Opinion
Civil Action No. 18-229
09-18-2018
DOMINIC REALE, Plaintiff, v. RONALD HOUGH, as an individual, CITY OF PITTSBURGH, RAY RIPPOLE, as an individual, and JOHN and/or JANE DOE, as an individual, Defendants.
U.S. District Judge Cathy Bissoon
Re: ECF No. 18 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Dominic Reale ("Reale") initiated this civil rights action pursuant to 42 U.S.C. § 1983, against Defendants Ronald Hough ("Hough"), the City of Pittsburgh, Ray Rippole, and Jane/John Doe (collectively, "Defendants"), alleging that Defendants violated his rights under the Fourth Amendment to the United States Constitution and Pennsylvania state law relative to Defendant Hough's discharge of a taser into Plaintiff's chest.
Presently before the Court is a Motion to Dismiss Counts I and II of the Amended Complaint and Brief in Support filed on behalf of Defendant Hough, ECF Nos. 18, 19. Reale has filed a Brief in Opposition to the Motion to Dismiss, ECF No. 21, and Hough has filed a Reply Brief. ECF No. 22. For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted without prejudice to file a second amended complaint as to Count I, and that Count II be dismissed with prejudice.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Reale commenced this action with the filing of a Complaint on February 23, 2018, naming only Hough as a defendant. Hough filed a Motion to Dismiss in response, ECF No. 4, and Reale filed an Amended Complaint, ECF No. 16, adding the City of Pittsburgh, Ray Rippole and Jane and/or John Does as defendants with Hough. ECF No. 16. As to Hough, Reale alleges a Fourth Amendment excessive force claim (Count I), a Fourth Amendment conspiracy to violate civil rights claim (Count II), and a common law claim for assault and battery (Count IV). Id.
The Amended Complaint was filed with the Court on July 27, 2018; however, there is no indication that the Amended Complaint has been served upon the newly named Defendants, including the City of Pittsburgh, Ray Rippole, and/or the Jane/John Doe defendants. --------
In relevant part, Reale alleges that he is a full-time employee at the Villa Reale restaurant located in Pittsburgh, Pennsylvania. ECF No. 16 ¶¶ 10-12. The restaurant specializes in Italian cuisine, with an emphasis on pizza. The restaurant is a frequented by City of Pittsburgh police officers, including Hough, who at the time of the incident, was assigned to a patrol zone encompassing the neighborhood in which Villa Reale is located. Id. ¶¶ 13-14. On October 30, 2017, Hough was on-duty as a City of Pittsburgh police officer, and while dressed in his full uniform, ate his evening meal at the restaurant with Reale. Id. ¶ 15. During the course of the meal, Reale and Hough engaged in friendly conversation, but at some point, Hough began to act in an erratic manner. He repeatedly drew his government-issued mace and pointed it at the Plaintiff in a threatening manner. Id. ¶ 16. Reale asked Hough to stop, but Hough continued to act out and brandished his government-issued taser at Reale. Id.
Reale stood up from the table and moved to the restaurant's counter. Id. ¶ 17. Hough followed him and began discussing difficulties that Hough was having with his eyesight. Hough continued to follow Reale in a threatening and menacing way, despite Reale's attempts to retreat. Reale indicated to Hough that his behavior was inappropriate, and Hough stopped his pursuit. Id. ¶¶ 18-19. Reale then began a conversation with a woman who was seated at the counter. Suddenly, and without warning or cause, Hough discharged his taser into Reale's chest, causing Reale to collapse to the ground. Reale alleges that there was no lawful or legitimate reason for Hough's actions, and that Hough was acting for his own apparent amusement. After discharging the taser into Reales's chest, Hough then forcibly removed the taser prongs without benefit of properly trained medical personnel, and attempted to convince Reale not to seek medical attention. Id. ¶¶ 20-23.
Thereafter, Hough returned to the restaurant on at least two occasions, and urged Reale to destroy video evidence of the incident captured on security cameras. He also asked Reale to refrain from reporting the incident to authorities. Id. 24. Hough followed up with text messages asking Reale asking whether the video evidence had been destroyed and to discuss the incident with him. Hough also reached Reale by telephone at least once. Id. 25.
Defendant Rippole, a lieutenant in the City of Pittsburgh Police Department, along with a number of Defendant Doe(s) who are alleged to be current and former members of the City of Pittsburgh Police Department, confronted Reale at the restaurant and other locations to urge him to refrain from taking action against Hough for his misconduct. Some of the requests were friendly and good-natured, but others were veiled threats to Reale's safety if he failed to acquiesce to demands being made. Id. ¶¶ 27-36.
Based upon the conduct alleged, Reale initiated this action, and through his Amended Complaint, sets forth causes of action against Hough for the violation of his rights under the Fourth Amendment (Count I) and a state law claim for assault and battery (Count IV). In addition, as to Hough, Rippole, and the Doe Defendants, Reale alleges claims for conspiracy to violate his Fourth Amendment rights (Count II), and as to the City of Pittsburgh, Reale alleges a claim for failure to supervise, train and control employees of the City of Pittsburgh Police Department (Count III).
Hough moves to dismiss Reale's Fourth Amendment excessive force and conspiracy claims, set forth in Counts I and II, on the basis that Reale has failed to allege facts sufficient to establish either cause of action as a matter of law.
B. STANDARD OF REVIEW
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
A court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). See also McTernan v. City of York, Penn., 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). A plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, Civ. No. 07-528, 2008 WL 482469, at *1 (D. Del. Feb. 19, 2008) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556 n. 3).
The United States Court of Appeals for the Third Circuit expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we must take the following three steps:Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)).
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.'
"The purpose of a motion to dismiss is to test the sufficiency of a complaint, not to resolve disputed facts or decide the merits of the case." Tracinda Corp. v. DaimlerChrysler AG, 197 F. Supp. 2d 42, 53 (D. Del. 2002) (citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Rule 12(b) where it does not allege "enough facts to state a claim to relief that is plausible on its face," Twombly, 550 U.S. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. The question is not whether the plaintiff will prevail in the end but, rather, whether the plaintiff is entitled to offer evidence in support of his or her claims. Swope v. City of Pittsburgh, 90 F. Supp. 3d 400, 405 (W.D. Pa. 2015) (citing Oatway v. American Intern. Group, Inc., 325 F.3d 184, 187 (3d Cir. 2003)).
C. DISCUSSION
1. Count I - Section 1983 and the Fourth Amendment State Action
Reale brings this action under 42 U.S.C. § 1983. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State ..., 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....42 U.S.C. § 1983. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988); Elmore v. Cleary, 281 F. 3d 279, 281 (3d Cir. 2005). Facts supporting an inference that the defendant acted under color of state law must be alleged to ensure that liability is not imposed upon a state for conduct it could not control. Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 296 (2001). Conduct which is fairly attributed to the state occurs when: (1) the challenged activity results from the state's exercise of coercive power, (2) the state provides significant encouragement, either overt or covert, or (3) a private party becomes a willful participant in joint activity. Id. Hough contends that Reale's § 1983 claims fail because the Amended Complaint fails to allege facts sufficient to establish that he was acting under color of state law at the time of the incident at issue.
This Court has previously reviewed the propriety of dismissal of a § 1983 claim where a police officer defendant similarly challenged the sufficiency of allegations of state action:
A police officer will be found to act under color of law if (1) he depends upon the "cloak of the state's authority" as a means to commit the alleged improper acts, and (2) that authority enables the officer to do what he did. Barna v. City of Perth Amboy, 42 F.3d 809, 815-816, 818 (3d Cir. 1994); Pryer v. City of Philadelphia, 2004 U.S. Dist. LEXIS 5331, *11 (E.D. Pa. Feb. 19, 2004). This rule applies regardless of whether a police officer is on or off-duty. Barna v. City of Perth Amboy, 42 F.3d at 816. See also Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir. 1997) ("[O]ff-duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.").
The Third Circuit has determined that "a police officer's purely private acts which are not furthered by any actual or purported state authority are not acts under color of state law." Barna v. City of Perth Amboy, 42 F.3d at 816-817 (citing Delcambre v. Delcambre, 635 F.2d 407, 408 (5th Cir. 1981)). While courts do consider an officer's motivation in making this determination, an officer's actions are purely private when he becomes involved in a dispute "without any evidence of police actions calculated to preserve the peace, protect life or property, arrest violators of the law or prevent crime." Nonnemaker v. Ransom, 1999 U.S. Dist. LEXIS 8108, *3 (E.D. Pa. May 26, 1999). The "acts of officers in the ambit of their personal pursuits are plainly excluded [whereas] acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws v. United States, 325 U.S. 91, 111 (1945); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).
In order to determine whether a police officer acted under the color of state law, "the facts and circumstances of the police officer's role ... must be examined in their totality.... The state action question must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question." Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 610-611 (3d Cir. 2011).McGuire v. City of Pittsburgh, No. 14-1531, 2015 WL 13643696, at *3-4 (W.D. Pa. Aug. 18, 2015). Upon an examination of the complaint before it in McGuire, this Court denied a motion to dismiss a § 1983 claim against an off-duty police officer who was alleged to have chased, beaten and restrained a teenager who had vandalized his property, because such conduct was "consistent with actions generally taken by a police officer and were calculated to preserve the peace, protect property, and to arrest [the teenager] as a violator the law." Id. at *4.
In contrast, a motion to dismiss § 1983 claims was granted in Washington-Pope v. City of Philadelphia, 978 F. Supp. 2d 544 (E.D. Pa. 2013), to an on-duty police officer who, while operating his police cruiser and during the course of an apparent mental health or medical incident, removed his service revolver from its holster and aimed the weapon at his partner in a menacing manner. The district court surveyed police/state action decisions in the Third Circuit and determined that dismissal was appropriate because "nothing about [the defendant's] conduct indicates that he was purporting to act under state authority when he drew on [plaintiff]; nor did any actual or purported state authority advance his action." Id. at 571-72. The Court concluded that any remedy to be had might lie in a state tort claim, because "an otherwise private tort is not committed under color of law simply because the tortfeasor is an employee of the state." Id.
In opposition to the instant Motion to Dismiss, Reale argues that the Amended Complaint sufficiently sets forth a § 1983 claim based upon allegations that at the time of the incident, Hough was dressed in his uniform, on-duty, and used both a department-issued mace and a taser to threaten and, ultimately, to attack him. ECF No. 21 at 4. However, Hough's conduct is alleged to have occurred while the two were dining together; not in the pursuit of any police business, and for Hough's apparent self-amusement. ECF No. 16 ¶¶ 14-22. Under the circumstances alleged by Reale, as the author of the Amended Complaint, and read in a light most favorable to him, it simply cannot be said that Hough's conduct was "calculated to preserve the peace, protect life and property, [or to] arrest violators of the law or prevent crime." Nonnemaker v. Ransom, No. 99-912, 1999 WL 387084 *3 (E.D. Pa. May 26, 1999). Accordingly, it is recommended that the Motion to Dismiss Count I of Plaintiff's Complaint be granted, without prejudice to permit Reale one final opportunity to allege facts sufficient to state a viable § 1983 Fourth Amendment cause of action for excessive force.
2. Count II - Conspiracy
At Count II of the Amended Complaint, Reale alleges a claim for conspiracy to conceal Defendant Hough's conduct on the date at issue, and to deprive Reale of the "right to be free from excessive, unreasonable and unjustified force, in violation of the Fourth Amendment." ECF No. 16 at 10-11. Hough seeks dismissal of Count II and contends first, that Reale has not alleged any facts to support a conspiracy to commit a Fourth Amendment violation, without which he has failed to allege a cognizable § 1983 conspiracy claim; and, second, that Reale has failed to allege sufficient facts to permit a reasonable inference of a conspiracy to be drawn. ECF No. 18 at 5-7. Reale concedes that he has failed to allege facts sufficient to state a claim for conspiracy and voluntarily withdraws Count II of the Amended Complaint. ECF No. 21 at 1. Accordingly, it is recommended that Count II of the Plaintiff's Amended Complaint be dismissed with prejudice.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss filed on behalf of Defendant Ronald Hough, ECF No. 19, be granted without prejudice as to Count I to permit Plaintiff Dominic Reale one final opportunity to file a second amended complaint that sufficiently alleges a viable § 1983 Fourth Amendment excessive force claim, and that Count II of Plaintiff's Amended Complaint be dismissed with prejudice. It is further recommended that in the event Plaintiff fails to file a second amended complaint and fails to pursue the claims asserted against the remaining named Defendants in this Court, that this action be dismissed without prejudice to be filed in state court, to permit Plaintiff to pursue his claim for assault and battery.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE Dated: September 18, 2018 cc: The Honorable Cathy Bissoon
United States District Judge
All counsel of record by Notice of Electronic Filing