Opinion
CIVIL ACTION NO. 4:20-CV-325
12-21-2020
CARMEN RILEY, et al., Plaintiffs v. WARDEN BRIAN CLARK, et al., Defendants
(BRANN, D.J.) () REPORT & RECOMMENDATION
(Motion to Dismiss [Doc. 45] by Corrections Officer Angela Swanson) Contents
I. Introduction .......................................................................................... 2
II. Background & Procedural History ....................................................... 5
III. Legal Standard .................................................................................... 11
IV. Analysis .............................................................................................. 14
A. Whether Plaintiff Adequately Pleaded The § 1983 Conspiracy Claims in Counts I & II of the Amended Complaint Against Defendant Swanson ................................................................................................ 14
1. Whether Plaintiffs Pleaded a Plausible § 1983 Conspiracy Claim Against Defendant Swanson Involving Use of Excessive Force ..... 16
2. Whether Plaintiffs Pleaded a Plausible § 1983 Conspiracy Claim Against Defendant Swanson Involving the Denial of Medical Care .......................................................................................................... 18
B. Whether Plaintiffs Adequately Pleaded The § 1983 Excessive Force Claim in Count V of their Amended Complaint Against Defendant Swanson ................................................................................................ 20
C. Whether Plaintiffs Adequately Pleaded their § 1983 Claim of Failure to Intervene in Count VI of the Amended Complaint Against Defendant Swanson .............................................................................. 30
D. Whether Plaintiffs' Negligence Claim in Count IX of the Amended Complaint Should be Dismissed Because Defendant Swanson is Immune under the Pennsylvania Political Subdivision Tort Claims Act .............................................................................................................. 33
E. Whether Plaintiffs' IIED Claim Should be Dismissed ....................... 38
F. Whether Plaintiffs' Assault and Battery Claims Should be Dismissed Against Defendant Swanson ................................................................ 42
G. Whether Plaintiffs' Wrongful Death and Survival Act Claims Should be Dismissed ......................................................................................... 46
H. Plaintiffs' Request to Amend .............................................................. 48
V. Recommendation ................................................................................ 50
VI. Notice of Local Rule 72.3 .................................................. 51 I. INTRODUCTION
The death of a child is one of the most severe emotional traumas humans experience. The death of a young man in police custody is an unbearable tragedy to his parents. When the young man suffers from mental illness that tragedy is multiplied. As a society we expect that our officials will detain individuals in lawful custody both securely and safely. When a person dies in custody the circumstances of the death are rightfully scrutinized. This civil lawsuit looks carefully at the death of Ty'rique Riley, seeking both answers and liability.
On August 20, 2019, Carmen Riley (as administrator of the estate and as Ty'rique's parent) and Thomas Matthews (as Ty'rique's parent) (collectively "Plaintiffs") initiated this civil action in the Dauphin County Court of Common Pleas alleging claims related to the death of their son, Ty'rique Riley ("Ty'rique"). That case has since been removed to federal court, and the original complaint has been amended. In their Amended Complaint (Doc. 16), Plaintiffs name the following thirty-four Defendants:
In some portions of the Amended Complaint Defendant Thomas Matthews is referred to as Defendant Thomas Matthews-Kemrer.
(1) Brian Clark, Warden of Dauphin County Prison;
(2) Dauphin County, Pennsylvania;
(3) Susquehanna Township Police Department;
(4) Michael Darcy, Susquehanna Township Police Officer;
(5) Demetrius Glenn, Susquehanna Township Police Officer;
(6) Aaron Osman, Susquehanna Township Police Officer;
(7) Richard Adams, Susquehanna Township Police Officer;
(8) Richard Wilson, Susquehanna Township Police Officer;
(9) Chris Haines, Susquehanna Township Police Officer;
(10) PrimeCare Medical, Inc.;
(11) Captain Andrew Klahr, Dauphin County Prison Corrections Officer;
(12) Captain Steve Smith, Dauphin County Prison Corrections Officer;
(13) Captain Mark Neidigh, Dauphin County Prison Corrections Officer;
(14) Lieutenant Richard Armermann, Dauphin County Prison Corrections Officer;
(15) Lieutenant Greg Mendenhall, Dauphin County Prison Corrections Officer;
(16) Sergeant Scott Rowe, Dauphin County Prison Corrections Officer;
(17) Sergeant Scott Grieb, Dauphin County Prison Corrections Officer;
(18) Sergeant Jason Adams, Dauphin County Prison Corrections Officer;
(19) Sergeant Michael Blouch, Dauphin County Prison Corrections Officer;(Doc. 16).
(20) Sergeant Scott Lewis, Dauphin County Prison Corrections Officer;
(21) Sergeant Keith Biter, Dauphin County Prison Corrections Officer;
(22) Officer Robert Ingersoll, Dauphin County Prison Corrections Officer;
(23) Officer Cameron Weaver, Dauphin County Prison Corrections Officer;
(24) Officer Taylor Glenn, Dauphin County Prison Corrections Officer;
(25) Officer Martin Myers, Dauphin County Prison Corrections Officer;
(26) Officer Delta Bauer, Dauphin County Prison Corrections Officer;
(27) Officer Matthew Danner, Dauphin County Prison Corrections Officer;
(28) Officer Steve Singleton, Dauphin County Prison Corrections Officer;
(29) Officer Derek Umberger, Dauphin County Prison Corrections Officer;
(30) Officer Joseph Doyle, Dauphin County Prison Corrections Officer;
(31) Officer Richard Otten, Dauphin County Prison Corrections Officer;
(32) Officer Keith Hoffman, Dauphin County Prison Corrections Officer;
(33) Officer Angela Swanson, Dauphin County Prison Corrections Officer; and,
(34) Officer Michael Shaeffer, Dauphin County Prison Corrections Officer.
Plaintiffs also name 5 John Doe Susquehanna Township Police Officers, 5 John Doe Medical Employees from PrimeCare, and 10 John Doe Corrections Officers from Dauphin County Prison.
Presently pending before the Court is a Motion to Dismiss Plaintiffs' Amended Complaint filed by Defendant Angela Swanson, a corrections officer at Dauphin County Prison. This Motion is fully briefed and is now ripe for decision. (Docs. 47, 48, 49).
After reviewing the Motion and briefs filed in support and opposition to it, it is RECOMMENDED that Defendant Swanson's Motion to Dismiss (Doc. 45) be GRANTED as follows:
(1) Counts I (Conspiracy), II (Conspiracy), V (Excessive Force), VI (Failure to Intervene), IX (Negligence), XI (IIED), XII (Assault), XIII (Battery), XIV (Wrongful Death), and XV (Survivor Act) be DISMISSED without prejudice as to Defendant Swanson.
II. BACKGROUND & PROCEDURAL HISTORYBecause I have recommended that all pending counts against Defendant Swanson be dismissed, it is also recommended that Defendant Swanson be removed as a party to this case.
On June 18, 2019, at 4:00 a.m. Plaintiff Carmen Riley woke up and saw her son, Ty'rique Riley, standing over the bed shared by Plaintiffs Carmen Riley and Thomas Matthews holding a sledgehammer and mumbling about needing to protect his parents. (Doc. 16, ¶ 63). Plaintiff Thomas Matthews woke up and a struggle ensued between Ty'rique and Plaintiff Matthews. (Doc. 16, ¶ 64). As Ty'rique and Plaintiff Matthews were grappling, Plaintiff Riley called the Susquehanna Police Department for help. (Doc. 16, ¶ 64).
Defendant Susquehanna Township Police dispatched Defendants Glenn, Darcy, Haines, Wilson, Adams, and several unidentified "John Doe" Officers to the scene. (Doc. 16, ¶ 65).
When they arrived at the scene, Defendants Darcy, Glenn, and Wilson walked around to the rear of the home to gain entry. (Doc. 16, ¶ 66). Ty'rique opened the door and the officers entered the home. (Doc. 16, ¶ 67). At that time, Ty'rique appeared "distant and uncommunicative, and he offered no struggle or fight." (Doc. 16, ¶ 68). Plaintiffs informed the officers that Ty'rique had been acting erratically, mumbling and that "something was wrong with him." (Doc. 16, ¶ 69). The officers arrested Ty'rique and placed him in a police vehicle. (Doc. 16, ¶ 70).
Defendant Haines transported Ty'rique to Dauphin County Prison. (Doc. 16, ¶ 72). During the car ride, Ty'rique spoke in long nonsensical sentences. (Doc. 16, ¶ 73). Defendant Haines inquired about Ty'rique's mental health. Id.
When they arrived at Dauphin County Prison Booking Center, Defendants Haines, Ingersoll, Weaver, Bauer, Grieb, and Mendenhall forced Ty'rique out of the police car, and into the booking center. (Doc. 16, ¶ 76). In doing so, these Defendants struck Ty'rique about the head, shoulders and torso. Id. Defendant Mendenhall sprayed Ty'rique with pepper spray and wrestled him to the ground. (Doc. 16, ¶ 77). "Other Correctional Officers" beat Ty'rique and placed him in hand and ankle restraints before taking him to cell 132. Id. At some point after this encounter, Ty'rique received medical care from unidentified PrimeCare employees. (Doc. 16, ¶ 79). The pepper spray was flushed from Ty'rique's eyes and his physical injuries were tended. Id.
Ty'rique was in Dauphin County Prison from June 18, 2019 through June 26, 2019. Plaintiffs allege that during this time, corrections officers at Dauphin County Prison used physical force on Ty'rique on several occasions. It is not clear, however, exactly when during this period of incarceration these events occurred.
At some point after his initial injuries were tended, Defendants Adams, Blouch, Taylor, Glenn and Myers caused additional physical injuries attempting to place Ty'rique in a restraint belt. (Doc. 16, ¶ 88). After this altercation, Ty'rique's physical injuries were assessed and tended by unidentified PrimeCare employees. (Doc. 16, ¶ 92).
Sometime thereafter, Ty'rique was placed in a suicide smock and moved to a suicide watch cell. (Doc. 16, ¶¶ 94-95). While in the suicide watch cell, Ty'rique complained of abdominal pain. (Doc. 16, ¶ 98).
On June 26, 2019 at 9:50 a.m. Defendants Klahr, Lewis, Biter, Danner, Singleton, and several other unidentified officers attempted to change Ty'rique out of the suicide smock so that Ty'rique could be taken to the hospital. (Doc. 16, ¶ 99). Plaintiffs allege that Ty'rique was handled with "unnecessary roughness" by these officers when they placed Ty'rique in leg irons. Id. Ty'rique was then placed in a restraint chair to wait for the ambulance. (Doc. 16, ¶ 102).
As Defendants Klahr, Lewis, Biter, Danner, Singleton, and other unidentified officers forced Ty'rique into the restraint chair, Ty'rique stopped breathing. (Doc. 16, ¶ 103). PrimeCare employees were summoned, and found that Ty'rique was unresponsive, had no pulse and was apneic (not breathing). (Doc. 16, ¶ 104). Several unidentified PrimeCare employees performed chest compressions until the ambulance crew arrived at 10:10 a.m. (Doc. 16, ¶ 105). The ambulance crew attempted to resuscitate Ty'rique at the scene. Id. The Amended Complaint does not specify whether the ambulance crew was successful, but I infer that it was.
At 10:49 a.m. Ty'rique was transported the Harrisburg Hospital Emergency Room. (Doc. 16 ¶ 106). Ty'rique was admitted to the hospital, the chief complaint was listed as "cardiac arrest." (Doc. 16, ¶ 107). The inpatient encounter report documents that Ty'rique was intubated, his pupils were unequal in size, and that his eyes did not follow objects. (Doc. 16, ¶ 108). The encounter report also documented that Ty'rique had an abrasion above his left eyebrow, lacerations on his tongue, premature ventricular contractions (extra heartbeats that were disrupting his regular rhythm), sluggish capillary refill, and diminished urine production. (Doc. 16 ¶ 109). No drugs were detected in Ty'rique's urine. (Doc. 16 ¶ 110).
A second inpatient encounter report documented diffuse subcutaneous emphysema (air under the skin), pneumomediastinum (the abnormal presence of air between the lungs), pneumoperitoneum (the abnormal presence of air in the abdominal cavity), and a sternal fracture. (Doc. 16 ¶ 112).
On July 1, 2019, six days after arriving at the hospital, Ty'rique died. (Doc. 16 ¶ 114). Ty'rique's final diagnoses were "cardiac arrest due to an unspecified cause, cerebral edema, acute kidney failure, acute respiratory failure with hypoxia, anoxic brain damage, traumatic pneumothorax encounter, and unspecified fracture of the sternum." (Doc. 16 ¶ 116).
On August 20, 2019, Ty'rique's parents—Plaintiffs Carmen Riley and Thomas Matthews—initiated a civil action in the Dauphin County Court of Common Pleas on behalf of Ty'rique by filing a writ of summons. (Doc. 1-1). On February 11, 2020, Plaintiffs filed their Complaint. (Doc. 1-21). On February 25, 2020, a group of Defendants removed this action to federal court. (Doc. 1).
On March 6, 2020, a telephone conference was held to discuss the issue of jurisdiction because no federal claims were alleged in Plaintiffs' original complaint. During that conference the parties agreed that Plaintiffs would either file a motion to remand or an amended complaint by March 27, 2020. (Doc. 13). On April 17, 2020, after being granted an extension of time, Plaintiffs filed a Motion to Amend. (Doc. 14). On May 6, 2020, Plaintiffs' Motion to Amend was deemed unopposed and the Amended Complaint was deemed filed. (Doc. 15). A summons was issued as to newly added Defendants. (Doc. 17).
In their Amended Complaint, Plaintiffs allege the following claims against Defendant Swanson:
COUNT I: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Deprivation of Rights Guaranteed Under the 4th and 14th Amendments to the U. S. Constitution, addressable via 42 U. S. C. §1983; Conspiracy)
COUNT II: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers, DCP John Does and PrimeCare John Does (Deprivation of Rights Guaranteed Under the 4th and 14th Amendments to the U.S. Constitution, addressable via 42 U. S. C. § 1983; Conspiracy)
COUNT V: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Deprivation of Rights Guaranteed Under the 4th and 14th Amendments to the U. S. Constitution, addressable via 42 U. S. C. § 1983; Use of Excessive Force)
COUNT VI: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Deprivation of Rights Guaranteed Under the 4th ad 14th Amendments to the U. S. Constitution, addressable via 42 U.S.C. §1983; Failure to Intervene)
COUNT IX: Carmen Riley Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Negligence)
COUNT XI: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Intentional Infliction of Emotional Distress)
COUNT XII: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants Christopher Haines,
DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Assault)
COUNT XIII: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants Christopher Haines, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Battery)
COUNT XIV: Plaintiffs Carmen Riley and Thomas Mathews - Kemrer -v- All Defendants (Wrongful Death)
COUNT XV: Estate of Ty'rique Riley -v- All Defendants (Survival Action)
As relief for each count, Plaintiffs request "all appropriate relief, including, but not limited to, compensatory damages, court costs, punitive damages, attorneys fees and all other relief as the Court deems appropriate." (Doc. 16, ¶¶ 122, 129, 151, 159, 185, 194, 198, 201, 208, 212).
On July 13, 2020, Defendant Swanson filed a Motion to Dismiss Plaintiffs' Amended Complaint. (Doc. 45). Along with her Motion, Defendant Swanson filed a Brief in Support. (Doc. 47).
On August 6, 2020, Plaintiffs filed a Brief in Opposition. (Doc. 47).
On August 20, 2020, Defendant Swanson filed a Reply. (Doc. 49). III. LEGAL STANDARD
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the court "must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and ultimately determine whether Plaintiff may be entitled to relief under any reasonable reading of the complaint." Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a motion to dismiss, a court must "consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents." Id. at 230.
In deciding whether a complaint fails to state a claim upon which relief can be granted, the court is required to accept as true all factual allegations in the complaint as well as all reasonable inferences that can be drawn from the complaint. Jordan v. Fox Rothchild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These allegations and inferences are to be construed in the light most favorable to the plaintiff. Id. The court, however, "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). Further, it is not proper to "assume that the [plaintiff] can prove facts that [he] has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
"A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, a complaint must recite enough factual allegations to raise the plaintiff's claimed right to relief beyond the level of mere speculation. Id. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
First, the court must take 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 they 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. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). "In other words, a complaint must do more than allege the plaintiff's entitlement to relief" and instead must "'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
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.'" Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011). IV. ANALYSIS
A. WHETHER PLAINTIFF ADEQUATELY PLEADED THE § 1983 CONSPIRACY CLAIMS IN COUNTS I & II OF THE AMENDED COMPLAINT AGAINST DEFENDANT SWANSON
"[C]onspiracy under § 1983 is not an independent cause of action, but a means to impute liability on third persons." Ober v. Miller, No. 1:04-CV-1669, 2007 WL 4443256, at *18 (M.D. Pa. Dec. 18, 2007), aff'd, 395 F. App'x 849 (3d Cir. 2010); see also Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (stating that a § 1983 "[c]onspiracy is merely a mechanism by which to obtain the necessary state action, or to impose liability on one defendant for the acts of the others performed in pursuance of the conspiracy"(citations omitted)).
To establish a § 1983 conspiracy claim, a plaintiff "must allege facts that plausibly show: (1) the existence of a conspiracy and (2) deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy." Jackson-Gilmore v. Dixon, No. 04-03759, 2005 WL 3110991 (E.D. Pa. Nov. 17, 2005). "To support this showing, the plaintiff must allege plausible facts and not conclusory assertions. This should include (1) the period of the conspiracy; (2) the object of the conspiracy; and (3) certain actions of the alleged conspirators taken to achieve that purpose." Hankin Family P'ship v. Upper Merion Twp., No. 01-1622, 2012 WL 43599 at *17 (E.D. Pa. Jan. 6, 2012). Vague and conclusory allegations in a civil rights complaint will not survive a motion to dismiss. Rose v. Bartle, 871 F.2d 331 (3d Cir. 1989).
Plaintiffs have alleged the existence of two separate conspiracies. First, in Count I, they allege that:
118. Despite knowing of the decedent's serious medical needs, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does were each deliberately and maliciously indifferent to those mental and medical health needs of decedent Riley, and agreed and conspired among themselves to use unreasonable and excessive force in their efforts to restrain him, to deny him adequate care, and then to cover an conceal their efforts.(Doc. 16, ¶ 118).
In Count II, Plaintiffs allege that:
125. Despite knowing of the decedent's serious medical needs, DCP Supervisory Officers, DCP Correctional Officers, DCP John Does, and PrimeCare John Does were each deliberately and maliciously indifferent to those mental and medical health needs of decedent Riley, and agreed and conspired among themselves to deny him adequate mental and physical health care, and to thereafter, and then to cover and conceal the excessive force that had been used against him and his need for mental health treatment.(Doc. 16, ¶ 125). Except for adding the PrimeCare John Does as Defendants in Count II, it is difficult to discern how the alleged conspiracies are different. They both appear to involve some combination of a conspiracy to use and then cover up the use of excessive force, and a conspiracy to deny Ty'rique medical care.
1. Whether Plaintiffs Pleaded a Plausible § 1983 Conspiracy Claim Against Defendant Swanson Involving the Use of Excessive Force
Defendant Swanson argues that Plaintiffs' conspiracy claims should be dismissed because Plaintiffs "fail to plead any individualized conduct on the part of Swanson." (Doc. 47, p. 13).
In response, Plaintiffs argue:
A plaintiff claiming conspiracy must plead enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. Twombly, 550 U.S. at 556. Paragraphs 99, 118, 119, 124, 125 and 126 of the First Amended Complaint specifically describe the conduct of Swanson and how she acted in concert with her co-defendants in the violation of decedent Riley's Due Process rights. Specifically, Swanson and her co-defendants handled decedent Riley with unnecessary roughness by wrestling him to the ground. Swanson and her co-defendants physically assaulted Riley as they took him to the ground. Further, the First Amended Complaint states that Swanson and her co-defendants denied decedent Riley medical care and then, after beating Riley, all of the defendants agreed to and actually failed to properly document the force that they used against Riley. Given the well pleaded facts contained in the First Amended Complaint, Swanson's motion to dismiss Counts I and II should be denied.(Doc. 48, p. 5).
In their Amended Complaint, Plaintiffs include allegations about three occasions during Ty'rique's incarceration where force was used. Defendant Swanson is not mentioned in these allegations and has not been identified as being present for any altercation. The only allegations related to any acts taken in furtherance of this conspiracy appear in paragraphs 119 and 127 of the Amended Complaint. In those paragraphs, Plaintiffs generally allege that:
119. In furtherance of their agreement and conspiracy, said DCP Supervisory Officers, DCP Correctional Officers and DCP John Does beat the decedent, and then failed to obtain for him adequate medical care, and further failed to adequately document the levels of force used against him.(Doc. 16 ¶¶ 119, 127).
. . . .
127. In furtherance of their agreement and conspiracy, said Defendants failed to obtain adequate medical and mental health care for decedent Riley, and further failed to adequately document the levels of force used against him that would have exposed the decedent's need for medical and mental health care.
These vague and conclusory allegations are not enough to plead a plausible conspiracy claim based on the alleged use of excessive force as to Defendant Swanson. As noted in Section IV. B., Defendant Swanson is mentioned by name in only two paragraphs of the Amended Complaint. In substance these paragraphs simply identify Defendant Swanson as a corrections officer at Dauphin County Prison and allege that Defendant Swanson caused Ty'rique's death with no underlying explanation as to the basis of that allegation. (Doc. 16, ¶¶ 48, 117). The Amended Complaint simply does not contain any factual allegation that supports an inference that Defendant Swanson was present, aware of, or involved in any of the three uses of force perpetrated against Ty'rique. The mere fact that Defendant Swanson is a corrections officer at Dauphin County Prison is not enough to establish a plausible claim that she was involved.
Accordingly, to the extent Plaintiffs are alleging a §1983 conspiracy against Defendant Swanson for her involvement in a conspiracy to use excessive force against Ty'rique in either Count I or Count II of the Amended Complaint, it should be dismissed.
2. Whether Plaintiffs Pleaded a Plausible § 1983 Conspiracy Claim Against Defendant Swanson Involving the Denial of Medical Care
As noted above, to plead a § 1983 conspiracy claim, Plaintiffs must allege a deprivation of civil rights in furtherance of the conspiracy by a party to the conspiracy. To the extent Plaintiffs allege that Defendant Swanson was involved in a conspiracy to deny Ty'rique appropriate medical or mental health treatment, this claim fails because Plaintiffs have not alleged any § 1983 claim related to the denial of medical care. The only claim related to Ty'rique's medical care alleged in the Amended Complaint is a state law medical malpractice claim.
Furthermore, even if Plaintiffs had alleged an underlying civil rights claim to support this conspiracy claim, they did not allege any facts to support that Defendant Swanson took any action in furtherance of the conspiracy. Although Plaintiffs argue that "the First Amended Complaint states that Swanson and her co-defendants denied decedent Riley medical care," they do not cite to any portion of the Amended Complaint that does so. (Doc. 48, p. 5).
My own review of the Amended Complaint reveals that Plaintiffs allege that Ty'rique did receive some medical treatment for physical injuries. (Doc. 16, ¶¶ 79, 92, 105). The only allegations related to any acts taken in furtherance of this conspiracy appear in paragraphs 119 and 127 of the Amended Complaint. In those paragraphs, Plaintiffs generally allege that:
119. In furtherance of their agreement and conspiracy, said DCP Supervisory Officers, DCP Correctional Officers and DCP John Does beat the decedent, and then failed to obtain for him adequate medical care, and further failed to adequately document the levels of force used against him.(Doc. 16 ¶¶ 119, 127). These vague and conclusory allegations are not enough to support a plausible conspiracy claim related to the denial of medical or mental health treatment against Defendant Swanson. As noted in Section IV. B., Defendant Swanson is mentioned by name in only two paragraphs of the Amended Complaint. In substance these paragraphs simply identify Defendant Swanson as a corrections officer at Dauphin County Prison and allege that Defendant Swanson caused Ty'rique's death with no underlying explanation as to the basis of that allegation. (Doc. 16, ¶¶ 48, 117). The Amended Complaint simply does not contain any factual allegation that supports an inference that Defendant Swanson was present, aware of, or involved in any decisions related to Ty'rique's medical care during the period at issue. The mere fact that Defendant Swanson is a corrections officer at Dauphin County Prison is not enough to establish a plausible claim that she was involved.
. . . .
127. In furtherance of their agreement and conspiracy, said Defendants failed to obtain adequate medical and mental health care for decedent Riley, and further failed to adequately document the levels of force used against him that would have exposed the decedent's need for medical and mental health care.
Accordingly, to the extent Plaintiffs are alleging a §1983 conspiracy against Defendant Swanson for her involvement in a conspiracy to deny Ty'rique adequate medical care in either Count I or Count II of the Amended Complaint, it should be dismissed.
B. WHETHER PLAINTIFFS ADEQUATELY PLEADED THE § 1983 EXCESSIVE FORCE CLAIM IN COUNT V OF THEIR AMENDED COMPLAINT AGAINST DEFENDANT SWANSON
In Count V of the Amended Complaint, Plaintiffs allege:
COUNT V: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Deprivation of Rights Guaranteed Under the 4th and 14th Amendments to the U. S. Constitution, addressable via 42 U. S. C. § 1983; Use of Excessive Force)
145. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
146. After being taken into the Dauphin County Prison, instead of being taken to a hospital or mental health facility, Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually and/or jointly, subjected the decedent to excessive force, including by [sic] not limited to, shooting
excessive pepper spray into his face and mouth, beatings, and subjecting him to handcuffs and other physical restraints in such a way as to cause him physical pain and emotional pain and anguish.(Doc. 16, ¶¶ 145-151).
147. Defendants' use of excessive force after Decedent Riley was admitted to the Dauphin County Prison was done maliciously and sadistically for the very purpose of causing harm, and constituted the deliberate and malicious use of such excessive force as would shock the conscience of a reasonable person.
148. Defendants; actions exceeded the normal standards of decent conduct, and were willful, malicious, oppressive, outrageous, and unjustifiable. Therefore, punitive damages are necessary and appropriate.
149. As a direct and proximate result of Defendants' actions as more particularly described above, decedent Riley's rights protected under the Fourth and Fourteenth Amendments to be free from unreasonable search and seizure, and to be free from the use of excessive force were violated, and the decedent suffered injury as a result.
150. Defendants subjected decedent Riley to these deprivations of rights unreasonably, intentionally, wantonly, outrageously, and with conscious and reckless disregard for whether decedent's rights would be violated by their actions.
151. Asa direct and proximate result of Defendants' conduct, decedent Riley suffered deprivations of his rights, physical injuries, pain and suffering, emotional distress, and mental anguish, all to decedent's great detriment and loss.
Defendant Swanson argues that Count V should be dismissed because:
Plaintiffs allege that various defendants, including the "DCP Correctional Officers" of which Swanson is a member, "individually and/or jointly, subjected the decedent to excessive force" by shooting pepper spray into his face, beating him, and subjecting him to handcuffs
and other physical restraints. ECF Doc. 16, ¶ 146. The Complaint asserts conclusory allegations, without any supporting facts, that the defendant's conduct was "malicious, sadistic" and done with the "very purpose of causing harm". Id., ¶ 147.(Doc. 47, pp. 14-15).
As a pretrial detainee the Due Process Clause of the Fourteenth Amendment protected Riley from the use of excessive force. Kingsley v. Hendrickson, 576 U.S. 389, 397, 135 S.Ct. 2466, 2473(2015). In evaluating this type of excessive force claim, the Third Circuit applies the standard governing Eighth Amendment cruel and unusual punishment cases. Fuentes v. Wagner, 206 F.3d 335, 344-45 (3d Cir. 2000). Thus, the relevant inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Fuentes, 206 F.3d at 345.
Here again, the Complaint is completely devoid of a single allegation of the personal involvement of Defendant Swanson in any conduct that could constitute excessive force. Defendant Swanson has to guess what alleged conduct she has to defend and what specific claims are asserted against her. As pleaded, Count V fails to set forth a claim against Defendant Swanson upon which relief can be granted for excessive use of force, and therefore, Count V must be dismissed as to Swanson.
In response, Plaintiffs argue:
Swanson argues the First Amended Complaint is completely devoid of a single allegation of her personal involvement in the use of excessive force on decedent Riley. As such, she would have to guess what alleged conduct she has to defend and what specific claims are asserted against her. This argument misses the mark.
Paragraph 99 of the First Amended Complaint alleges on June 26, 2019, at or about 9:50 AM the Correctional defendants, which includes defendant Swanson, see paragraph 118 of the First Amended Complaint, used unnecessary roughness in placing decedent Riley in handcuffs and restraints. Paragraph 100 of the First Amended Complaint alleges, at that time, 9:50 AM on June 26, 2019 the Correctional defendants, which included Swanson, see paragraph 119
of the First Amended Complaint, beat and wrestled the decedent to the ground and again placed him in shackles. These allegations clearly identify what Swanson did and when she did it. These factual allegations state a plausible claim for relief that on June 26, 2019, at 9:50 AM, decedent Riley was subjected to excessive force by Swanson in violation of 14th Amendment Due Process Clause. Swanson's Motion to Dismiss Count V of the First Amended Complaint should be denied.(Doc. 48, p. 6).
In the relevant paragraphs relied on by Plaintiffs to support their argument, Plaintiffs allege:
99. At or about 9:50 AM on June 26, 2019, Defendant Correctional Officers began changing decedent Riley from his suicide smock and into a prison uniform to take him to the hospital, but said Correctional Officers handled him with unnecessary roughness and he was again placed in handcuffs and leg irons.
100. At that time, several Corrections Officers, including Shift Commander Captain Andrew Klahr, Sergeants Scott Lewis and Keith Biter, and Officers Matthew Danner, Steve Singleton and DCP John Does, beat and wrestled the decedent to the ground and placed him in shackles.
. . . .
118. Despite knowing of the decedent's serious medical needs, DCP Supervisory Officers, DCP Correctional Officers, and DCP John Does were each deliberately and maliciously indifferent to those mental and medical health needs of decedent Riley, and agreed and conspired among themselves to use unreasonable and excessive force in their efforts to restrain him, to deny him adequate care, and then to cover and conceal their efforts.
119. In furtherance of their agreement and conspiracy, said DCP Supervisory Officers, DCP Correctional Officers and DCP John Does beat the decedent, and then failed to obtain for him
adequate medical care, and further failed to adequately document the levels of force used against him.(Doc. 16, ¶¶ 99, 100, 118, 119).
Plaintiffs' claim in Count V of the Amended Complaint is brought under 42 U.S.C. § 1983. "Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States." Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). "It is well settled that § 1983 does not confer any substantive rights, but merely 'provides a method for vindicating federal rights elsewhere conferred.'" Williams v. Pennsylvania Human Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrand v. Allegheny Cty., 757 F.3d 99, 104 (3d Cir. 2014)). To establish a claim under § 1983, Plaintiffs must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Liability in a § 1983 action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, defendants are "liable only for their own unconstitutional conduct." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Plaintiffs have pleaded the excessive force claims related to three separate uses of force under both the Fourth and Fourteenth Amendments. The Fourth Amendment protects individuals from the use of excessive force by government actors performing a seizure. Bodnar v. Wagner, No. 3:07-CV-2038, 2010 WL 56097 at *6 (M.D. Pa. Jan. 5, 2010). This protection applies from the point of seizure until the individual becomes a pretrial detainee, at which point the due process clause of the Fourteenth Amendment provides continuing protection. Id. The Third Circuit has not defined precisely when that occurs. Factors that are relevant to that determination include "whether the arrestee has been transferred out of the custody of the arresting officers, and whether the arrestee has been arraigned to determine whether an arrestee's constitutional protections derive from the Fourth or the Fourteenth Amendment." Id. (citing Dull v. West Manchester Twp. Police Dept., No. 07-cv-307, 2008 WL 717836, at * 9 (M.D. Pa. Mar. 17, 2008)). The Amended Complaint in this case does not include enough information to decide as to whether the Fourth or Fourteenth Amendment is implicated on this count. Therefore, I will analyze it under both the Fourth and Fourteenth Amendments.
Fourth Amendment excessive force claims are evaluated under an "objective reasonableness" standard. Graham v. Connor, 490 U.S. 386, 388, 397 (1989); Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004) (quoting Graham, 490 U.S. at 396-97). A cause of action exists when a law enforcement officer uses force so excessive that it violates" the Fourth Amendment's protection against unreasonable searches and seizures. Groman v. Twp. of Manatapan, 47 F.3d 628, 633-34 (3d Cir. 1995) (emphasis added). In that regard, "[p]olice officers are privileged to commit a battery pursuant to a lawful arrest, but the privilege is negated by the use of excessive force." Id. at 634 (citing Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3d Cir. 1988)). Ultimately, "[a] claim for excessive force under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was unreasonable." Curley v. Klem, 298 F.3d 271, 279 (3d Cir. 2002); see also Graham, 490 U.S. at 396.
The issue of whether a use of force is "reasonable" depends upon the facts of the case, "including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Other relevant factors are whether "the physical force applied was of such an extent as to lead to injury[,] the possibility that the persons subject to police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time." Estate of Smith v. Marasco, 430 F.3d 140, 149-50 (3d Cir. 2005) (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007)).
The Due Process clause of the Fourteenth Amendment "protects a pretrial detainee from the use of excessive force that amounts to punishment." Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (quoting Graham, 490 U.S. at 395 n. 10). To demonstrate a claim of excessive force under the Fourteenth Amendment, Plaintiffs must allege that the force purposely or knowingly used against Ty'rique was objectively unreasonable, meaning that "the actions [were] 'not rationally related to a legitimate nonpunitive governmental purpose.'" Kingsley, 576 U.S. at 389 (quoting Bell v. Wolfish, 441 U.S. 520, 541-543).
The issue of whether the force used was reasonable under the Fourteenth Amendment depends on the facts of the case, including "[1] the relationship between the need for the use of force and the amount of force used; [2] the extent of the plaintiff's injury; [3] any effort made by the officer to temper or to limit the amount of force; [4] the severity of the security problem at issue; [5] the threat reasonably perceived by the officer; and [6] whether the plaintiff was actively resisting." Robinson v. Danberg, 673 F.App'x 205, 209 (3d Cir. 2016) (quoting Kingsley, 576 U.S. at 397) (alternations in original).
This single count of excessive force appears to refer to three separate incidents where force was used. First, Plaintiffs allege that between exiting the police car and entering the booking center Ty'rique was: sprayed with pepper spray; struck on his head, shoulders and torso; was wrestled to the ground; beaten; and placed in ankle restraints. Second, Plaintiffs allege that Ty'rique sustained physical injuries while being placed in a restraint belt at Dauphin County Prison. Third, Plaintiffs allege that Ty'rique was placed in leg chains and a restraint chair with "unnecessary roughness," and stopped breathing shortly thereafter.
Plaintiffs plead that pepper spray was used one, during the first use of force when Ty'rique was removed from the police car. No other use of pepper spray is discussed. I note that excessive force claims involving the use of pepper spray are pleaded in two separate counts of the Amended Complaint (Counts III and V). I infer that the excessive force claim related to the first use of force is pleaded against two groups of Defendants in these two separate counts.
Plaintiffs allege that the first use of force was perpetrated by "several Corrections Officers, including" Defendants Haines, Ingersoll, Weaver, Bauer, Grieb, Mendenhall. (Doc. 16 ¶¶ 76-77). Plaintiffs allege that Defendant Mendenhall was the person who sprayed the pepper spray and wrestled Plaintiff to the ground. (Doc. 16, ¶¶ 77). Defendant Swanson is not mentioned by name.
Plaintiffs allege that the second use of force was perpetrated by "several Defendant Correctional Officers, including" Defendants Adams, Blouch, Taylor, Glenn and Myer. (Doc. 16, ¶¶ 88-90). Plaintiffs also attribute this conduct to John Doe Defendants. (Doc. 16 ¶ 89). Defendant Swanson is not mentioned by name.
Plaintiffs allege that the third use of force was perpetrated by "several Corrections Officers, including" Defendants Klahr, Lewis, Biter, Danner, and Singleton. (Doc. 16, ¶¶100-103). Plaintiffs also attribute this conduct to John Doe Defendants. (Doc. 16, ¶ 100). Defendant Swanson is not mentioned by name.
In the Amended Complaint, Defendant Swanson is mentioned by name in only two paragraphs. First, in paragraph 48, Defendant Swanson is identified as a corrections officer who works at Dauphin County Prison, and Plaintiffs allege that "said Correctional Officer[ ] participated in and was the cause of decedent Ty'rique Riley's death." (Doc. 16, ¶ 48). Second, in paragraph 117, Defendant Swanson (along with 12 other named Defendants) is identified as a "DCP Correctional Officer," who was "acting under color of law" and was "aware that decedent Riley had a serious medical/psychiatric need." (Doc. 16, ¶ 117).
I agree with Defendant Swanson that Plaintiffs have not pleaded enough facts to state a plausible excessive force claim against Defendant Swanson under either the Fourth or Fourteenth Amendments. In their recitation of the facts, Plaintiffs identify specific individuals and John Does in connection with each incident where force was used. Although she is a named Defendant, Plaintiffs do not suggest that Defendant Swanson was aware of, present during, or participated in either incident. Reading the Amended Complaint as I whole, I conclude that relying on the word "including" used in paragraphs 76, 88 and 100 of the Amended Complaint and arguing that this implies an open-ended list of correctional officers is not enough to state a plausible claim that Defendant Swanson was personally involved in any of these incidents. Similarly, the fact that Defendant Swanson is a corrections officer at Dauphin County Prison is not enough to establish a plausible claim that she was involved in any use of force.
Accordingly, Count V as to Defendant Swanson should be dismissed.
C. WHETHER PLAINTIFFS ADEQUATELY PLEADED THEIR § 1983 CLAIM OF FAILURE TO INTERVENE IN COUNT VI OF THE AMENDED COMPLAINT AGAINST DEFENDANT SWANSON
COUNT VI: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Deprivation of Rights Guaranteed Under the 4th and 14th Amendments to the U. S. Constitution, addressable via 42 U.S.C. §1983; Failure to Intervene)
152. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
153. After being taken into the Dauphin County Prison, instead of being taken to a hospital or mental health facility, Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually and/or jointly, subjected the decedent to excessive force, including by [sic] not limited to shooting excessive pepper spray into his face and mouth, beatings, and subjecting him to handcuffs and other physical restraints in such a way as to cause him physical pain and emotional pain and anguish.
154. As the beating and use of excessive force continued after decedent Riley was admitted to the Dauphin County Prison and over the period of time that he stayed at Dauphin County Prison, none of the individuals present intervened to stop the use of such excessive force or otherwise bring it to a halt.
155. This failure to intervene in the use of excessive force was so malicious and objectively unreasonable that it would shock the conscience of a reasonable person.(Doc. 16, ¶¶ 152-159).
156. Defendants' failure to intervene exceeded the normal standards of decent conduct, and was willful, malicious, oppressive, outrageous, and unjustifiable. Therefore punitive damages are necessary and appropriate.
157. As a direct and proximate result of Defendants' failure to intervene as more particularly described above, decedent Riley's rights protected under the Fourth and Fourteenth Amendments to eb free from unreasonable search and seizure and to be free from the use of excessive force were violated, and the decedent suffered injury as a result.
158. Defendants subjected decedent Riley to these deprivations of rights unreasonably, intentionally, wantonly, outrageously, and with conscious and reckless disregard for whether decedent's rights would be violated by their actions.
159. As a direct and proximate result of Defendants' failure to intervene, decedent Riley suffered deprivations of his rights, physical injuries, pain and suffering, emotional distress, mental anguish, all to decedent's great detriment and loss.
Defendant Swanson argues:
No allegations establish that Defendant Swanson knew of any alleged constitutional rights violation, or had an opportunity to intervene. The conclusory allegations of the Amended Complaint once again lack the requisite specificity to state a claim upon which relief may be granted against Defendant Swanson. Other parts of the Amended Complaint contain specific allegations of particularized conduct regarding other defendants. See, i.e., Complaint paragraph 76: "Upon arriving at the Dauphin County Prison, Defendant Haines, along with several Correctional Officers, including Defendants Robert Ingersoll, Cameron Weaver, D. Bauer, Sergeant Scott Grieb and Lieutenant Greg
Mendenhall, forced the defendant from the police car and into the Booking Center, and while doing so, they struck the decedent severely and unnecessarily about the head, shoulders and torso."(Doc. 47, pp. 15-16).
In contrast to paragraph 76, wherein Plaintiffs assert specific conduct by specific defendants, Plaintiffs fail to plead that Swanson failed to intervene despite knowledge of the Constitutional violation and a reasonable opportunity to intervene. Accordingly, Counts VI should be dismissed against Swanson.
In response, Plaintiffs argue:
As set forth in Section A.2 of this brief, the First Amended Complaint states a plausible claim for relief that decedent Riley was subjected to excessive force in violation of his Due Process rights. Paragraphs of 99 and 118 of the First Amended Complaint have Swanson involved in the violation of decedent Riley's Process rights. Given that the First Amended Complaint establishes a constitutional claim and that defendant Swanson was present when it occurred, the Court can draw the reasonable inference the defendant Swanson was aware decedent Riley's Due Process rights were being violated, and she had a reasonable and realistic opportunity to intervene and she failed to do so. Accordingly, Swanson's motion to dismiss Count VI of the First Amendment Complaint must be denied.(Doc. 48, p. 7).
Plaintiffs appear to allege that non-participatory Defendants failed to stop each of the three uses of force discussed in Section IV. B. of this Report.
The Third Circuit has held that a state officer can be held liable "if the [officer] had a reasonable opportunity to intervene and simply refused to do so." Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). The "officer is only liable if there is a realistic and reasonable opportunity to intervene." Id. at 651. In general, officers should take reasonable steps to protect a victim from another officer's excessive force. Adams v. Officer Eric Selhorst, 449 F.App'x 198 (3d Cir. 2011) (non-precedential).Berrios v. City of Philadelphia, 96 F.Supp.3d 523, 535 (E.D. Pa. 2015). Thus, to hold Defendant Swanson liable for failing to intervene, Plaintiffs must allege that: (1) Defendant Swanson had a duty to intervene; (2) Defendant Swanson had an opportunity to intervene, and (3) Defendant Swanson failed to intervene.
As noted in Section IV. B., Defendant Swanson is mentioned by name in only two paragraphs of the Amended Complaint. In substance these paragraphs simply identify Defendant Swanson as a corrections officer at Dauphin County Prison and allege that Defendant Swanson caused Ty'rique's death with no underlying explanation as to the basis of that allegation. (Doc. 16, ¶¶ 48, 117). The Amended Complaint simply does not contain any factual allegation that supports an inference that Defendant Swanson was present, aware of any of the three uses of force perpetrated against Ty'rique, or had an opportunity to intervene. The mere fact that Defendant Swanson is a corrections officer at Dauphin County Prison is not enough to make out a plausible claim.
Accordingly, Count VI as to Defendant Swanson should be dismissed.
D. WHETHER PLAINTIFFS' NEGLIGENCE CLAIM IN COUNT IX OF THE AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE DEFENDANT SWANSON IS IMMUNE UNDER THE PENNSYLVANIA POLITICAL SUBDIVISION TORT CLAIMS ACT
In Count IX of the Amended Complaint, Plaintiffs allege:
COUNT IX: Carmen Riley Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants DCP Supervisory
Officers, DCP Correctional Officers and DCP John Does (Negligence)(Doc. 16, ¶¶ 182-185).
182. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
183. At all times relevant hereto, Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually/or jointly, were under a duty and obligation to recognize and identify that decedent Riley had serious mental health problems and then to divert him from a prison environment to a hospital or mental health facility that he might receive treatment instead of punishment.
184. When decedent Riley was brought to Dauphin County Prison, and throughout the time that decedent Riley remained at Dauphin County Prison, Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does had the opportunity to observe decedent Riley's actions and manner, and said Defendants individually and jointly breached their duties by failing to recognize and identify that decedent Riley had serious mental health problems and failing to divert him from a prison environment to a hospital or mental health facility at which he would have received treatment instead of incarceration.
185. As a direct and proximate result of that breach, decedent Ty'rique Riley suffered deprivations of his rights, physical injuries, pain and suffering, emotional distress, mental anguish, and eventually death on July 1, 2019 at the age of twenty one (21) years old.
In her brief, Defendant Swanson argues:
The Political Subdivision Tort Claims Act ("PSTCA") provides local agencies and their employees, immunity from negligence claims, unless the claims fall in one of the nine exceptions to immunity outlined in 42 Pa.C.S.A. § 8542. Williams v. City of York, 2018 WL 5994603, at *9 (M.D. Pa. 2018).
Plaintiffs assert that the DCP Correctional Defendants negligently failed to "recognize and identify that decedent Riley had serious health problems . . . and divert him from a prison environment to a hospital or mental health facility." ECF 16, ¶184. These allegations do not fit into any of the nine exception to the PSTCA and, as such, the negligence claim fails as a matter of law and the Court must dismiss Count IX.(Doc. 47, 17-18).
In response, Plaintiffs argue that Defendant Swanson is not immune from suit because the "willful misconduct" exception applies. In support of this position they cite to paragraphs 4 and 51 of their Amended Complaint. In these paragraphs, Plaintiffs allege:
4. This action is also brought under the laws of The Commonwealth of Pennsylvania as Wrongful Death, Survival, Negligence, and Medical Negligence actions pursuant to claims arising from Defendants' deliberate and malicious indifference and negligence in failing to train its various personnel and in the recognition and treatment of medical and mental health issues in arrestees and inmates and further in depriving decedent Ty'rique Riley of his rights to both due process and equal protection constitutionally guaranteed him, all of which eventually led to his death at the young age of twenty one (21) years old.(Doc. 16, ¶¶ 4, 51).
. . . .
51. The acts and failures to act by the Dauphin County Prison supervisory and non-supervisory Defendants herein were objectively unreasonable, and were malicious and sadistic and intended to cause harm.
In reply, Defendant Swanson argues:
Plaintiff tepidly argues the Amended Complaint's general allegations "...that the individual DCP supervisory and nonsupervisory
Defendants acted maliciously and sadistically and that they intended to cause harm" are "tantamount to willful misconduct" sufficient to render immunity under 42 Pa.C.S.A. § 8545 inapplicable. ECF 48, pp 10, 11. Malicious and sadistic conduct is the standard for willful misconduct, but again, the Amended Complaint does not identify any such conduct-it simply states, in conclusory fashion, that groups of defendants acted maliciously. There are no examples of specific malicious conduct, much less any specific allegations that Swanson acted maliciously or sadistically. As such, the general negligence claims against Swanson are barred by 42 Pa.C.S.A. § 8545.(Doc. 49, p. 7).
Pennsylvania's Political Subdivision Tort Claims Act ("PSTCA") provides legal immunity for government bodies and their employees unless their actions fall within certain enumerated categories of negligence. See 42 Pa. C. S. A. §§ 8541, 8545; 42 Pa. C. S. A. § 8542(b) (listing exceptions as: vehicle liability; care, custody or control of personal property; real property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; care, custody or control of animals; and sexual abuse). Police departments, like Defendant Susquehanna Township Police, are "local agencies" for PSTCA purposes. See e.g. Maldet v. Johnstown Police Department, No. 19-325, 2019 WL 2435869 at * (W.D. Pa. June 11, 2019) (finding the Johnstown Police Department is a "local agency" under the PSTCA). The PSTCA also applies to the individual police officers. Id.; see also 42 Pa. C. S. A. § 8545.
As to Defendant Swanson, however, that immunity does not extend to acts that "constitute[ ] a crime, actual fraud, actual malice or willful misconduct." 42 Pa. C. S. A. §8550. As explained in Sanford v. Stiles:
Willful misconduct has been defined by the Pennsylvania Supreme Court as "conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow, so that such desire can be implied." Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994) (citations omitted). Otherwise stated, "the term 'willful misconduct' is synonymous with the term 'intentional tort.'" Id. (citation omitted); see also Bright, 443 F.3d at 287; Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001).456 F.3d 298, 315 (3d Cir. 2006).
The parties do not appear to dispute that Plaintiffs' negligence claim in Count IX does not fall within any of the nine enumerated exceptions. However, Plaintiff contends that Defendant Swanson is not immune because she engaged in willful misconduct.
I agree with Defendant Swanson that the PSTCA bars the negligence claim asserted in Count IX of Plaintiffs' Amended Complaint against Defendant Swanson. In their claim, Plaintiffs allege that Defendant Swanson was negligent by failing to recognize that Ty'rique had serious mental health problems and by failing to divert him to a mental health facility during the nine days Ty'rique spent at Dauphin County Prison. Although Plaintiffs generally allege that all conduct by all thirty-four Defendants was "maliciously indifferent" in paragraph 4 of their Amended complaint, and that all "non supervisory defendants" (which I infer means the twelve dauphin county corrections officers) were "malicious," "sadistic," and "intended to cause harm," in paragraph 51 of the Amended Complaint, their negligence claim does not suggest that Defendant Swanson deliberately ignored Ty'rique's condition and deliberately did not transfer him in order to cause Ty'rique's death, or that Defendant Swanson was aware that the acts (or inaction) underlying the negligence claim would result in Ty'rique's death. Further, by its very nature, a negligence claim does not speak to willful misconduct. See e.g., Kobrick v. Stevens, No. 3:1302865, 2014 WL 4914186, at *13 (M.D. Pa. Sept. 30, 2014).
Accordingly, Count IX of Plaintiffs' Amended Complaint against Defendant Swanson should be dismissed.
E. WHETHER PLAINTIFFS' IIED CLAIM SHOULD BE DISMISSED
In their Amended Complaint, Plaintiffs allege:
COUNT XI: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Intentional Infliction of Emotional Distress)
191. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
192. At all times relevant hereto, Defendants DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually/or jointly, acted intentionally and recklessly towards decedent Riley.
193. Said Defendants' acts in deliberately agreeing and conspiring to hurt and harm the decedent by subjecting him to deliberate excessive and harmful force and restraints, and then deliberately hurting and harming him as described herein, caused decedent Riley to suffer severe and extreme emotional pain and distress.(Doc. 16, ¶¶ 191-194).
194. The severe and extreme emotional pain and distress decedent Riley suffered was caused by the Defendants' deliberate or reckless individual and/or joint acts.
Defendant Swanson argues:
In 2009, this Court held, "although Pennsylvania Supreme Court has not yet recognized a claim for IIED, the Third Circuit Court of Appeals and federal district courts in Pennsylvania have repeatedly predicted that Pennsylvania will recognize such a claim in the future, and have declined to dismiss IIED claims." Zimmerman v. Schaeffer, 654 F.Supp. 2d 226, 256 (M.D. PA. 2009). Yet, 11 years later, Pennsylvania still has not fully adopted and recognized the tort IIED. For example, the Pennsylvania Civil Jury Instructions, lack a specific instruction related to IIED. Furthermore, the Third Circuit has incorrectly predicted that Pennsylvania would formally adopt the tort of IIED for the last 41 years. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) ("in light of the extant case law, we believe that the black letter rule of § 46 of the Restatement ['Second' of Torts (1965)], along with the interpretive comments, may be applied as the basis in Pennsylvania law for the tort of Intentional Infliction of Emotional Distress.")
Ten years later, in Williams v. Guzzardi, the Third Circuit revisited the issue following the Pennsylvania Supreme Court's decision in Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183 527 A.2d 988 (1987). In Guzzardi, the Third Circuit described the Opinion as follows: "In Kazatsky, the Supreme Court of Pennsylvania held that the evidence did not establish a cause of action under § 46 and left 'to another day the question of the viability of Section 46 in this Commonwealth'" Williams v. Guzzardi, 875 F.2d 46, 50 (3d Cir. 1989) (citing Kazatsky v. King David Memorial Park, Inc., 527 A.2d at 989). The Court went
on further to opine "if Section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of that emotional distress must be supported by competent medical evidence." Id. at 50-51 (quoting Kazatsky, 527 A.2d at 995) (emphasis added). Notably, the Pennsylvania Supreme Court in Kazatsky, citing Chuy, held that "[v]arious other courts have incorrectly taken the view that this court has adopted Section 46." Kazatsky, 527 A.2d at 989 n. 1.(Doc. 47, pp. 18-20).
Despite this, the Guzzardi Court constrains to predict a claim for Intentional Infliction of Emotional Distress by writing "[g]iven Kazatsky's express reservation of the viability of § 46 and the Court's specification of the evidence necessary to prove that kind of injury, we are unable to say that Pennsylvania will not impose liability for Intentional Infliction of Emotional Distress." Guzzardi, 875 F.2d at 51. The reality is that the Pennsylvania Supreme Court has never officially recognized IIED as a valid form of action and has not adopted Restatement Section 46. Therefore, there is no cognizable claim for IIED currently before the Court in this case.
To the extent the Court finds Plaintiffs' IIED claims viable (which it is not), substantively, Plaintiff fails to plead a cognizable claim against Defendant Swanson. Should Pennsylvania recognize an IIED claim, a plaintiff must still establish (1) that the defendant(s) engaged in "extreme and outrageous conduct," which "intentionally or recklessly causes severe emotional distress to another..." Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 991 (Pa. 1987) (citing Restatement (Second) of Torts § 46) and (2) "at the very least, competent medical evidence." Id., 527 A.2d at 995. Here, neither exists.
Courts consider conduct "extreme and outrageous" when such conduct is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Restatement (Second) of Torts § 46 cmt. d).
Again, the Amended Complaint lacks any allegations of extreme and outrageous conduct on the part of Swanson. No facts describe Swanson's actions giving rise to Riley's emotion distress. Absent such facts and competent medical evidence, Plaintiffs' IIED claim fails and Count IX must be dismissed as against Defendant Swanson.
Plaintiffs do not respond to this argument.
As explained in A.C. v. Scranton School District:
"To date, the Pennsylvania Supreme Court has not expressly recognized a cause of action for IIED." Wilson v. American General Finance Inc., 807 F.Supp.2d 291, 301 (W.D. Pa. 2011) (citing Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650, 652 (2000)). Other courts in Pennsylvania have recognized an IIED claim and have indicated that to state such a claim, a plaintiff must allege extreme and outrageous conduct which intentionally or recklessly causes him severe emotional distress. Id. (citations omitted); Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010). Thus, to state an IIED claim "Defendants' conduct must be 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Hines v. Proper, 442 F.Supp.2d 216, 224 (M.D. Pa. 2006) (citing Restatement Second of Torts § 46, comment (d) (1965)); Wilson v. American General Finance Inc., 807 F.Supp.2d at 303. "In addition, Pennsylvania requires that competent medical evidence support a claim of alleged intentional infliction of emotional distress." Hines v. Proper, 442 F.Supp.2d at 224 (citation omitted). "Finally, Pennsylvania law requires some type of physical harm due to the Defendant's outrageous conduct to satisfy the severe emotional distress element." Di Loreto v. Costigan, 600 F.Supp.2d 671, 691 (E.D. Pa. 2009) aff'd 351 F.App'x 747 (3d Cir. 2009) (citations omitted); Allen v. Wells Fargo, N.A., 2015 WL 5137953, *6 (E.D. Pa. Aug. 28, 2015) (citations omitted).191 F.Supp.3d 375, 391-92 (M.D. Pa. 2016).
The allegations in Plaintiffs' Amended Complaint are not enough to state an IIED claim. As discussed above, Plaintiff Swanson is mentioned by name in the Amended Complaint twice. In substance these paragraphs simply identify Defendant Swanson as a corrections officer at Dauphin County Prison and allege that Defendant Swanson caused Ty'rique's death with no underlying explanation as to the basis of that allegation. (Doc. 16, ¶¶ 48, 117). Beyond that there is no clear allegation that Defendant Swanson was present for, aware of, or involved in the use of force that forms the basis of Plaintiffs' IIED claim.
Accordingly, Count XI should be dismissed as to Defendant Swanson.
F. WHETHER PLAINTIFFS' ASSAULT AND BATTERY CLAIMS SHOULD BE DISMISSED AGAINST DEFENDANT SWANSON
In their Amended Complaint, Plaintiffs allege:
COUNT XII: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants Christopher Haines, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Assault)(Doc. 16, ¶¶ 195-198).
195. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
196. At all times when decedent Riley was beaten and rough-handled at Defendants Dauphin County Prison by Defendants Christopher Haines, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually and/or jointly, said Defendants, individually and/or jointly, intended to cause harmful and offensive physical contact with decedent Ty'rique Riley.
197. As a result of said Defendants' acts, decedent Ty'rique Riley placed in imminent fear and immediate apprehension that said Defendants would cause harmful and offensive touching to his person.
198. Said Defendants, therefore, did assault decedent Ty'rique Riley.
COUNT XIII: Carmen Riley, Administrator of the Estate of Ty'rique Riley, Deceased -v- Defendants Christopher Haines, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does (Battery)(Doc. 16, ¶¶ 199-201).
199. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
200. At all times when decedent Riley was beaten and rough-handled at Defendant Dauphin County Prison by Defendants Christopher Haines, DCP Supervisory Officers, DCP Correctional Officers and DCP John Does, individually and/or jointly, said Defendants, individually and/or jointly, intended to cause harmful and offensive physical conduct with decedent Ty'rique Riley, and did, in fact, touch and contact his physical person harmfully and offensively.
201. As a result of said Defendants' harmful and offensive contact with his physical person, decedent Ty'rique Riley was battered; said Defendants, therefore, did batter decedent Ty'rique Riley.
Defendant Swanson argues:
Counts XII and XIII assert claims for assault and battery against Defendant Swanson despite the Amended Complaint's utter failure to show how, when or where Defendant Swanson committed an assault or a battery upon Riley.
Under the PSTCA, police officers are immune from state tort liability for acts within the scope of their employment except when the alleged conduct involves "a crime, actual fraud, actual malice or willful misconduct." 42 Pa. Conn. Stat. Ann. § 8550. Willful misconduct has been defined as "conduct whereby the actor desired to bring about the result that followed or at least was aware that it was substantially certain to follow." Horton v. City of Harrisburg, 2009 WL 2225386, *6 (M.D. Pa. 2009) (quoting Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994)).
Assuming (without conceding) that Defendant Swanson would probably not be entitled to immunity from suit under the PSTCA for the assault and battery claims because these are intentional torts, there are no allegations in the Amended Complaint showing that Defendant Swanson assaulted or battered Riley. Counts XII and XIII must be dismissed for failure to state a claim as against Swanson.(Doc. 47, p. 21).
In their brief in opposition, Plaintiffs argue:
In Pennsylvania, "assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person." Pahle v. Colebrookdale Twp., 227 F. Supp. 2d 361, 374 (E.D. Pa. 2002) (quoting Renk v. City of Pittsburgh, 537 Pa. 68, 76, 641 A.2d 289 (1994). A police officer may be held liable for assault when a jury determines that the force used in making an arrest is unnecessary or excessive. The Pennsylvania Supreme Court explained that "a police officer may use reasonable force to prevent interference with the exercise of his authority or the performance of his duty. Renk v. City of Pittsburgh, 537 Pa. 68, 641 A. 2d 289, 293 (1994); 18 Pa. Cons.Stat. § 508.
Accepting all of Plaintiffs' well pleaded facts as true, Plaintiffs have alleged that decedent Riley was suffering from a mental health crisis to such a degree that defendants decided to transfer him from the prison to a place where he could receive medical care. Prior to transferring Riley to the hospital defendant Swanson and her co-defendants beat Riley while wrestling him to the ground. Decedent Riley did not take any action to interfere with the exercise of authority that would bring their actions within the realm of reasonableness. As such, Plaintiffs claim for assault must be permitted to advance to the discovery phase and Swanson's motions to dismiss Count XII should be denied.
. . . .
In Pennsylvania, battery requires "proof that the defendant acted with the intent to cause harmful or offensive bodily contact with the person of the plaintiff and that such contact actually followed." Dull v. W. Manchester Twp. Police Dep't, 604 F. Supp. 2d 739, 754 (M.D. Pa.
2009). Police officers are permitted to commit battery when using a reasonable amount of force when effectuating an arrest. Id. (citations omitted). However, use of excessive force dissolves this privilege. Id.(Doc. 48, pp. 12, 13).
As set forth in Section A.1 of this brief, the First Amended Complaint states a plausible claim for relief that decedent Riley was subjected to excessive force in violation of his Due Process rights. As such, the First Amended Complaint states a plausible Pennsylvania State law battery claim against defendant Swanson. Her motion to dismiss Count XIII should be denied.
In addition to their excessive force claims, Plaintiffs assert state law assault and battery claims against Defendant Swanson for the same three uses of force discussed in Section IV. B. of this Report. Under Pennsylvania law, "[a]ssault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon a person." Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994).
As with Plaintiffs excessive force claims in Count V of the Amended Complaint, the assault and battery claims against Defendant Swanson should also be dismissed. Plaintiffs do not allege that Defendant Swanson used any amount of force on Ty'rique. For the same reasons discussed in Section IV. B of this Report, the assault and battery claims against Defendant Swanson should be dismissed.
G. WHETHER PLAINTIFFS' WRONGFUL DEATH AND SURVIVAL ACT CLAIMS SHOULD BE DISMISSED
In Count XIV of their Amended Complaint, Plaintiffs allege:
COUNT XIV: Plaintiffs Carmen Riley and Thomas Mathews - Kemrer -v- All Defendants (Wrongful Death)(Doc. 16, ¶¶ 202-207).
202. The Allegations contained in all preceding Paragraphs are here incorporated and included by reference as if fully set forth here.
203. Decedent's sole survivors are his parents, Carmen Riley and Thomas Matthews-Kemrer, who together are entitled to recover damages for his death, and on whose behalf this action is brought pursuant to the Pennsylvania Wrongful Death Act 42 Pa. C.S.A. § 8301 et seq.
204. Decedent's death was caused by the intentional, malicious, and/or grossly negligent conduct of Defendants, individually and/or jointly.
205. As described above, Defendants unlawfully, wantonly, unreasonably, maliciously, unnecessarily and/or with deliberate and reckless indifference to the health and welfare of Decedent and the Plaintiffs, caused the death of decedent, Ty'rique Riley, by subjecting him to excessive and unwarranted beatings and other physical force.
206. As a direct and proximate result of Defendants' individual and joint actions, decedent Ty'rique Riley was unnecessarily caused extreme physical pain, mental anguish and suffering, and death, and was deprived of the enjoyment and pleasure of life.
207. As a further direct and proximate result of Defendants' actions, decedent's survivors have suffered serious emotional pain and economic loss due to the wrongful death of their son, Ty'rique Riley.
In Count XV of their Amended Complaint, Plaintiffs allege:
COUNT XV: Estate of Ty'rique Riley -v- All Defendants (Survival Action)(Doc. 16, ¶¶ 209-212).
209. The Allegations contained in all preceding paragraphs are here incorporated and included by reference as if fully set forth here.
210. As a direct and proximate result of Defendants' actions as described herein, Ty'rique Riley suffered grievous bodily injury, and mental and physical pain and suffering.
211. From the time of his arrest until the time of his death, and throughout his detention, decedent Riley was conscious and aware of the beatings and other harmful acts to which he was subjected by Defendants, individually and/or jointly, and felt extreme pain and suffering as a result thereof.
212. On behalf of the Estate of Ty'rique Riley, Carmen Riley, Administrator of the Decedent's Estate, brings this action under the Pennsylvania Survival Act, 42 Pa.C.S.A. Section 8302, and claims for Ty'rique Riley's Estate compensation for all damages suffered by Ty'rique Riley and recoverable under the statute by reason of the grievous bodily injury, mental and physical pain and suffering caused him by the Defendant as described above.
In her capacity as the administrator of Ty-rique's estate, Plaintiff Carmen Riley asserts claims under Pennsylvania's wrongful death and survival statutes. See 42 Pa. Cons. Stat. §§ 8301, 8302. However, "Pennsylvania's wrongful death and survival statutes do not create independent causes of action; rather, they are derivative in the sense that the substance of the claim derives from the injury to the decedent." McCracken v. Fulton Cty., No. 19-CV-1063, 2020 WL 2767577 at *10 (M.D. Pa. May 28, 2020) (citing Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013)); see also Sullivan v. Warminster Twp., 765 F.Supp.2d 687, 707 (E.D. Pa. 2011) ("wrongful death and survival actions are not substantive causes of action; rather they provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death").
The basis for Plaintiffs' wrongful death and survival act claims against Defendant Swanson appears to be based on claims of conspiracy (Counts I & II), Excessive Force (Count V), Failure to Intervene (Count VI), Negligence (Count IX), IIED (Count XI), Assault (Count XII), and Battery (Count XIII). In this Report, I have recommended the dismissal of each of these claims against Defendant Swanson. Because Plaintiffs have not pleaded any plausible claim to form the basis of liability for the wrongful death and survival act claims, Counts XIV and XV of the Amended Complaint should also be dismissed as to Defendant Swanson.
H. PLAINTIFFS' REQUEST TO AMEND
In the last section of their Brief in Opposition to Defendant Swanson's Motion to dismiss, Plaintiffs request that they be granted leave to amend under Fed. R. Civ. P. 15(a)(1). (Doc. 48, pp. 13-14).
Rule 15(a) provides, in relevant part:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) If the pleading us one to which a responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(emphasis added).
(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.
Plaintiffs have already amended once as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1). If Plaintiffs would like to amend, they should do so by filing a separate motion seeking leave under Fed. R. Civ. P. 15(a)(2). That motion should comply with Local Rules 7.1 (requiring a certification that counsel should concurrence from each party), 7.5 (requiring a supporting brief), 7.8 (dictating the contents and length of briefs), and 15.1 (requiring that a proposed amended complaint be filed with any motion to amend).
Without commenting on the potential merit of the request, if Plaintiffs are seeking leave to amend in their brief in opposition to Defendant Swanson's, that request should be denied without prejudice to Plaintiffs' ability present their request in a properly filed motion.
[The next page contains the Recommendation] V. RECOMMENDATION
(1) Counts I (Conspiracy), II (Conspiracy), V (Excessive Force), VI (Failure to Intervene), IX (Negligence), XI (IIED), XII (Assault), XIII (Battery), XIV (Wrongful Death), and XV (Survivor Act) be DISMISSED WITHOUT PREJUDICE as to Defendant Swanson.
Date: December 21, 2020Because I have recommended that all pending counts against Defendant Swanson be dismissed, it is also recommended that Defendant Swanson be removed as a party to this case.
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
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.Date: December 21, 2020
BY THE COURT
s/William I . Arbuckle
William I. Arbuckle
U.S. Magistrate Judge