Opinion
1:22-cv-11 Erie
05-08-2023
LARRY ALLEN SLEDGE, Plaintiff v. THREE UNKNOWN OFFICERS OF THE CITY OF ERIE POLICE DEPT., et al., Defendants
SUSAN PARADISE BAXTER, United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS [ECF NO 26]
RICHARD A. LANZILLO, Chief United States Magistrate Judge
I. Recommendation
It is respectfully recommended that the Motion to Dismiss Plaintiffs Second Amended Complaint filed by Defendants Joshua Allison, Brian Barber, City of Erie, Officer Russell, Ronald Pilarski, Jr., Joseph Schember, and Three Unknown Officers of the City of Erie Police Department [ECF No. 26] be GRANTED. It is further recommended that the claims against Defendant Hillary Hoffman be dismissed pursuant to 28 U.S.C. § 1915(e).
Sledge erroneously named the “City of Erie Police Department'' as a defendant, and that the correct defendant is the City of Erie. It is axiomatic that a police department is not a separate entity from a municipality and, as such, is not a proper defendant for a Monell claim. Santiago v. Worminster Twp., 629 F.3d 121, 126 (3d Cir. 2010) (acknowledging appropriateness of dismissing civil rights claims against a municipal police department “because it was not a separate legal entity” from the municipality). To the extent Sledge is attempting to assert a claim against the police department, the Court will treat that claim as asserted against the City of Erie.
II. Report
A. Introduction
Plaintiff Larry Allen Sledge, an inmate in the custody of the Pennsylvania Department of Corrections, initiated this pro se civil rights action by filing a civil complaint and a motion for leave to proceed in forma pauperis (IFP). ECF Nos. 1, 1-1. Sledge filed his Second Amended Complaint - the currently operative pleading - on September 22, 2022. ECF No. 24.
Sledge alleges that City of Erie police officers Joshua Allison, Ronald Pilarski, Jr., Brian Barber, and Officer Russell, along with Assistant District Attorney Hillary Hoffman, violated his Fourth, Eighth, and Fourteenth Amendment rights by subjecting him to a false arrest and malicious prosecution. Id. at 8. He further contends that three unknown City of Erie police officers used excessive force while interrogating him in prison. Finally, Sledge asserts a claim against the City of Erie and Mayor Joe Schember pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), for failing to properly train and supervise the City's police force. Id. He seeks monetary damages and injunctive relief pursuant to 42 U.S.C. § 1983. Id. at 9.
As will be discussed more fully below, Hoffman has not yet been served.
The motion to dismiss the Second Amended Complaint filed on behalf of Defendants Allison, Barber, City of Erie, Russell, Pilarski, Schember, and the three John Doe Officers is pending before the Court. See ECF No. 26. Sledge has filed a response, see ECF No. 29, and each party has filed a reply. See ECF Nos. 30, 31. This matter is ripe for disposition.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
B. Factual Background
The following facts are drawn from the allegations of Sledge's complaint, the exhibits attached to each of his pleadings, and publicly available records pertaining to his underlying arrest, prosecution, and conviction. Each is accepted as true for purposes of this motion.
On January 14, 2020, City of Erie police officers responded to a report that a female victim had been shot in the vicinity of “3rd and Reed” in Erie, Pennsylvania. ECF No. 1-2. Sledge was apprehended that same day and charged with, among other things, attempted homicide (at Criminal Docket CP-25-CR-3 88-2020) and attempted intimidation of a witness (at Criminal Docket CP-25-CR-722-2020). Id. The affidavit of probable cause for his arrest stated as follows:
On 1-14-20 at 1854hrs Erie Police Patrol was dispatched to 3rd and Reed st for a female shooting victim who was later identified as (JES.C). Upon arrival Patrol secured the scene and located the victim who was laying in the front yard of 306 Reed st and had apparent gunshot would to her head/face. Myself and Det. Pilarski were working a SWAT Patrol and also immediately responded to 3rd and Reed st and observed the scene, which included victim laying in front yard of 306 Reed st, and south side of this address we located and observed evidence of the shooting to include one spent .32 cal shell casing, several areas on concrete and grass with visible blood drops, a blood smear on the side of the house, one live .32 cal round, one slug that was a small calib3r and several pieces/parts of what appeared to be dentures. This evidence was collected and photographed by ID Rager. In the course of Patrol arrival-Ptlm Valloud spoke with victim (later identified) who stated multiple times that she was shot by Def. Larry Sledge. Ptlm Valloud also indicated that Emergycare and Fire Personnel were present during the dying declaration. I spoke with Lt. Marucci, who also indicated the victim had identified the person who shot her as Def. Larry Sledge. Victim (Jes.C) was transported to Hamot and was listed in Critical condition with gunshot wounds to her head/face placed into ICU. The suspect's name/description was provided to Patrol and other SWAT members on Patrol and he was observed walking into the residence at 502 East 5th st and was taken into custody at approx. 1925 hrs. Det. Pilarski observed visible blood on the right cuffed pant leg of Def. Sledge towards the bottom of the jeans prior to transport to EPD. Clothing to include large dark coat, jeans were taken and tagged. This clothing was also provided by Def. Sledge earlier in the evening (1605 hrs) when he contacted OIC-Cpl Waite and wanted to report a harassment and provided his location as 3rd and Reed st and description of his clothing as dark Pea coat, jeans and dark hooded sweatshirt.
At 2100hrs-221 Ohrs we spoke with female (J.C.) who advised her sister is the victim (JED.C) and was living with Def. Larry Sledge in the area of 4th and Ash st (J.C.) stated she had reported a stolen firearm on 1/12/20 with EPD and firearm was a,32cal, silver plated semi-automatic pistol and suspect was Def. Larry Sledge- incident number 20-1518.
We were also advised that Patrol had conducted a Presumptive GSR kit on suspect and had been positive for gunshot residue.ECF No. 1-2. In an email to Hoffman, Pilarski acknowledged that there was no written or photographic documentation of the GSR test but indicated that Officer Russell could testify to the positive result. Id.
Sledge's trial commenced on August 8, 2022. See Commonwealth v. Sledge, Nos. CP-25-CR-388-2020 and CP-25-CR-722-2020; ECF No. 27-1 at 4. A jury convicted Sledge on all charges, and the trial court sentenced him on October 31, 2022. Id. Sledge's appeal, filed on January 18, 2023, remains pending. Id.
In addition to challenging his arrest and prosecution, Sledge alleges that three unknown City of Erie police officers utilized excessive force on January 14, 2020, when he “refused to speak with officers regarding the incident because he was sleeping.” ECF No. 24 at p. 6. Although he does not describe the nature of the force used, he maintains that he suffered injuries to his head and chest. Id.
C. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”).
D. Analysis
Based on his allegations, the Court construes Sledge's Second Amended Complaint as asserting the following causes of action: 1) a claim for malicious prosecution and false arrest against Pilarski, Allison, Barber, Russell, and Hoffman for misrepresenting evidence in a probable cause affidavit; 2) a malicious prosecution and false arrest claim against Hoffman for “conspiring” to cover up exculpatory evidence; 3) a “conspiracy to incriminate” claim against Allison, Barber, and Russell for fabricating evidence and making false statements leading to his conviction; 4) a due process claim against all Defendants based on Sledge's denial of a fair trial; 5) an excessive force claim against the three John Doe police officers; and 6) a failure to supervise or train claim against Schember and the City of Erie for failing to prevent the aforementioned constitutional violations. ECF No. 24 at 8-9. Each will be addressed in turn.
1. False arrest and malicious prosecution (Pilarski, Allison, Barber, and Russell)
The heart of Sledge's pleading is his contention that four City of Erie police officers -Pilarski, Allison, Barber, and Russell - violated the Fourth and Fourteenth Amendments to the United States Constitution by arresting and prosecuting Sledge without probable cause. Sledge maintains that the affidavit of probable cause for his arrest contained the false statement that a “Presumptive GSR kit on suspect. . . had been positive for gun shot residue.” ECF No. 1-2 at p. 2. Citing Pilarski's email to Hoffman, Sledge asserts that the affidavit's reference to the GSR test was “fraudulent” because of Pilarski's admission that there were no photos or documentation of the test results.
While Sledge also references the Eighth Amendment in connection with his false arrest and malicious prosecution claims, the Eighth Amendment's prohibition against cruel and unusual punishment does not apply until an inmate has been both convicted and sentenced for his crimes. See Graham v. Connor, 490 U.S. 386, 392 n. 6 (1989); Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005). As such, Sledge's Eighth Amendment claims pertaining to his arrest and prosecution must be dismissed.
In addition to challenging the GSR kit results, Sledge contends that Allison, Barber, and Russell tampered with or fabricated the blood stains found on his clothing at the time of his arrest. Sledge explains:
Joshua Allison, Brian Barber, and “Officer Russell” are accused of a conspiracy to fabricate/cross contaminate evidence submitted for forensic lab analysis pertaining to “blood found on the plaintiffs pants” whereas one of the officers involved in this issue submitted a fabricated statement regarding the location of this evidence in their “narrative statement” in docket “388 of 2020.” Allison's statement shows him placing the items in a different location whereas in Barber's statement he alleges he found this evidence elsewhere, approximately 40 minutes later, while in possession of the victim's bloody clothing, which is now proven as a fabrication for this evidence that was tampered with or cross taminated in this case, affecting the verdict.ECF No. 24 at p. 7.
To state a claim for false arrest under the Fourth Amendment, a plaintiff must establish: “(1) that there was an arrest; and (2) that the arrest was made without probable cause.” Akins v. City of Erie Police Dep't, 2020 WL 838564, at *4 (W.D. Pa. Feb. 20, 2020) (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012) (citing sources omitted)). A claim for malicious prosecution requires proof of the following elements: “1) that defendant commenced a criminal proceeding; 2) without probable cause; 3) with malice, or for reasons other than to bring the party to justice; and 4) the proceeding terminated in [the plaintiffs] favor.” Gray v. Wittman, 2020 WL 2104739, at *4 (W.D. Pa. May 1,2020), affd 839 Fed.Appx. 669 (3d Cir. 2021). Notably, each cause of action requires the plaintiff to prove the absence of probable cause. This is critical because, as a matter of law, probable cause is conclusively established in a § 1983 false arrest or malicious prosecution action where the plaintiff has been convicted of the underlying offense and the conviction has not been overturned. Berete v. Cortazzo, 2012 WL 6628040, at *3 (E.D. Pa. Dec. 18, 2012); see Shelley v. Wilson, 339 Fed. App. 136, 139 (3d Cir. 2009) (“The jury's finding that Shelley committed each element of these offenses beyond a reasonable doubt defeats his assertion that there was no probable cause to arrest him.”).
Although Sledge argues that his arrest violated the Constitution because it was based on an allegedly deficient affidavit of probable cause, the Court takes judicial notice of the fact that Sledge was convicted at trial of each of the criminal charges stemming from that arrest. See ECF No. 27-1. His criminal conviction conclusively establishes probable cause for purposes of a § 1983 cause of action. See, e.g., Miller v. Victory, 2022 WL 17128634, at *4 (W.D. Pa. Nov. 22, 2022); Tillman v. City of Coatesville, 2018 WL 950111, at *2 (E.D. Pa. Feb. 16, 2018) (collecting cases for the proposition that “probable cause is conclusively established to exist at the time the arrest was made when there is a guilty plea or conviction”). That, in turn, vitiates his false arrest and malicious prosecution claims, each of which must be dismissed.
This outcome is consistent with Heck v. Humphrey, 512 U.S. 477 (1994), pursuant to which Sledge's claim “would fail even if he could allege the absence of probable cause despite his [conviction].” Walker v. Clearfield Cnty. Dist. Att'y, 413 Fed.Appx. 481, 484 (3d Cir. 2011). In Heck, the United States Supreme Court explained that a plaintiff cannot succeed on the merits of a § 1983 civil suit based upon a criminal conviction if it would “necessarily imply the invalidity of' the underlying conviction, unless the criminal conviction was overturned prior to the civil suit. See id. (quoting Heck, 512 U.S. 477, 487 (1994)). Here, Sledge's complaint that he was arrested without probable cause “would plainly imply the invalidity of [his] conviction” and “run afoul of Heck" unless his conviction has been overturned or invalidated. Walker, 413 Fed.Appx. at 484. A review of his publicly available state criminal and appellate dockets confirms that this is not the case. See Commonwealth v. Sledge, Nos. CP-25-CR-388-2020 and CP-25-CR-722-2020. Accordingly, Sledge's attack on the constitutionality of his arrest and prosecution must be dismissed. Walker, 413 Fed.Appx. at 484.
2. False arrest and malicious prosecution (Hoffman)
The same principles preclude Sledge's claim against Hoffman. Although Hoffman has not been served, Sledge's claims against her are subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. DAgostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
As noted above, a conviction on the underlying criminal charges, whether by guilty plea or jury verdict, conclusively negates the probable cause element of a false arrest or malicious prosecution claim. See, e.g., Miller, 2022 WL 17128634, at *4-5; Williams v. McCleaf, 2020 WL 3272271, at *7 (M.D. Pa. May 6, 2020) (noting that a plaintiffs guilty plea “entirely undermines any malicious prosecution claim since it completely contradicts one essential element of any such claim-the plaintiffs obligation to show that the proceeding was initiated without probable cause.”). Similarly, Heck's favorable termination rule applies because, as discussed above, Sledge has not demonstrated that his “conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. These principles are fatal to his claims against Hoffman.
Sledge's claims against Hoffman are also likely barred by the doctrine of absolute prosecutorial immunity. Under this doctrine, a prosecutor is immune from liability for money damages under § 1983 for acts “within the scope of [her] duties in initiating and pursuing a criminal prosecution.” Imbler v. Pachtman, 424 U.S. 409, 417-20 (1976). Courts have consistently held that the initiation of a criminal prosecution falls within the scope of a prosecutor's duties. See Fogle v. Sokol, 957 F.3d 148, 160 (3d Cir. 2020) (“[P]rosecutors are immune from claims arising from their conduct in beginning a prosecution, including soliciting false testimony from witnesses in grand jury proceedings and probable cause hearings, presenting a state's case at trial, and appearing before a judge to present evidence.”) (internal quotations and quoting sources omitted).
3. Due process (Allison, Barber, and Russell)
Sledge next presents a procedural due process claim under the Fourteenth Amendment based upon his belief that Allison, Barber, and Russell tampered with and fabricated evidence at his criminal trial, resulting in his unlawful conviction. Without offering any supporting facts, Sledge generally avers that the “findings of ‘blood on the plaintiffs pants' [were] actually a direct result of a fabrication or cross-contamination by the Erie Police of this evidence.” ECF No. 24 at p. 5. He also asserts that the narrative statements submitted by Barber and Allison contradicted each other as to the location of his blood-stained clothing. Id. at 7.
The Court of Appeals for the Third Circuit has recognized a standalone claim for fabrication of evidence, arising under the procedural due process component of the Fourteenth Amendment. See Black v. Montgomery Cty., 835 F.3d 358, 369 (3d Cir. 2016); Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014). To establish a fabrication-of-evidence claim, a plaintiff must show there is a reasonable likelihood that, absent that fabricated evidence, the defendant would not have been criminally charged or convicted. Black, 835 F.3d at 372. To meet the “reasonable likelihood” standard, the plaintiff must establish a “meaningful connection” between the due process injury and the use of fabricated evidence. Id. The plaintiff must also establish “that the fabricated evidence ‘was so significant that it could have affected the outcome of the criminal case.'” Black, 835 F.3d at 372 (quoting Halsey, 750 F.3d at 295).
There is a “notable bar” for allegations that evidence was fabricated. Id. at 372. In Halsey, for example, the plaintiff presented such unusual facts that the Court “hardly [could] conceive of a worse miscarriage of justice.” 750 F.3d at 278. Specifically:
The plaintiff [in Halsey} served twenty years of a sentence of two life terms in prison for the torture and murder of his partner's two young children after investigators inserted details the plaintiff could not possibly have known into a “confession” that he signed after a relentless and coercive interrogation. Id. at 278-82. All the while, the real killer, known to the police to have a record of sexual assaults and who lived next door to the children, “avoided arrest despite nervously asking the investigating detectives whether he would be Tocked up.'” Id. at 278.Deforte v. Borough of Washington, 364 F.Supp.3d 458, 480 (W.D. Pa. Mar. 4, 2019) (quoting Halsey, 750 F.3d at 278-82. In contrast, “testimony that is incorrect or simply disputed should not be treated as fabricated merely because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Rather, there must be persuasive evidence that the fabricated evidence's proponents knew the evidence was incorrect or offered it in bad faith. Id.
Sledge's conclusory averment that the blood stains on his pants were “fabricated” or “contaminated” falls well short of this standard. Aside from noting a discrepancy between officers in a police report as to where the clothing was located, Sledge has offered no concrete facts to support his allegation. See, e.g., Golden v. Tully, 2018 WL 5296374, at *8 (E.D. Pa. Oct. 25, 2018) (“A fabrication of evidence claim will not survive where the ‘fabricated' evidence consists of disputed statements in a police report, or ‘he-said, she-said' testimony.”). Nor has he pleaded any facts suggesting that Defendants “offered the evidence in bad faith.” Halsey, 750 F.3d at 295. In the absence of any such allegations, Sledge cannot sustain his fabrication of evidence claim.
4. Conspiracy (Allison, Barber, and Russell)
Relying on the same underlying allegations, Sledge also suggests that Allison, Barber, Russell, and Hoffman engaged in a “conspiracy to incriminate [him]” by “making false allegations of obtained evidence . . . where there is no actual findings of the alleged as this evidence was submitted at trial.” ECF No. 24 at p. 8. The basis for Sledge's claim again appears to be that narrative statements submitted by Barber and Allison contradicted each other as to the location of his blood-stained clothing. Id. at 7. He also alleges, in conclusory fashion, that Allison, Barber, and Russell attempted to “cover up” the false statements in an affidavit of probable cause.
“The essence of a conspiracy is an agreement.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989). To demonstrate the existence of a conspiracy under § 1983, “a plaintiff must show that two or more conspirators reached an agreement to deprive him or her of a constitutional right under color of law.” LeBlanc v. Stedman, 483 Fed.Appx. 666, 670 (3d Cir. 2012) (quoting Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993), abrogated on other grounds by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)). “It is not enough that the end result of the parties' independent conduct caused the plaintiff harm or even that the alleged perpetrators of the harm acted in conscious parallelism.” Perez v. Gamez, 2013 WL 6073877, at *9 (M.D. Pa. Nov. 18, 2013). Rather, the plaintiff must show that the defendants acted in concert with the specific intent to violate the plaintiffs rights. Davis v. Fox, 2013 WL 5656125, at *5 (M.D. Pa. Oct. 15, 2013). In other words, the plaintiff must “expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.” See Flanagan v. Shively, 783 F.Supp. 922, 928 (M.D. Pa. 1992)
Because direct evidence of a conspiracy is rarely available, the existence of a conspiracy may be inferred from the circumstances. Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009). Still, a plaintiff must allege “facts from which a conspiratorial agreement can be inferred.” Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010). A “bare assertion of conspiracy will not suffice.” Id.
Here, Sledge's allegations amount to nothing more than a bare assertion of conspiracy. His lone factual averment is that Barber and Allison gave contradictory statements while obtaining his arrest warrant. It is unclear how Defendants' failure to coordinate their statements amounts to an agreement to violate Sledge's constitutional rights. In any event, he has not alleged any facts suggesting that Defendants communicated, consulted, or cooperated for the express purpose of jointly depriving him of his constitutional rights, much less reached an explicit or implicit agreement to do so. See Flanagan, 783 F.Supp. at 928. As such, Sledge's conspiracy claims amount to nothing more than “mere conjecture and bare speculation, which is insufficient to state a claim.” Islaam v. Kubicki, 2020 WL 1663344, at *7 (M.D. Pa. Apr. 3, 2020). Dismissal is appropriate.
As an additional basis for dismissal, the Court also notes that a plaintiff is required to prove a separate underlying tort as a predicate for civil conspiracy liability. Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 405-407 (3d Cir. 2000). As discussed above, Sledge's conviction at trial is fatal to his underlying false arrest and malicious prosecution claims. In the absence of an underlying tort, Sledge cannot sustain his conspiracy claim based on that same arrest and prosecution.
5. Excessive force (John Does 1, 2, and 3)
Sledge next asserts an excessive force claim against three unidentified police officers who attempted to interrogate him in his prison cell a few days after his arrest. Based on the timing of the interrogation, it appears that Sledge was a pretrial detainee at the time of the incident and, therefore, his excessive force claim arises under the Fourteenth Amendment's Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). To state a claim under the Fourteenth Amendment, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015); see also Hunter v. Barrett, 2022 WL 18358969, at *5 (W.D. Pa. Nov. 16, 2022), report and recommendation adopted, 2022 WL 17828970 (W.D. Pa. Dec. 21, 2022). “[O]bjective reasonableness ‘turns on the facts and circumstances of each case.'” Id. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). To satisfy this standard, the plaintiff must allege “that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 398.
In Kingsley, the United States Supreme Court cautioned that this standard cannot be applied “mechanically” and that “objective reasonableness turns on the facts and circumstances of each particular case.” 576 U.S. at 397, (internal quotation marks omitted). Thus, a pretrial detainee asserting an excessive force claim must allege facts and circumstances sufficient to allow the court to determine whether the force in question was objectively reasonable. See, e.g., Lombardo v. City of St. Louis, Mo., __ U.S. __, 141 S.Ct. 2239 (2021); Hunter, 2022 WL 18358969, at *5-6. The following non-exhaustive list of factors may be relevant in assessing the reasonableness of a use of force: (1) the relationship between the need for the use of force and the amount of force used; (2) the extent of the plaintiffs 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; (6) and whether the plaintiff was actively resisting. Kingsley, 576 U.S. at 397. In making this determination, the court must consider the facts “from the perspective of a reasonable officer on the scene” while also accounting for the “legitimate interests that stem from [the government's] need to manage the facility in which the individual is detained” and the policies and practices “needed to preserve internal order and discipline and to maintain institutional security.” Id. (citing Bell, 441 U.S. at 540.
Here, Sledge's entire claim is expressed in the following averment:
Three “unknown officers” of the “City of Erie Police” are accused of “excessive use of force” in violation of the 4th Amendment, whereas he was assaulted after the January 2020 incidents after he refused to speak with officers regarding the incident because “he was sleeping.” Plaintiff suffered re-aggravating injuries to the head and chest, and received additional injuries from this incident, whereas he was assaulted at “Off the Wall Tavern” on 1-13-2020. The injuries sustained from this incident are orbital fracture, 2 broked teeth, jaw fracture. The Plaintiff was treated by the Wexford Health Staff for his injuries sustained.ECF No. 24 at pp. 6-7. Although not part of the operative pleading, a prior version of Sledge's complaint explained that the officers “punched” and “threw” him around his cell. ECF No. 7 at p. 2.
Sledge's conclusory allegation that he “was assaulted” falls well short of the pleading standards outlined above. While the Court is alarmed by the possibility that Sledge sustained serious injuries because of police misconduct, simply pleading the existence of an injury is not enough to state a plausible claim for relief. Rather, an excessive force claim “must, at minimum, allege facts and circumstances sufficient to allow the court to determine whether the force in question was objectively reasonable.” Hunter, 2022 WL 18358969, at *5-6 (quoting Lombardo, 141 S.Ct. 2239). Sledge, despite multiple opportunities to do so, has failed to describe the nature of the force utilized and the circumstances underlying the incident in any detail. Courts have routinely dismissed similarly vague allegations for lack of specificity. See, e.g., Moore v. Allison, 2020 WL 3574668, at *5 (W.D. Pa. July 1, 2020) (dismissing excessive force claim where plaintiff “fail[ed] to provide critical details” such as “where [the defendant] grabbed him” and “how much force was used”); Luna v. Allison, 2019 WL 3997895, at *5 (W.D. Pa. July 26, 2019) (“Luna does not identify, for example, which officers allegedly used excessive force against him. He neither relates neither the setting or conditions associated with his claim nor the severity of any injuries he received. An allegation that unspecified individuals beat and tased him is insufficient to infer that the force exerted was unreasonable under the totality of the circumstances-circumstances of which Luna has provided no detail.”). The Court should reach the same conclusion here. 6. Failure to train (Schember)
Notably, Sledge has already been placed on notice as to the level of specificity required to state a plausible claim for relief. Prior to service, the Court informed Sledge that his bare-bones allegations “provided no details of any sort concerning the alleged use of force.” ECF No. 6 at p. 2. For example, the Court noted that it could not determine “what degree of force was used, whether some application of force was warranted under the circumstances, and what injuries Plaintiff sustained, if any, during the incident.” Id. at pp. 2-3. The Court ordered Sledge to “attempt to cure the deficiencies outlined [in the Court's order] by providing the necessary factual details to support each of his claims” in an amended pleading. Id. at p. 3.
As an entirely independent basis for dismissal, Defendants suggest that Sledge can no longer amend his pleading to identify the John Doe officers by name and substitute them as defendants because of the two-year statute of limitations applicable to § 1983 actions. Defendants contend that any such amendment would not “relate back to the date of the original pleading” for purposes of Federal Rule of Civil Procedure 15(c) because there is no evidence that any of the John Doe Defendants received notice of Sledge's claims within the statutory period. It is unclear, at this stage in the proceedings, whether Defendants' statute of limitations defense is viable. In particular, the Court notes that the attorney representing the named Defendants and the City of Erie has already entered an appearance, filed a waiver of service, and submitted two motions to dismiss on behalf of the three John Doe police officers. Drawing all inferences in Sledge's favor, such activities might give rise to imputed constructive notice by way of the “shared attorney method” outlined by the Court of Appeals for the Third Circuit in Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003), and Singletary v. Pennsylvania Dep't of Corr., 266 F.3d 186, 195 (3d Cir. 2001). Without expressing any opinion as to the ultimate merit of this argument, the Court simply notes that the issue would be more appropriately addressed on a fully developed record. Should Sledge ultimately succeed in stating a plausible claim for relief, Defendants may, if factually warranted, reassert their statute of limitations argument in a properly supported motion for summary judgment.
Although Sledge names Schember, the Mayor of the City of Erie, as a Defendant, his lone allegation against Schember consists of the legal conclusion that he “‘ fail[ed] to train or supervise' under the Monell claim for liability.” ECF No. 24 at p. 3. He also avers, albeit without mentioning Schember by name, that all Defendants “allow[ed] for ‘a culture of lack of accountability' that has created a ‘policy and custom of turning a blind eye towards police misconducts.” Id. at 7.
It is axiomatic that a § 1983 plaintiff “must show that each and every defendant was ‘personally] involve[d]' in depriving him of his rights.” Kirk v. Roan, 2006 WL 2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d Cir. 2006)). This means that each defendant must have played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed.Appx. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
These principles apply with equal force where the defendant is a supervisory official. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998) (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (“[L]iability cannot be predicated solely on the operation of respondeat superior"). Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisor-defendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm; or (2) participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
In the instant case, Sledge's only averment regarding Schember consists of the legal conclusion that Schember “failed to train or supervise” several other Defendants. Based on this allegation, it is apparent that Sledge is attempting to hold Schember responsible for the unconstitutional actions of other individuals based entirely upon his supervisory role as the Mayor of the City of Erie. As described above, this type of averment is insufficient to establish personal involvement in the deprivation of a constitutional right. See, e.g., Weber v. Erie County, 2020 WL 5983275, at *4 (W.D. Pa. Oct. 8, 2020) (dismissing failure to supervise claim against county supervisor where the plaintiffs only allegations consisted of “pure conclusions of law tracking the legal standard created in MonelFf, Kloss v. SCI-Albion, 2018 WL 4609144, at *4 (W.D. Pa. Aug. 15, 2018) (allegation that supervisory defendant was “made aware of several issues of the plaintiffs and . . . failed to help him” is insufficient to state a claim for relief). Sledge's claims against Schember should be dismissed for lack of personal involvement.
7. Failure to train (City of Erie)
Finally, Sledge asserts a “failure to train or supervise” claim against the City of Erie pursuant to Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). Sledge contends that “city officials had prior knowledge of prior incidents involving the dishonorable actions of‘Joshua Allison' while working as an Erie Police Officer in November 2019 in the arrest of “Lee McLaurin” and failed to take any remedial action for this police misconduct, which occurred two months prior to this incident.” ECF No. 24 at p. 3. He also cites: (1) an incident from 1991 in which a police officer fractured the jaw of a person in his custody and employed a “choke hold” on another individual that led to that individual's death; and (2) several recent settlements that the City of Erie reportedly paid to police brutality victims. Id. at 4, 7. Sledge concludes that the foregoing establishes a “culture of lack of accountability” on the part of the City of Erie, manifested by the creation of a “policy and custom of turning a blind eye towards police misconducts.” Id. at 7.
Like a supervising official, a municipality cannot be held liable for its employees' alleged misconduct based on a theory of respondeat superior. Monell, 436 U.S. at 694-95; Panas v. City of Philadelphia, 871 F.Supp.2d 370, 377-78 (E.D. Pa. May 14, 2012). Rather, the “government itself, through its policies or practices, must be sufficiently culpable before” a court imposes § 1983 liability. Id. See also Such culpability exists only "when the alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom.” McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). Thus, to prevail on a Monell claim, a plaintiff must establish not only that he was deprived of a constitutional right, but that: (1) the municipality had a policy; (2) the policy “amounts to deliberate indifference” to the plaintiff's constitutional right; and (3) the policy was the “moving force behind the constitutional violation.” City of Canton, Ohio v. Harris, 489 U.S. 378, 389-91 (1989).
Notably, “the requirement of an underlying constitutional violation is implicit in the Third Circuit's Monell framework.” Lansberry v. Altoona Area School District, 356 F.Supp.3d 486, 497 (W.D. Pa. 2018). See also Bridges ex rel. D.B. v. Scranton Sch. Dist., 644 Fed.Appx. 172, 178 (3d Cir. 2016) (“To hold the school district liable for a failure to train under Section 1983, appellants must demonstrate that there was a constitutional violation and that the violation was caused by the school district's policy or custom.”) (emphasis added) (citing Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d Cir. 1996)). Consequently, Sledge's failure to plead a plausible claim for relief on his excessive force claim against the individual Defendants is fatal to his Monell claim against the City of Erie. Id.
In light of this deficiency, the Court need not determine, at this time, whether the incidents cited by Sledge amount to a “pattern of violations” sufficient to implicate municipal liability. See, e.g., Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (noting that deficient training ordinarily amounts to deliberate indifference only where “the failure to train has caused a pattern of violations”).
E. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction is equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229,235 (3d Cir. 2004). In this case, amendment would be clearly futile as to Sledge's due process and conspiracy claims. Those claims should be dismissed, with prejudice, and without further opportunity for amendment.
Sledge's false arrest and malicious prosecution claims should also be dismissed without leave to amend, as each is plainly barred by Heck v. Humphrey. However, those claims should be dismissed without prejudice to Sledge's ability to reassert those claims in a separate civil action if his underlying conviction is ever overturned.
Finally, Sledge should be given one additional opportunity to file an amended complaint asserting his excessive force and Monell claims. Although Sledge has already failed, on multiple occasions, to state a viable claim in this regard, the averment in his Second Amended Complaint that he sustained a serious injury, coupled with the allegation in his First Amended Complaint that he was “punched,” are enough to persuade the Court that a final amendment opportunity would not necessarily be futile. Out of an abundance of caution, the Court recommends that Sledge be provided that opportunity.
Should he choose to file another amendment, Sledge is strongly encouraged to be as specific as possible about the particulars of the excessive force incident. For example, he should explain to the Court exactly what type and degree of force each Defendant used, the circumstances surrounding that use of force, and how the use of force directly caused the alleged injuries.
III. Conclusion
For the foregoing reasons, Defendants' motion to dismiss [ECF No. 26] should be granted. An order should be entered:
1) dismissing Sledge's due process and conspiracy claims, with prejudice;
2) dismissing his false arrest and malicious prosecution claims, without prejudice to his right to reassert those claims in a separate action if his underlying criminal conviction is ever overturned;
3) dismissing his excessive force and Monell claims, but permitting him a final opportunity to amend those claims within an appropriate time following the adoption of this Report and Recommendation; and
4) terminating Officer Pilarski, Joshua Allison, Brian Barber, Officer Russell, and Hillary Hoffman from this action, with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).