ Motion to
Dismiss with respect to Plaintiff’s excessive force claim.
C.

Injuries due to Excessive Force versus Automobile Accident

Next, Defendants argue that Plaintiff’s excessive force claim must be dismissed because
the automobile accident immediately preceding his arrest for the above-mentioned crimes of
which he was ultimately convicted, was the sole cause of his many injuries, not any force used
by the officers. Plaintiff clearly alleges that his injuries were due the amount of force the police
officers used during and after he was removed from the vehicle he had been operating. The
Court must accept this as true at this stage of the proceedings.
The Court notes that Plaintiff alleges that the medical records will support his allegations,
but notes that these records were not attached to his Amended Complaint. Nevertheless, Plaintiff
has alleged sufficient facts and claims these facts will be supported by documentary (or other)
evidence. Contrarily, Defendants argue that the police report and credible testimony of the
officers will support their position – i.e. that the automobile collision itself caused Plaintiff’s
injuries.
The Court concludes that the factual question of what caused Plaintiff to sustain his
injuries cannot be conclusively answered at this stage of the litigation proceedings. Accordingly,
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Defendants’ Motion to Dismiss the excessive force claim for lack of causation of injuries will be
denied at this juncture.
D.

Defendants City Council Members and Former City Solicitor

Next, Defendants urge this Court to dismiss the Amended Complaint against certain
named Defendants. Specifically, Defendants urge this Court to dismiss Plaintiff’s Amended
Complaint against each member of Pittsburgh’s City Council who was in office on December 31,
2011, as well as Former City Solicitor, Daniel Regan. As noted by Defendants, on December 31,
2011, the individuals who comprised Pittsburgh’s City Council were: Darlene Harris, Theresa
Kail-Smith, Bruce Kraus, Natalia Rudiak, Corey O’Connor, Daniel Lavelle, Deborah Gross, and
William Peduto. Doc. no. 59, p. 10. The Court also takes judicial notice of the fact that Ricky
Burgess was a Pittsburgh City Council member on December 31, 2011. Plaintiff’s Amended
Complaint claims each member of the City Council noted by Defendant, as well as Pittsburgh
City Council member, Ricky Burgess, is liable to him individually, and in his or her [former]
official capacity.
This Court’s review of theAmended Complaint notes that there are many specific
allegations asserted against City of Pittsburgh police officers LaBella and Vitalbo, but there are
no specific allegations asserted against the named City of Pittsburgh Council members.
Paragraphs, 45 through 47 and 53 set forth what Plaintiff alleges the “[City of Pittsburgh]
Council Members” did or did not do. The allegations in these four paragraphs suggest that the
members of City Council:
(1) “failed to properly alter or augment their employee training program to adequately
address the Constitutional deprivations which continue to occur[;]”

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(2) “tolerated known illegal conduct by their official practices, including Municipal
employees who have deprived others of Constitutional rights, Laws and privileges
secured by the Constitution[;]”
(3) “ha[ve] taken no proper action to augment or alter its Municipality’s training program
. . . to the deprivation of individuals rights[;]” and
(4) “have tolerated throughout timeless years, a course of conduct that is corrupt,
arrogant, and is so permanent [and] wells settled, that has the force of law or virtually
constitute law.”
Doc. no. 56, ¶¶ 45-47, 53.
Plaintiff’sAmended Complaint makes very similar allegations against the Former City
Solicitor, Defendant Regan. See id., ¶¶ 59-70. All of the allegations set forth in paragraphs 59
through 70, essentially claim that the former City of Pittsburgh Solicitor, among others, deprived
Plaintiff of his “rights and laws” because he was a “policymaker” who engaged in the alleged
“corrupt conduct” by “acquiescing[,]” condoning, or “failing to correct” the conduct. Id.
Given these allegations (as well as the allegations asserted throughout his Amended
Complaint that he was accosted and/or assaulted by the City of Pittsburgh Police officers – in
part – due to racial discrimination) and construing them in favor of Plaintiff, to whom this Court
is giving wide latitude because of his pro se status, the Court finds that the gravamen of these
allegations is either: (1) Plaintiff believes these individuals are liable because of their alleged
“supervisory” position over the City of Pittsburgh Police department; or (2) these alleged
“supervisors” knew that the police officers were engaging in illegal conduct and acquiesced to
that conduct, and/or failed to train them not to engage in illegal conduct.

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Liability based on respondeat superior arises “solely on the basis of the existence of an
employer-employee relationship,” regardless of whether the employer had any part in causing
harm. Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 692 (1978). In Andrews v. City
of Philadelphia, the United States Court of Appeals for the Third Circuit held:
Supervisory liability cannot be based solely upon the doctrine of respondeat
superior, but there must be some affirmative conduct by the supervisor that
played a role in the discrimination. Rizzo v. Goode, 423 U.S. 362, 377, 96 S.Ct.
598, 607, 46 L.Ed.2d 561 (1976). The necessary involvement can be shown in
two ways, either “through allegations of personal direction or of actual knowledge
and acquiescence,” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), or
through proof of direct discrimination by the supervisor. The existence of an order
or acquiescence leading to discrimination must be pled and proven with
appropriate specificity. Id.
895 F. 2d 1469, 1478 (3d Cir. 1990).
Thus, to the extent that Plaintiff’s allegations against the City Council Members
identified above, as well as the former City Solicitor, suggest that they are responsible for
Plaintiff’s injuries solely because these individuals were merely “supervisors” to the police
officers on the night in question, (a fact which Defendants deny and dispute), the Court finds that
Monell and its progeny would preclude such a claim.
In Santiago v. Warminster Twnshp., the Court of Appeals for the Third Circuit, held that
where a plaintiff’s “allegations appear to invoke a theory of liability under which a supervisor
may be personally liable . . . if he or she participated in violating the plaintiff’s rights, directed
others to violate them, or, as the person in charge, had knowledge of and acquiesced in his
subordinates’ violations” then the claim is not based on a respondeat superior theory of strict
employer-employee liability; but rather, is based upon “a species of supervisory liability[.]”
Santiago, 629 F.3d 121, 128-29 (3d Cir. 2010) (internal citations and quotes omitted). However,
the Court in Santiago also held that in order to assert a claim for supervisory liability against a

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defendant, the claim must be supported by facts with “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face[.]” Id. at 129.
Here, the Amended Complaint only makes bald, broadly painted assertions, without any
factual support, to reach the legal conclusion that these particular Defendants are liable to
Plaintiff given their alleged supervisory status. The Amended Complaint is devoid of any
specific allegations whereby Plaintiff claims the direct, personal involvement of any one or more
City Council member(s) and or the City Solicitor that purportedly led to his injuries. The
Amended Complaint is also devoid of any specific allegations which identifies one or more
polic(ies) or rule(s) that these individuals adopted or to which they acquiesced, which allegedly
violated Plaintiff’s rights.
Accordingly, the Court finds the Amended Complaint to be legally insufficient to sustain
a claim against these individuals and the Motion to Dismiss will be granted as to these
individuals.
E.

Defendant City of Pittsburgh

Plaintiff has asserted his Section 1983 claim against the City of Pittsburgh, as well as
several “policymakers” and/or “supervisors” of the two police officers who allegedly used
excessive force.
Section 1983 states in pertinent part that, “[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory . . . subjects, or causes
to be subjected, any citizen of the United States . . . 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. The United
States Court of Appeals for the Third Circuit has explained that “[s]ection 1983 does not, by its

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own terms, create substantive rights; it provides only remedies for deprivations of rights
established elsewhere in the Constitution or federal laws” and held that “[i]n order to establish a
section 1983 claim, a plaintiff must demonstrate a violation of a right secured by the Constitution
and the laws of the United States [and] that the alleged deprivation was committed by a person
acting under color of state law.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996) (internal
quotes and citations omitted).
As mentioned in subpart “III. D.” above, under Monell, supra, for municipal liability to
attach, the municipality cannot merely be the employer of the government employee in question.
Any injury must be inflicted by “execution of a government’s policy or custom.” Monell, 436
U.S. at 694. Thus, a municipality – such as the City of Pittsburgh as alleged here – can be held
liable as a “person” under Section 1983 only if certain conditions are met. Under Monell a
municipal defendant, such as the City of Pittsburgh, can be held liable only when the City’s
custom or policy, made its lawmakers or by those who acts represent official policy, inflict the
injury.
Thus, Plaintiff’s Amended Complaint needed to first point Defendants to the alleged
“official policy” that directly inflicted the alleged injuries. Plaintiff’s Amended Complaint also
needed to support any such “official policy” allegation with additional facts to illustrate how that
policy inflicted the specific harm. If Plaintiff’s Amended Complaint had made these assertions
(or had even alleged anything that could be used to identify the “official policy” in question here)
the Amended Complaint would have asserted a cause of action against the City of Pittsburgh.
However, this Court cannot discern from Plaintiff’s Amended Complaint nor from his Briefs in
Response to the Motion to Dismiss what “official policy” caused his alleged injuries.

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To the extent that Plaintiff was attempting to allege (or argue) that a municipal custom
existed and caused his alleged injuries, this Court agrees with Defendants that no matter how
liberally the Amended Complaint is read, it lacks any allegations concerning a “permanent and
well settled” course of conduct, Monell, 436 U.S. at 691, consisting of “practices so persistent
and widespread as to practically have the force of law.” Connick, 131 S. Ct. at 1359. These
elements must be pled with specificity so as to establish that a “municipal custom” existed and
rose to the level of an “official policy.”
Most of the statements set forth in the Amended Complaint, even when construing them
in a light most favorable to Plaintiff fall into the category of “legal conclusion.” Moreover, as
noted above, the Amended Complaint provides no identification of the offensive “official
policy” nor the factual support necessary to show that a municipal custom existed.
Because Plaintiff, in his Amended Complaint, failed to identify the specific “official
policy” which directly inflicted the alleged injuries; and further, because there are not enough
factual allegations to exemplify that a municipal custom existed and caused his alleged injuries,
the City of Pittsburgh shall be dismissed as a Defendant.
F.

Defendants Huss, Harper, McDonald, Trosk, Bryant, Ravenstahl, and Degler

First, as to Plaintiff’s attempt to contend that the above individuals can be held liable to
Plaintiff in their “official” capacities, the Court disagrees for the same reasons set forth in
subpart “III. E.,” above.
Turning to Plaintiff’s suggestion that these Defendants are liable to him in their
individual capacities, the Court notes that if any one of these individuals had some sort of
personal involvement through his or her actions, or knowledge about an alleged wrong, Andrews,
895 F.2d at 1478, the Amended Complaint had to first identify the policy or custom that was in

15

place, then indicate how each individual either personally acted upon that custom or policy
and/or knew about the custom or policy and/or acquiesced to it.
Although Plaintiff’s Amended Complaint continually suggests every Defendant
“acquiesced” to the “edicts” and or “acts” of “corrupt conduct[,]” this is not enough to sustain a
claim against these individuals. Plaintiff fails to plausibly establish what custom or policy
existed, or establish how each of these specific individuals participated in furthering or ignoring
a bad result of implementing such policy. Accordingly, these individual Defendants will be
dismissed.
G.

Defendants White, Walters, Waverly, Rogowski, and Monticelli

On December 31, 2011, Defendants Walters, Waverly, Rogowski, and Monticelli were,
and possibly still are, City of Pittsburgh police officers. Defendant White was the City of
Pittsburgh Police Community Relations Officer. The Amended Complaint makes no specific
allegations against any of these individuals. None of these individuals are supervisors or
employers, and they do not appear to have been present during the automobile chase nor on the
scene of the automobile accident immediately preceding the alleged use of excessive force.
Because there are no allegations concerning these individuals, and the Court cannot
construe Plaintiff’s Amended Complaint to assert a cause of action against any one of them,
they why also be dismissed as Defendants.

IV. Conclusion
Based on the foregoing, the Court will DENY Defendants’ Motion to Dismiss Plaintiff’s
Section 1983 case asserting a cause of action for excessive force as to Defendants Jeffrey

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LaBella and Elizabeth Vitalbo. The Court will grant the Motion to Dismiss in all other respects
as to all other Defendants. An appropriate Order shall follow.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge
cc:

All Registered ECF Counsel
and
Michael Ellis, pro se
CV-7884 SCI Pittsburgh
PO Box 99991
Pittsburgh, PA 15233

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