BELL et al v. BOROUGH OF WEST MIFFLIN et al

Filing 40

OPINION setting forth the reasons the motion to dismiss 33 filed by defendant Wal-Mart Stores, Inc. will be GRANTED without prejudice and Wal-Mart Stores, Inc. will be dismissed as a party in this action. An appropriate order will be entered. Signed by Chief Judge Joy Flowers Conti on 5/8/17. (kjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHEKI BELL and ISAAC LEWIS,

) CIVIL ACTION NO. 16-690
)
Plaintiff,
)
)
)
v.
)
)
BOROUGH OF WEST MIFFLIN, WAL- )
MART STORES, INC., JOSEPH
)
HOFFMAN and DAVID HAINES,
)
Defendant.
)
)
OPINION
CONTI, Chief District Judge
I. Introduction
Plaintiffs Sheki Bell (“Bell”) and Isaac Lewis (“Lewis” and together with Bell,
“plaintiffs”) filed this lawsuit under 42 U.S.C. § 1983 (“§ 1983”) and Pennsylvania common law.
(ECF No. 1.) According to plaintiffs, defendants Borough of West Mifflin (“West Mifflin”),
Wal-Mart Stores, Inc. (“Wal-Mart”), Joseph Hoffman (“Hoffman”), and David Haines (“Haines”
and collectively with West Mifflin, Wal-Mart, and Hoffman, “defendants”) deprived them of
rights guaranteed to them by the United States Constitution, and Wal-Mart committed the torts of
false arrest and malicious prosecution—as defined under Pennsylvania state law—against them.
Currently pending before the court is a motion to dismiss the amended complaint (ECF
No. 33) filed by Wal-Mart. Wal-Mart argues that plaintiffs failed to state plausible claims against
it under either § 1983 or Pennsylvania common law. On April 12, 2017, the court held a hearing
to address Wal-Mart’s motion to dismiss. The court—as fully set forth in this opinion—
explained that it would grant the motion to dismiss because the factual allegations in the

amended complaint were not sufficient for the court to plausibly infer that: (1) Wal-Mart is liable
to plaintiffs for maintaining a policy or custom that directly caused the deprivation of their
constitutional rights; or (2) Wal-Mart is liable to plaintiffs under Pennsylvania common law
based upon a theory of respondeat superior for the actions of its employees.
II. Procedural History
On May 26, 2016, plaintiffs initiated this action by filing a three-count complaint (ECF
No. 1) against defendants. Plaintiffs asserted the following claims against the following
defendants:
 Count one against Hoffman and Haines: a claim for violations of plaintiffs’
civil rights under 42 U.S.C. § 1983 (“§ 1983”) based upon violations of the
Fourth and Fourteenth Amendments to the United States Constitution;
 Count two against West Mifflin: a § 1983 claim based upon West Mifflin’s
“fail[ure] to supervise and train its police officers and for overlooking and/or
covering up officer misconduct; and
 Count three against Wal-Mart: a § 1983 claim based upon Wal-Mart’s
violations of plaintiffs’ civil rights under the Fourth and Fourteenth Amendments
to the United States Constitution and a claim titled “Pennsylvania State Common
Law Tort.”
(ECF No. 1.)
On July 11, 2016, West Mifflin, Haines, and Hoffman filed an answer to the complaint
and affirmative defenses. (ECF No. 9.) On November 29, 2016, Wal-Mart filed a motion to
dismiss the complaint and a brief in support of the motion. (ECF Nos. 21, 22.) On December 20,
2016, plaintiffs filed a response in opposition to Wal-Mart’s motion to dismiss and a brief in
support of the response. (ECF Nos. 24, 25.) On February 1, 2017, the court held a hearing with
respect to the motion to dismiss, granted the motion without prejudice, and granted plaintiffs
leave to file an amended complaint.
2

On March 2, 2017, plaintiffs filed an amended complaint. (ECF No. 32.) Plaintiffs in the
amended complaint assert the same claims they asserted in the original complaint against the
same defendants. (Id.) On March 13, 2017, Wal-Mart filed a motion to dismiss the amended
complaint and a brief in support of that motion. (ECF Nos. 33, 34.) On April 3, 2017, plaintiffs
filed a response in opposition to the motion to dismiss and a brief in support of the response.
(ECF Nos. 36, 37.) On April 5, 2017, West Mifflin, Haines, and Hoffman filed an answer to the
amended complaint and affirmative defenses. (ECF No. 38.) On April 12, 2017, the court held a
hearing to address Wal-Mart’s motion to dismiss.
III.

Factual Allegations in the Amended Complaint which are Accepted as True
for the Purposes of the Motion to Dismiss

A. General Allegations
Plaintiffs are individuals who reside in Pittsburgh, Pennsylvania. (ECF No. 32 ¶¶ 2-3.)
West Mifflin is, and was, at all relevant times a municipal entity created under Pennsylvania law
with offices in West Mifflin, Pennsylvania. (Id. ¶ 4.) West Mifflin was at all relevant times the
public employer of Hoffman and Haines. (Id.)
Wal-Mart is a corporation organized and existing under the laws of Delaware with a retail
place of business located in West Mifflin, Pennsylvania. (Id. ¶ 5.) Hoffman and Haines were at
all relevant times duly appointed and acting officers, servants, employees and agents of West
Mifflin and its police department. (Id. ¶¶ 6-8.)
Bell is a 36-year-old African-American female who, at the time of the incidents alleged
in the amended complaint, was seven and one-half months pregnant. (ECF No. 32 ¶ 15.) Lewis is
an African-American male. (Id. ¶ 16.) On or about the evening of September 1, 2014, Bell and
Lewis were at the Wal-Mart store located in West Mifflin, Pennsylvania (the “Wal-Mart store”)
3

to return and exchange a large screen television they purchased earlier that day, which they
determined was damaged. (Id. ¶¶ 17a, 17b.)1
B. Allegations against Hoffman and Haines
On September 1, 2014, Hoffman and Haines were on-duty as police officers for West
Mifflin and were summoned to respond to the Wal-Mart store for a reported “disturbance.” (Id. ¶
18a.) When Hoffman and Haines arrived at the Wal-Mart store, they encountered plaintiffs, who
were engaged in a discussion with Wal-Mart employees concerning plaintiffs’ attempted return
of a large screen television they purchased at the Wal-Mart store earlier that day. (ECF No. 32 ¶
17b.) Hoffman and Haines immediately detained Bell for thirty minutes in the parking lot of the
Wal-Mart store in handcuffs, in full public view, and in the presence of her seven-year-old son
and Lewis. (Id. ¶ 18b.) Hoffman and Haines detained Bell without conducting an investigation or
questioning her. (Id.) According to plaintiffs, Hoffman and Haines assumed that—because
plaintiffs are African-American—they were perpetrating a crime by attempting to return to the
Wal-Mart store a television, that they had not purchased at the store. (Id.)
Hoffman and Haines had no reason to believe plaintiffs were armed, dangerous, or
threatening. Bell:
 did not make any movements toward Hoffman, Haines, or any other person that
could be interpreted as threatening;
 did not make any verbal threats to Hoffman, Haines, or any other person;
 did not touch Hoffman or Haines;
 clearly was unarmed; and
1

Plaintiffs’ complaint has duplicate paragraphs numbered 17 and 18. For ease of reference,
the first numbered paragraph 17 is designated 17a and the second is designated 17b. Likewise,
the first numbered paragraph 18 is designated 18a and the second is designated 18b.
4

 did not have any weapon or dangerous device readily at hand.
(ECF No. 32 ¶ 29.)
C. Allegations against West Mifflin
According to plaintiffs:
 the conduct of Hoffman and Haines was a direct consequence of policies and
practices of West Mifflin and its police department (ECF No. 32 ¶ 36);
 West Mifflin knew or should have known about Hoffman’s and Haines’
propensity to engage in misconduct of the type alleged in this case (Id. ¶ 40);
 “it was the policy and/or custom of the Borough of West Mifflin, acting through
the West Mifflin Police Department to inadequately train, supervise and discipline
its police officers, including the Defendant Officers, thereby failing to adequately
discourage further constitutional violations on the part of its police officers, such
as were inflicted upon Plaintiff” (id.); and
 Hoffman and Haines believed their actions would not be properly monitored by
supervisory officers and that misconduct would not be investigated or sanctioned,
but rather would be tolerated (id. ¶ 41.)
D. Allegations against Wal-Mart
At all times relevant to the allegations contained in the amended complaint: Eric Grilley
(“Grilley”) was employed as a loss prevention officer at the Wal-Mart store; Chad Dubas
(“Dubas”) was employed as an assistant manager at the Wal-Mart store; and James Tucker
(“Tucker”) was employed as an assistant manager at the Wal-Mart store. (Id. ¶¶ 45-47.)
According to plaintiffs, Grilley, Dubas, and Tucker acted in concert and within the scope of their
employment with Wal-Mart. (ECF No. 32 ¶¶ 48-49.) Plaintiffs allege that Wal-Mart was a state
actor at all times relevant to their claims because Grilley, Dubas, and Tucker:
had a prearranged agreement and understanding with the West Mifflin Borough
Police Department and the individual officers thereof that any individual accused
by [Wal-Mart] management of any sort of crime allegedly occurring on its
premises, including shoplifting or other forms of theft, would be detained by the
5

West Mifflin Police and criminal charges would be advanced against them
without question, independent investigation or determination of probable cause.
(ECF No. 32 ¶ 50.) According to plaintiffs, the prearranged agreement between West Mifflin and
Wal-Mart “was motivated by discriminatory animus as it was particularly directed toward and
against African-American individuals such as Plaintiffs.” (Id. ¶ 51.)
Grilley, Dubas, and Tucker summoned the West Mifflin police department to deploy
Hoffman and Haines to the Wal-Mart store as soon as plaintiffs appeared at the Wal-Mart store
and before any evaluation was made of their attempt to return the large screen television. (ECF
No. 32 ¶ 52.) Grilley, Dubas, and Tucker provided the West Mifflin police a “a false report and
representation that Plaintiffs were engaged in an act of theft by deception by attempting to return
to the [Wal-Mart] Supercenter store location a large screen television set which had allegedly not
been purchased at [Wal-Mart] and on the further false report and representation that Plaintiff
Sheki Bell had assaulted Dubas.” (Id.) Plaintiffs, however, showed to Grilley, Dubas, and Tucker
the receipt for their purchase of the large screen television they were attempting to return to the
store. (Id.) Dubas commented that plaintiffs “looked suspicious.” (Id.)
Grilley, Dubas, and Tucker communicated to Hoffman and Haines that plaintiffs were
engaged in the act of theft by deception even though plaintiffs showed to Grilley, Dubas, and
Tucker the receipt from the purchase of the large screen television they were attempting to return
to the Wal-Mart store. (ECF No. 32 ¶ 53.) As a result of those false accusations, Hoffman and
Haines seized, handcuffed, detained, and publicly humiliated Bell. They left her “on display”
handcuffed in the public parking lot of the Wal-Mart store. (Id. ¶ 54.) At the time Hoffman and
Haines arrived at the Wal-Mart store, there was no evidence—other than the false reports and

6

false representations by Grilley, Dubas, and Tucker—that plaintiffs had engaged in any act of
theft or deception. (Id. ¶¶ 55, 57.)
While Bell and Lewis were being detained in the parking lot of the Wal-Mart store, they
“were required to each sign a document in which they agreed to never again set foot on [Walmart] property anywhere in the United States or they would be immediately arrested and sent to
jail. Plaintiffs requested a copy of the document they were so coerced into signing but their
request was refused.” (ECF No. 32 ¶ 56.)
Plaintiffs—as a result of the false reports made by Grilley, Dubas, and Tucker—were
charged with various crimes including criminal attempt for theft by deception, criminal
conspiracy for theft by deception, harassment and disorderly conduct. (ECF No. 32 ¶ 58.)
Plaintiffs were placed under arrest and incarcerated for a period of time in the Allegheny County
Jail. (Id.) “Ultimately all criminal charges brought against Plaintiffs arising from the incident
were dismissed.” (Id. ¶ 59.) Wal-Mart’s actions caused damage to plaintiffs. (Id.¶¶ 60-63.)
IV. Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In
deciding a motion to dismiss, the court is not opining about whether the plaintiff will be likely to
prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all
well-pled factual allegations in the complaint and views them in a light most favorable to the
plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a
complaint does not need detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss,
a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not
7

do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be
enough to raise a right to relief above the speculative level” and “sufficient to state a claim for
relief that is plausible on its face.” Id. “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully….Where a
complaint pleads facts that are “merely consistent with” a defendant’s liability, it
“stops short of the line between possibility and plausibility of ‘entitlement to
relief.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556) (internal citations omitted).
The Court of Appeals for the Third Circuit has instructed that “a court reviewing the
sufficiency of a complaint must take three steps.” Connelly v. Lane Constr, Corp., 809 F.3d 780,
876-87 (3d Cir. 2016). The court of appeals explained:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a
claim.” Iqbal, 556 U.S. at 675. Second, it should identify allegations that,
“because they are no more than conclusions, are not entitled to the assumption of
truth.”Id. at 679. See also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d
Cir.2011) (“Mere restatements of the elements of a claim are not entitled to the
assumption of truth.”(citation and editorial marks omitted)). Finally, “[w]hen
there are well-pleaded factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
Id. “Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
V. Analysis
8

Section 1983 imposes civil liability upon any person who, while acting under color of
state law, deprives another individual of rights, privileges, and immunities secured by the
Constitution or federal law. Doe v. Delie, 257 F.3d 309, 314 (3d Cir. 2011). To prevail on a
claim brought pursuant to § 1983, a plaintiff must show that (1) the defendant acted under color
of law, and (2) the defendant's actions deprived the plaintiff of rights secured by the Constitution
or federal statutes. Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997). An action “under color
of law” is the equivalent of “state action” under the Fourteenth Amendment. Leshko v. Servis,
423 F.3d 337, 339 (3d Cir. 2005). Thus, to state a claim of liability under § 1983, a plaintiff must
allege that he or she was deprived of a federal Constitutional or statutory right by a state actor.
Id.
“The ‘under color of law’ requirement means that merely private conduct, no matter how
discriminatory or wrongful, does not violate Section 1983.” Francis v. Lehigh Univ., Civ. Action
No. 10-4300, 2011 WL 204749, at *4 (E.D. Pa. Jan. 24, 2011) (citing Am. Manufacturers Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). “Nonetheless, action by a private party will satisfy
the ‘under color’ requirement of Section 1983 if the deprivation of a federal right is ‘fairly
attributable to the state.’” Francis, 2011 WL 204749, at *4 (quoting Lugar v. Edmondson Oil
Co., 457 U.S. 922, 937 (1982)). The Third Circuit Court of Appeals has “outlined three broad
tests generated by Supreme Court jurisprudence to determine whether state action exists[,]” i.e.,
whether the complained of action is fairly attributable to the state. Kach v. Hose, 589 F.3d 626,
646 (3d Cir. 2009). The court of appeals explained those tests as follows:
(1) “whether the private entity has exercised powers that are traditionally the
exclusive prerogative of the state”; (2) “whether the private party has acted with
the help of or in concert with state officials”; and (3) whether “the [s]tate has so
far insinuated itself into a position of interdependence with the acting party that it
must be recognized as a joint participant in the challenged activity.”
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Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). The inquiry under
any of the three tests is “‘fact-specific.’” Kach, 589 F.3d at 646 (quoting Groman v. Twp. of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)).
The court need not address the state actor issue because—even assuming Wal-Mart acted
under color of law—plaintiffs’ claims against Wal-Mart fail under Rule 12(b)(6). The factual
allegations in the amended complaint are insufficient to plausibly show that: (1) Wal-Mart is
either directly liable for its own conduct or vicariously liable for the conduct of its employees; or
(2) Grilley, Dubas, and Tucker acted within the scope of their employment with Wal-Mart when
they allegedly committed the torts of false arrest or malicious prosecution against plaintiffs.
A. Under § 1983 Wal-Mart cannot be held vicariously liable for the conduct of its
employees, and plaintiffs did not set forth factual allegations sufficient to state a
claim against Wal-Mart for its own conduct.
In a § 1983 action, “a municipality cannot be held liable under a theory of respondeat
superior.” Victory Outreach Center v. Melso, 371 F.Supp.2d 642, 646 (E.D. Pa. 2004) (citing
Monell v. Dep’t of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978)). A municipality, however,
may be held directly liable under § 1983 “when execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury[.]” Monell, 436 U.S. at 694. Similarly, in a § 1983 action, a
private corporation cannot be held liable under a theory of respondeat superior for the acts of its
employees. Defreitas v. Montgomery County Correctional Facility, 525 F. A’ppx 170, 176 (3d
Cir. 2013) (“To bring a § 1983 claim against a local government or government entity (including
a private corporation, like CMC, that is alleged to be acting under color of state law, see Natale
v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583–84 (3d Cir.2003)) for the actions of an
10

employee of one of those entities, a plaintiff cannot rely upon respondeat superior liability, but
he must show that the entity had a policy or custom that caused his deprivation of a
constitutional right.”); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012); Street v.
Corrections Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996); Sanders v. Sears, Roebuck & Co.,
984 F.2d 972, 975-76 (8th Cir. 1993) (“[A] corporation acting under color of state law will only
be held liable under § 1983 for its own unconstitutional policies.”); Harvey v. Harvey, 949 F.2d
1127, 1129 (11th Cir. 1992) (“Monell involved a municipal corporation, but every circuit court
to consider the issue has extended the holding to private corporations as well.”); Rojas v.
Alexander's Dep’t Store, Inc., 924 F.2d 406, 408–09 (2d Cir. 1990); Powell v. Shopco Laurel
Co., 678 F.2d 504, 506 (4th Cir. 1982) (“In Monell…, the Supreme Court held that a municipal
corporation cannot be saddled with section 1983 liability via respondeat superior alone. We see
this holding as equally applicable to the liability of private corporations.”); Iskander v. Village of
Forest Park, 690 F.2d 126 (7th Cir. 1982); DeVargas v. Mason & Hanger–Silas Mason Co., 844
F.2d 714, 723 (10th Cir. 1988); but see Shields v. Illinois Dep’t of Corrections, 746 F.3d 782,
789-93 (7th Cir. 2014) (reconsidered the decision of the Seventh Circuit Court of Appeals in
Iskander v. Village of Forest Park, 690 F.2d 126 (7th Cir. 1982), that the Monell standard applies
to private corporation and noted “there are substantial grounds to question the extension of the
Monell holding for municipalities to private corporations”).2

2

The Court of Appeals for the Seventh Circuit in Shields could not overrule Iskander. The
court of appeals explained: “For reasons we explain below, however, Iskander and our cases
following it on this point deserve fresh consideration, though it would take a decision by this
court sitting en banc or pursuant to Circuit Rule 40(e), or a decision by the Supreme Court to
overrule those decisions.” Shields, 746 F.3d at 789. The court held:
The answer under controlling precedents of this court is clear. Such a private
corporation cannot be held liable under § 1983 unless the constitutional violation
11

Wal-Mart, therefore, cannot be held vicariously liable for the alleged acts of Grilley,
Dubas, and Tucker that deprived plaintiffs of their constitutional rights. Plaintiffs argue,
however, that “they have made…a sufficient demonstration” that Wal-Mart “maintained a
policy, practice or custom which directly caused plaintiffs’ constitutional harm[.]” (ECF No. 37
at 9.) Plaintiffs rely upon their allegations that they were made to “sign an agreement that they
would never against set foot on [Wal-Mart] property anywhere in the United States or they
would be immediately arrested and sent to jail.” (Id. (emphasis in original).) They argue:
[g]iven the scope and breadth of the agreement encompassing [Wal-Mart]
property anywhere in the United States it is submitted that the allegations of the
Amended Complaint establish a more than sufficient nexus to a [Wal-Mart]
general corporate policy practice or custom with a causal link to the deprivation
of Plaintiff’s rights and indifference by [Wal-Mart] to the consequences.
(Id. at 10.)
Plaintiffs did not set forth factual allegations sufficient to plausibly show that Wal-Mart
maintained an official policy or custom that directly caused plaintiffs’ constitutional violation. In
Monell, the Supreme Court held that “it is when execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government entity is responsible under § 1983.”
Monell, 436 U.S. at 694; McTernan v. City of York, Pa., 564 F.3d 636, 657 (3d Cir. 2009).
Under the “policy” path, a local government unit may be “sued directly if it is alleged to have
caused a constitutional tort through ‘a policy statement, ordinance, regulation, or decision
officially adopted and promulgated by that body's officers.’ ” City of St. Louis v. Praprotnik, 485

was caused by an unconstitutional policy or custom of the corporation itself.
Respondeat superior liability does not apply to private corporations under § 1983.
Shields, 746 F.3d at 789.
12

U.S. 112, 121 (1988) (quoting Monell, 436 U.S. at 690). In addition, “[p]olicy is made when a
‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.” Andrews v. City of Phila., 895 F.2d
1469, 1480 (3d Cir. 1990) (quoting Pembaur, 475 U.S. at 481). Under the “custom” path, § 1983
authorizes suit “ ‘for constitutional deprivations visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the [government] body's official
decisionmaking channels.’” Praprotnik, 485 U.S. at 121 (quoting Monell, 436 U.S. at 690–91).
“A course of conduct is considered...a ‘custom’ when, though not authorized by law, ‘such
practices of state officials [are] so permanent and well settled’ as to virtually constitute law.”
Andrews, 895 F.2d at 1480 (quoting Monell, 436 U.S. at 690). “Custom requires proof of
knowledge and acquiescence by the decisionmaker.” McTernan, 564 F.3d at 658 (citing Watson
v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007)).
Plaintiffs in the amended complaint did not set forth factual allegations for the court to
plausibly infer that Wal-Mart maintained a custom or policy that directly caused their
constitutional deprivation. Plaintiffs’ reliance on the “document in which they agreed to never
again set foot on [Wal-Mart] property anywhere in the United States or they would be
immediately arrested and sent to jail” is insufficient for the court reasonably to infer that WalMart had a policy to use that kind of agreement to cause a false arrest to be made. (ECF No. 32 ¶
56.) Paragraph 56 of the amended complaint contains the only allegations about the document
referenced by plaintiffs and provides:
56. As further evidence of the conspiracy and concert of action between
[Wal-Mart] acting by and through Grilley, Dubas and Tucker and Officers
Hoffman and Haines, Hoffman informed Plaintiffs on the date of the incident
while they were detained in the parking lot of the [Wal-Mart] Supercenter
location that Plaintiffs were required to each sign a document in which they
13

agreed to never again set foot on [Wal-Mart] property anywhere in the United
States or they would be immediately arrested and sent to jail. Plaintiffs requested
a copy of the document they were so coerced into signing but their request was
refused.
(ECF No. 32. ¶ 56.)
With respect to the policy theory under Monell, there are no allegations from which a
reasonable inference may be drawn that Wal-Mart’s corporate officers or someone with final
decision-making authority officially promulgated and adopted either (1) the alleged agreement
made by Grilley, Dubas, and Tucker with the West Mifflin police, or (2) the document Hoffman
provided to plainitffs as a policy of the Wal-Mart.
With respect to the custom theory under Monell, plaintiffs do not allege that a final
decisionmaker of Wal-Mart had knowledge of or acquiesced to the alleged agreement between
Grilley, Dubas, and Tucker and the West Mifflin police. McTernan, 564 F.3d at 658 (“Custom
requires proof of knowledge and acquiescence by the decisionmaker.”). There are conclusory
statements that the agreement and the actions taken pursuant thereto were custom of that WalMart store. Plaintiffs allege:
50. At all relevant times hereto, [Wal-Mart], acting by and through
Grilley, Dubas and Tucker was a state actor and/or was acting under color of state
law for purposes of Plaintiff’s claims arising under 42 U.S.C. §1983. This is the
case because [Wal-Mart] acting by and through Grilley, Dubas and Tucker on
information and belief had a prearranged agreement and understanding with the
West Mifflin Borough Police Department and the individual officers thereof that
any individual accused by [Wal-Mart] management of any sort of crime allegedly
occurring on its premises, including shoplifting or other forms of theft, would be
detained by the West Mifflin Police and criminal charges would be advanced
against them without question, independent investigation or determination of
probable cause.
51. Plaintiffs further aver said combination, conspiracy and understanding
between [Wal-Mart] and the West Mifflin Borough Police Department was
motivated by discriminatory animus as it was particularly directed toward and
against African-American individuals such as Plaintiffs.
14

52. Specifically, on the day and date at issue Grilley, Dubas and Tucker
summoned the West Mifflin Police Department to deploy Defendants Hoffman
and Haines to the [Wal-Mart] Supercenter store location at 2531 Century Dr.
West Mifflin, PA 15122 on a false report and representation that Plaintiffs were
engaged in an act of theft by deception by attempting to return to the [Wal-Mart]
Supercenter store location a large screen television set which had allegedly not
been purchased at [Wal-Mart] and on the further false report and representation
that Plaintiff Sheki Bell had assaulted Dubas….
(ECF No. 32 ¶¶ 50-52.) The only well-pled factual allegations in the foregoing allegations are
that the Wal-Mart employees lied to the police.
The factual allegations in the amended complaint are not sufficient for the court to infer
that someone from Wal-Mart with final decisionmaking authority knew of or acquiesced to that
agreement or those actions in such a way that the actions complained of in this case were the
“law” of Wal-Mart. “An official has policymaking authority for Monell purposes when the
official is responsible as a matter of state law for making policy in the particular area of county
business in question, and the official's authority to make policy in that area is final and
unreviewable.” Mulholland v. Gov’t Cnty. of Berks, Pa., 706 F.3d 227, 237-38 (3d Cir. 2013)
(citing Hill v. Borough of Kutztown, 455 F.3d 225, 245-46 (3d Cir. 2006)). Plaintiffs allege that
Grilley was a loss prevention officer and Dubas and Tucker were assistant managers with the
Wal-Mart store. Under those circumstances, a reasonable inference cannot be plausibly drawn to
show that their authority was final and unreviewable by other Wal-Mart officials. Based upon the
foregoing, plaintiffs failed to set forth factual allegations sufficient to plausibly allege a claim of
Monell liability against Wal-Mart. Plaintiffs’ § 1983 claim asserted against Wal-Mart will,
therefore, be dismissed.
B. The factual allegations in the amended complaint are insufficient for a reasonable
inference to be plausibly drawn that Wal-Mart may be held liable for the conduct of
its employees.
15

False arrest3 and malicious prosecution4 are intentional torts under Pennsylvania common
law. Watson v. Witmer, 183 F.Supp.3d 607, 616 (M.D. Pa. 2016) (“False arrest, false
imprisonment, malicious prosecution, and IIED constitute intentional torts.”). In order for WalMart—an employer—to be held liable for the intentional acts of its employees, “the wrongful
conduct in question must…be within the scope of [their] employment” with Wal-Mart. Win &
Son, Inc. v. City of Phila., 178 F.Supp.3d 234, 244 (E.D. Pa. 2016) (citing Brennan v. Merch. &
Co., 54 A. 891, 892 (1903)). “Scope of employment” under Pennsylvania common law is
defined by the RESTATEMENT (SECOND) OF AGENCY § 228, which provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of
force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in
kind from that authorized, far beyond the authorized time or space limits, or
too little actuated by a purpose to serve the master.

3

The elements of a claim for false arrest under Pennsylvania law are: “(1) the detention of
another person (2) that is unlawful.” Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Commw.
Ct. 2010.) “‘An arrest based upon probable cause would be justified, regardless of whether the
individual arrested was guilty or not.’” Id. (quoting Renk v. City of Pittsburgh, 76 A.2d 289, 293
(Pa. 1994).
4

The elements of a claim for malicious prosecution under Pennsylvania law are: “(1)
institution of proceedings against the plaintiff without probable cause and with malice, and (2)
the proceedings were terminated in favor of the plaintiff.” Manley, 997 A.2d at 1241 (citing
Turano v. Hunt, 631 A.2d 822, 824 (Pa. Commw. Ct. 1993)).
16

RESTATEMENT (SECOND) OF AGENCY § 228; Butler v. Flo-Ron Vending Co., 557 A.2d 730, 736
(Pa. Super. Ct. 1989) (“Conduct within the scope of employment has been defined in the
RESTATEMENT (SECOND) OF AGENCY § 228”); Win & Son, 178 F.Supp.3d at 244.
The factual allegations in the amended complaint are not sufficient for the court to
plausibly infer that Grilley, Dubas, and Tucker acted within the scope of their employment with
Wal-Mart. Plaintiffs did not set forth any factual allegations about the job responsibilities or
duties of Grilley, as a loss prevention officer, or Dubas, and Tucker, as assistant managers, i.e.,
plaintiffs did not set forth any well-pled factual allegations about whether the alleged conduct of
Grilley, Dubas, and Tucker was the “the kind [they were] employed [by Wal-Mart] to perform.”
RESTATEMENT (SECOND) OF AGENCY § 228.5 Under those circumstances, the court cannot draw a
reasonable inference to plausibly infer that Grilley, Dubas, and Tucker were acting within the
scope of their employment when they allegedly, among other acts, lied to the police and
conspired with the West Mifflin police to detain and criminally charge “any individual accused
by [Wal-Mart] management of any sort of crime allegedly occurring on its premises…without
question, independent investigation or determination of probable cause.” (ECF No. 32 ¶ 50.)
Additionally, there are no factual allegations from which the court could plausibly infer that
Grilley, Dubas, and Tucker acted within the scope of their employment with Wal-Mart when
Dubas immediately—without questioning or listening to plaintiffs—called the West Mifflin
police and falsely accused plaintiffs of committing a crime because plaintiffs were AfricanAmerican and “looked suspicious.” (Id. ¶¶ 51-53.) The factual allegations in the amended
5

Even if the court could reasonably infer that contact with the police was a part of
Grilley’s duties as a “loss prevention officer,” plaintiffs in the amended complaint specifically
allege that it was Dubas who refused to permit plaintiffs to return the television, called the
police, and thought that plaintiffs looked suspicious. (ECF No. 32 ¶ 52.)
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complaint are, therefore, insufficient for a reasonable inference to be plausibly drawn that WalMart may be held liable for the conduct of its employees, Grilley, Dubas, and Tucker.
The above discussion focuses on the Restatement (Second) of Agency. There is the
Restatement (Third) of Agency, but the Pennsylvania Supreme Court has not yet adopted in full
that Restatement.6 The section of the Restatement (Third) relevant to this case, i.e., § 7.07
entitled “Employee Acting Within Scope of Employment” “differs from its counterparts in
Restatement Second, Agency §§ 228 and 229 because it is phrased in more general terms.”
RESTATEMENT (THIRD) AGENCY § 7.07 cmt. b. The comments to § 7.07 provide:
Under Restatement Second, Agency § 228(1)(b), conduct falls within the
scope of employment when it “occurs substantially within the authorized time and
space limits.” This formulation does not naturally encompass the working
circumstances of many managerial and professional employees and others whose
6

The Pennsylvania Supreme Court has cited to various sections of the Restatement (Third)
of Agency, i.e., §§ 2.01, 5.03, and 5.04, which are not specifically at issue in this case. Official
Comm. Of Unsecured Creditors of Allegheny Health Educ. & Research Found. V. Price
WaterhouseCoopers, LLP, 989 A.2d 313, 336 n.33 (Pa. 2010).
In Vine v. State Employees’ Retirement Board, 956 A.2d 1088 (Pa. Commw. Ct. 2008),
the Commonwealth Court of Pennsylvania predicted that the Pennsylvania Supreme Court would
adopt sections 3.04, 3.08, and 3.11 of the Restatement (Third) of Agency. Id. at 1098 (“We
believe…that the rules are consistent with Pennsylvania law, and we predict that the Court will
embrace the Restatement provisions when the occasion arises.”). On appeal, the Pennsylvania
Supreme Court did not adopt those sections of the Restatement (Third) of agency and noted:
The Commonwealth Court acknowledged…that this Court has not adopted these
sections of the Restatement. Moreover, the court did not evaluate how these
provisions may pertain in circumstances where the principal is alleged to have
lacked the capacity to form a valid agency relationship in the first instance. See
generally Restatement (Third) of Agency (2006) § 3.04 cmt. b (“The principal's
capacity is requisite to a relationship of agency because the agent's actions within
the scope of the relationship affect the principal's legal position.”).
Vine v. Pa. State Employees’ Retirement Bd., 9 A.3d 1150, 1155 n.9 (Pa. 2010).
18

work is not so readily cabined by temporal or spatial limitations. Many employees
in contemporary workforces interact on an employer's behalf with third parties
although the employee is neither situated on the employer's premises nor
continuously or exclusively engaged in performing assigned work. Moreover,
under § 228(1)(c), conduct is not within the scope of employment unless “it is
actuated, at least in part, by a purpose to serve” the employer. Under § 228(2),
conduct is not within the scope of employment if it is “too little actuated by a
purpose to serve” the employer. Under § 235, conduct is not within the scope of
employment “if it is done with no intention” to perform an authorized service or
an incidental act. These formulations are not entirely consistent; an act motivated
by some purpose to serve the employer could still be “too little actuated” to be
within the scope of employment.
In contrast, under subsection (2) of this section, an employee's conduct is
outside the scope of employment when it occurs within an independent course of
conduct intended to serve no purpose of the employer. Most cases apply the
standard stated by this section.
RESTATEMENT (THIRD) OF AGENCY § 7.07 cmt. b.
Here, it is not necessary for the court to predict7 whether the Pennsylvania Supreme
Court would adopt § 7.07 because, even applying § 7.07 to this case, plaintiffs failed to set forth
factual allegations sufficient from which the court could reasonably infer that Grilley, Dubas,
and Tucker were acting within the scope of their employment with Wal-Mart. The commentary
to § 7.07 provides:
An employee's conduct, although tortious, may be within the scope of
employment as defined in subsection (2). If an employee commits a tort while
performing work assigned by the employer or while acting within a course of
conduct subject to the employer's control, the employee's conduct is within the
scope of employment unless the employee was engaged in an independent course
7

“In the absence of a controlling decision by the Pennsylvania Supreme Court, a federal
court applying that state's substantive law must predict how Pennsylvania's highest court would
decide this case.” Berrier v. Simplicity fg., Inc., 563 F.3d 38, 45-46 (3d Cir. 2009) (citing
Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000)).
19

of conduct not intended to further any purpose of the employer. The formulation
in subsection (2) reflects the definition of scope of employment applied in most
cases and in most jurisdictions.
RESTATEMENT (THIRD)

OF

AGENCY § 7.07 cmt. b (emphasis added). There are no factual

allegations in the amended complaint about the job duties or work assignments of Grilley,
Dubas, or Tucker or well-plead factual allegations about a course of conduct subject to WalMart’s control. Under those circumstances, the court cannot reasonably infer that their acts were
within their scope of employment with Wal-Mart when they allegedly committed the acts
complained of in the amended complaint.
As discussed above, plaintiffs failed to state plausible claims of false arrest and malicious
prosecution against Wal-Mart based upon the conduct of its employees. The motion to dismiss
will be granted without prejudice with respect to those claims.
VI. Conclusion
Wal-Mart cannot be held vicariously liable for the actions of Grilley, Dubas, and Tucker
under § 1983. The factual allegations in the amended complaint are not sufficient for a plausible
inference to be drawn with respect to Monell liability on the part of Wal-Mart, i.e., Wal-Mart had
a policy or custom that directly caused the deprivation of plaintiffs’ constitutional rights.
The factual allegations in the amended complaint are not sufficient for a plausible
inference to be drawn that Grilley, Dubas, and Tucker acted within the scope of their
employment with Wal-Mart when they allegedly committed the torts of false arrest and
malicious prosecution against plaintiffs.
Wal-Mart’s motion to dismiss the amended complaint (ECF No. 33) will be granted, and
all plaintiffs’ claims asserted against Wal-Mart in the amended complaint will be dismissed
without prejudice. Wal-Mart will be dismissed as a party in this action. If plaintiffs desire to file
20

a second amended complaint, they must file a motion for leave to file a second amended
complaint and attach the proposed second amended complaint to the motion.
An appropriate order will be entered.
BY THE COURT,
Dated: May 8, 2017

/s/ JOY FLOWERS CONTI
Joy Flowers Conti
Chief United States District Judge

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