Opinion
CIVIL NO. 3:17-CV-00371
10-09-2018
NICOLE PALMER, Plaintiff, v. PENNSYLVANIA STATE POLICE, et al. Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the court is the defendants' motion for partial judgment on the pleadings (Doc. 24). Nicole Palmer, a civilian employee with the Pennsylvania State Police ("PSP"), brought this suit against the PSP and several PSP supervisors and troopers—former Commissioner Frank Noonan, Colonel Tyree Blocker, Sergeant Michael Brownmiller, Lieutenant William Bowen, Lieutenant Christopher Paris, Trooper Mark Pajalich, Trooper Brian Slovinski, and Lieutenant Craig Carey. Palmer alleges that the defendants engaged in a series of unlawful acts as part of a conspiracy against her in an attempt to violate her civil rights pursuant to 42 U.S.C. §§ 1983 and 1985. She also brings state law claims of false imprisonment and intentional infliction of emotional distress.
Defendant Blocker has been dismissed from this suit, and the remaining defendants have filed the instant motion for partial judgment on the pleadings as to Counts III, IV, V, VI, VII, and VIII (Doc. 24). The motion has been fully briefed (Docs. 26, 28, 29) and is ripe for disposition, and for the reasons that follow, we recommend that the defendants' motion be granted in part and denied in part.
II. BACKGROUND
The factual background to this report and recommendation is taken from the allegations set forth in the complaint, which are accepted as true for purposes of considering the pending motion for partial judgment on the pleadings.
Nicole Palmer began employment with the PSP as a civilian Police Communications Operator at the Blooming Grove Barracks in March 2013. (Compl., ¶ 14). On the night of September 12, 2014, Palmer was working the night shift at Blooming Grove when the barracks came under gunfire, resulting in the shooting of Corporal Bryan Dickson, who was fatally injured, and Trooper Alex Douglass. (Id., ¶¶ 16-22). As part of the investigation into the shooting, Palmer was interviewed by the PSP three days after the shooting. (Id., ¶ 26). In response to a question about whether she had a personal, physical or sexual relationship with a specific PSP trooper, Palmer responded that the identified trooper had raped her in 2013 and continued to engage in other inappropriate conduct toward her after the rape. (Id., ¶¶ 26-28).
After Palmer made this allegation against the PSP trooper, other troopers and PSP supervisors began to harass and intimidate her in an attempt to ensure that she did not tell others about the allegations. (Id., ¶ 32). In November 2014, Palmer met with Defendants Brownmiller and Bowen in Harrisburg to discuss the allegations she made in September. (Id., ¶ 34). At this meeting, Palmer was advised not to tell anyone about the rape or the harassment. (Id., ¶ 35). Brownmiller called Palmer several times after the meeting, advising her not to speak of the allegations. (Id., ¶ 36). After Palmer refused to forgo prosecution or recant her allegations, two PSP troopers allegedly made a false report that Palmer was offered one million dollars to keep quiet about her allegations, and PSP opened an official investigation into the matter. (Id., ¶ 39-42). Palmer was told to appear at a meeting in Bethlehem on January 15, 2015. (Id., ¶ 43).
On January 9, six days before the scheduled meeting, Defendants Pajalich and Slovinski went to Palmer's residence, armed and in full uniform, and informed her that she was subject to immediate psychiatric commitment due to a claim that Palmer was going to commit suicide. (Id., ¶ 44). Palmer and her boyfriend, another member of PSP, advised the defendants that Palmer was not suicidal, but Pajalich and Slovinski placed Palmer in marked police vehicle and transported her to a hospital for psychiatric commitment. (Id., ¶¶ 45-47). It is alleged that Pajalich completed paperwork so that Palmer could not release herself from the hospital. (Id., ¶ 48). Palmer was eventually released after it was determined there was no basis for her psychiatric commitment. (Id., ¶ 49).
At the scheduled January 15 meeting, the lieutenant in charge of the investigation advised Palmer that he was aware of her involuntary psychiatric commitment. (Id., ¶ 50). When Palmer's workers' compensation counsel asked why the improper commitment was allowed to take place, the lieutenant responded that "We take care of our own." (Id., ¶ 51).
The harassment and retaliation against Palmer continued even after the January meeting. In February 2015, Palmer was sent notice by mail that she was scheduled for an independent psychiatric evaluation related to a workers' compensation claim she made. (Id., ¶ 54). Although she had already received this notice of the evaluation, Defendant Carey and another unidentified member of PSP went to Palmer's residence, armed and in full uniform, and served her with papers ordering her to attend the psychiatric evaluation. (Id., ¶ 55).
Palmer filed her complaint in this matter in the Court of Common Pleas of Lackawanna County on February 8, 2017, and the matter was removed to this court on February 28, 2017 (Doc. 1). Palmer contends that Defendant Paris, as Commander of the PSP Blooming Grove barracks, failed to train, supervise, and discipline members of the PSP, as well as implemented deficient policies, which led to the alleged violations of her civil rights (Counts III, IV, V). Paris and the other named defendants are alleged to have conspired with each other to violate Palmer's civil rights (Count VI). Palmer also brings a false imprisonment claim against Defendants Pajalich and Slovinski for the incident regarding her involuntary psychiatric commitment (Count VII). Finally, Palmer brings a claim for intentional infliction of emotional distress against all of the defendants for severe emotional distress she suffered as a result of the alleged misconduct (Count VIII).
III. STANDARD OF REVIEW
A party may move for judgment on the pleadings "[a]fter the pleadings are closed—but early enough not to delay trial." Fed. R. Civ. P. 12(c). In ruling on a motion for judgment on the pleadings, courts are to consider the pleadings and exhibits thereto, matters of public record and "undisputedly authentic documents attached to the motion for judgment on the pleadings if plaintiffs' claims are based on the documents." Atiyeh v. Nat'l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 595 (E.D. Pa. 2010). Motions filed pursuant to Rule 12(c) are reviewed under the same standard that applies to a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6). See Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991); United States v. Cephalon, Inc., 159 F. Supp. 3d 550, 555 (E.D. Pa. 2016).
As with a motion to dismiss, a motion for judgment on the pleadings will be granted if the plaintiff has not alleged sufficient plausible facts "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It is not sufficient for a plaintiff to allege mere "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (the reviewing court "may disregard any legal conclusions" set forth in the complaint itself). Instead, a complaint 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.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, 182 L. Ed. 2d 644 (U.S. 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, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. 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.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
IV. DISCUSSION
A. Supervisory Liability and Failure to Train Claims
Palmer brings two major allegations against Paris as Commander of the Blooming Grove barracks, alleging that: (1) he failed to train, supervise, and discipline his employees (Counts III and V); and (2) he developed, implemented, approved, and/or maintained deficient policies that encouraged other PSP members to violate the constitutional rights of others (Count IV). Paris, Palmer alleges, knew or should have known of the misconduct, and his failure to take any action resulted in a violation of her constitutional rights.
Palmer's failure to train and supervise claims essentially mirror a claim for municipal liability under Monell v. Department of Social Services, 436 U.S. 658 (1978). Under Monell, a municipality will be held liable under § 1983 for a constitutional injury that directly resulted from the municipality's policy, custom or practice. Monell, 436 U.S. at 695. When the allegation is one of a failure to train officers, there will be liability "only when that failure amounts to deliberate indifference to the rights of persons with whom the [officers] come into contact." City of Canton v. Harris, 489 U.S. 379, 388 (1989). A plaintiff must show:
Both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997).Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir. 1998).
In this case, we have what appears to be a Monell claim brought against an individual, rather than a municipality. The Court of Appeals for the Third Circuit in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989), set forth the standard to be applied in such a case:
Although the issue here is one of individual liability rather than of the liability of a political subdivision, we are confident that, absent official immunity, the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve. In either case, a "person" is not the "moving force [behind] the constitutional violation" of a subordinate, City of Canton, 109 S. Ct. at 1205, unless that "person"—whether a natural one or a municipality—has exhibited deliberate indifference to the plight of the person deprived. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.1988).Sample, 885 F.2d at 1117-18. The Court went on to state that deliberate indifference "to a known risk will ordinarily be demonstrated by evidence that the supervisory official failed to respond appropriately in the face of an awareness of a pattern of such injuries." Id. at 1118 (emphasis added).
These principles apply with particular force to Monell-style claims like the one made here which are premised, in part, upon an alleged failure to train. In this setting, we have found that:
In cases where a plaintiff is predicating a Monell claim on an alleged failure to train officers or other employees, the Third Circuit has further explained:
a . . . failure to train police officers only gives rise to a constitutional violation when that failure amounts to deliberate indifference to the rights of persons with whom the police come into contact. City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). We have held that a failure to train,
discipline or control can only form the basis for section 1983 . . . liability if the plaintiff can show both contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's actions or inaction could be found to have communicated a message of approval to the offending subordinate. See Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997).
Hunter v. Prisbe, 984 F. Supp. 2d 345, 354-55 (M.D. Pa. 2013).
Montgomery v. De Simone, 159 F.3d 120, 126-27 (3d Cir.1998). It is "only where a failure to train reflects a 'deliberate' or 'conscious' choice . . . can a [defendant] be liable for such a failure under § 1983." Harris, 489 U.S. at 389, 109 S.Ct. 1197. Thus, where Monell claims are based upon an alleged failure to train officers, the . . . training program must be so inadequate that "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy [of the current training] so likely to result in the violation of constitutional rights, that the policy makers . . . can reasonably be said to have been deliberately indifferent to the need." Id. at 390, 109 S.Ct. 1197.
Furthermore, to set forth a successful § 1983 claim against a state official on a supervisory liability theory, the facts in the complaint must aver that the defendant had some personal involvement in the alleged wrong. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). This may be shown by allegations that the defendant personally directed the wrong, or by actual knowledge and acquiescence. Id.; see also Diaz v. Rucker, 2016 WL 8735711, at *4 (E.D. Pa. 2016). However, such allegations must be made with particularity. Rode, 845 F.2d 1207. Indeed, as the Court of Appeals aptly noted in Sample, "it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did." Sample, 885 F.2d at 1118.
After reviewing Palmer's allegations, it is clear that she has not alleged facts to support a supervisory liability or failure to train claim against Paris. She alleges that Paris "knew or should have known" of the misconduct that was occurring. Absent some further well-pleaded facts, this conclusory accusation is not particular enough to support a claim that Paris had knowledge of the misconduct, or that there was a known risk and a pattern of misconduct that he should have been aware of. Nor does Palmer allege any particular personal involvement, or acquiescence, by Paris in any acts which violated her constitutional rights. Furthermore, there are no facts suggesting that Paris was responsible for training members of PSP in the particular areas that she has alleged led to her rights being violated. Therefore, Palmer's claims against Paris in Counts III, IV, and V cannot be maintained on the facts averred and should be dismissed.
B. Conspiracy Claim
Count VI of Palmer's complaint alleges a conspiracy among all of the defendants, pursuant to 42 U.S.C. §§ 1983 and 1985(3), to violate her constitutional rights. With respect to this conspiracy claim, the defendants lodge several objections grounded in the sufficiency of the pleadings.
First, the defendants contend that the intra-corporate conspiracy doctrine applies here, and therefore the "two or more persons" requirement for a conspiracy has not been met. Alternatively, they argue that they are entitled to qualified immunity. The intra-corporate conspiracy doctrine states that an agreement between agents of the same entity, when those agents are acting in their official capacity, is not an unlawful conspiracy. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769 (1984). The Supreme Court of the United States has discussed the application of the intra-corporate conspiracy doctrine to civil conspiracy claims in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), where the Court was faced with a § 1985(3) conspiracy claim against several federal officers in the same branch of government:
The rule is derived from the nature of the conspiracy prohibition. Conspiracy requires an agreement—and in particular an agreement to do an unlawful act—between or among two or more separate persons. When two agents of the same legal entity make an agreement in the course of their official duties, however, as a practical and legal matter their acts are attributed to their principal. And it then follows that there has not been an agreement between two or more separate people. See [Copperweld Corp., 467 U.S.] at 771, 104 S.Ct. 2731 (analogizing to "a multiple team of horses drawing a vehicle under the control of a single driver").Ziglar, 137 S. Ct. at 1867-68.
The Court made clear that it was not giving its approval of the doctrine in the context of § 1985(3) claims, but noted that there was a split in the courts of appeals on the issue, demonstrating that the law was not well-established. Id. at 1868. The defendants in Ziglar were granted qualified immunity on that basis. Id. at 1869.
In reaching this conclusion, the Supreme Court held that:
[T]he fact that the courts are divided as to whether or not a § 1985(3) conspiracy can arise from official discussions between or among agents of the same entity demonstrates that the law on the point is not well established. When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability. See Wilson v. Layne, 526 U.S. 603, 618, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (noting that it would be "unfair" to subject officers to damages liability when even "judges ... disagree"); Reichle v. Howards, 566 U.S. 658, 669-670, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) (same).In addition to the concern that agents of the same legal entity are not distinct enough to conspire with one another, there are other sound reasons to conclude that conversations and agreements between and among federal officials in the same Department should not be the subject of a private cause of action for damages under § 1985(3). To state a claim under § 1985(3), a plaintiff must first show that the defendants conspired—that is, reached an agreement—with one another. See Carpenters, 463 U.S., at 828, 103 S.Ct. 3352 (stating that the elements of a § 1985(3) claim include "a conspiracy"). Thus, a § 1985(3) claim against federal officials by necessity implicates the substance of their official discussions.
As indicated above with respect to other claims in this suit, open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue. See supra, at 1860 - 1861. Close and frequent consultations to facilitate the adoption and implementation of policies are essential to the orderly conduct of governmental affairs. Were those discussions, and the resulting policies, to be the basis for private suits seeking damages against the officials as individuals, the result would be to chill the interchange and discourse that is necessary for the adoption and implementation of governmental policies. See Cheney, 542 U.S., at 383, 124 S.Ct. 2576 (discussing the need for
confidential communications among Executive Branch officials); Merrill, 443 U.S., at 360, 99 S.Ct. 2800 (same).Ziglar v. Abbasi, 137 S. Ct. 1843, 1868-69, 198 L. Ed. 2d 290 (2017).
These considerations suggest that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Whether that contention should prevail need not be decided here. It suffices to say that the question is sufficiently open so that the officials in this suit could not be certain that § 1985(3) was applicable to their discussions and actions. Thus, the law respondents seek to invoke cannot be clearly established. It follows that reasonable officers in petitioners' positions would not have known with any certainty that the alleged agreements were forbidden by law. See Saucier, 533 U.S., at 202, 121 S.Ct. 2151. Petitioners are entitled to qualified immunity with respect to the claims under 42 U.S.C. § 1985(3).
Here, the defendants contend that the intra-corporate conspiracy doctrine applies to them, and the doctrine of qualified immunity as construed by the Supreme Court in Ziglar, applies because they are all agents of the Pennsylvania State Police, and therefore the law was not clearly established that they could collectively agree with their employer, the State Police, to engage in an unlawful conspiracy. (Doc. 26, at 14-15). Obliged as we are to follow this binding Supreme Court precedent, we agree that the doctrine of qualified immunity would seem to bar this claim in light of the Supreme Court holding in Ziglar since Palmer's conspiracy count plainly alleges that these defendants, all of whom were employees of the State Police, conspired with their employer, the State Police. Given the legal uncertainty found by the Supreme Court in Ziglar with respect to the application of the intra-corporate conspiracy doctrine in this setting, it cannot be said that this legal claim was clearly established, and the defendants—like the defendants in Ziglar—are entitled to qualified immunity from damages.
On this score, we note that Palmer's argument "that the law within the Third Circuit, which is controlling in this matter, in no way prohibits her claims," (Doc. 28, at 13), is unpersuasive and incorrect. While Palmer may correctly state the substantive law of this circuit prior to the Supreme Court's decision in Ziglar, that recitation does not change Ziglar's transcendent, and legally binding, point that among the circuits there was a division of opinion on this question concerning the scope of the intra-corporate conspiracy doctrine in civil rights litigation, a split of opinion which in the view of the Supreme Court created sufficient uncertainty in the law to make qualified immunity applicable to these claims.
In any event, aside from considerations of qualified immunity we will also recommend that Palmer's conspiracy claim be dismissed against the defendants, as she has not pleaded sufficient facts to maintain her claim. In order to state a claim for civil conspiracy under 42 U.S.C. § 1983, a plaintiff must demonstrate (1) the existence of a conspiracy involving state action and (2) a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy. Rosembert v. Borough of East Lansdowne, 14 F. Supp. 3d 631, 647 (E.D. Pa. 2014). A plaintiff must allege that there was an agreement or a meeting of the minds to violate his constitutional rights. Id. "Only allegations of conspiracy which are particularized, such as those addressing the period of the conspiracy, the object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose, will be deemed sufficient." Labalokie v. Capitol Area Intermediate Unit, 926 F. Supp. 503, 508-09 (M.D. Pa. 1996) (quoting Loftus v. SEPTA, 843 F. Supp. 981, 986-87 (E.D. Pa. 1994)). Further, the "mere incantation of the words 'conspiracy' or 'acted in concert' does not talismanically satisfy the Rule's requirements." Loftus, 843 F. Supp. at 987.
In this case, Palmer does not assert any well-pleaded facts that would suggest there was an agreement between the defendants to violate her rights. She alleges separate incidents by different defendants without asserting or even attempting to show that there was an understanding between them to violate her rights. It is averred that Brownmiller and Bowen interviewed her as part of the investigation into her rape accusations, and that Brownmiller followed up after the interview with phone calls, allegedly to harass her. There was an incident where Palmer was taken in for psychiatric treatment by Pajalich and Slovinski. Finally, she alleges that Carey served her papers ordering her to appear at a medical examination. Although all of the events took place sometime after Palmer made her allegation against another PSP trooper, there is no allegation that any of the defendants had an agreement to do any of the actions mentioned above. Palmer does not even allege that there was some kind of implicit understanding between all of the defendants. She states a conclusion that they "conspired" against her, and this, as noted in Loftus, is simply not enough to meet the necessary pleading requirements.
Palmer's allegations also fail to meet the requirements of § 1985(3). Section 1985(3) provides that:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ..., the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985(3).
The reach of § 1985(3) has been carefully defined by the courts. As the United States Court of Appeals for the Third Circuit has observed, "in Griffin v. Breckenridge, 403 U.S. 88 (1971) ..., the Supreme Court clarified that the reach of section 1985(3) is limited to private conspiracies predicated on 'racial, or perhaps otherwise class based, invidiously discriminatory animus.' Id. at 102." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir.1997). Thus:
Section 1985(3) permits an action to be brought by one injured by a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). In a line of cases ..., the Supreme Court has made clear what a plaintiff must allege to state a claim under § 1985(3): "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29,(1983) (citing Griffin, 403 U.S. at 102-03).Farber v. City of Paterson, 440 F.3d 131, 134 (3d. Cir.2006). See Lake, 112 F.3d at 685. "[B]ecause § 1985(3) requires the 'intent to deprive of equal protection, or equal privileges and immunities,' a claimant must allege 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action' in order to state a claim." Farber, 440 F.3d at 135 (citations omitted, emphasis in original). In practice, "[t]here are two distinct aspects to the 'class-based invidiously discriminatory animus' which, ..., will support a § 1985(3) claim-the first is defined by form, and the second by function. Thus, a plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious." Id.
Yet, while proof of class-based discrimination is the gravamen of a § 1985(3) claim, "[t]here are no precise parameters defining the boundaries of 'class' within the meaning of section 1985(3). 'The best that can be said of § 1985(3) jurisprudence thus far is that it has been marred by fits and starts, plagued by inconsistencies, and left in flux by the Supreme Court.' Trautz v. Weisman, 819 F.Supp. 282, 291 (S.D.N.Y.1993)." Lake, 112 F.3d at 685. Thus, while "a class for purposes of section 1985(3) must be 'something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors,' " the courts have "strictly construed" what constitutes a class under this civil rights statute. Id. In sum, proof of: (1) a conspiracy; (2) motivated by class-based animus is the essence of a § 1985(3) claim.
Here, Palmer has not alleged any facts giving rise to a class-based, or any other discriminatory animus. Therefore, given the application of the qualified immunity doctrine to this intra-corporate conspiracy claim and these shortcomings of pleading, we will recommend that the plaintiff's conspiracy claim (Count VI) be dismissed.
C. State Law Claims of False Imprisonment and Intentional Infliction of Emotional Distress
Palmer has brought two state law claims against the defendants. First, she makes a claim for false imprisonment against Pajalich and Slovinski, arising out of the incident where she was involuntarily committed for psychiatric treatment. Second, she makes a claim for intentional infliction of emotional distress against all of the defendants because of the severe emotional stress she suffered as a result of all of the alleged misconduct. We will recommend that these claims be dismissed with prejudice, as sovereign immunity bars these claims against the defendants.
Under Pennsylvania law, the Commonwealth, its agencies and employees enjoy broad immunity from most state-law tort claims, as the General Assembly has by statute provided that "the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa.C.S. § 2310; see also Moore v. Commonwealth, 538 A.2d 111, 115 (Pa. Commw. Ct. 1988) ("In other words, if the Commonwealth is entitled to sovereign immunity under Act 152, then its officials and employees acting within the scope of their duties are likewise immune"). This grant of immunity "applies to Commonwealth employees in both their official and individual capacities, so long as the employees are 'acting within the scope of their duties.'" Larsen v. State Employees' Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008). Conduct of an employee is within the scope of employment if "'it is of a kind and nature that the employee is employed to perform; [and] it occurs substantially within the authorized time and space limits....'" Brautigan v. Fraley, 684 F.Supp. 2d 589, 593-94 (M.D. Pa. 2010); see also Faust v. Dep't of Revenue, 592 A.2d 835 (1991) (holding that a Commonwealth employee was protected under sovereign immunity from liability from intentional acts which caused emotional distress when he was acting within the scope of his duties).
Thus, so long as the agent or employee is acting within the scope of his employment, and none of the nine recognized statutory exceptions apply, sovereign immunity will bar any state law claims against him. After a review of the complaint, none of the statutory exceptions are applicable in this case, and the issue of sovereign immunity turns on the question of whether the defendants were acting within the scope of their employment.
In 42 Pa.C.S. § 8522(b), the General Assembly defined nine separate, narrow exceptions to the broad grant of sovereign immunity. These exceptions include: (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. "Because of the clear intent to insulate government from exposure to tort liability, the exceptions to immunity are to be strictly construed." Lockwood v. City of Pittsburgh, 561 Pa. 515, 751 A.2d 1136, 1139 (Pa.2000) (citation omitted). --------
It is clear from the facts alleged that the defendants were acting within the scope of their employment as members of the PSP at the time of the alleged misconduct. The actions taken were taken in the defendants' capacity as employees of PSP and not as private citizens. Investigating Palmer's rape allegations, supervising subordinates at the Blooming Grove barracks, serving papers for a medical evaluation, and transporting someone who was alleged to have been suicidal to a hospital would fall within the scope of employment of the defendants. Additionally, the defendants were in uniform and on duty when all of the alleged misconduct is said to have occurred. See Kircher v. Pennsylvania State Police, 2016 WL 4379143, at *28 (M.D. Pa. August 17, 2016) (sovereign immunity barred claims against police officers who were "in uniform, on duty, responding to a state police dispatch, using state police issued vehicles and equipment"); Mitchell v. Luckenbill, 680 F.Supp.2d 672, 683 (M.D. Pa. 2010) (sovereign immunity applied where "[t]he actions taken by Defendants were actions that were taken in their capacity as state troopers and not as private individuals"). In fact, Pennsylvania courts have repeatedly concluded that claims for intentional infliction of emotional distress brought against Commonwealth employees arising out of actions taken by those employees within the scope of their official duties are barred by sovereign immunity. See e.g., Ray v. Pennsylvania State Police, 654 A.2d 140, 141 (Pa. Commw. Ct. 1995), aff'd, 544 Pa. 260, 676 A.2d 194 (1996) citing Pickering v. Sacavage, 164 Pa.Commonwealth Ct. 117, 642 A.2d 555, appeal denied, 539 Pa. 671, 652 A.2d 841 (No. 275 M.D.Alloc.Dkt., filed December 5, 1994) (holding that a state trooper acting within the scope of his duties is protected by sovereign immunity from intentional infliction of emotional distress claims).
Also of paramount importance is the plaintiff's own language in the complaint, which explicitly admits that the defendants were acting within the course and scope of their employment:
At all times material hereto, Defendant PSP acted by and through its agents, servants and employees who acted within the course and scope of their agency, employment and authority.(Doc 1-2, ¶ 3) (emphasis added); see also Mitchell, 680 F.Supp.2d at 683 and La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992) (both noting that the plaintiff's complaint admitted that the defendants were acting within the scope of their employment). Therefore, sovereign immunity applies and the state law claims against the defendants should be dismissed.
D. Leave to Amend the Complaint
The Federal Rules of Civil Procedure provide that courts should freely grant leave to amend "when justice so requires." Id. Federal Rule of Civil Procedure 15 counsels courts to adopt a liberal approach to permitting amendments to pleadings. See Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004). The Third Circuit Court of Appeals has observed that following this approach to granting leave to amend pleadings ensures that a particular claim will be decided on "the merits rather than on technicalities." Dole v. Arco Chem. Co., 921 F.2d 484, 486-487 (3d Cir. 1990).
The defendants have moved for judgment on the pleadings pursuant to Rule 12(c). This motion may only be granted upon a showing that the defendants are "entitled to judgment as a matter of law." Soc'y Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980). As the District Court for the Eastern District of Pennsylvania succinctly stated:
A defendant bringing a motion for judgment on the pleadings is asking the court to enter judgment—i.e., to end the case without permitting the plaintiff to amend her complaint. Therefore, in order for a defendant to meet its burden to establish that it is entitled to judgment as a matter of law on the basis of a plaintiff's failure to state a claim, the defendant must prove that it is entitled to the dismissal of the plaintiff's claims with prejudice and without leave to amend. This, in turn, requires the defendant to demonstrate that the plaintiff is
unable to remedy her pleading deficiencies through the amendment of her complaint, because amendment is futile. Cf. Gerlach v. Volvo Cars, No. 96-1476, 1997 WL 129004, at *6 (E.D. Pa. Mar. 17, 1997) (denying motion for judgment on the pleadings after granting plaintiff leave to amend her complaint on the basis that amendment would not be futile, because, after granting leave to amend, "it would be premature for the [c]ourt to award judgment as a matter of law").Hu v. Herr Foods, Inc., 251 F.Supp.3d 813, 825 (E.D. Pa. 2017).
The defendants in this case have met this burden only with respect to the state law claims of false imprisonment and intentional infliction of emotional distress. The defendants are protected by sovereign immunity from these claims because they were acting within the scope of their employment, and any amendment to these claims would prove futile. Likewise, in light of the Supreme Court's holding in Ziglar which concluded that the law was unclear with respect to the viability of intra-agency conspiracy civil rights claims at the time of these events, Count VI of this complaint also fails in a way which cannot be readily corrected through more artful pleading. However, the plaintiff should be permitted to amend her § 1983 claims, as the only deficiency we have identified with respect to those claims is the lack of factual allegations necessary to support them. Therefore, we recommend that Counts III, IV, V, VI, VII, and VIII be dismissed, but we recommend that Counts III, IV, and V be dismissed without prejudice and that the plaintiff be granted leave to amend those counts.
V. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the Defendant's motion for partial judgment on the pleadings (Doc. 24) be GRANTED IN PART AND DENIED IN PART. IT IS RECOMMENDED THAT the motion be GRANTED to the extent that it seeks dismissal of plaintiff's claims, but DENIED to the extent that it seeks the entry of judgment. IT IS FURTHER RECOMMENDED THAT Counts VI, VII and VIII be dismissed with prejudice, and the plaintiff be granted leave to amend Counts III, IV, and V, in order to address the pleading deficiencies that we have identified.
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.
Submitted this 9th day of October, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge