CARBONE v. THE NEW CASTLE POLICE DEPARTMENT et al
MEMORANDUM OPINION AND ORDER granting 30 Motion to Dismiss; granting 34 Motion to Dismiss; granting in part and denying in part 38 Motion to Dismiss; granting in part and denying in part 49 Motion to Dismiss. Counts IV, VI, VII, VIII, IX , and XII are hereby DISMISSED WITH PREJUDICE. The Defendants shall file Answers to Counts IV, VI, VII, VIII, IX, and XII in the Amended Complaint on or before February 22, 2016. The parties shall confer as necessary and file their Stipulation Selecting ADR Process and their Rule 26(f) Report on or before February 29, 2016. The Initial Case Management Conference is hereby SCHEDULED on March 11, 2016, at 1:00 p.m. in Courtroom 6C.Signed by Judge Terrence F. McVerry on 2/3/2016. (rjw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
The City of New Castle; The County of
Lawrence; Chief Robert Salem; Officer
David Maiella; Officer Terry Dolquist;
Officer Sheila Panella; Correction Officer
April Brightsue; Correction Officer Niesha
Savage; Commander Mark Keyser;
Attorney Joshua Lamancusa; Jameson
Health Systems; Bernard Geiser, M.D.; Kim
Kimberlee Rae Carbone,
Plaintiff, Kimberlee Rae Carbone, has filed suit under 42 U.S.C. § 1983 against
numerous individuals and entities who were allegedly involved in her arrest and subsequent strip
and cavity searches following a traffic stop in November 2013; to wit: the City of New Castle,
the County of Lawrence, New Castle Chief of Police Robert Salem, New Castle Police Officer
Terry Dolquist, New Castle Police Officer Sheila Panella, Lawrence County Corrections Officer
April Brightsue, Lawrence County Corrections Officer Niesha Savage, Lawrence County
Corrections Commander Mark Keyser, Lawrence County District Attorney Joshua Lamancusa,
Jameson Health System, Bernard Geiser, M.D., and Kim Fee.
The following motions are pending before the Court:
(1) the LAWRENCE COUNTY DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (ECF No.
(2) DEFENDANTS THE CITY OF NEW CASTLE, CHIEF ROBERT SALEM,
OFFICER DAVID MAIELLA, OFFICER TERRY DOLQUIST, AND OFICER SHEILA
PANELLA’S PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (ECF No. 34);
(3) JAMESON HEALTH SYSTEM’S AND KIM FEE’S MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 12(b)(6) (ECF No. 38); and
(4) the RULE 12(b)(6) MOTION TO DISMISS filed by Dr. Geiser (ECF No. 49).
The motions have been extensively briefed (ECF Nos. 32, 35, 38, 41, 42, 42, 50, 54, 52, 53) and
accordingly are ripe for disposition.
On November 3, 2013, Officer Maiella saw a man, later identified as Jason Monette,
briefly enter an apartment and, upon exiting, get into the front passenger seat of Plaintiff’s car,
which was parked outside the apartment complex. Am. Compl. ¶¶ 23-25. As Plaintiff pulled
away, Officer Maiella stopped the vehicle, allegedly because she did not apply her turn signal at
least 100 feet before the intersection. Id. ¶ 26.
Fifteen minutes later, Chief Salem and District Attorney Lamancusa arrived on the scene
and asked Plaintiff about the identity of her passenger and whether she possessed any drugs. Id. ¶
29. Plaintiff identified her passenger and denied possessing any drugs, and then she invoked her
right to remain silent. Id. ¶ 30. Lamancusa and Salem, however, did not believe the responses
Plaintiff had given them. Id.
After informing Plaintiff that he smelled burnt marijuana coming from the car, Maiella
arrested her for suspicion of DUI. Id. ¶ 31. A field sobriety test was not performed. Id. ¶ 32.
Maiella proceeded to detain Plaintiff and search her incident to arrest, but he did not find any
drugs on her. Id. ¶ 33. Maiella later obtained a warrant to search Plaintiff’s car, but no drugs
were found there, either. Id. ¶ 34.
Nonetheless, “Maiella and Dolquist transported the Plaintiff to [Lawrence County
Correctional Center] at the direction of Defendants Lamancusa and Salem.” Id. ¶ 36. Once there,
“Maiella, Dolquist, and Keyser instructed Defendants Brightsue and Savage to strip search the
Plaintiff.” Id. ¶ 38. “Brightsue, Savage, and Keyser forced the Plaintiff to remove her clothing,”
and she was then “directed to bend over, spread her buttocks, and cough.” Id. ¶¶ 39, 41. During a
visual inspection of Plaintiff’s vagina and rectum, Brightsue and Savage (incorrectly) believed
that they saw a plastic bag protruding from Plaintiff’s vagina, so Plaintiff was directed “to
repeatedly prod her personal areas by inserting her fingers into her vagina to remove” the item,
which was determined not to exist. Id. ¶¶ 43-44. Then she “was forced to once again bend over,
spread her buttock, and cough while Defendants Brightsue and Savage again visually inspected
her vaginal and rectal areas.” Id. ¶ 45. All the while, Plaintiff was “crying hysterically and
insisting that” she was not hiding anything in her body. Id. ¶ 46. After these visual inspections
failed to uncover any drugs, Maiella “contacted Defendants Lamancusa and Salem to determine
how to proceed.” Id. ¶ 47. He was instructed to take Plaintiff to Jameson Hospital for an internal
examination of her body cavities. Id. ¶ 48. At no point did Defendants seek or obtain a search
warrant. Id. ¶ 49.
Plaintiff arrived at Jameson Hospital at approximately 7:24 p.m. Id. ¶ 50. Once again, she
told Defendants that she was not hiding anything; she also told them that she “did not consent to
medical treatment or an offensive touching.” Id. ¶ 50. Over Plaintiff’s objections, Lamancusa,
Salem, Maiella and Dolquist agreed with Dr. Geiser and Nurse Fee that Plaintiff needed
treatment “for a possible overdose, rectal packing and/or oral intake of a controlled substance.”
Id. ¶ 51. However, “Plaintiff refused treatment, refused to sign a consent for treatment form and
once again adamantly denied concealing any foreign substance.” Id. ¶ 52. She was nevertheless
examined. Although she did not display any objective symptoms that “would confirm a possible
overdose, rectal packing or oral intake of drugs,” id. ¶ 53, the procedure went ahead anyway.
Plaintiff was restrained to a bed by her wrists and ankles, and Dr. Geiser performed an internal
inspection of her vagina and rectum. Id. ¶ 54. Following the examination, Dr. Geiser told Salem
and Lamancusa that he did not detect anything. Id. ¶ 58. At that point, Plaintiff requested to use
the restroom, and she was told to squat over a chair and urinate into a bedpan. Id. ¶¶ 59, 60.
While doing so, her genital area was partially exposed to Defendants after the privacy cover that
was being used to shield her was mishandled. Id. ¶ 62. A sample of Plaintiff’s urine was
subsequently taken and the bedpan was examined for foreign substances, but none were found.
Id. ¶ 63.
Since Defendants believed that “Plaintiff might have something located deeper in her
vagina and rectum,” id. ¶ 64, a CT scan was performed, the results of which were negative, id. ¶¶
65, 66. During this time, “Lamancusa berated the Plaintiff by informing her that if she helped
him by provid[ing] information regarding drug related activity the unreasonable and
unconstitutional intrusion would end.” Id. ¶ 67. In addition, the Defendants “harassed, mocked,
and berated the Plaintiff by making derogatory remarks about her compromised position” and
Lamancusa further mocked her “by asking her if she knew what prison felt like.” Id. ¶ 68.
After the CT scan, Dr. Geiser performed a second internal examination of Plaintiff’s
vagina and rectum. Id. ¶ 71. Once he was finished, he instructed Fee and another nurse to assist
him with another internal inspection of Plaintiff’s vagina and rectum. Id. ¶ 72. Again, nothing
was found. Id. ¶ 74. Next, the medical staff swabbed Plaintiff’s vagina for testing. Id. ¶ 75.
Maiella then returned to the room, unsecured Plaintiff from the bed, and advised her that she
could leave. Id. ¶ 76. Hospital records confirm that she was discharged at 9:15 p.m. Id. ¶ 77.
The next day, Plaintiff returned to the hospital and was diagnosed with a sprained wrist.
Id. ¶ 78. Two days later, she followed-up with her physician for pain and discomfort in her
vaginal area. Id. ¶ 79. Later that same week, Plaintiff began seeing a psychologist, and she has
since been treated for nightmares, mood disorder, difficulty sleeping, decreased intimacy,
depression, and anxiety. Id. ¶ 80.
Plaintiff filed this action on September 8, 2015. Each of the Defendants responded by
filing partial motions to dismiss. Thereafter, Plaintiff filed an Amended Complaint, in which she
asserts the following claims: “Fourth Amendment – Unreasonable Search and Seizure” against
Lamancusa and Salem, Maiella, Dolquist, and Panella (the “Police Defendants”) (Count I);
“Fourth Amendment – Unreasonable Search and Seizure” against Brightsue, Savage, and Keyser
(the “Corrections Defendants”) (Count II); “Fourth Amendment – Unreasonable Search and
Seizure” against the City of New Castle and Lawrence County (Count III); “Conspiracy to
Violate Plaintiff’s Fourth and Fourteenth Amendment Rights” against Jameson, Dr. Geiser, Fee,
Lamancusa, and the Police Defendants (Count IV); “First Amendment Retaliation” against
Lamancusa and the Police Defendants (Count V); “Fourteenth Amendment – Liberty Interest in
Reputation” against Lamancusa, the Police Defendants, and the Corrections Defendants (Count
VI); and “Fourteenth Amendment Substantive and Procedural Due Process” against the City of
New Castle, Lawrence County, Lamancusa, the Police Defendants, and the Corrections
Defendants (Count VII).
In the remaining Counts, Plaintiff alleges several supplemental state-law claims:
negligence against Jameson, Dr. Geiser, and Fee (Count VIII); respondeat superior against
Jameson (Count IX); battery against Jameson, Dr. Geiser, and Fee (Count X); false
imprisonment against Lamancusa, the Police Defendants, and the Corrections Defendants (Count
XI); civil conspiracy against Lamancusa, Dr. Geiser, Fee, the Police Defendants, and the
Corrections Defendants (Count XII); negligent supervision against Jameson (Count XIII); and
intentional infliction of emotional distress (“IIED”) against Lamancusa, Dr. Geiser, Fee, the
Police Defendants, and the Corrections Defendants (Count XIV).
A complaint may be dismissed for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted). “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.” Id. The
plausibility standard “does not impose a probability requirement.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007). However, a pleading must show “more than a sheer
possibility that a defendant acted unlawfully.” Iqbal, 556 U.S. at 678.
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the court
must follow a three-step approach. Santiago v. Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir.
2010). First, “the court must “tak[e] note of the elements a plaintiff must plead to state a claim.’”
Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the court “should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, the court must assume that all
well-pleaded facts are true and construe them in the light most favorably to the plaintiff and
“‘then determine whether they plausibly give rise to an entitlement for relief.’” Id. (quoting
Iqbal, 556 U.S. at 679); see also Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1
(3d Cir. 2014) (citation omitted).
Defendants are seeking to drastically scale down Plaintiff’s Amended Complaint, such
that she would, in essence, be left with her First and Fourth Amendment claims and a small
number of related state-law claims. Specifically, Lamancusa seeks to dismiss the civil rights
conspiracy claim (Count IV), the “stigma-plus” claim (Count VI), the substantive and procedural
due process claims (Count VII), and each of the state-law claims (Counts XI, XII, and XIV). The
Corrections Defendants also seek to dismiss Counts VI and VII, as do the City of New Castle
and the Police Officer Defendants. Jameson and Fee join Lamancusa in moving to dismiss Count
IV, and they also seek to dismiss the negligence claim (Count VIII), the respondeat superior
claim (Count IX), the negligent supervision claim (Count XIII), and the IIED claim (Count
XIV). Dr. Geiser also seeks to dismiss those claims, in addition to Count IV, the battery claim
(Count X), the false imprisonment claim (Count XI), and the state-law civil conspiracy claim
Count IV – Conspiracy to Violate Plaintiff’s Fourth and Fourteenth
Jameson, Fee, and Lamancusa argue that Plaintiff’s § 1983 conspiracy claim should be
dismissed because Plaintiff’s allegations are too broad and conclusory to show that Defendants
entered into an agreement to violate Plaintiff’s constitutional rights.1 Dr. Geiser also seeks to
dismiss this claim but on a different basis. He contends that, as a private actor, he cannot be held
Plaintiff has styled this as a claim for conspiracy to violate her Fourth and Fourteenth Amendment rights.
The Court assumes that Plaintiff included the reference to the Fourteenth Amendment solely because it is the means
by which the Fourth Amendment’s requirements are incorporated against the states. If, however, Plaintiff intended
to base her conspiracy claim on violations of substantive and/or procedural due process, the claim would of
necessity fail for the reasons explained infra. In short, Plaintiff cannot seek refuge in the Fourteenth Amendment
when the Fourth Amendment clearly delineates the standards applicable to her claims.
liable for the alleged constitutional violation.
Dr. Geiser’s argument can be quickly dispatched since “a private party can be liable
under § 1983 if he or she willfully participates in a joint conspiracy with state officials to deprive
a person of a constitutional right[.]” Max v. Republican Comm. of Lancaster Cnty., 587 F.3d 198,
203 (3d Cir. 2009) (citing Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998)). Thus, the
Court will focus on whether Plaintiff has adequately pled a claim for conspiracy against the
state-actor Defendants and the requisite level of involvement on the part of Dr. Geiser and Fee.
“‘A conspiracy may be charged under section 1983 as the legal mechanism through
which to impose liability on all of the defendants without regard to who committed the particular
act[.]” Holt Cargo Sys., Inc. v. Del. River Port Auth., 20 F. Supp. 2d 803, 843 (E.D. Pa. 1998)
(quoting Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995)). “[T]o properly plead an
unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement
can be inferred” or, in the post-Twombly/Iqbal parlance, “‘plausible grounds to infer an
agreement.’” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir.
2010) (quoting Twombly, 550 U.S. at 556). The facts pled, in other words, must raise “a
suggestion of a preceding agreement, not merely parallel conduct that could just as well be
independent action.” Twombly, 550 U.S. at 557. Moreover, “[o]nly allegations of conspiracy
which are particularized, such as those addressing the period of the conspiracy, the object of the
conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be
deemed sufficient.” Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989).
Plaintiff’s allegations do not meet this standard. To begin with, the allegations in
paragraphs 123 through 130 are nothing more than legal conclusions and are thus not entitled to
a presumption of truth. Great W. Mining, 615 F.3d at 178 (quoting Iqbal, 129 S. Ct. at 1950). So,
too, is the portion of paragraph 56, which alleged that Defendants “collectively agreed to act in
concert . . . .” Am. Compl. ¶ 56.
When these allegations are cast aside, as they must be when deciding whether Plaintiff
states a claim, see Great W. Mining, 615 F.3d at 178, the remaining allegations, even accepted as
true, do not allow the Court to infer that Defendants entered into an agreement to violate
Plaintiff’s rights. To be sure, Plaintiff has alleged “concerted action” on the part of Defendants –
i.e., they all had some involvement in the alleged deprivation of her constitutional right(s),
though some allegedly had more involvement than others. However, there is nothing in the
Amended Complaint to suggest that Defendants acted in accordance with a prior agreement to
engage in the alleged course of conduct. Although there was communication among the
Defendants while the searches occurred – e.g., when Maiella contacted Lamancusa and Salem
after the searches at the jail – “the situation as alleged appears to be officers following the
ranking officer’s lead rather than an agreement to deprive [Plaintiff] of [her] rights.” Smith v.
Wolf, No. 13 CV 63, 2013 WL 3168753, at *6 (N.D. Ill. June 20, 2013); see also Gleason v. E.
Norriton Twp., No. 11-CV-6273, 2012 WL 3024011, at *5 (E.D. Pa. July 24, 2012) (“The mere
fact that the Defendant officers called Defendant ADA Potere for legal advice and then relied on
the advice given does not suggest a conspiratorial agreement to deprive Plaintiff of his
constitutional rights. Rather this is the sort of ‘allegation of parallel conduct’ that Twombly held
was insufficient to plead a conspiracy.”).
Accordingly, Count IV of the Amended Complaint will be dismissed as to Jameson, Fee,
Lamancusa, and Dr. Geiser. Although the Police Defendants have not separately moved to
dismiss this claim, it will also be dismissed as to them. Plaintiff was clearly “on notice of the
failure to state a claim defense and the legal arguments in support thereof,” and she had a fully
opportunity to respond. Penn. State Troopers Ass’n v. Penn., No. 1:06-CV-1079, 2007 WL
853958, at *9 (M.D. Pa. Mar. 20, 2007). Thus, sua sponte dismissal is proper. See id.
Count VI – Fourteenth Amendment Liberty Interest in Reputation
Defendants argue that Plaintiff does not have an interest in her reputation protected by the
Fourteenth Amendment due process clause, so her attempt to plead a due process claim based on
the harm to her reputation must fail. “‘[R]eputation alone is not an interest protected by the Due
Process Clause.’” Dee v. Borough of Dunmore, 549 F.3d 225, 233 (3d Cir. 2008) (quoting Clark
v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1993)). “Rather, to make out a due process claim for
deprivation of a liberty interest in reputation, a plaintiff must show a stigma to [her] reputation
plus deprivation of some additional right or interest.” Hill v. Borough of Kutztown, 455 F.3d 225,
236 (3d Cir. 2006) (emphasis in original). This is known as the “stigma-plus” test. Id.
“To satisfy the ‘stigma’ prong of the test,” the plaintiff must allege that “the purportedly
stigmatizing statement(s) (1) were made publicly . . . and (2) were false.” Id. (citations omitted).
With regard to the “plus” prong, “what qualifies as a sufficiently ‘tangible interest,’ . . .
has been the source of ‘some confusion.’” Good v. City of Sunbury, 352 F. App’x 688, 691 (3d
Cir. 2009) (quoting Paul, 424 U.S. at 701; Baraka v. McGreevey, 481 F.3d 187, 208 (3d Cir.
2007)). Most of the Third Circuit’s cases addressing this question have arisen in the publicemployment context.2 See, e.g., Hill, 455 F.3d at 237. Outside of that arena, though, the Court of
Appeals has never determined what other types of deprivations may be sufficient. See Good, 352
F. App’x at 691.
Relying on Gobel v. Maricopa County, 867 F.2d 1201, 1205 (9th Cir. 1989) – which
Contrary to what Defendants seem to suggest, though, the Court of Appeals has never limited the “stigmaplus” theory to cases in which the “plus” is the termination of public employment. See, e.g., Merkle v. Upper Dublin
Sch. Dist., 211 F.3d 782, 793 (3d Cir. 2000) (holding that plaintiff stated a “stigma-plus” claim where she alleged an
injury to her reputation in connection with the deprivation of her First Amendment right to free speech).
relied on Marrero v. City of Hialeah, 625 F.2d 499, 516-19 (5th Cir. 1980) – Plaintiff argues that
defamatory statements made “in connection” with an unlawful arrest are actionable under §
1983, since the unlawful arrest provides the necessary “plus” factor. Assuming that there are
certain cases when that may be true,3 Marrero and Gobel are distinguishable from this case and
thus do not convince the Court that Plaintiff has validly stated a “stigma-plus” claim.
In Marrero, the police, accompanied by a local prosecutor, raided the plaintiffs’ jewelry
store and seized all of the jewelry, after claiming that it was stolen. 625 F.2d at 502. Then they
announced to the media that “over $75,000 in stolen property had been recovered in the raid and
that [plaintiffs] had been arrested.” Id. Because the allegedly defamatory statements “occurred in
connection with the alleged violation of [the plaintiffs’] fourth amendment rights,” the Fifth
Circuit Court of Appeals concluded that “the injury to [the plaintiffs’] personal and business
reputations constitutes the deprivation of liberty interests.” Id. at 519.
In Gobel, the plaintiffs were arrested for passing bad checks and “perp walked” in front
of members of the media, to whom the prosecutors made allegedly false accusations. 867 F.2d at
1202. In addition to claiming that their arrests were unlawful, the plaintiffs also sought recovery
for damage to their reputations caused by the prosecutors’ statements to the media. Id. at 1205.
Adopting the reasoning from Marrero, the Ninth Circuit held that the plaintiffs’ “stigma-plus”
claim was cognizable because “the false statements were made in connection with their illegal
In this case, by contrast, the allegedly defamatory statement – i.e., “that Plaintiff had
Other courts have taken a view that seems to conflict with that of the Fifth and Ninth Circuits. See Rehberg
v. Paulk, 611 F.3d 828, 853 (11th Cir. 2010) aff’d, 132 S. Ct. 1497 (2012) (explaining that the plaintiff could not
“use the prosecution itself (the indictment and arrest) as the basis for constitutional injury supporting a § 1983
defamation claim”); Buckley v. Fitzsimmons, 20 F.3d 789, 797 (7th Cir. 1994) (rejecting the contention that the
plaintiff’s arrest was a sufficient “plus” under the “stigma-plus” test, though chiefly because the defendantprosecutor was immune from liability for the arrest and prosecution of the plaintiff); see also Evans v. Chalmers,
703 F.3d 636, 655 (4th Cir. 2012) (declining to decide “whether a Fourth Amendment violation constitutes a
cognizable ‘plus’ under Paul”).
controlled substances hidden in her body cavity and/or otherwise had committed a crime,” Am.
Compl. ¶ 142 – was not made to the media. Nor was it otherwise published to members of the
community. To the contrary, the only persons who heard the accusation were the police officers,
corrections officers, and medical staff involved in Plaintiff’s arrest and the subsequent searches.
However, this sort of intra-governmental and inter-governmental disclosure is not sufficient. Cf.
White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1063 (2d Cir. 1993) (“Given that the
primary function of a police force is law enforcement, we doubt that police officers’ informing
other police officers, even those without authority to make employment decisions, that a given
individual has been accused of being dishonest or is believed to have ties to organized crime can
constitute a sufficient publication to warrant a ruling that the individual's liberty interest has been
impermissibly infringed.”); Tarhuni v. Holder, 8 F. Supp. 3d 1253, 1275 (D. Or. 2014) (finding
that the plaintiff failed to state a “stigma-plus” claim because “the instruction to the airlines not
to permit [him] to board and to refer [him] to government officials did not constitute
dissemination of the stigmatizing information in such a way as to reach the community at
large”). That the allegedly defamatory statement was made to Plaintiff in the course of the arrest
and subsequent searches is likewise not sufficient because “[t]o constitute a publication . . . the
defamatory matter [must] be communicated to someone other than the person defamed.”
Restatement (Second) of Torts § 577 (1977).
The lack of publication to anyone other than those involved in the arrest and searches
points to a more fundamental, conceptual problem with Plaintiff’s purported “stigma-plus”
claim. Since there was no true publication, to the extent that Plaintiff could prove that her
reputation has suffered, it would seem that any such injury would actually be attributable to the
allegedly unlawful arrest and searches, not the allegedly false accusation that precipitated those
events.4 However, this type of injury is not actionable on its own under § 1983. See Marrero,
625 F.2d at 513-14 (“To the extent [the plaintiffs’] reputations were injured as a result of [the
allegedly unlawful search and seizure], defamation is not the basis of the § 1983 action.”).
“Rather, the injury to reputation is simply an element of the damages suffered as a result of the
[alleged] violation of [Plaintiff’s] fourth amendment rights.” Id. at 514; see also Hector v. Watt,
235 F.3d 154, 157 (3d Cir. 2000) (quoting Townes v. City of N.Y., 176 F.3d 138, 148 (2d Cir.
1999)) (“‘Victims of unreasonable searches or seizures may recover damages directly related to
the invasion of their privacy – including (where appropriate) damages for physical injury,
property damage, injury to reputation, etc.’”).
Additionally, the Court wonders what “process” would be “due” to Plaintiff in the event
that she could state a “stigma-plus” claim in this context, beyond that which is already required
by the Fourth Amendment. “When such a deprivation occurs” in the public-employment context,
“the employee is entitled to a name-clearing hearing.” Hill, 455 F.3d at 236. But it seems
unlikely that the same is required when a plaintiff claims that she was defamed in connection
with an unlawful arrest. Plaintiff offers no argument on this point, and neither Marrero nor
Gobel offers a clear answer, either. The Court also questions whether Plaintiff would be
permitted to recover for harm to her reputation as an element of damages on her unreasonable
search and seizure claim and for the damage to her reputation arising “in connection with” her
false arrest, which smacks of allowing double recovery. See Cooper v. Sedgwick Cnty., 206 F.
Supp. 2d 1126, 1142 (D. Kan. 2002) (raising the same concerns). That assumes, of course, that
“a plaintiff who prevails on a ‘stigma-plus’ claim” is even “entitled to remedies other than a
It bears mentioning that nowhere in Plaintiff’s Amended Complaint does she actually allege that either the
allegedly false statement or the arrest and subsequent searches caused an injury to her reputation. Setting aside the
conceptual difficulties with her claim, her failure to plead reputational harm alone would be fatal. See Watson v.
Sec’y Penn. Dep’t of Corr., 436 F. App’x 131, 134-35 (3d Cir. 2011) (explaining that the “‘stigma-plus’ test”
“requires a demonstration of injury to reputation”).
name-clearing hearing” – a question our Court of Appeals has not decided. Hill, 455 F.3d at 236.
These looming questions confirm to the Court that Plaintiff’s claim should be analyzed under the
Fourth Amendment and the Fourth Amendment alone, as it clearly delineates the standards that
apply in cases of this type. For these reasons, Count VI of the Amended Complaint will be
Count VII – Fourteenth Amendment Substantive and Procedural Due
Defendants contend that Plaintiff’s substantive due process claim should be dismissed
under the “more-specific provision rule.” This argument is well taken. As the United States
Supreme Court has explained, “[w]here a particular Amendment ‘provides an explicit textual
source of constitutional protection’ against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of “substantive due process,” must be the guide for
analyzing the claims.’” Albright v. Oliver, 510 U.S. 266, 273, (1994) (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989)). In Count VII, Plaintiff alleges that “[t]he actions of
Defendants . . . violated the Plaintiff’s Fourteenth Amendment rights to be secure in her person
from unreasonable search and seizure.” Compl. ¶ 150. The right to be free from “unreasonable
search and seizure,” however, is expressly protected by the Fourth Amendment. See Albright,
510 U.S. at 273 (“The Framers considered the matter of pretrial deprivations of liberty and
drafted the Fourth Amendment to address it.”). Thus, the Fourth Amendment, and not the
concept of substantive due process embodied in the Fourteenth Amendment, is applicable and
must control Plaintiff’s claims.
Defendants also seek to dismiss the procedural due process claim on similar grounds. The
Court agrees with this argument, too. As already explained when discussing Plaintiff’s purported
“stigma-plus” claim, which is just “a species within the phylum of procedural due process
claims,” Segal v. City of N.Y., 459 F.3d 207, 213 (2d Cir. 2006), Plaintiff has not alleged that she
was entitled to any “process” beyond that which is called for by the Fourth Amendment. See
Gerstein v. Pugh, 420 U.S. 103, 125 n.27 (1975) (“The Fourth Amendment was tailored
explicitly for the criminal justice system, and its balance between individual and public interests
always has been thought to define the ‘process that is due’ for seizures of person or property in
criminal cases.”). Thus, Plaintiff’s procedural due process claim is “subsumed by [her] Fourth
Amendment claim” and will be dismissed. Morgan v. Borough of Fanwood, No. CIV.A. 11-7513
ES, 2015 WL 4112135, at *5 n.4 (D.N.J. July 7, 2015).
Counts XI, XII, and XIV – State Law Claims against Lamancusa
District Attorney Lamancusa moves to dismiss the state-law tort claims asserted against
him – false imprisonment (Count XI), civil conspiracy (Count XII), and IIED (Count XIV) – on
the grounds of “high public official” immunity. Under Pennsylvania law, “high public officials”
are absolutely immune from tort liability. Gregg v. Pettit, No. CIV A 07-1544, 2009 WL 57118,
at *7 (W.D. Pa. Jan. 8, 2009) (citing Durham v. McElynn, 772 A.2d 68, 70 (Pa. 2001)). While
the doctrine originated in the context of defamation suits, it now applies in other types of cases,
as well. The Choice Is Yours, Inc. v. The Choice Is Yours, No. 2:14-CV-01804, 2015 WL
5584302, at *12 n.4 (E.D. Pa. Sept. 22, 2015) (citations omitted). The scope of immunity has
been described as “‘unlimited’”: it protects “high public officials” from tort liability, even if
“motivated by malice,” as long as “‘the actions [were] taken in the course of the official’s duties
or powers and within the scope of his authority.’” Durham, 772 A.2d at 70 (quoting Matson v.
Margiotti, 88 A.2d 892, 895 (Pa. 1952)).
It is not disputed that a district attorney is considered a “high public official” under
Pennsylvania law. Id. The question, then, is whether Lamancusa’s actions fell within the scope of
his official duties. Plaintiff argues that they did not, likening Lamancusa’s conduct “to that of a
law enforcement agent as he was present at the scene, directed the investigation, and interrogated
the Plaintiff prior to any official charges being filed.” Pl.’s Br. in Resp. to Lawrence Cnty. Defs.’
Mot. 9. Plaintiff also points out that Lamancusa was acting as a member of the Lawrence County
Drug Task force at the time, which she suggests should defeat his claim to immunity.
If Lamancusa were arguing that he is immune from liability under § 1983, Plaintiff’s
argument might have some semblance of merit because the scope of prosecutorial immunity
under § 1983 is determined by “‘the nature of the function performed, not the identity of the
actor who performed it.’” Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008) (quoting Light v.
Haws, 472 F.3d 74, 78 (3d Cir. 2007)). In other words, a prosecutor enjoys immunity in § 1983
actions for conduct “‘intimately associated with the judicial phases of litigation,’” but not for
“administrative or investigatory actions unrelated to initiating and conducting judicial
proceedings.” Id. (quoting Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994)); see, e.g.,
Church of Universal Love & Music v. Fayette Cnty., 892 F. Supp. 2d 736, 752 (W.D. Pa. 2012)
(concluding that a prosecutor was not entitled to absolute immunity in a § 1983 action because
he acted “in his capacity as the Lead Coordinator of the Fayette County Drug Task Force”).
Under Pennsylvania law, however, the scope of protection is broader. See Teeple v.
Carabba, No. CIV.A. 07-2976, 2009 WL 5033964, at *20 (E.D. Pa. Dec. 22, 2009), aff’d, 398 F.
App’x 814 (3d Cir. 2010) (citing Domenech v. City of Philadelphia, No. 06 CV 1325, 2007 WL
172375, at *4 (E.D. Pa. Jan. 18, 2007)). Specifically, unlike its federal analog, “Pennsylvania
high public official immunity does not distinguish among prosecutorial, advocative, investigative
or administrative conduct[.]” Brown v. Chardo, No. 1:11-CV-0638, 2012 WL 983553, at *10
(M.D. Pa. Mar. 22, 2012). Rather, the doctrine encompasses “all conduct . . . within the course of
the official’s duties.” Id. (citing Matson, 88 A.2d at 895) (emphasis added). A district attorney’s
official duties are not limited to the prosecution of crime; investigating criminal activity has also
historically been part of the job. See Com. ex rel. Specter v. Freed, 228 A.2d 382, 383 (Pa.
1967). Because all of the conduct alleged in this case occurred while District Attorney
Lamancusa was performing the investigatory function of his office, he is absolutely immune
from tort liability, and the claims against him in Counts XI, XII, and XIV will be dismissed.
Count XI – False Imprisonment
Dr. Geiser argues that Plaintiff has failed to state a claim for false imprisonment because
he “was acting in accordance with what he perceived as a valid arrest” and so “could not have
intended to unlawfully detain [P]laintiff.” Geiser’s Br. 6.
“The elements of false imprisonment are (1) the detention of another person, and (2) the
unlawfulness of such detention.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). A
detention is unlawful if it is not based upon probable cause. Id. A defendant can be held liable for
false imprisonment only if: “(1) the defendant acted with the intent to confine the plaintiff within
fixed boundaries; (2) the defendant’s act directly or indirectly confined the plaintiff; and (3)
plaintiff was aware of the confinement or harmed by it.” Pope v. Rostraver Shop ’n Save, 389 F.
App’x 151, 152 (3d Cir. 2010) (citations omitted).
Plaintiff alleges that “Geiser, Fee, Lamancusa, Salem, Dolquist, Maiella, and Panella
intentionally confined [her] at [Jameson Hospital] without her consent.” Am. Compl. ¶ 177. She
further alleges that Defendants “had no lawful authority to detain the Plaintiff as she had
repeatedly complained of her illegal detention to all [D]efendants present to include Defendant’s
[sic] Geiser and Fee and refused to sign the consent for treatment form.” Id. ¶ 178. Elsewhere in
the Amended Complaint, Plaintiff alleges that her “hands and feet were secured to the bed . . .
and these restraints were further maintained and authorized outside the presence of the law
enforcement defendant’s [sic] by the medical staff when the Plaintiff was being examined.” Id. ¶
54. Furthermore, she claims that she was not permitted to leave the hospital until the searches
were complete, some five hours after she was apprehended. Id. ¶¶ 76, 179. Finally, as a direct
result of her confinement, Plaintiff alleges that she suffered wrist pain and psychological harm.
Id. ¶¶ 78-80. These allegations are sufficient to state a claim for false imprisonment. See
Brownstein, 649 F. Supp. 2d at 376 (finding that the plaintiff adequately alleged false
imprisonment against hospital defendants who “confined him to a gurney by strapping his arms,
legs and chest to it . . . with the intention of confining him to that space so they could draw blood
The Court is sympathetic to Dr. Geiser’s argument regarding his lack of intent. He was
enlisted into action by the authorities, whom he likely (if perhaps incorrectly) believed were
acting lawfully. But this question cannot be resolved at the Rule 12(b)(6) stage. See id.
(concluding that the plaintiff alleged the “intent necessary to survive a motion to dismiss” where
he claimed “that defendants purposely tied him to the gurney to keep him from resisting efforts
to draw blood”). Indeed, even if the arrest were facially valid, as Dr. Geiser argues,
“[c]ircumstances attending or following a detention lawful in its inception may render it
unlawful so as to impose liability for false imprisonment.” 35 C.J.S. False Imprisonment § 35
(citing Landry v. A-Able Bonding, Inc., 75 F.3d 200 (5th Cir. 1996); Hyatt v. U.S., 968 F. Supp.
96 (E.D. N.Y. 1997)). Thus, Dr. Geiser’s motion to dismiss Plaintiff’s false imprisonment claim
must be denied. The question whether he acted with sufficient justification or has a valid defense
to the claim must wait to be decided at a later stage of the lawsuit.
Count XII – Civil Conspiracy
Dr. Geiser also moves to dismiss the state-law conspiracy claim. The Court has already
dismissed Plaintiff’s claim for conspiracy under § 1983, and “[t]he standard for civil conspiracy
under Pennsylvania law” sets “a higher bar than under Section 1983” because in addition to
proving the existence of an agreement, a plaintiff must also prove malice. Banks v. Gallagher,
686 F. Supp. 2d 499, 528 (M.D. Pa. 2009) (quoting Thompson Coal Co. v. Pike Coal Co., 412
A.2d 466, 472 (Pa. 1979)). For the reasons already discussed, Plaintiff’s allegations are
insufficient to allow the Court to infer the existence of an agreement on the part of Defendants.
Plaintiff also has failed to plead facts sufficient to establish malice. Accordingly, Dr. Geiser’s
motion to dismiss Count XII will be granted. Even though Dr. Geiser was the only Defendant to
move to dismiss Count XII, the Court is nonetheless empowered to dismiss this Count in its
entirety – i.e., against all other Defendants – inasmuch as it fails to state a claim. See Penn. State
Troopers Ass’n, 2007 WL 853958, at *9 (“That a single defendant raised the issue does not alter
plaintiffs’ responsibility to marshal every fact and argument of law at its disposal to invalidate
the defense presented.”).
Counts VIII, IX, X, and XIII – Negligence, Respondeat Superior, Battery,
and Negligent Supervision
Jameson and Fee argue that the negligence, respondeat superior, and negligent
supervision claims should be dismissed because Plaintiff did not file a certificate of merit
(“C.O.M.”). Dr. Geiser joins Jameson and Fee in moving to dismiss the negligence claim, and he
also contends that the battery claim should be dismissed for the same reason.
Under Pennsylvania law, a C.O.M. is required “[i]n any action based upon an allegation
that a licensed professional deviated from an acceptable professional standard[.]” Pa. R.C.P.
1042.3. The certificate must be filed “within 60 days after the filing of the complaint” and certify
that a “licensed professional” has said, in writing, that there is a “reasonable probability” that the
alleged conduct fell below “acceptable professional standards” and caused the alleged harm, or
that expert testimony will not be necessary. Pa. R. Civ. P. 1042.3(a)(1)-(3).
If a plaintiff fails to comply with the C.O.M. requirement in state court, the defendant can
file a praecipe for a judgment of non pros, which, once entered, “‘effectively constitutes a
dismissal of the cause without prejudice,’ so long as the statute of limitations has not expired.”
Schmigel v. Uchal, 800 F.3d 113, 117 n.5 (3d Cir. 2015) (quoting Stroud v. Abington Mem’l
Hosp., 546 F. Supp. 2d 238, 249 (E.D. Pa. 2008)). Before doing so, however, the defendant has
to give the plaintiff 30 days’ notice. Pa. R. Civ. P. 1042.6. The Third Circuit Court of Appeals
has held that both the C.O.M. requirement and the 30-day notice requirement are substantive
rules under the Erie doctrine that must be applied by a federal court sitting in diversity. Schmigel,
800 F.3d at 120; Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011).
Plaintiff does not dispute that she did not file a C.O.M. or that Defendants gave her the
requisite 30 days’ notice. In her view, though, she was not required to do so. As she puts it,
“[t]he Amended Complaint alleged that Jameson did not properly train or supervise its
employees as it relates to performing unnecessary treatment at the behest of law enforcement
and/or the circumstances that would require authorization via a search warrant or supervisor
approval.” Pl.’s Br. in Opp. to Jameson Defs.’ Mot. 9. “In fact,” she says, “it is not alleged that
the medical treatment provided by Kim Fee or Dr. Geiser fell below that of professional
standards. To the contrary, it is alleged that the complete failure to obtain consent involves
ordinary negligence well within the realm of common sense and every day experiences of a lay
person.” Id. at 10 (emphasis added).
The Court agrees that Plaintiff was not required to file a C.O.M., although not necessarily
for the reasons she has offered. At bottom, Plaintiff is claiming that Geiser and Fee failed to
obtain her consent to perform the allegedly unlawful cavity searches. See, e.g., id.; Am. Compl. ¶
162 (alleging that “Defendants breached [their duty of care] by performing unconsented and
unnecessary medical treatments . . .”). While she characterizes this as an ordinary negligence
claim, the Court finds that it is more properly considered a claim for medical battery. See Cooper
ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 191 (Pa. 2012) (citing Montgomery v. BazazSeghal, 798 A.2d 742, 749 (Pa. 2002); Morgan v. MacPhail, 704 A.2d 617, 620 (Pa. 1997); Gray
v. Grunnagle, 223 A.2d 663, 669 (Pa. 1966)) (explaining “that claims alleging a lack of consent
for surgery constitute a battery committed upon a patient by a physician.”).5 “Unlike a claim for
medical negligence, there is no requirement that a Certificate of Merit be obtained for a medical
battery claim.” Hanson v. Thakur, No. CIV.A. 07-4992, 2008 WL 465810, at *2 (E.D. Pa. Feb.
20, 2008) (citing Montgomery, 742 A.2d 1125, 1130-31 (Pa. Super. Ct. 1999)) (construing claim
that defendant-doctor failed to obtain plaintiff’s consent to “appl[y] a blood pressure monitor . . .
during surgery” as a medical battery claim”). The same is true with respect to Plaintiff’s
negligent supervision claim against Jameson, insofar as it is premised on the claim that
Defendant Jameson did not adequately supervise Dr. Geiser and Fee with respect to the
performance of unconsented medical treatments. See Brownstein v. Gieda, No. 3:08CV1634,
2009 WL 2513778, at *5 (M.D. Pa. Aug. 13, 2009) (citing Smith v. Friends Hosp., 928 A.2d
1072, 1075 (Pa. Super. Ct. 2007) (finding that a C.O.M. was not required in action against
The Pennsylvania Supreme Court has made clear “that claims alleging no consent for surgery, as well as
claims alleging a lack of informed consent for surgery, both sound in the theory of tortious battery.” Cooper ex rel.
Cooper, 51 A.3d 183, 191 n.8 (Pa. 2012) (citing Montgomery, 798 A.2d at 748-49). “Both types of claims require a
harmful or offensive touching.” Id. The difference between the two claims is that “a lack of consent claim is proven
by establishing that no consent was given for the surgical procedure performed; a lack of informed consent claim is
proven by demonstrating that the physician failed to advise the patient of the material risks, complications and
alternatives to surgery to permit the patient to make an informed decision regarding whether to undergo surgery.” Id.
Plaintiff’s claim appears to fall in the former category – i.e., she is alleging a total lack of consent, not lack of
hospital since claims did “not involve the provision of professional services in the form of
diagnosis, treatment and care, but instead [involved] the failure to prevent assaults and batteries
against the plaintiff”).
Thus, these two claims will not be dismissed for failure to file a C.O.M. However,
because Plaintiff’s allegations sound in battery not negligence, Count VIII of the Amended
Complaint must be nonetheless dismissed.
The respondeat superior claim fails for a separate reason. “In Pennsylvania, there is no
separate cause of action for respondeat superior liability.” Olschefski v. Red Lion Area Sch. Dist.,
No. 1:12-CV-871, 2012 WL 6003620, at *6 (M.D. Pa. Nov. 30, 2012) (citations omitted).
Respondeat superior is simply a way to impute liability to an employer for the actions of its
agents and employees. Id. (citations omitted). Accordingly, Plaintiff’s independent claim for
respondeat superior will be dismissed. Plaintiff may, however, still rely upon the doctrine to
attempt to impose liability on Jameson Health System for the actions of Dr. Geiser and Fee.
Count XIV – IIED
Jameson and Fee contend that Plaintiff has failed to state a claim for IIED. As the Third
Circuit Court of Appeals has recognized, “Pennsylvania courts have been cautious in permitting
recovery for [IIED].” Williams v. Guzzardi, 875 F.2d 46, 52 (3d Cir. 1989) (citing Bradshaw v.
Gen. Motors, 805 F.2d 110, 114 (3d Cir. 1986)). In fact, the Pennsylvania Supreme Court has
never actually recognized IIED as a tort. See Hoy v. Angelone, 720 A.2d 745, 754 n.10 (Pa.
1998). It has, however, explained that if it were to allow recovery for IIED, a plaintiff would
have to establish that the defendant(s) engaged in “extreme and outrageous conduct,” which
“intentionally or recklessly causes severe emotional distress to another . . . .” Kazatsky v. King
David Mem’l Park, Inc., 527 A.2d 988, 991 (Pa. 1987) (citing Restatement (Second) of Torts §
46). The Pennsylvania Supreme Court has also opined that if IIED was ever to be recognized, “at
the very least, competent medical evidence [is] required to support a claim[.]” Hoy, 720 A.2d at
754 (citing Kazatsky, 527 A.2d at 995).
As to the first element, conduct is considered “extreme and outrageous” only if it is “‘so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id.
(quoting Restatement (Second) of Torts § 46 cmt. d). The alleged course of conduct in this case –
e.g., taking Plaintiff into custody allegedly without a sufficient justification, repeatedly
subjecting her to visual inspections and cavity searches in the face of mounting evidence that she
was not actually hiding any drugs inside her body, making inappropriate remarks about her
compromised position6 – could, taken together, be found outrageous enough to allow for
recovery. See, e.g., Dzwonczyk v. Syracuse City Police Dep’t, 710 F. Supp. 2d 248, 273-74
(N.D.N.Y. 2008) (explaining, albeit under New York law, “that an unlawful strip search, without
more, may be considered extreme and outrageous conduct”); Brownstein, 649 F. Supp. 2d at 374
(concluding that the plaintiff adequately pled IIED claim where, “despite [the plaintiff’s]
vociferous protests, a team of medical and police staff violently forced him to submit to medical
treatment for no good reason”).
Jameson and Fee argue, however, that Plaintiff’s IIED claim should still be dismissed
because she “failed to allege that she has any medically-documented physical symptoms as a
Generally, liability for IIED “does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Restatement (Second) of Torts § 46 cmt. d. However, “[t]he extreme and
outrageous character of the conduct may arise from an abuse by the actor of a position . . . which gives him actual or
apparent authority over the other, or power to affect his interests.” Id. § 46 cmt. e. Police officers fall into that
category. Id. Thus, the allegedly inappropriate comments made to Plaintiff at Jameson Hospital by those in a
position of authority over her, when considered alongside the other alleged conduct, may be enough to satisfy the
definition of “extreme and outrageous.” See, e.g., Mejia v. City of N.Y., 119 F. Supp. 2d 232, 286 (E.D.N.Y. 2000)
(concluding that ethnic slurs made to plaintiff during arrest may satisfy qualify as “extreme and outrageous” because
they were made by arresting officer).
result of Kim Fee’s conduct – which she is required to do.” Jameson Defs.’ Br. 7. The Court
cannot agree. Contrary to Defendants’ argument, Plaintiff claims that she underwent
psychological treatment for “nightmares, mood disorder, inability to sleep, decreased intimacy
and anxiety” as a result of the alleged conduct. Am. Compl. ¶ 80. Allegations of this sort are
sufficient to survive a motion to dismiss. See, e.g., Rosembert v. Borough of E. Lansdowne, 14 F.
Supp. 3d 631, 646 (E.D. Pa. 2014) (holding that plaintiff stated a claim for IIED where “his
psychological injuries as a result of this incident have ‘manifested themselves physically in the
form of financial loss, sleep deprivation, reoccurring nightmares and other physically disabling
manifestations’”); Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. Ct. 1992) (holding that
“alleged physical manifestations of emotional suffering, i.e. depression, nightmares, stress, and
anxiety” were sufficient).
Of course, Plaintiff will eventually “need to substantiate these allegations with competent
medical evidence, either at trial or at summary judgment if Defendants so move.”7 Sullivan v.
Warminster Twp., No. CIV.A.07-4447, 2010 WL 2164520, at *10 (E.D. Pa. May 27, 2010)
(citing Kazatsky, 527 A.2d at 995; Silver v. Mendel, 894 F.2d 598, 607 n.19 (3d Cir. 1990)). At
this stage, however, Plaintiff has pled enough to allow her IIED claim to proceed to discovery.
See Silver, 894 F.2d at 607 n.19 (3d Cir. 1990) (concluding that plaintiff’s allegations of
emotional distress were “sufficient . . . to withstand a motion to dismiss,” though objective proof
of emotional distress would be required “to survive a motion for summary judgment”).
To survive summary disposition, Plaintiff will also have to establish the precise role of each Defendant
named in this Count, as their level of involvement is not clear form the Amended Complaint. For example, Officer
Panella’s involvement appears to be far less extensive than that of the other Defendants. See, e.g., Am. Compl. ¶ 70
(“Defendant Panella provided security, requested and retrieved samples, and otherwise assisted the medical staff
when they performed a second internal examination of Plaintiff’s vagina and rectum.”). Her apparently minimal
involvement causes the Court to question whether she could be held liable for IIED (or the other claims, for that
For the reasons hereinabove stated, the Lawrence County Defendants’ Motion to Dismiss
(ECF No. 31) will be GRANTED; the City of New Castle’s and Police Defendant’s Motion to
Dismiss (ECF No. 34) will be GRANTED; the Jameson Defendants’ Motion to Dismiss (ECF
No. 38) will be GRANTED as to Counts IV, VIII, and IX and DENIED in all other respects;
and Dr. Geiser’s Motion to Dismiss (ECF No. 49) will be GRANTED as to Counts IV, VIII, and
XII, and DENIED in all other respects.
To summarize, then, Counts IV, VI, VII, VIII, IX, and XII will be DISMISSED WITH
PREJUDICE. Plaintiff will, however, be permitted to proceed on the following claims: Counts
I, II, III, V, X, XI, XIII, and XIV. An appropriate order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KIMBERLEE RAE CARBONE,
THE NEW CASTLE POLICE DEPARTMENT,
CHIEF ROBERT SALEM, OFFICER DAVID
MAIELLA, OFFICER TERRY DOLQUIST,
OFFICER SHEILA PANELLA, LAWRENCE
COUNTY JAIL, CORRECTION OFFICER
APRIL BRIGHTSHUE, CORRECTION
OFFICER NIESHA SAVAGE, COMMANDER
MARK KEYSER, LAWRENCE COUNTY
DISTRICT ATTORNEY'S OFFICE,
ATTORNEY JOSHUA LAMANCUSA,
JAMESON HEALTH SYSTEMS, BERNARD
GEISER M.D and KIM FEE
AND NOW, this 3rd day of February, 2016, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
PLAINTIFF’S AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (ECF No.
31) is GRANTED;
(2) DEFENDANTS THE CITY OF NEW CASTLE, CHIEF ROBERT SALEM,
OFFICER DAVID MAIELLA, OFFICER TERRY DOLQUIST, AND OFICER SHEILA
PANELLA’S PARTIAL MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) (ECF No. 34) is
(3) JAMESON HEALTH SYSTEM’S AND KIM FEE’S MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT PURSUANT TO FEDERAL RULE OF
CIVIL PROCEDURE 12(b)(6) (ECF No. 38) is GRANTED as to Counts IV, VIII, and IX and
DENIED in all other respects; and
(4) the RULE 12(b)(6) MOTION TO DISMISS filed by Defendant, Bernard Geiser,
M.D. (ECF No. 49) is GRANTED as to Counts IV, VIII, and XII, and DENIED in all other
Consistent therewith, Counts IV, VI, VII, VIII, IX, and XII are hereby DISMISSED
The Defendants shall file Answers to Counts IV, VI, VII, VIII, IX, and XII in the
Amended Complaint on or before February 22, 2016. The parties shall confer as necessary and
file their Stipulation Selecting ADR Process and their Rule 26(f) Report on or before February
29, 2016. The Initial Case Management Conference is hereby SCHEDULED on March 11,
2016, at 1:00 p.m. in Courtroom 6C.
BY THE COURT:
s/Terrence F. McVerry
Senior United States District Judge
all counsel of record
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