Johnson v. Flenke

Full title: DAWYNE JOHNSON, Plaintiff v. RYAN FLENKE, et al., Defendants

Court: United States District Court, Middle District of Pennsylvania

Date published: Jul 15, 2022

CIVIL 1:22-CV-731 (M.D. Pa. Jul. 15, 2022)

Opinion

CIVIL 1:22-CV-731

07-15-2022

DAWYNE JOHNSON, Plaintiff v. RYAN FLENKE, et al., Defendants

Martin C. Carlson, United States Magistrate Judge

Rambo, Judge

REPORT AND RECOMMENDATION

Martin C. Carlson, United States Magistrate Judge

I. Factual Background

This case comes before us for a second legally mandated screening review of the plaintiff's amended complaint. (Doc. 7). The plaintiff, Dawyne Johnson, is an inmate who is currently housed at the Dauphin County Prison. On May 18, 2022, Johnson filed his initial federal civil rights complaint which named seven individuals and a dog as defendants. (Doc. 1). The human defendants listed in the caption of this case included Ryan Flenke, Anthony Glass, Timothy Bloss, Dominic Payne, Cody Wilt, Mathew Kjeselowsky, and Patrick Walsh. The canine defendant was only identified as K9 JT. According to the complaint, all of these human and canine defendants were employed by the Swatara Township Police Department. (Id.) While the complaint listed these seven individuals and one canine as defendants, the body of the complaint only identified actions allegedly taken by two defendants, the dog and Police Officer Anthony Glass. Liberally 1 construed, the complaint described a traffic stop which took place on an undisclosed date, during which it is alleged that Glass detained the occupants of a vehicle without justification, and the dog allegedly bit an unarmed passenger. (Id.) Upon an initial screening review, given the lack of any well-pleaded facts asserting constitutional torts by many of these officers, we recommended that the civil rights complaint dismissed without prejudice as to human defendants Flenke, Bloss, Payne, Wilt, Kjeselowsky and Walsh, and with prejudice as to the dog, JT-K9. (Doc. 6).

Following the filing of this Report and Recommendation, Johnson submitted an amended complaint. (Doc. 7). While this amended complaint is not a model of clarity, liberally construed it asserts well-pleaded facts in support of Fourth Amendment excessive force claims against defendants Glass, Flenke, Bloss, and Wilt. (Id.) The amended complaint also appears to re-allege a constitutional tort claim against the police dog, K9 JT. (Id.) However, the amended complaint now seems to disavow any claims against defendants Walsh, Payne, and Kjeselowsky “because they played no part in what happened to me.” (Id., at 3).

The district court has remanded this case to us for further review of Johnson's amended complaint. (Doc. 8). Upon consideration, for the reasons set forth below, it is recommended that the amended complaint be dismissed with respect to defendants Walsh, Payne, Kjeselowsky, and the police dog, K9 JT, but 2 the amended complaint should be served upon defendants Glass, Flenke, Bloss, and Wilt.

II. Discussion

A. Screening of Pro Se Complaints-Standard of Review

This court has an on-going statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B)(ii). Specifically, we are obliged to review the complaint to determine whether any claims are frivolous, malicious, or fail to state a claim upon which relief may be granted. This statutory text mirrors the language of Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

3 Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, 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). Additionally, a court 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). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a 4 motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.

5 Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).

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.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. 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) (quoting Iqbal, 129 S.Ct. at 1950). 6

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). 7

In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:

(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

Fed. R. Civ. P. 8(a).

Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action. It is against these benchmarks that we evaluate Johnson's amended complaint.

B. The Amended Complaint should be dismissed with respect to defendants Walsh, Payne, Kjeselowsky, and the police dog, K9 JT, but should be served upon defendants Glass, Flenke, Bloss, and Wilt .

Mindful of the fact that we are to construe complaints so “as to do substantial justice,” Fed.R.Civ.P. 8(f), and keeping in mind that pro se complaints in particular should be construed liberally, Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.2003), we find that Johnson's amended 8 complaint sufficiently states well-pleaded facts in support of a Fourth Amendment excessive force claim to allow that claim to proceed forward with respect to defendants Glass, Flenke, Bloss, and Wilt. Therefore, we recommend that the amended complaint should be served upon defendants Glass, Flenke, Bloss, and Wilt.

However, Johnson's amended complaint can also be construed to continue to name the police dog, K9-JT, as a defendant and persists in bringing a claim against this canine defendant pursuant to 42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (emphasis added).

As we previously noted, it has been held as a matter of law that dogs are never “persons” within the meaning of § 1983. Jones v. Fransen, 857 F.3d 843, 858 n. 9 (11th Cir. 2017). Therefore, the canine defendant, K9-JT, should be dismissed from this §1983 lawsuit with prejudice. 9

Finally, the amended complaint appears to now disavow any claims against defendants Walsh, Payne, and Kjeselowsky “because they played no part in what happened to me” (Doc. 7, at 3). Given this concession by Johnson these defendants should also be dismissed.

Rule 41(a)(1)-(2) of the Federal Rules of Civil Procedure provides as follows

(a) Voluntary Dismissal.

(1) By the Plaintiff.

(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

(2) By Court Order; Effect.

Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

F.R.Civ. P., Rule 41(a)(1)-(2). 10

In this case, given Johnson's stated intention to withdraw this lawsuit against defendants Walsh, Payne, and Kjeselowsky “because they played no part in what happened” to the plaintiff, these defendants should be dismissed from this case.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that that the plaintiff's amended complaint, (Doc. 7), be dismissed with respect to defendants Walsh, Payne, Kjeselowsky, and the police dog, K9 JT, but the amended complaint should be served upon defendants Glass, Flenke, Bloss, and Wilt.

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.

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