Opinion
CIVIL 3:21-CV-00283
05-19-2022
JOSE ENRIQUE CRUZ, Plaintiff, v. CITY OF POTTSVILLE, et al., Defendants.
Mariani, Judge.
REPORT AND RECOMMENDATION
Susan E. Schwab, United States Magistrate Judge.
I. Introduction.
Plaintiff, Jose Enriquez Cruz (“Cruz”), brings this action pro se under 42 U.S.C. § 1983 for alleged constitutional violations and 42 U.S.C. §§ 12112, 12132 for an alleged violation of the Americans with Disabilities Act (“ADA”). Cruz asserts that, during his arrest in 2019, the defendants deprived him of his Fourth Amendment right to be free from unlawful seizure, his Fifth and Fourteenth Amendment right to be free from excessive force, and his Eighth Amendment right to be free from cruel and unusual punishment. Cruz also alleges a Monell claim and asserts that the defendants violated his rights under the ADA. Additionally, Cruz alleges that the conduct of the defendants constitutes false arrest, false imprisonment, assault & battery, malicious prosecution, and negligence under Pennsylvania law.
Currently pending is a motion to dismiss Cruz's complaint filed by defendants Police Officer Corporal Charles Webber (“Webber”), Police Officer Michael Messer (“Messer”), the Pottsville Police Department, and the City of Pottsville (collectively “the Pottsville defendants”). Additionally, defendant Pennsylvania State Trooper Rooney (“Rooney”) filed a separate motion to dismiss all of Cruz's claims except for Cruz's Fourth Amendment claims. For the reasons discussed below, we recommend that the motions to dismiss be granted in part and denied in part.
There appears to be some confusion about whether the defendant's name is spelled Messer or Messner. Although his name appears as Messer on the docket and within the caption of the briefs, he is also referred to as Messner throughout the body of the briefs. For the sake of consistency, we will refer to the defendant as Messer throughout this Report and Recommendation.
As discussed later, we recommend that the motion to dismiss be granted against the Pottsville Police department. Accordingly, the Pottsville defendants refer to Webber, Messer, and the City of Pottsville.
II. Background and Procedural History.
Cruz, an inmate at State Correctional Institute Benner Township (SCI-Benner), commenced this pro se action by filing a complaint on February 17, 2021. Doc. 1. In his complaint, Cruz names the City of Pottsville, the Pottsville Police Department, Webber, Messer, and Rooney as defendants. Id. Per Cruz, on March 8, 2019, he was sitting on the porch of his home listening to music from his cellphone. Id. at 4. Cruz claims that, at or around 12:40 a.m., Webber, a police officer from the Pottsville Police Department, approached him with his gun drawn and pointed at Cruz's chest. Id. Per Cruz, the defendants claim they were responding to a reported break-in and that a shot had been fired; however, Cruz asserts that “[t]hese reports and allegations are false.” Id. at 8. According to Cruz, Webber demanded that Cruz put his hands in the air, and Cruz responded by asking Webber why he should comply with Webber's order. Id at 4. Cruz claims that Webber failed to explain why and only repeated his demands for Cruz to put his hands in the air. Id.
Per Cruz, Officer Rainis and Messer arrived on the scene and ran towards Webber and Cruz with their guns drawn and pointed in Cruz's direction. Id. Cruz claims that this made him fear for his life, so he began to walk away from the officers. Id. Cruz alleges that the officers had no probable cause to believe that Cruz had committed a crime and that there was no lawful reason to arrest him. Id. Cruz claims that the officers continued to scream and point their guns at him; however, Cruz ignored their orders. Id. According to Cruz, the officers began to follow him, and so, Cruz “pulled out a gun pointed it at his own and head and pulled the trigger.” Id. at 7. Cruz claims he was attempting to end his life; however, the gun failed to fire. Id.
Cruz alleges that State Troopers Rooney and Phaira then arrived. Id. Per Cruz, Rooney would later testify that Cruz's “gun was jammed, in a locked position, and that he believed the gun could not shoot in that position.” Id. Cruz also claims that Rooney testified that “Cruz was so focused on his own gun that he thought he could possibly sneak up on Cruz and disarm him.” Id. According to Cruz, Rainis fired his taser at Cruz and caused Cruz to fall to the ground. Id. Per Cruz, the impact fractured his skull and several bones in his face. Id. Additionally, according to Cruz, the impact caused Cruz to release his gun, and while he was convulsing on the ground, Rooney and Pahira both fired their tasers into Cruz. Id.
Cruz alleges that while he was unarmed and lying face down on the ground, he heard Rooney scream “shoot him, kill the motherfucker” and Webber and Messer “both discharged their firearms multiple times striking Cruz four times in his front and back.” Id. Additionally, Cruz claims that “[b]ullets penetrated his right low abdomen, thigh, groin, and buttocks.” Id. Cruz claims that he never pointed or discharged his gun at the officers and that he was unarmed when the officers shot him. Id. Cruz further alleges that he “was not a threat to any of the officers, himself, or the public.” Id. Cruz also claims that the entire incident was captured by at least three of the officers' body cams. Id.
Per Cruz, he “went into cardiac-arrest, flatlined, and had to medivac to Lehigh Valley Hospital Cedar Crest.” Id. According to Cruz, he was intubated and required multiple surgeries and “still has multiple bullet fragments in his chest, abdomen and pelvis.” Id. at 7-8. Cruz claims he has not fully recovered from these injuries and that they severely limit his daily life. Id. at 8. After a stint in the intensive care unit, Cruz was convicted of five counts of recklessly endangering another person, firearms, and minor drug possession. Id.
Cruz asserts several claims against the defendants. In Count One, Cruz claims that the “defendants deprived plaintiff his 4th Amendment right to be free from unlawful seizure of his person.” Id. at 5. In Count Two, Cruz claims that the defendants “deprived plaintiff his 5th and 14th Amendment rights to due process of law including the right to be free from unjustified and excessive force used by police.” Id. In Count Three, Cruz claims that the defendants “deprived plaintiff [of] his 8th Amendment right to be free from cruel and unusual punishment.” Id. IN Count Four, Cruz claims that the defendants “acted under the color of state law when they deprived plaintiff his constitutionally protected rights.” Id. In Count Five, Cruz claims that the “defendants['] acts and conduct as alleged constitute malicious prosecution, false arrest assault & battery, and negligence under the law of the State of Pennsylvania.” Id. In Count Six, Cruz claims that the defendants “violated plaintiff's rights under the Americans with Disabilities Act 42 U.S.C. §§ 12112 and 12132.” Id.
For relief, Cruz requests the entry of declaratory judgment that the defendants' conduct was illegal under federal and state law. Id. Additionally, Cruz seeks an “[i]njunction prohibiting defendants from engaging in or approving of law enforcement acts against the plaintiff which interfere with his fed[eral] and state rights.” Id. Cruz also requests compensatory and punitive damages. Id.
On January 3, 2022, the Pottsville defendants filed a motion to dismiss (doc. 23) Cruz's complaint. That same day, Rooney also filed a motion to dismiss (doc. 24) Cruz's complaint. On January 18, 2022, the Pottsville defendants filed their brief in support (doc. 25) of their motion to dismiss and Rooney filed his brief in support (doc. 26) of his motion to dismiss. On March 15, 2022, Cruz filed his brief in opposition (doc. 33) to the Pottsville defendants' motion to dismiss and Rooney's motion to dismiss. On March 24, 2022, the Pottsville defendants filed a reply brief (doc. 34) to Cruz's brief in opposition and on April 12, 2022, Rooney also filed a reply brief (doc. 38) to Cruz's brief in opposition. Before us are the two motions to dismiss, which have been fully briefed. For the reasons discussed below, we recommend that the motions to dismiss be granted and denied in part.
III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels, ” “conclusions, ” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
IV. 42 U.S.C. § 1983.
To state a viable Section 1983 claim, a plaintiff must plead two essential elements: 1) that the conduct complained of was committed by a person acting under color of state law, and 2) that said conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 580-81 (3d Cir. 2003). Moreover, for a Section 1983 claim to survive a motion to dismiss, the plaintiff must sufficiently allege that the defendant was personally involved in the act or acts that the plaintiff claims violated his rights. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Chavarria v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
Individual liability can be imposed under 42 U.S.C. § 1983 only if the state actor played an “affirmative part” in the alleged misconduct and “cannot be predicated solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode, 845 F.2d at 1207); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). The personal involvement of a defendant in a Section 1983 action may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Argueta v. U.S. Immigration & Customs Enf't, 643 F.3d 60, 71 (3d Cir. 2011) (quoting Rode, 845 F.2d at 1207). Such allegations, however, must be made with appropriate particularity in that a complaint must allege the particulars of “conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08.
Alleging a mere hypothesis that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement. Rode, 845 F.2d at 1208. Moreover, a defendant “cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” C.H. ex rel. Z.H. v. Olivia, 226 F.3d 198, 201-02 (3d Cir. 2000). Allegations that a supervisor “had constructive knowledge of a subordinate's unconstitutional conduct simply because of his role as a supervisor” do not suffice. Broadwater v. Fow, 945 F.Supp. 574, 588 (M.D. Pa. 2013) (citing C.H. ex rel. Z.H., 226 F.3d at 202).
V. Individual and Official Capacity Claims.
Before we begin our discussion of Cruz's claims, we note that there appears to be some uncertainty about whether the defendants are being sued in their official capacities, individual capacities, or both their official and individual capacities. At no point in Cruz's complaint does he state the capacities in which he is suing the defendants. Additionally, the defendants do not address this issue in either brief.
When there is ambiguity as to whether a party is being sued in their official or individual capacity, “[c]ourts in the Third Circuit look to the complaint and the course of proceedings to determine whether [an] official is being sued in [his or her] individual capacity, official capacity, or both.” Day v. New Jersey Dep't of Corr., No. 21-cv-09986, 2022 WL 170855, at *5 (D.N.J. Jan. 19, 2022) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990) (internal quotations omitted)); see also Loomis v. Montrose Borough Police Dep't., No. 3:20-cv-1610, 2021 WL 2865290, n.1 (M.D. Pa. July 8, 2021) (“The complaint does not specify whether Loomis is asserting an individual-capacity or official-capacity claim against Officer Diddick. Based on Loomis's complaint, and the parties' invocation of individual- and official-capacity related doctrines, we construe the complaint as asserting both types of claims.”). Here, similar to the Court in Loomis, we will construe Cruz's complaint as asserting both official-capacity and individualcapacity claims against the defendants. Additionally, Cruz does not specify claims are against which defendants. Accordingly, we will liberally construe Cruz's complaint and consider each claim against each defendant.
Regarding Cruz's official capacity claims against the individual defendants Webber, Messer, and Rooney, “because official capacity claims against an individual defendant are duplicative of claims brought against a municipality, ‘courts sitting in the Third Circuit have dismissed defendants sued in their official capacity when the same claims are made against the municipality.'” Rankin v. Majikes, No. 3:cv-14-699, 2014 WL 6893693, at *6 (M.D. Pa. Dec. 5, 2014) (quoting Dubas v. Olyphant Police Dep't, No. 3:11-cv-1402, 2012 WL 1378694, at *4 (M.D. Pa. Apr. 20, 2012)). “There is no longer a need to bring official-capacity actions against local government officials, for under Monell, supra, local government units can be sued directly for damages and injunctive or declaratory relief.” Id. at 167 n.14. Accordingly, we recommend that all claims against Webber, Messer, and Rooney in their official capacities be dismissed with prejudice.
Unlike Webber and Messer, who are Pottsville police officers, Rooney is a Pennsylvania State Trooper. As a Pennsylvania State Trooper, Rooney is an agent of the Commonwealth of Pennsylvania, and thus, any official capacity claim against Rooney is construed as a claim against the Commonwealth of Pennsylvania. The Commonwealth of Pennsylvania has not waived its Eleventh Amendment immunity, see 42 P.C.S.A. § 8521(b), and 42 U.S.C. § 1983 does not override a state's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, any official capacity claims against Rooney should be dismissed.
VI. Discussion.
A. The Pottsville Police Department should be dismissed.
In their motion to dismiss, the Pottsville defendants argue that the Pottsville Police Department should be dismissed from this action on the grounds that the Police Department is not a separate entity from the City of Pottsville. Doc. 25 at 11 (citing Johnson v. City of Erie, 834 F.Supp. 873, 878-79 (W.D. Pa. 1993)). We agree that the Pottsville Police Department is not a separate entity from the City of Pottsville and, therefore, should be dismissed.
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Court held that local governments are “persons” and are subject to suit under §1983. Following Monell, courts have concluded that a police Department is a sub-unit of the local government and, as such, is merely a vehicle through which the municipality fulfills its policing functions. See e.g. Johnson v. City of Erie, Pa., 834 F.Supp. 873, 878-79 (W.D. Pa. 1993). Thus, while a municipality may be liable under § 1983, a police department, as a mere sub-unit of the municipality, may not. Id. Similarly, judges within this district have concluded that a police department, such as the defendant here, is merely a subunit of the local government and is not, itself, amenable to suit under § 1983. See e.g. Terrell v. City of Harrisburg Police Dept., 549 F.Supp.2d 671, 686 (M.D. Pa. 2008) (“It is well-settled that police departments operated by municipalities are not “persons” amenable to suit under § 1983.”); Holland v. Pocono Regional Police Department, 3:13-CV-1406, 2013 WL 3973080, at *13 (M.D. Pa. July 31, 2013) (report and recommendation citing cases holding that a police department is not a “person” for purposes of § 1983 and, therefore, is not a proper defendant in a § 1983 action), report and recommendation adopted, 2013 WL 3973080 at *1; Golya v. Golya No. 3:05-CV-0100, 2007 WL 2301085, at *9 (M.D. Pa. Aug. 9, 2007). Further, although we are not aware of a precedential opinion by the Third Circuit on this point, in a non-precedential opinion, the Third Circuit reached the same conclusion. See Martin v. Red Lion Police Dept., 146 Fed.Appx. 558, 562 n. 3 (3d Cir. 2005) (per curiam). Following this authority, the Pottsville Police Department is not a proper defendant in this case, therefore, we recommend that the Pottsville Police department be dismissed with prejudice.
B. Cruz's Fourth Amendment Claims.
1. Cruz's false arrest claims.
In Count One, Cruz alleges that the “defendants deprived plaintiff [of] his 4thAmendment right to be free from unlawful seizure of his person.” Doc. 1 at 5. Additionally, in Count Two, Cruz asserts that the defendants “deprived plaintiff [of] his 5th and 14th Amendment rights to due process of law including the right to be free from unjustified and excessive force used by police.” Regarding Count Two, the Pottsville defendants argue that the Fourth Amendment is the proper vehicle for addressing any unlawful deprivation of liberty incident to criminal proceedings. Doc. 25 at 12 (citing Albright v. Oliver, 510 U.S. 266, 274 (1994)).We agree with the Pottsville defendants, and so, we recommend that Cruz's excessive force claims be addressed under the Fourth Amendment. Accordingly, we recommend that Cruz's Fifth and Fourteenth Amendment claims be dismissed against all defendants with prejudice.
We note that in his reply brief, Cruz does not dispute the Pottsville defendants' position that his excessive force claim should be addressed under the Fourth Amendment.
In Count One, Cruz alleges that the defendants' seizure of him was unlawful and violated the Fourth Amendment. The Pottsville defendants argue that, as a result of Cruz's guilty plea to the underlying criminal charges, Count One is Heck barred and should be dismissed as a matter of law, with prejudice. Doc. 25 at 15. Based on his complaint, Cruz's unlawful seizure claim appears to refer to the seizure of his person. Accordingly, we will construe Cruz's unlawful seizure claim as a false arrest claim under the Fourth Amendment. See Brigman v. Schaum, No. 1:20-cv-1549, 2021 WL 3821070, at *6 n.3 (M.D. Pa. July 27, 2021) (construing an unlawful seizure claim as a false arrest/false imprisonment claim because the plaintiff's claim referred to the seizure of his person), report and recommendation adopted, 2021 WL 3862023 (M.D. Pa. Aug. 26, 2021).
In his brief in support of his motion to dismiss, Rooney does not move to dismiss Cruz's Fourth Amendment unlawful seizure claim. Accordingly, we will only analyze the Pottsville defendants' conduct.
In Heck v. Humphrey, the United States Supreme Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a Section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such [a] determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. Humphrey, 512 U.S. 477, 486-87, 490 (1994) (footnote omitted). “Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id.
The “favorable-termination requirement is rooted in pragmatic concerns with avoiding parallel criminal and civil litigation over the same subject matter and the related possibility of conflicting civil and criminal judgments.” McDonough v. Smith, 139 S.Ct. 2149, 2152 (2019). “The requirement likewise avoids allowing collateral attacks on criminal judgments through civil litigation.” Id. Even if the plaintiff has exhausted available state remedies, his § 1983 cause of action is deferred unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. Heck, 512 U.S. at 489.
However, “[c]laims for false arrest or false imprisonment are not automatically subject to the favorable-termination rule.” Brigman, 2021 WL 3862023 at *4. Indeed, the Third Circuit Court of Appeals has held that “[b]ecause a conviction and sentence may be upheld even in the absence of probable cause for the initial stop and arrest, . . . claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence.” That is because “[i]t is at least conceivable that arresting officers could lack probable cause to arrest and detain even if the evidence later supports conviction beyond a reasonable doubt. This could occur if the arresting officers were not privy to all the information that later supported conviction.” Burke v. Twp. of Cheltenham, 742 F.Supp.2d 660, 669 (E.D. Pa. 2010).
Here, Cruz alleges that the police officers had “no probable cause to believe that Cruz had committed a crime” and that there “was no lawful reason to stop and arrest him.” Doc. 1 at 4. Cruz has at least alleged that the arresting officers had no probable cause or lawful reason to seize him, yet they did so anyway. Moreover, we have no other information regarding the police officer's probable cause for Cruz's arrest, or what evidence was ultimately used to convict Cruz. Indeed, at this early stage, it is premature to definitively conclude that Cruz's false arrest claim is Heck barred. See Brigman, 2021 WL 3862023 at *4 (“We have no other information about the circumstances leading to Brigman's arrest or the relationship between those circumstances, his arrest, and his later convictions. To agree with Schaum regarding the application of Heck (and the existence of probable cause to arrest) would require the court to assume facts not in the record and draw impermissible inferences in Schaum's favor.”). Accordingly, we recommend, as it relates to Cruz's false arrest claim under the Fourth Amendment, that the motions to dismiss be denied.
2. Cruz's excessive force claim.
In Count Two, Cruz alleges that the arresting officers utilized excessive force during his arrest. The Fourth Amendment protects a citizen against unreasonable use of force in connection with an arrest, investigatory stop, or other seizure. Graham v. Connor, 490 U.S. 386 (1989). The question under the Fourth Amendment is whether the officer's use of force was objectively reasonable under the circumstances. Id. at 397.
The reasonableness inquiry is “highly individualized and fact specific, ” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015), and it “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Other relevant factors may “include ‘the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.'” Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)). “The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Further, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” Id. at 396-97.
Reasonableness under the Fourth Amendment is an objective test. “Thus, if a use of force is objectively unreasonable, an officer's good faith is irrelevant; likewise, if a use of force is objectively reasonable, any bad faith motivation on the officer's part is immaterial.” Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2003). Whether the use of force was reasonable is frequently a question for the jury. Rivas, 365 F.3d at 198; Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) (“Since we lack a clearly defined rule for declaring when conduct is unreasonable in a specific context, we rely on the consensus by a jury decision to help ensure that the ultimate legal judgment of ‘reasonableness' is itself reasonable and widely shared.”).
Here, Cruz alleges that, while lying face down on the ground in pain, he heard Rooney order Webber and Messer to “shoot him, kill the motherfucker.” Doc 1 at 7. Per Cruz, Webber and Messer both “discharged their firearms multiple times striking Cruz four times in his front and back ... right lower abdomen, thigh, groin, and buttocks.” Id. According to Cruz, he never pointed or discharged his gun at the officers and was unarmed when he was shot. Id.
The Pottsville defendants argue that their conduct was reasonable given the circumstances. Specifically, they argue that Cruz drew his gun and pointed it at himself and the other Officers. Doc. 25 at 17 (citing Doc. 1 at 4, Doc. 23-2 at 9).
We note that only the Pottsville defendants seek to dismiss Cruz's Fourth Amendment excessive force claim. In his motion to dismiss, Rooney does not move to dismiss Cruz's excessive force claim and explicitly conveys this in his reply brief. Doc. 38 at 1. Thus, we will only analyze Webber and Messer's conduct for this claim.
The Pottsville defendants contend that Cruz's brandishing of a gun posed a significant threat of death or serious physical injury to the officers, thereby justifying the use of deadly force. Doc. 25 at 18. To support their argument, the Pottsville defendants cite to Eberhardinger v. City of York, which held that “the only plausible justification for deadly force then would be the threat to the safety of the officers.” Eberhardinger v. City of York, 782 Fed.App'x 180, 186 (3d Cir. 2019). Additionally, the Pottsville defendants argue that Cruz's guilty plea to Reckless Endangerment and Resisting Arrest shows that the officers' conduct was reasonable under the circumstances. Doc. 25 at 18.
The Pottsville defendants briefly assert that Cruz's excessive force claim is Heck barred; however, they fail to meaningfully develop their argument beyond this conclusory statement. Doc. 25 at 20 n.4. Accordingly, because the Pottsville defendants did not develop this defense, and it is not apparent to this court how the police officers' use of excessive force would inherently invalidate Cruz's underlying conviction, we will not analyze Cruz's excessive force claim under Heck.
Construing Cruz's factual allegations as true, which we must do at this stage, we find that he has alleged sufficient facts to state an excessive force claim against Webber and Messer. Per Cruz, the police officers tasered him as he attempted to walk away, causing him to fall to the ground. Cruz then claims, while he was unarmed and lying face down on the ground, Webber and Messer utilized deadly force by shooting him several times, causing life threatening injuries. Based on Cruz's account, he was unarmed and subdued when Webber and Messer shot him.
Per Cruz's allegations, Webber and Messer decided to utilize deadly force after Cruz was unarmed and incapacitated, which if true, is sufficient to establish an excessive force claim. Indeed, numerous courts within this jurisdiction have held that subjecting an unarmed individual, while effectuating an arrest, to the use of blunt, traumatic force violates the Fourth Amendment's prohibition of the use of excessive force. See Newell v. Law, No. 2:18-cv-1162, 2022 WL 836771, at *12 (W.D. Pa. Mar. 21, 2022) (noting that courts within the Third Circuit have routinely held that subjecting an unarmed individual to blunt force trauma violates the Fourth Amendment); see also Gulley v. Elizabeth City Police Dep't, 340 Fed.Appx. 108, 110 (3d Cir. 2009) (“[B]eating a suspect on the face and head, who is lying down and not resisting arrest, would constitute excessive force in violation of the Fourth Amendment.”); see also Noble v. City of Camden, 112 F.Supp.3d 208, 228-29 (D.N.J. 2015) (“At the time Defendants acted, the law was clear that beating an unarmed suspect who was not resisting arrest violates the Fourth Amendment's prohibition against excessive force.”).
It follows that if the use of blunt force trauma against an unarmed individual violates the Fourth Amendment, then shooting an unarmed and subdued individual with a firearm also violates the Fourth Amendment. Although the Pottsville defendants argue that Cruz's brandishing of a weapon justified their use of deadly force, we find this argument unpersuasive. It is true that Cruz's possession of a gun could have reasonably caused Webber and Messer to fear for their safety; however, per Cruz's complaint, once he was tasered, he fell to the ground and was no longer armed. Thus, according to Cruz, once he was tasered, he did not actively pose a threat that justified their use of deadly force. See Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) (“Even where an officer is initially justified in using force, he may not continue to use such force after it has become evident that the threat justifying the force has vanished.”).
The Pottsville defendants also argue that Cruz's guilty plea to Reckless Endangerment and Resisting Arrest shows that the officers' conduct was reasonable under the circumstances. For the same reasons mentioned before, we find this argument unpersuasive. It is true that at some point during the arrest, Cruz brandished a weapon, causing Webber and Messer to possibly reasonably fear for their safety. But per Cruz's complaint, he was unarmed and incapacitated from being tasered when Webber and Messer shot him. Thus, Cruz could have, at some point during the arrest, recklessly endangered Webber and Messer, but that danger could also have vanished by the time Webber and Messer decided to utilize deadly force against Cruz, which is what Cruz alleges. We, therefore, reject the Pottsville defendants' argument that Cruz's guilty plea to Reckless Endangerment inherently justifies Webber and Messer's use of deadly force. Accordingly, we find that Cruz alleges sufficient facts to establish an excessive force claim against Webber and Messer. Thus, we recommend denying the Pottsville defendants' motion to dismiss Cruz's excessive force claim.
C. Cruz's Eighth Amendment claim.
In Count Three, Cruz claims that “the defendants deprived plaintiff [of] his 8th Amendment right to be free from cruel and unusual punishment.” Doc. 1 at 5. Both Rooney and the Pottsville defendants argue that Cruz's Eighth Amendment claim fails because the Eighth Amendment is only applicable to convicted prisoners and Cruz's complaint only alleges facts regarding his arrest. Doc. 25 at 13, Doc. 26 at 7.
Indeed, “[t]he Eighth Amendment 'was designed to protect those convicted of crimes and consequently the Clause applies only after the State has complied with constitutional guarantees traditionally associated with criminal prosecutions.'” Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (quoting Whitley v. Albers, 475 U.S. 312, 318 (1986)). We agree with Rooney and the Pottsville defendants that Cruz's complaint only alleges facts regarding his arrest, and therefore, he has not alleged an Eighth Amendment violation. See Perez v. Vega, No. 5:18-cv-00997, 2019 WL 1045387, at *5 (E.D. Pa. Mar. 5, 2019) (“As Plaintiffs' allegations regarding their Eighth Amendment claim occurred prior to or during their arrests, instead of after sentence and conviction, their constitutional rights have not been violated and they fail to state a claim. Therefore, the Court will dismiss this Count.”). Accordingly, we recommend that Cruz's Eighth Amendment claims be dismissed with prejudice.
D. Cruz's Monell claims.
In Count Four, Cruz claims that the defendants “acted under the color of state law when they deprived plaintiff [sic] his constitutionally protected rights.” Doc. 1 at 5. Although Cruz does not label Count Four as a Monell claim against the City of Pottsville, he does later allege facts that the City of Pottsville “had a policy, custom and practice of not taking reasonable steps to properly train its officers in the use of force.” Id. at 9. Additionally, Cruz claims that the City of Pottsville “had a policy, custom and practice of not taking reasonable steps to properly train its officers to not violate the constitutionally protected rights of severely mentally disabled persons and citizens of the Commonwealth.” Id. Accordingly, we will construe Count Four as a Monell claims against the City of Pottsville.
A municipality, such as the City of Pottsville, cannot be held liable for the unconstitutional acts of its employees on a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Rather, “under § 1983, local governments are responsible only for ‘their own illegal acts.'” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original)). “[A] § 1983 claim against a municipality may proceed in two ways.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). One way for a plaintiff to present a claim against a municipality is to allege “that an unconstitutional policy or custom of the municipality led to his or her injuries.” Id. Another way for a plaintiff to present a claim against a municipality is to allege that his or her injuries “were caused by a failure or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.'” Id. (quoting Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)).
To plead a claim against a municipality under the policy-or-custom strand of municipal liability, “a plaintiff must allege that ‘a [local] government's policy or custom . . . inflict[ed] the injury' in question.” Estate of Roman, 914 F.3d at 798 (quoting Monell, 436 U.S. at 694). ‘“Policy 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.'” Id. (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration in original) (internal quotation marks omitted)). ‘“Custom, on the other hand, can be proven by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.'” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
“To satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009). “Although a policy or custom is necessary to plead a municipal claim, it is not sufficient to survive a motion to dismiss.” Estate of Roman, 914 F.3d at 798. “A plaintiff must also allege that the policy or custom was the ‘proximate cause' of his injuries.” Id.
Here, Cruz has not alleged facts from which it can reasonably be inferred that a policy or custom of Pottsville violated his Constitutional rights. As the Pottsville defendants correctly point out, Cruz claims Pottsville has a policy to not properly train its officers and then merely recites the elements of Monell liability, which is insufficient to plead a Monell claim. See Wood v. Williams, 568 Fed. App'x 100, 104 (3d Cir. 2014) (upholding the District Court's finding that paraphrasing the elements of Monell liability is insufficient to satisfy the pleading requirements for a Monell claim).
Another way for a plaintiff to present a claim against a municipality is to allege that his or her injuries “were caused by a failure or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.'” Forrest, 930 F.3d at 105 (quoting Estate of Roman, 914 F.3d at 798). “The latter avenue arose in the failure-to-train context, but applies to other failures and inadequacies by municipalities, including those related to supervision and discipline of its police officers.” Id.
A plaintiff asserting a municipal liability claim based on a failure or inadequacy of training, supervision, or discipline “need not allege an unconstitutional policy.” Estate of Roman, 914 F.3d at 798. Rather, he must show that the municipality's failure to train, supervise, or discipline “its employees ‘reflects a deliberate or conscious choice.'” Id. (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 215 (3d Cir. 2001)). In this regard, the plaintiff must show “a failure or inadequacy amounting to deliberate indifference on the part of the municipality.” Forrest, 930 F.3d at 106. “This consists of a showing as to whether (1) municipal policymakers know that employees will confront a particular situation, (2) the situation involves a difficult choice or a history of employees mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.” Id.
Here, Cruz has not alleged facts from which it can be reasonably inferred that Pottsville's alleged failure to train its police officers reflects a deliberate or conscious choice. Cruz fails to allege any facts other than conclusory statements that “this custom and practice reflects a deliberate and conscious choice of the City of Pottsville and Pottsville Police department in that it amounts to negligence and a deliberate indifference to the rights of people whom its police come into contact, including, but not limited to, the plaintiff herein.” Doc. 1 at 9. Indeed, Cruz fails to allege that (1) City of Pottsville policymakers knew that their employees confront situations such as the one at issue in this matter, (2) such situations involve difficult choices or a history of City of Pottsville employees mishandling such, and (3) the wrong choice by the City of Pottsville employees in such cases would frequently cause a deprivation of constitutional rights.
Accordingly, we recommend that Cruz's Monell claims be dismissed; however, we recommend that Cruz be granted leave to amend his complaint as it relates to all of his Monell claims.
We also note that because we have construed Cruz's Fourth Amendment false arrest claim against all defendants in both their official capacities and their individual capacities, we must consider whether Cruz sufficiently alleges a Monell claim against the City of Pottsville as it relates to its alleged failure to train its employees from committing false arrests. For the same reasons that we find Cruz has not alleged a Monell claim, we recommend dismissing Cruz's false arrest Monell claim; however, we recommend granting Cruz leave to amend his complaint.
E. Cruz's state law claims.
In Count Five, Cruz alleges that “defendants [sic] acts and conduct as alleged constitute malicious prosecution, false arrest, assault & battery, and negligence under the laws of the State of Pennsylvania.” Doc. 1 at 5.
1. Sovereign immunity.
Rooney argues that he is entitled to sovereign immunity as it relates to Cruz's state law claims against him. Sovereign immunity bars claims against the Commonwealth, its agencies, and its employees acting within the scope of their duties. See 1 Pa. Cons. Stat. Ann. § 2310. But Pennsylvania law waives sovereign immunity in nine limited circumstances. These exceptions to the general grant of immunity to the Commonwealth and its employees are for negligent acts involving: (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) National Guard activities; and (9) toxoids and vaccines. 42 Pa. Cons. Stat. Ann. § 8522(b). The exceptions to the Commonwealth's sovereign immunity must be strictly construed because the legislature waived immunity only in specific situations. Moser v. Heistand, 681 A.2d 1322, 1326 (Pa. 1996).
We note that the Pottsville defendants do not raise any immunity defenses in their brief in support of their motion to dismiss. Accordingly, we will only consider Rooney's immunity defenses.
We agree with Rooney that Cruz's claim of malicious prosecution, false arrest, assault & battery, and negligence are not included among § 8522's exceptions to sovereign immunity, and Cruz does not argue otherwise. Thus, if Rooney were acting within the scope of his employment, he is entitled to sovereign immunity.
“Pennsylvania has accepted the Restatement (Second) of Agency's definition of conduct ‘within the scope of employment.'” Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). “According to the Restatement, ‘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 substantially within the authorized time and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master ....” Id. (quoting Restatement (Second) Agency § 228). “Additionally, ‘if force is intentionally used by the employee against another,' courts must consider[] whether ‘it is not unexpected by the employer.'” DeGroat v. Cavallaro, No. 3:16-CV-1186, 2017 WL 2152376, at *4 (M.D. Pa. May 17, 2017) (emphasis in original) (quoting Natt v. Labar, 543 A.2d 223, 225 (Pa. Commw. Ct. 1988)). ‘“[A]n act, although forbidden or done in a forbidden manner, may be within the scope of employment.”' Brumfield, 232 F.3d at 381 (quoting Restatement (Second) of Agency § 230). “Under Pennsylvania law, even unauthorized acts may be within the scope of employment ‘if they are clearly incidental to the master's business.'” Id. (quoting Shuman Estate v. Weber, 419 A.2d 169, 173 (Pa. Super. Ct. 1980)). But “[i]ntentional torts that are ‘unprovoked, unnecessary or unjustified by security concerns or penological goals' do not, as a matter of law, fall within the scope of employment.” Minyard v. City of Philadelphia, No. CIV.A. 11-246, 2012 WL 3090973, at *6 (E.D. Pa. July 31, 2012) (quoting Wesley v. Hollis, 2007 WL 1655483, at *15 (E.D. Pa. June 6, 2007)). Additionally, “[s]ince an employee is generally authorized to use only ‘reasonable' measures to achieve a result desired by his or her employer, an ‘outrageous' act may lie beyond the scope of his or her employment even where it constitutes ‘a means of accomplishing an authorized result.'” Zion v. Nassan, 283 F.R.D. 247, 267 (W.D. Pa. 2012) (quoting Lunn v. Yellow Cab Co., 403 Pa. 231 (1961)), aff'd, 556 Fed.Appx. 103 (3d Cir. 2014). In other words, “[a] high degree of ‘outrageousness' can take an employee's actions ‘outside the scope' of his or her employment.” Id. (quoting Haas v. Barto, 829 F.Supp. 729, 734 (M.D. Pa. 1993)).
Courts in this district do not presume that immunity is automatically warranted in every circumstance for every Commonwealth employee. See Shipman v. Gelso, No. Civ. A. 3:11-CV-1162, 2011 WL 5554252, at *5 (M.D. Pa. Nov. 15, 2011) (concluding that it was unclear from the facts alleged whether the defendants were acting within the scope of their employment). A court may deny a motion to dismiss asserting state sovereign immunity where it is unclear from the facts of the case whether the Commonwealth employees were actually acting within the scope of their employment. Id.; see also Clark v. Conahan, 737 F.Supp.2d 239, 258 (M.D. Pa. 2010) (denying juvenile probation officer's motion to dismiss based on state sovereign immunity where the complaint alleged that she altered drug tests, changed recommendations as part of a scheme to ensure the detention of juveniles, and concocted fake probations violations to have juveniles placed in custody because those are not the types of conduct that a juvenile probation officer is hired to perform); cf LeBeau v. Raith, No. CV 17-38, 2017 WL 2264639, at *8 (E.D. Pa. May 24, 2017) (concluding that on a motion to dismiss, a probation officer was not entitled to dismissal of false arrest and false imprisonment claims).
At this early stage of the proceedings, and without the benefit of full briefing on the issue, it would be premature to conclude that Rooney acted within the scope of his employment. Thus, we recommend that the state law claims against Rooney not be dismissed on the basis of sovereign immunity. Accordingly, because Rooney fails to raise any other defenses regarding Cruz's state law claims, we recommend that Rooney's motion to dismiss be denied as it relates to Cruz's state law claims.
2. Malicious prosecution.
In their brief in support of their motion to dismiss, the Pottsville defendants do not raise any defenses as to Cruz's state law claims; however, they do argue that Cruz's malicious prosecution claim under the Fourth Amendment is Heck barred. Doc. 25 at 15. We note, however, that Cruz specifically fashions his malicious prosecution claim as a Pennsylvania state law claim. Doc. 1 at 5. To the extent that Cruz intended to bring a malicious prosecution claim under the Fourth Amendment, we, however, agree with the Pottsville defendants that his claim is Heck barred.
The Pottsville defendants correctly note that to prevail on a malicious prosecution claim under § 1983:
[A] plaintiff must show that: (1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.Doc. 25 at 15 (citing McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009)). Because Cruz's claim or conviction has not been invalidated, his malicious prosecution claim, under the Fourth Amendment, is Heck barred. See Strunk v. East Coventry Twp. Police Dep't, 674 Fed. App'x. 221, 224 (3d Cir. 2016) (“We agree that Heck barred the Appellants' malicious prosecution claim because Repotski's conviction has not been invalidated.”); see also Olick v. Pennsylvania, 739 Fed. App'x. 722, 725-726 (3d Cir. 2018) (“We agree that Heck barred Olick's malicious prosecution claim because his conviction has not been invalidated.”); see also Bressi v. Brennen, 823 Fed. App'x. 116, 119-120 (3d Cir. 2020) (finding that Heck barred the plaintiff's malicious prosecution claim but noting that his claim should be dismissed without prejudice if his convictions were eventually invalidated).
The Pottsville defendants, however, fail to argue otherwise why Cruz's state law malicious prosecution claim, or any of his other state law claims, should be dismissed. Accordingly, we recommend that the Pottsville defendants' motion to dismiss be denied as it relates to all of Cruz's state law claims.
F. Cruz's ADA claims.
In Count Six, Cruz alleges that the “defendants violated plaintiff's rights under the Americans with Disabilities Act 42 U.S.C. §§ 12112 and 12132.” Doc. 1 at 5. Before we begin our discussion of Cruz's ADA claims, we note a few pertinent standards.
Title II of the ADA, under which Cruz brings his claims, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As used in Title II of the ADA, “public entity” is defined as: “(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act [49 USCS § 24102(4)]).” 42 U.S.C. § 12131(a). But “[o]nly public entities are subject to Title II” of the ADA. City & Cty. of San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015). Thus, individuals cannot be liable under Title II of the ADA. Ndaula v. Clinton Cty. Corr. Facility, No. 1:20-CV-1160, 2020 WL 4570000, at *4 (M.D. Pa. Aug. 7, 2020).
Here, Rooney argues that any ADA claims asserted against him are meritless because the ADA does not impose individual liability. Doc. 26 at 6. We agree with Rooney that Title II of the ADA does not impose liability on individuals. And although the Pottsville defendants do not argue this same point, we recognize that, as individuals, they are also not liable under Title II of the ADA. Accordingly, we recommend that Cruz's ADA claims against Rooney, Webber, and Messer be dismissed with prejudice. Because the City of Pottsville is, however, an entity, we will consider Cruz's ADA claim as alleged against the City of Pottsville.
The Pottsville defendants argue that Cruz fails to set forth a prima facie case of an ADA violation. Doc. 25 at 23. To establish “a claim under Title II of the ADA, a person ‘must demonstrate: (1) he is a qualified individual; (2) with a disability; (3) [who] was excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or was subjected to discrimination by any such entity; (4) by reason of his disability.'” Haberle v. Troxell, 885 F.3d 170, 178-79 (3d Cir. 2018) (quoting Bowers v. Nat'l Collegiate Athletic Ass'n, 475 F.3d 524, 553 n.32 (3d Cir. 2007)).
The Pottsville defendants argue that for a plaintiff to satisfy the fourth prong, he must allege that “disability played a role in the ... decisionmaking process and ... had a determinative effect on the outcome of that process[, ] i.e., if the arrestee's disability was a but for cause of the deprivation or harm he suffered, then the fourth element of an ADA claim has been met.” Doc. 25 at 23 (quoting Haberle, 885 F.3d at 179). The Pottsville defendants argue that Cruz fails to allege that his disability was a but for cause of his alleged harm, and therefore, fails to state a claim for an ADA violation. Doc. 25 at 24.
We agree with the Pottsville defendants that Cruz fails to allege sufficient facts for an ADA violation claim against any of the defendants. Indeed, throughout his entire complaint, Cruz only alludes to his alleged mental disability twice. See doc. 1 at 4, 9. And even in those instances, he only states that he “is a severely mentally disabled person” who is a “diagnosed paranoid schizophrenic and suffers from PTSD, chronic depression and anxiety” and that the City of Pottsville “had a policy, custom and practice of not taking reasonable steps to properly train its officers to not violate the constitutionally protected rights of severely mentally disabled persons ... [i]ncluding ... failure to recognize severally mentally disabled person.” Id. at 4, 9.
Nowhere in Cruz's complaint does he allege that any of the defendants were aware of Cruz's alleged disability or that it was a but for cause of his alleged harm. Accordingly, we find that Cruz has not alleged sufficient facts to state a Title II ADA claim against the City of Pottsville. See McDonald-Witherspoon v. City of Phila., No. 17-cv-1914, 2017 WL 3675408, at *9 (E.D. Pa. Aug. 25, 2017) (“A plaintiff ‘must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts.' Her complaint does not contain any facts showing that Jones was discriminated against because of his race or disability. Therefore, I will dismiss her ADA Title II and Rehabilitation Act claims against the City of Philadelphia.”) (quoting Folwer, 578 F.3d 210-211) (internal citations omitted). Thus, we recommend dismissing Cruz's ADA claim against the City of Pottsville; however, we recommend granting Cruz leave to amend his complaint with regard to an ADA claim.
G. Cruz's relief.
For relief, Cruz requests declaratory judgment, injunctive relief, punitive damages, and compensatory damages. Doc. 1 at 5. Regarding Cruz's request for declaratory judgment and injunctive relief, it is unclear what Cruz is precisely seeking. Under declaratory judgment, Cruz requests that the defendants conduct be declared “illegal under fed[eral] and state law.” Id. “The purpose of a declaratory judgment is to ‘declare the rights of litigants.'” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). Although “[t]here is no question that a plaintiff can request declaratory relief to remedy alleged ongoing violations of her constitutional rights[, ]” a “[d]eclaratory judgment is not meant to adjudicate alleged past unlawful activity.” Wenzig v. Serv. Emps. Int'l Union Loc. 668, 426 F.Supp.3d 88, 100 (M.D. Pa. 2019), aff'd sub nom. Diamond v. Pennsylvania State Educ. Ass'n, 972 F.3d 262, 265 (3d Cir. 2020), cert. denied, 141 S.Ct. 2756 (2021). “The remedy is thus by definition prospective in nature.” CMR D.N. Corp., 703 F.3d at 628. Here, as it relates to his declaratory relief request, Cruz fails to allege any ongoing violations of his constitutional rights. Accordingly, we recommend dismissing Cruz's request for declaratory judgment be dismissed; however, we recommend granting Cruz leave to amend his declaratory relief request. See Blakeney v. Marsico, 340 Fed. App'x 778, 780 (3d Cir. 2009) (affirming the District Court's dismissal of the plaintiff's request for declaratory relief due to the lack of an alleged ongoing constitutional violation); see also Fiddemon v. Maholik, No. 3:21-cv-144, 2022 WL 1110320, at *2 (M.D. Pa. Apr. 13, 2022) (“Moreover, plaintiff's claims for declaratory judgment in his amended complaint seeking a declaration that Defendants' conduct as set forth herein is in violation of Section 1983', are dismissed, as plaintiff now concedes they should be dismissed, since plaintiff failed to allege ongoing violations of his constitutional rights.”).
Regarding Cruz's injunctive relief request, he requests an “[i]njunction prohibiting defendants from engaging in or approving of law enforcement acts against the plaintiff which interfere with his fed[eral] and state rights.” Doc. 1 at 5. Here, it is difficult to discern what injunctive relief Cruz is seeking or who is capable of providing the injunctive relief he seeks. Indeed, when seeking a prospective injunction, a plaintiff is required to name an official or officials who can appropriately respond to injunctive relief. See Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) (citing Hartman v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)). Accordingly, we recommend dismissing Cruz's request for injunctive relief; however, we recommend granting Cruz leave to amend his request for injunctive relief. See Frankenfield v. MicroBilt Corp., No. 4:14-cv-1112, 2014 U.S. Dist. LEXIS 156412, at *16 (M.D. Pa. Oct. 3, 2014) (recommending that the plaintiff be granted leave to amend his ambiguous injunctive relief claim), report and recommendation adopted, 2014 WL 5586997 (M.D. Pa. Nov. 3, 2014).
Regarding Cruz's request for punitive damages, the Pottsville defendants argue that Cruz cannot recover punitive damages against the municipality or the municipal employees acting in their official capacities. Doc. 25 at 25 (citing City of Newport News v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)). We agree, however, since some of Cruz's claims against the defendants in their individual capacities have survived the motions to dismiss, we recommend that his request for punitive damages against Rooney, Webber, and Messer not be dismissed.
VII. Recommendations.
Based on the foregoing, we recommend the following:
• All of Cruz's claims against Rooney, Webber, and Messer in their official capacities be dismissed with prejudice.
• The Pottsville Police Department should be dismissed with prejudice.
• Cruz's Fifth and Fourteenth Amendment claims be dismissed against all defendants with prejudice.
• The motions to dismiss be denied as it relates to Cruz's false arrest claim under the Fourth Amendment.
• The Pottsville defendants' motion to dismiss be denied as it relates to Cruz's excessive force claim.
• Cruz's Eighth Amendment claims against all defendants be dismissed with prejudice.
• Cruz's Monell claims be dismissed; however, we recommend that Cruz be granted leave to amend his complaint as it relates to all of his Monell claims.
• Rooney's motion to dismiss be denied as it relates to Cruz's state law claims.
• The Pottsville defendants' motion to dismiss be denied as it relates to all of Cruz's state law claims.
• Cruz's ADA claims against Rooney, Webber, and Messer be dismissed with prejudice.
• Cruz's ADA claim against the City of Pottsville be dismissed; however, we recommend granting Cruz leave to amend his complaint as it relates to his ADA claim against the City of Pottsville.
• Cruz's request for declaratory judgment be dismissed; however, we recommend granting Cruz leave to amend his declaratory relief request.
• Cruz's request for injunctive relief be dismissed; however, we recommend granting Cruz leave to amend his request for injunctive relief.
• Cruz's request for punitive damages against the City of Pottsville be dismissed with prejudice.
• Cruz's request for punitive damages against Rooney, Webber, and Messer not be dismissed.
The Parties are further placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. □ 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.