Opinion
Civil Action 23-896
12-21-2023
TROY REED, Plaintiff, v. TARGET CORPORATION, CITY OF PITTSBURGH and KEITH EDMONDS, Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the motion to dismiss filed by Defendant Target Corporation (ECF No. 14) be granted in part and denied in part. It is further recommended that the motion to dismiss filed by Defendant City of Pittsburgh (ECF No. 33) be denied.
II. Report
A. Relevant Background
Plaintiff Troy Reed (“Reed”) brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Target Corporation (“Target”), the City of Pittsburgh (the “City”) and Keith Edmonds (“Edmonds”). Reed contends that Edmonds, a City police officer who was working as a security guard at a Target store, subjected him to excessive force by tasing him during his arrest for alleged shoplifting, thereby violating his rights under the Fourth and Fourteenth Amendments to the United States Constitution. He also asserts a state law claim of battery.
Pending before the Court for resolution are two motions to dismiss, one filed by Target (ECF No. 14) and the other by the City (ECF No. 33). For the reasons that follow, Target's motion should be granted in part and denied in part and the City's motion should be denied.
B. Relevant Procedural History
Reed commenced this action by filing a Complaint (ECF No. 1) on May 30, 2023. Count I of the Complaint alleges a claim of excessive force against Edmonds in violation of Reed's rights under the Fourth and Fourteenth Amendments. In Count II, Reed pleads a claim of battery against all Defendants. Federal question jurisdiction is based on the civil rights claim, 28 U.S.C. § 1331, and supplemental jurisdiction is asserted over the state law claim, 28 U.S.C. § 1367(a).
Defendants' motions to dismiss (ECF Nos. 14, 33) have been fully briefed (ECF Nos. 15, 21, 34, 37).
C. Facts Alleged in the Complaint
On the evening on June 20, 2021, Reed was in a Target store located in the East Liberty area of Pittsburgh. Edmonds was working a security detail on behalf of the City and Target. An employee of Target reported to Edmonds that the employee believed Reed had stolen some merchandise. Edmonds then ran after Reed.
According to Reed, while he did not make any furtive movements, Edmonds shot him in the back with a taser, and as a result, Reed sustained various injuries and damages. Reed alleges that he was not fleeing from a serious crime or otherwise posed a danger or potential danger to any other person. Thus, Edmonds knew that his use of the taser constituted excessive force. In addition, Edmonds stated to Reed that “if we weren't on camera, I would have killed you.” (Compl. ¶¶ 3-9.) Reed alleges that Edmonds was acting within the scope of his duties for the City and Target when he tased Reed. (Id. ¶ 19.)
D. Discussion
1. Standard of Review
“Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well- pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible,” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
As noted by the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged.
2. Target's Motion to Dismiss
a. Battery Claim
Reed has asserted a claim of battery against Target. “The tort of battery has been described as an unconsented touching that is either harmful or offensive. It is an intentional tort.” Cooper ex rel. Cooper v. Lankenau Hosp., 51 A.3d 183, 191 (Pa. 2012) (citing C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 n.4 (Pa. 2008)).
The doctrine of respondeat superior provides that an employer “may be held liable for the acts of the [employee] when those acts are committed during the course of his employment and within the scope of his authority.” Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1237 (Pa. 2002). Target argues that Reed does not allege that that Target took any “individualized action” with respect to the alleged battery or pleads facts that would establish a master-servant relationship between Target and Edmonds.
The Complaint alleges that Edmonds was “working a security detail on behalf of Target” at the time of the incident. At this stage, this allegation is sufficient to plead that Edmonds was employed by Target and at the time of the incident, was in the course of his employment when he encountered Reed. Thus, construing this allegation in the light most favorable to Reed, Target could be liable for any wrongful actions by Edmonds if they were conducted within the scope of his employment.
Whether Edmonds was acting within or outside the scope of his job duties during the events at issue is a question of state law. Pennsylvania applies the principles from the Restatement (Second) of Agency § 228 to determine if conduct of an employee is within the scope of his employment. Justice v. Lombardo, 208 A.3d 1057, 1067 (Pa. 2019). See also Brumfield v. Sanders, 232 F.2d 376, 380 (3d Cir. 2000). As summarized in Schell v. Guth, 88 A.3d 1053 (Pa. Commw. 2014), the applicable criteria to resolve scope-of-employment issues are as follows:
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; it occurs substantially within the authorized time and space limits; it is actuated at least in part, by a purpose to serve the employer; and if force is intentionally used by the employee against another, it is not unexpected by the employer. (citations omitted). These criteria mirror those contained in Section 228 of the Restatement (Second) of Agency . . .Id. at 1067.
Accepting as true the allegations of the Complaint, as the Court must do at this stage of the proceedings, Reed has alleged that Edmonds was acting within the scope of his authority for Target when he allegedly committed battery by shooting Reed with a taser because he believed that Reed was a shoplifter. (Compl. ¶ 19.) As Reed correctly argues, issues concerning the identity of Edmond's employer, the nature of his employment and whether he was authorized to use a taser on suspected shoplifters are fact-intensive and as such, cannot be resolved in the context of a motion to dismiss. See Bolus v. United Penn Bank, 525 A.2d 1215, 1221 (Pa. Super. 1987) (“Whether an agency relationship exists is a question of fact for the jury.”) (citations omitted), appeal denied, 541 A.2d 1138 (Pa. 1988).
Therefore, Target's motion to dismiss regarding the battery claim should be denied.
b. Punitive Damages
Reed has asserted a claim against Target for punitive damages. In Pennsylvania, the purpose of punitive damages is “to punish the wrongdoers and to deter future conduct.” Bert Co. v. Turk, 298 A.3d 44, 61 (Pa. 2023) (quoting Feingold v. Southeastern Pa. Transp. Auth., 517 A.2d 1270, 1276 (Pa. 1986)). “The factfinder may impose punitive damages for ‘torts that are committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured.'” Id. (quoting Thompson v. Swank, 176 A. 211, 211 (Pa. 1934)). The Pennsylvania Supreme Court has stated that “punitive damages are an ‘extreme remedy' available in only the most exceptional matters.” Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005). “Under Pennsylvania law a principal may be held vicariously liable for the punitive damages of its agents if the actions of the agent were ‘clearly outrageous,' were committed during and within the scope of the agent's duties, and were done with the intent to further the principal's interests.” Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 101 (3d Cir. 1993) (citation omitted).
Target seeks dismissal of Reed's request for punitive damages against it, arguing that there is no basis for concluding that it was aware that Edmonds would use excessive force when apprehending Reed. It also contends that its mere act of employing Edmonds to perform security at a store cannot be described as outrageous conduct.
Target relies on cases that either were resolved on motions for summary judgment or at trial and did not involve an intentional tort such as battery.
In opposing Target's motion, Reed argues that dismissal of his request for punitive damages would be premature at this stage of the proceedings. See Highhouse v. Wayne Highlands Sch. Dist., 205 F.Supp.3d 639, 651 (M.D. Pa. 2016) (plaintiff sufficiently pled that defendants' actions “evinced a reckless or callous indifference to plaintiff's federally protected rights,” so punitive damages against them in their individual capacities would not be dismissed).
The Court agrees that dismissal of Reed's claim for punitive damages at this stage is premature. See, e.g., Miller v. TJX Companies, Inc., 2019 WL 1168120, at *3 (E.D. Pa. Mar. 12, 2019) (plaintiff assaulted by security guard at shopping mall properly alleged claims including assault and battery and could request punitive damages against store based on intentional torts alleged); Pugh v. Chester Downs And Marina, LLC, 2010 WL 2349597, at *5 (E.D. Pa. June 4, 2010) (plaintiff who was assaulted by security guards at casino would not suffer dismissal of his request for punitive damages even on summary judgment because the facts were disputed).
Therefore, in this respect, Target's motion to dismiss should be denied.
c. Attorney's Fees
Target moves for dismissal of Reed's demand for attorney's fees on the ground that there is no basis under Pennsylvania law to recover attorney's fees in connection with a battery claim. “As a general rule, a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” Snyder v. Snyder, 620 A.2d 1133, 1138 (Pa. 1993). Reed has neither responded to this argument nor provided any contrary authority.
In Pennsylvania, “the default rule [is] that litigants bear responsibility for their own attorneys' fees in the absence of express statutory authorization for fee awards, contractual feeshifting, or some other recognized exception.” Herd Chiropractic Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058, 1062 (Pa. 2013) (citations omitted). There is no basis for an exception in a common law claim such as battery. See Roadman v. Select Specialty Hosp., 2017 WL 4236581, at *9 (W.D. Pa. Sept. 22, 2017); Berger v. Hahnemann Univ. Hosp., 2017 WL 5570340, at *9 (E.D. Pa. Nov. 17, 2017), aff'd, 765 Fed.Appx. 699 (3d Cir. 2019).
Therefore, the motion to dismiss filed by Target should be granted with respect to Plaintiff's demand for attorney's fees.
3. City's Motion to Dismiss
The City moves to dismiss the battery claim asserted against it based on the defense of local immunity.
The City also argues that it cannot be held liable for punitive damages and that Reed cannot seek declaratory relief for prior conduct. Although the Complaint alleges that Reed seeks punitive damages and declaratory relief against “Defendants,” Reed now states that he is neither seeking punitive damages nor declaratory relief against the City. (ECF No. 37 at 5.)
The Pennsylvania Political Subdivision Tort Claims Act provides that “[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa. C.S. § 8541. The Act goes on to identify certain exceptions to immunity:
A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a
defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
42 Pa. C.S. § 8542(a). Subsection (b) lists nine negligent acts for which recovery against the local agency is permitted, none of which are applicable here. 42 Pa. C.S. § 8542(b).
An employee of a local agency is liable for injury to a person caused by the employee's acts which are within the scope of his employment only to the same extent as the local agency that employs him. 42 Pa. C.S. § 8545. However,
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally) . . . shall not apply.
42 Pa. C.S. § 8550. See Yakowicz v. McDermott, 548 A.2d 1330, 1333 & n.5 (Pa. Commw. 1988) (noting that Commonwealth employees are immune from liability even for intentional torts but that local agency employees lose their immunity defense where their actions constitute a crime, actual fraud, actual malice or willful misconduct), appeal denied, 565 A.2d 1168 (Pa. 1989).
Because immunity is an affirmative defense, the defendant bears the burden of proof on this issue. Id.; see also Justice, 208 A.3d at 1068. Where the facts and inferences to be drawn from the facts are not in dispute, the court may determine the scope as a matter of law. Justice, id. On the other hand, when more than one inference can be drawn, this issue must be resolved by the factfinder. Id. (whether state trooper's conduct was for a purpose to serve the state police or “out of personal animus” was for the jury to decide.)
Reed claims that Edmonds's actions constituted willful misconduct, in which case local immunity would not apply. Willful misconduct “means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue.” Evans v. Philadelphia Transp. Co., 212 A.2d 440, 443 (Pa. 1965). The City argues that simply alleging that Edmonds used a taser on him does not mean that he used excessive force and committed a battery.
This issue cannot be resolved at this stage of the proceedings. As the Pennsylvania Supreme Court has held:
A police officer may use reasonable force to prevent interference with the exercise of his authority or the performance of his duty. In making a lawful arrest, a police officer may use such force as is necessary under the circumstances to effectuate the arrest. The reasonableness of the force used in making the arrest determines whether the police officer's conduct constitutes an assault and battery.Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994). The court also stated that: “A police officer may be held liable for assault and battery when a jury determines that the force used in making an arrest is unnecessary or excessive.” Id. See also 18 Pa. C.S. § 3929(d) (“A peace officer . . . who has probable cause to believe that retail theft has occurred or is occurring on or about a store . . . and who has probable cause to believe that a specific person has committed or is committing the retail theft may detain the suspect in a reasonable manner for a reasonable time.”) (emphasis added).
As summarized by another district court:
Where a plaintiff alleges assault and battery against a police officer, he must establish the officer acted outside the scope of his job, i.e., committed willful misconduct. For police officers, such willful misconduct is established by showing the officer not only intentionally used force, but intentionally used excessive force. This heightened standard, willful misconduct aforethought, shields police officers from liability for damages incidental to police operations, which may otherwise constitute an intentional tort if committed by a private citizen.
The question of whether an officer used excessive force requires determining whether the force used was objectively reasonable in light of the surrounding facts and circumstances. Relevant considerations include whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight. If a police officer uses reasonable force in making a lawful arrest, he cannot be liable for assault and battery.Johnson v. City of Philadelphia, 105 F.Supp.3d 474, 482-83 (E.D. Pa. 2015) (quoting Lucas v. City of Philadelphia, 2012 WL 8691954, at *3 (Pa. Commw. June 6, 2012)), aff'd, 837 F.3d 343 (3d Cir. 2016). See also Ickes v. Grassmeyer, 30 F.Supp.3d 375, 400 (W.D. Pa. 2014) (to survive a motion to dismiss in a situation involving a police officer's use of force, a plaintiff must allege that the the officer “intentionally committed these intentional torts.”)
Accepting the facts alleged in the Complaint as true, the Court cannot resolve on a motion to dismiss whether Edmond's use of a taser without a warning on a suspected shoplifter who was running from the store but who made no furtive movements and who did not pose a danger to any other person was a reasonable action or constituted willful misconduct. See, e.g., Brown v. Cwynar, 484 Fed.Appx. 676, 680 (3d Cir. 2012) (citing authority that an officer's use of force was unreasonable when he did not provide a warning before deploying a taser); Geist v. Ammary, 40 F.Supp.3d 467, 480 (E.D. Pa. 2014) (denying summary judgment when facts were in dispute, inter alia, as to the types of warnings that were given to the plaintiff before a taser was employed).
In short, assuming that Edmonds was acting as an employee of the City and within the scope of his duties as the Complaint alleges, whether he engaged in willful misconduct by deploying a taser on Reed is an issue of fact that must be determined on summary judgment or at trial. Therefore, the City's motion to dismiss should be denied.
E. Conclusion
For the reasons explained above, it is recommended that the motion to dismiss filed by Defendant Target Corporation (ECF No. 14) be granted with respect to Plaintiff's request for attorney's fees and otherwise denied. It is further recommended that the motion to dismiss filed by Defendant City of Pittsburgh (ECF No. 33) be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by January 4, 2024. Any party opposing the objections shall file a response by January 18, 2024. Failure to file timely objections will waive the right of appeal.