ZANETTI v. GOSS et al

Filing 25

ORDER-MEMORANDUM granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. See Order for details. Signed by Judge Mark A. Kearney on 11/4/2016. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JENO THOMAS ZANETTI

CIVIL ACTION

v.
NO.

16-379

KEVIN M. GOSS, et al.

ORDER-MEMORANDUM
AND NOW, this

4th

day of November 2016, upon consideration of Defendants' Motion

to dismiss (ECF Doc. No. 8), Plaintiffs Response (ECF Doc. No. 14) and following oral
argument, it is ORDERED Defendants' Motion (ECF Doc. No. 8) is GRANTED in part and

DENIED in part:
1.

We grant Defendants' Motion to dismiss Pennsylvania law claims for malicious

prosecution, false imprisonment and assault and battery as Defendants enjoy sovereign immunity
from these claims;
2.

We grant Defendants' Motion to dismiss the official capacity claims against Mr.

Noonan as he is no longer the Commissioner;
3.

We grant Defendants' Motion to dismiss the supervisory liability claim against

Mr. Noonan in his individual capacity with leave to file an amended complaint on or before

December 16, 2016, if warranted under Fed. R. Civ. P. 11, based on particularized allegations of
his personal involvement with notice of Trooper Goss' history with excessive force;
4.

Frank Noonan is dismissed without prejudice, and,

5.

Defendants' remaining requests for dismissal are denied and Mr. Goss shall

answer the § 1983 claims against him no later than November 18, 2016.

Analysis
On March 8, 2015, Pennsylvania trooper Kevin Goss and his partner pursued an
all-terrain vehicle with Jeno Thomas Zanetti as a passenger. 1

After a short pursuit, the ATV

either crashed into a wooded area covered with "about 10 to 12 inches of snow near the rear of a
commercial building" or "into the back of a church building"; Mr. Zanetti describes both
scenarios. 2 After the crash, Mr. Zanetti claims Trooper Goss forced him to the ground,
handcuffed him, and struck him in the head "at least three times" with a service revolver or
TASER device, causing lacerations requiring medical staples to close. 3
The Armstrong County District Attorney charged Mr. Zanetti with disorderedly conduct
and resisting arrest. 4 On January 21, 2016, the state court found "Goss did not have probable
cause to attempt an arrest of Zanetti for Disorderly Conduct, and Zanetti's actions did not
constitute either the crime of Disorderly Conduct or the crime of Resisting Arrest." 5
Seven weeks later, Mr. Zanetti sued Trooper Goss and former State Police Commissioner
Frank Noonan6 in their individual and official capacities for: 1) § 1983 excessive force; 2) §
1983 false arrest & imprisonment; 3) § 1983 initiation & pursuit of prosecution without probable
1

Defendant Goss contends the pursuit commenced after the A TV rolled through a stop sign in
the parking lot of a convenience store.
2

ECF Doc. No. 1~7, 8.

3

ECF Doc. No. 1 ~ 8, 9.

4

ECF Doc. No. 1 ~ 10.

5

See Commonwealth v. Zanetti, No. CP-03-CR-486-2015;

6

By March 2015, Mr. Noonan had retired as Acting Commissioner.

2

ECF Doc. No. 1~11.

Cause; 4) state law malicious prosecution; 5) failure to train, supervise & discipline; 6) state law
false imprisonment; and, 7) state law assault & battery. 7
Sovereign immunity bars recovery on the state law claims.

Defendants argue Trooper Goss, as an arm of the Commonwealth for 11th Amendment
purposes, is "entitled to the protection afforded by the doctrine of sovereign immunity for the
state law claims." 8 Under the Pennsylvania Constitution, Defendants argue there are only nine
"specifically delineated" and "narrowly tailored" exceptions to sovereign immunity, and Mr.
Zanetti's claims do not fall into those categories· 9 They argue Mr. Zanetti's state law claims of
false imprisonment, malicious prosecution, and assault and battery must be dismissed. 10 Mr.
Zanetti does not rebut or contest sovereign immunity in his filings but argued we should find
Plaintiff should not be exempt from sovereign immunity because of an officer's intentional
excessive force.

We decline to legislate.

"[T]he Pennsylvania General Assembly has reaffirmed by statute the sovereign
immunity of the Commonwealth and its agencies and employees. 11 "[S]overeign immunity ...
7

Mr. Zanetti seeks: "a. Declaratory judgment that the policies and practices, and the acts
complained of, are illegal and unconstitutional, b. permanent injunction limiting defendant Goss'
contact with the public, c. compensatory damages, d. punitive damages, e. reasonable attorney's
fees and costs, f. such other and further relief as appears reasonable and just." ECF Doc No. 1.
8

ECF Doc. No. 9.

9

See 42 Pa. S.C.A. § 8522(b) (noting the nine specific exceptions to sovereign immunity); see
also Story v. Mechling, 214 Fed. Appx. 161 (3d Cir. 2007).
10

ECF Doc. No .9
.

11

Pennsylvania waives sovereign immunity for conduct in nine specific instances, none of
which apply here: (1) vehicle liability (2) medical-professional liability (3) care, custody or
control of personal property (4) Commonwealth real estate, highways and sidewalks ( 5) potholes
and other dangerous conditions (6) care, custody or control of animals (7) liquor store sales (8)
3

applies to Commonwealth employees in both their official and individual capacities, so long as
the employees are 'acting with the scope of their duties."'

12

"Plaintiffs state law claims do not

escape the application of sovereign immunity simply because Defendant was sued in his
individual capacity." 13
"The proper test to determine if a Commonwealth employee is protected from liability
pursuant to 1 Pa. Cons.Stat. Ann. § 2310 and 42 Pa. Cons.Stat. Ann. § 8522 is to consider
whether the Commonwealth employee was acting within the scope of his or her employment;
whether the alleged act which causes injury was negligent and damages would be recoverable
but for the availability of the immunity defense; and whether the act fits within one of the nine
exceptions to sovereign immunity." 14
When determining if conduct is within the scope of an employee's duties, courts look to
see "if [the conduct] is of a kind and nature that the employee is employed to perform; it occurs
substantially within the authorized time and space limits; it is actuated, at least in part, by a
purpose to serve the employer; and if force is intentionally used by the employee against another;
it is not unexpected by the employer." 15

Unlike claims against individuals in municipal

National Guard activities, and (9) toxoids and vaccines. 42 Pa.S.C.A. § 8522(b) (2016); Larsen
v. State Employees' Ret. System, 553 F. Supp. 2d 403, 420 (M.D. Pa. 2008).
12

Larsen, 553 F.Supp. 2d at 420.

13

Becker v. Godboldte, No. 10-2066, 2011 WL 2015213, at *9 (M.D. Pa. May 24, 2011).

14

Brautigam v. Fraley, 684 F. Supp. 2d 589, 593 (M.D. Pa. 2010).

15

Velykis v. Shannon, No. 06-124, 2006 WL 3098025, at *3 (M.D. Pa. Oct. 30, 2006); See also
Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (holding "conduct is within the scope of
employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs
4

agencies, sovereign immunity extends to claims against employee defendants in Commonwealth
agencies in their individual capacities as well. 16 Further, "[w]illful misconduct does not vitiate a
Commonwealth employee's immunity because sovereign immunity protects a Commonwealth
employee acting within the scope of his or her employment from liability even for intentional
torts. 17 The court in Stone held state trooper defendants "are entitled to summary judgment on
plaintiffs state law claims, namely for assault, battery, false arrest, false imprisonment and
malicious prosecution. 18
Mr. Zanetti does not argue Trooper Goss acted outside "the scope of his duties." Mr.
Zanetti pleads Trooper Goss initiated a traffic stop after a short police pursuit. Mr. Zanetti does
not allege Trooper Goss acted, for example, off duty, but pleads he was "on patrol." 19
When Trooper Goss attempted to take Mr. Zanetti into custody, he allegedly used force
for the purpose of serving his employer (the state police), which would not be unexpected given
the nature of his duties. Trooper Goss took Mr. Zanetti into custody after a police pursuit. In

substantially within the authorized time and space limits [and] (c) it is actuated, at least in part,
by a purpose to serve the master. .. ").
16

Mitchell v. Luckenbill, 680 F. Supp. 2d 672, 682 (M.D. Pa. 2010) ("[s]overeign immunity
applies to claims asserted against Commonwealth officials in their individual capacities. Unlike
employees of municipal agencies who remain liable for intentional torts, employees of
Commonwealth agencies are immune from liability even for intentional torts"); Shoop v.
Dauphin County, 766 F. Supp. 1327, 1334 (M.D. Pa. 1991), ajj'd, 945 F.2d 396 (3d Cir. 1991)
("[a]ccording to the clear language of the statute, not only the Commonwealth but also its
employees and officials are entitled to immunity").
17

Stone v. Felsman, No 10-442, 2011 WL 5320738, at *11 (M.D. Pa. Nov. 1, 2011).

1s Id.
19

ECF Doc. No. 1 ii 6.

5

attempting to gain control and place Mr. Zanetti under arrest, he allegedly struck Mr. Zanetti
with an either his service weapon or TASER device.

For this conduct to be outside the scope of

his duties, it must be found to be "outrageous. " 20 Even when the employer forbids an action, it
still may be found to within the scope of employment if done with the purpose of serving the
master. 21
A reasonable amount of force may be required by a state trooper when attempting to take
a suspect into custody: " ... physical force may attend such an arrest. That is the nature of the
job. However, use of reasonable force to affect a lawful arrest does not strip away from the
officers the immunity that they enjoy as agents of the Commonwealth, when performing the
Commonwealth's work." 22
As alleged, Trooper Goss acted within the scope of his employment, his actions were not
"outrageous," nor do they fall within the nine exceptions to sovereign immunity. Although the
state court ultimately dismissed the state law charges against Mr. Zanetti, the favorable
termination does not impact the sovereign immunity analysis, as sovereign immunity applies
regardless of state law claims terminating in favor of defendants. 23

20

Ickes v. Grassmeyer, 30 F. Supp. 3d 375, 399 (W.D. Pa. 2014) ("[t]o go beyond the scope of
employment, however, an individual engaging in conduct that is otherwise incidental to the
performance of work-related duties must act with a high degree of outrageousness").
21

Brumfield, 232 F.3d at 381 ("[u]nder Pennsylvania law, even unauthorized acts may be within
the scope of employment 'if they are clearly incidental to the master's business"').
22

Kircher v. Pennsylvania State Police Dept., No. 13-02143, 2016 WL 4379143, at *28 (M.D.
Pa. Aug. 17, 2016).
23

Stone, 2011 WL 5320738 at *2.
6

Mr. Goss has not sufficiently plead supervisory liability for Mr. Noonan.

Mr. Zanetti seeks to sue Mr. Noonan through a conclusory allegation: " ... Noonan, as the
policy maker for the [Pennsylvania State Police] and the supervisor of the Troopers employed by
the [Pennsylvania State Police], had knowledge of a number of events and occurrences which
involved the violations of the Constitutional rights of citizens by Defendant, Goss, prior to the
alleged herein and that he failed to make adequate inquiry or investigation into them or in any
way appropriately discipline [sic] Goss for his prior violations of the Constitutional rights of
citizens. " 24
Mr. Noonan argues the Mr. Zanetti failed to plead Mr. Noonan "[was] personally
involved or had actual knowledge of or acquiesced to the commission of the wrongdoing." 25
Mr. Noonan argues our Court of Appeals in Colburn v. Upper Darby Tp., 26 allowed supervisory
liability when the official "(l) had contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents, and (2) circumstances under which the
supervisor's assertion could be found to have communicated a message of approval to the
offending subordinate." 27 Mr. Noonan argues he cannot be liable as supervisor because he
retired by the time of the March 2015 incident. 28 Mr. Noonan also argues, even assuming
arguendo we found he somehow continued as Commissioner, he still lacked personal knowledge
24

ECF Doc No. 1 iJ 37.

25

Rizzo v. Goode, 423 U.S. 362 (1976).

26

838 F.2d 663 (3d Cir. 1988).

27

ECF Doc. No. 9.

28

Id.

7

of the incident and could not have communicated any form of approval to Trooper Goss. As a
result, Mr. Noonan cannot be found liable for any of Trooper Goss's alleged actions, citing
Zabresky v. Von Schmeling. 29

Mr. Zanetti counters Mr. Noonan acted as Commissioner at the time of the incident and
had personal knowledge of the alleged conduct because Mr. Noonan is currently a codefendant
in an unrelated § 1983 excessive force lawsuit with Trooper Goss. 30 Mr. Zanetti argues the
allegations in Gracey are based on substantially similar circumstances. 31

Mr. Zanetti argues

being a codefendant with Trooper Goss in an earlier-filed excessive force lawsuit (in which
Trooper Goss is again accused of excessive force and related claims) evidences Mr. Noonan had
personal knowledge before Trooper Goss's improper conduct as to Mr. Zanetti.

As we

explored at oral argument, he fails to allege any of these facts and we have no basis to infer those
facts.
We find no basis for official capacity claims.

We dismiss the claims against Mr. Noonan in his official capacity on sovereign immunity
grounds. In Lavia v. Pennsylvania, Dept. of Corrections, 32 the court dismissed a claim against
the Pennsylvania Department of Corrections "[b ]ecause the Commonwealth of Pennsylvania's
Department of Corrections is a part of the executive department of the Commonwealth ... it

29

No. 12-20, 2013 WL 315718 at *7 (M.D. Pa. Jan. 28, 2013)(collecting cases supporting
same conclusion).
30

See Gracey v. Goss, et al, No. 1:2015-cv-68 (M.D.Pa.).

31

ECF Doc. 15.

32

224 F.3d 190 (3d Cir. 2000).
8

shares in the Commonwealth's Eleventh Amendment immunity."

A

claim

against

Mr.

Noonan in his official capacity is a claim against the Pennsylvania State Police; a department of
the Commonwealth much like the Department of Corrections. 33 These claims are barred by the
11th Amendment: "a suit against state officials in their official capacity [is barred] because the
state is the real party in interest inasmuch as the plaintiff seeks recovery from the state treasury. 34

Mr. Zanetti does not plead facts allowing personal capacity claims.
Claims against Mr. Noonan in his personal capacity are not entitled to sovereign
immunity. 35 Even so, "[a] defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of respondeat
superior. 36 "[P]ersonal involvement can be shown through allegations of personal direction or of

33

Luck v. Mt. Airy No. 1, LLC, 901 F. Supp. 2d 547, 558 (M.D. Pa. 2012) ("[w]e will grant
defendants' motion and dismiss all claims against the Pennsylvania State Police. As a suit against
defendants acting in their official capacities is the same as one asserted against the agency, the
claims against Defendants .. .in their official capacities will also be dismissed.").
34

Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990).

35

Id. We are aware Pennsylvania State Police supervisors have obtained sovereign immunity
for a failure to train claim: "[b ]ecause Defendant Supervisors were acting within the scope of
their employment while training and supervising the Defendant Troopers and there is no genuine
issue of material fact as to how they carried out their duties, sovereign immunity would extend to
them." Mohammed v. John Doe Pennsylvania State Police Sup'rs, No. 11-5004, 2013 WL
5741788, at *11 (E.D.Pa.2013).
36

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); Neuburger v. Thompson, 305 F.
Supp. 2d 521, 535 (W.D. Pa. 2004), affd, 124 Fed. Appx. 703 (3d Cir. 2005) ("a supervisor's
mere failure to train, supervise or discipline subordinate officers does not state a basis for a §
1983 claim against the supervisor absent proof of direct participation by the superior in some
unlawful conduct"); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990) (" ... in the
context of police action, an official's mere-and even callous-inaction in the face of
subordinate officers' unconstitutional actions clearly does not suffice to render the official liable
for those actions.").
9

actual knowledge and acquiescence. Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity." 37
In Barber v. Pennsylvania State Police, 38 the court denied a motion to dismiss a claim
against the Pennsylvania State Police commissioner for failure to supervise or to train.

Barber

sued the Pennsylvania State Police, various troopers and Commissioner Miller, alleging
excessive force and failure to train and supervise. While holding the claims must be dismissed
against defendants in their official capacities, the court allowed the supervisory claims against
Commissioner Miller in his personal capacity to proceed into discovery. 39 The court held
"[a]ccepting as true all allegations made in the complaint and all reasonable inferences that can
be drawn therefrom, and viewing them in the light most favorable to the Plaintiff, Plaintiff has
alleged that, prior to the facts at bar, other troopers of the PSP on numerous occasions used
excessive force that resulted in numerous legal claims being filed against it. " 40 "[T]hese other
legal claims should have placed Miller on notice of the alleged problem regarding the use of
excessive force within the PSP and alerted him to the need for more training and/or supervision
to correct the alleged problems ... Miller's alleged failure to respond with more supervision or
additional training could have been construed by Troopers at PSP . . . as acquiescence in the
alleged excessive force practices allegedly employed by PSP Troopers."41

37

Id.

38

No. 06-1713, 2007 WL 2071896 (W.D.Pa.2007).

39

Id. at *3.

40

Id. at *4.

41

Id.
10

We have no similar allegation to review.

Mr. Zanetti argues, but does not plead under

Rule 11, Mr. Noonan is currently a codefendant with Trooper Goss in an unrelated § 1983
excessive force claim in Gracey. The events leading to the Gracey action occurred before this
case, as in Barber. 42 Mr. Zanetti argues Mr. Noonan "had actual knowledge" of Trooper Goss's
conduct.

Colburn arguably applies to Mr. Noonan as well, given "knowledge of a prior pattern

of similar incidents" is present here, as evidenced by the previous lawsuit filed against Mr.
Noonan and Trooper Goss. 43
But, unlike those plaintiffs, Mr. Zanetti does not specifically allege Mr. Noonan is
knowledgeable, including citations or admissions in Gracey showing Mr. Noonan knew facts in
in Gracey. He must do so before we can proceed because "[p ]ersonal involvement in the alleged
wrongdoing is necessary for the imposition of liability in a civil rights action. " 44
Mr. Zanetti argues we can look outside the pleadings, and specifically to Gracey, to
determine if Mr. Noonan had knowledge of Trooper Goss's earlier excessive force conduct,
citing Pension Ben. Guar. Corp. v. White Consol. Industries, Inc. 45 The court in Pension held "a
court may consider an undisputedly authentic document that a defendant attaches as an exhibit to

42

In Gracey, plaintiff alleges Trooper Goss used excessive force after terminating pursuit. The
plaintiff also sued Mr. Noonan for supervisory liability.

43

Supervisory liability can only be imposed when the official "(1) had contemporaneous
knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2)
circumstances under which the supervisor's assertion could be found to have communicated a
message of approval to the offending subordinate." Colburn, 838 F.2d at 663.
44

Hernandez v. Kiak, NO. 14-2317, 2016 WL 5796895, at *7 (M.D. Pa. Sept. 30, 2016); see
also Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) (discussing supervisory liability standard).
45

998 F.2d 1192 (3d Cir. 1993).
11

a motion to dismiss ifthe plaintiffs claims are based on the document."

46

Further, "[c]ourts have

defined a public record, for purposes of what properly may be considered on a motion to dismiss,
to include criminal case dispositions such as convictions or mistrials ... " 47 Mr. Zanetti has not
attached any such document, and the "public record" he references in briefing and oral argument
from Gracey falls outside the scope of acceptable material. We do not look to allegations in an
ongoing court proceeding as a public record on the present standard of review when Mr. Zanetti
does not plead these facts under Fed.R.Civ.P. 11.
We require particularized allegations Mr. Noonan knew about Trooper Goss's excessive
force problems before March 8, 2011, whether he learned about these alleged problems from the

Gracey allegations or from other sources. 48 Absent Mr. Zanetti's pleading of this personal
knowledge or acquiescence, the supervisory liability claim against Mr. Noonan in a personal
capacity is dismissed.

KEARNEY,J.

46

Id. at 1196.

47

Id. at 1197.

12