CHRISTOPHER C. CONNER, District Judge.
Presently before the court are three motions to dismiss, filed by defendants Clifford Jobe, Jr. (Doc. 5), Christian Fow (Doc. 30), and the remaining defendants, Commonwealth of Pennsylvania, Pennsylvania State Police, Nathan Swink, Ralph Hockenberry, and David Rush (Doc. 12). For the reasons that follow, the court will deny the motions (Docs. 12, 30) to dismiss Count I of the complaint, except the court will dismiss any potential claim based on allegations of an unlawful arrest. The court will grant Clifford Jobe's motion (Doc. 5) to dismiss Count II. The court will deny the Commonwealth of Pennsylvania and the Pennsylvania State Police's motion (Doc. 12) to dismiss Count III of the complaint. Additionally, the court will order plaintiff to show cause why the action against defendants "John Does 1-5" should not be dismissed for failure to serve the summons and complaint within 120 days pursuant to Federal Rule of Civil Procedure 4(m).
This case arises out of an incident that occurred between plaintiff Christopher Broadwater ("Broadwater") and members of the Pennsylvania State Police ("PSP"). On the evening of September 29, 2010, a nurse from Humana Insurance Company contacted the PSP and explained that she worked for a service that called people monthly to check on their welfare. (Doc. 1 ¶ 14). The nurse stated that while speaking with Broadwater, he threatened violence against another individual. (Id. ¶ 15). She advised that Broadwater suffered from manic depression and was potentially dangerous. (Id. ¶ 16). The nurse opined that the threats were sufficient for the PSP to bring Broadwater to a hospital for an involuntary evaluation, pursuant to 50 P.S. § 7302, but that a warrant had not yet been issued in compliance with the statute. (Id. ¶ 20).
Christian Fow ("Fow"), a corporal with the PSP, directed troopers to respond to Broadwater's residence and check on his welfare. (Id. ¶¶ 18, 19). Fow directed troopers that "Mr. Broadwater was to come voluntarily or involuntarily." (Id. ¶ 21). Troopers Nathan Swink ("Swink"), Ralph Hockenberry ("Hockenberry"), and Nathan Drayer reported to Broadwater's residence. (Id. ¶¶ 23, 25).
Broadwater spoke with the troopers on his porch and, after some discussion, Broadwater agreed to go with the troopers to the hospital after he put his dogs inside the home. (Id. ¶¶ 24-28). Broadwater coaxed his dogs back in his residence and closed his front door. (Id. ¶ 29). When Broadwater turned to leave with the troopers, Swink allegedly deployed the prongs of his taser into Broadwater's chest. (Id. ¶ 30). According to the complaint, the shock from the taser caused Broadwater to crash into his front door, and fall in the threshold of his home. (Id. ¶ 31). Broadwater purportedly removed the prongs from his chest, reentered his home, and closed the door. (Id. ¶ 32). Hockenberry kicked Broadwater's front door open and, together with Swink, pulled Broadwater
Meanwhile, Broadwater moved around in the back of the patrol car and complained repeatedly about the pain caused by the handcuffs. (Id. ¶ 49). The handcuffs were not properly affixed, and gradually tightened as the result of Broadwater's movements. (Id. ¶ 48). Fow allegedly advised Broadwater that the troopers would "hogtie" him if he continued to try to escape from the handcuffs. (Id. ¶ 51). Broadwater explained to Fow that he was moving around because he was in pain, not because he wished to remove the handcuffs. (Id. ¶ 52). According to the complaint, Fow never checked the handcuffs to ensure that Broadwater was properly restrained. (Id. ¶ 53). Broadwater also never displayed any actions evincing an attempt to escape the patrol car. (Id. ¶ 50).
As a result of Broadwater's complaints, Fow purportedly opened the patrol vehicle door and pepper sprayed the already restrained Broadwater. (Id. ¶ 61). Fow then allegedly struck Broadwater multiple times in the face, stating, "Stop fucking with the fucking handcuffs. I am not going to ask you again. You understand?" (Id. ¶ 62). Broadwater immediately experienced severe pain, fear, a difficulty in breathing, temporary blindness, and deep lacerations to his face. (Id. ¶ 63). Blood poured from his face. (Id. ¶ 65). Less than a minute later, Broadwater released his seatbelt and rolled out of the open door headfirst onto the grass next to the patrol vehicle. (Id. ¶ 66).
While Broadwater was lying on the grass facedown, Fow allegedly put his knees on top of him, grabbed his hair, and repeatedly punched him in the face. (Id. ¶ 55). Fow then instructed Swink to taser Broadwater. (Id. ¶ 77). Hockenberry and Rush observed the beating, which lasted for approximately two minutes. (Id. ¶¶ 78, 79). Thereafter, Swink transported Broadwater to the hospital, where he received numerous stitches to repair his facial wounds. (Id. ¶¶ 80, 82). Swink then transported him to jail. (Id. ¶ 84).
Rush charged Broadwater with the following crimes: aggravated assault, simple assault, criminal attempt to escape, and resisting arrest. (Id. ¶ 100). The criminal attempt to escape and aggravated assault charges were withdrawn. (Id. ¶ 101). Broadwater entered a nolo contendere plea on the simple assault and resisting arrest charges and was sentenced to probation. (Id. ¶ 102).
As a supervisor, Fow is obligated to prepare a Significant Action Report ("SAR"), which is a summary of the shift's events sent to the station command staff. (Id. ¶ 89). In the SAR for the evening in question, Fow referred to Broadwater as "Mr. Crazy." (Id. ¶ 90). He further wrote, "Cpl. Julock just delivered the criminal complaint to H-1 for this guy. Julock reports they are currently inserting a catheter into our crazy dude because he can't
As a result of the incident, the Office of the Attorney General for the Commonwealth of Pennsylvania filed criminal charges against Fow. (Id. at 1). Clifford Jobe ("Jobe"), a retired Commander of the PSP, testified at Fow's jury trial as an expert witness. (Id. ¶ 107) He testified that Fow's actions were consistent with the PSP's policies and the law. (Id. ¶¶ 107, 108, 109). Fow was acquitted. (Id. at 2).
Broadwater filed the instant complaint on September 27, 2012. In Count I, Broadwater alleges that Fow, Swink, Hockenberry, and Rush are liable pursuant to 42 U.S.C. § 1983 because they violated his Fourth Amendment rights against unlawful search and excessive force. (Doc. 1 ¶¶ 115-125). In Count II, Broadwater asserts a claim of supervisory liability pursuant to § 1983 against Jobe and "John Does 1-5."
On December 11, 2012, Jobe filed a motion to dismiss Count II of the complaint.
When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine, whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). In addition to reviewing the facts contained in the complaint, the court may also consider exhibits attached to the complaint and matters of public record. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).
To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir.2010). In the first step, "the court must `tak[e] note of the elements a plaintiff must plead to state a claim.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173
The three motions together contemplate the dismissal of Broadwater's complaint in its entirety. Fow, Swink, Hockenberry, and Rush move to dismiss Broadwater's § 1983 claim in Count I. Jobe alleges that Broadwater fails to state a claim in Count II for supervisory liability pursuant to § 1983. Finally, the Commonwealth and the PSP assert that Broadwater fails to state a claim under Count III for liability under the ADA and § 504. The court shall address each contention in turn.
42 U.S.C. § 1983 offers private citizens a means to redress violations of federal law committed by state officials. Section 1983 is not itself a source of substantive rights but instead provides a method for vindicating rights secured through the Constitution or federal statutes. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). In the instant case, Broadwater seeks damages for alleged violations of his Fourth Amendment right against unreasonable search and seizures. U.S. CONST. amend. IV. In response, Fow, Swink, Hockenberry, and Rush allege that Broadwater's claim is barred under the Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), or, alternatively, that Broadwater fails to state a legally cognizable claim against Fow, Hockenberry, and
In Heck v. Humphrey, the Supreme Court held that a plaintiff may not recover damages under § 1983 if doing so would necessarily invalidate the plaintiff's prior conviction. 512 U.S. at 486-87, 114 S.Ct. 2364. For example, a defendant convicted for resisting a lawful arrest could not subsequently bring a § 1983 action against the officer for an unlawful arrest in violation of the Fourth Amendment unless and until his conviction had been overturned or invalidated. Id. at 487 n. 6, 114 S.Ct. 2364. The Heck Court specifically noted that a suit for damages attributable to an allegedly unreasonable search was still valid under its holding, even if the search had produced evidence that aided in the plaintiff's outstanding conviction. Id. at 487 n. 7, 114 S.Ct. 2364. See also Sanders v. Downs, 420 Fed.Appx. 175, 179 (3d Cir. 2011) (holding that an unlawful search claim was not barred because "Heck does not typically bar actions for Fourth Amendment violations"). Convictions for assault or resisting arrest also do not bar § 1983 claims for excessive force. See Garrison v. Porch, 376 Fed.Appx. 274, 277-78 (3d Cir.2010) (assault); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997) (resisting arrest).
In the case sub judice, Broadwater pleaded nolo contendere to simple assault and resisting arrest. Broadwater claims violations of his Fourth Amendment rights based on an alleged unlawful search of his home and the use of excessive force. (Doc. 1 ¶¶ 115-125). Heck does not bar these claims because they do not imply the invalidity of his underlying conviction. However, Broadwater's complaint also includes an allegation that "Defendant Fow caused Swink and Hockenberry to use unlawful force against Mr. Broadwater to effect an unlawful arrest." (Doc. 1 ¶ 119) (emphasis added). Such a claim directly implicates the validity of his nolo contendere plea for resisting a lawful arrest. Thus, Heck bars Count I only to the extent that Broadwater seeks damages for an unlawful arrest. Broadwater's claim based on an unlawful search and excessive force may move forward under Heck.
Fow, Hockenberry, and Rush also argue that Broadwater does not successfully assert a constitutional violation upon which relief may be granted.
A law enforcement officer's use of excessive force in the course of an arrest or investigatory stop constitutes an unlawful "seizure" under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.2004). To determine whether specific conduct qualifies as excessive force, the court must examine its objective "reasonableness." Graham, 490 U.S. at 395-96, 109 S.Ct. 1865. The court should consider the severity of the crime, the suspect's "immediate threat" to the safety of officers or others, resistance to arrest, attempts to flee, and access to weapons. Id. at 396, 109 S.Ct. 1865; Couden v. Duffy, 446 F.3d 483, 497 (3d Cir. 2006). The court should also consider the
In the case sub judice, Broadwater alleges that Fow pepper sprayed Broadwater in the face while he was restrained by a seatbelt and handcuffs in the back seat of a patrol car. (Doc. 1 ¶ 61). Broadwater states that Fow then pulled Broadwater toward him and struck him at least three times in the face. (Id. ¶ 62). Broadwater contends that he immediately experienced severe pain, fear, a difficulty in breathing, temporary blindness, and deep lacerations to his face. (Id. ¶ 63). Fow claims that he believed Broadwater was attempting to escape from his handcuffs, but Broadwater had previously advised Fow that he was fidgeting because the handcuffs were causing him pain. (Id. ¶¶ 49, 51, 52). According to the complaint, Fow never checked the handcuffs himself to ensure that Broadwater was properly secured. (Id. ¶ 53). Broadwater further alleges that he never displayed any actions evincing an attempt to escape the patrol car prior to being pepper-sprayed. (Id. ¶ 50). When Broadwater exited the vehicle, he asserts that Fow put his knees on top of him, grabbed his hair, and repeatedly punched him in the face. (Id. ¶ 55). Fow then instructed Swink to taser Broadwater. (Id. ¶ 77). Fow purportedly engaged in this conduct despite knowing that several other troopers were present at the scene and that Broadwater was lying facedown on the ground, handcuffed, covered in pepper spray, and bleeding profusely from his face. These serious factual allegations present a plausible claim for relief against Fow for excessive use of force.
Broadwater also alleges that Hockenberry directly used excessive force against him. According to Broadwater, Hockenberry kicked Broadwater's front door open and, together with Swink, pulled Broadwater onto the front porch. (Id. ¶ 39). Hockenberry and Swink handcuffed Broadwater's hands together behind his back, placed him in the rear of Swink's patrol vehicle, and restrained him with a seatbelt. (Id. ¶¶ 40, 42). The troopers did so despite being aware of Broadwater's prior shoulder and wrist surgeries. (Id. ¶ 40). Broadwater remained handcuffed in the back seat for approximately 30 minutes, despite numerous complaints about the pain caused by the handcuffs. (Id. ¶¶ 45, 47, 49). The placement of excessively tight handcuffs and the failure to respond to an arrestee's pleas to loosen them may constitute excessive force when the officer is not in the "midst of a dangerous situation involving a serious crime or armed criminals." Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.2004). Ostensibly, the officers in the instant matter were not faced with imminent danger such that they could not address Broadwater's complaints. Under Kopec, Broadwater successfully asserts a claim for excessive force against Hockenberry upon which relief may be granted.
Broadwater alleges that Hockenberry and Rush personally witnessed Fow and Swink beating Broadwater next to Swink's patrol vehicle. (Doc. 1 ¶¶ 78, 122). Broadwater claims that they did not attempt to intervene or stop the troopers' conduct, which lasted approximately two minutes. (Id. ¶¶ 78, 79, 122). The court finds that Broadwater successfully alleges a claim against Fow, Hockenberry and Rush for excessive force under § 1983.
Under the Fourth Amendment, warrantless searches of a home are presumptively unreasonable. Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (quoting Payton v. New York, 445 U.S. 573, 587-88, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). According to the complaint, when Broadwater retreated into his home, Hockenberry kicked Broadwater's front door open and, together with Swink, pulled Broadwater back onto the porch. (Id. ¶ 39). Fow subsequently directed Swink, Hockenberry, and Rush to enter Broadwater's residence so Swink and Hockenberry could show Rush the location of the events in question. (Id. ¶ 55). The troopers never possessed a warrant. (Id. ¶¶ 20, 21, 118). As alleged in the complaint, Hockenberry and Rush both entered Broadwater's home without a warrant and Fow directed their allegedly unlawful conduct. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988) (stating that a supervisor may be directly liable under § 1983 if he personally directed unconstitutional conduct). Based on the facts alleged in the complaint, it is impossible to ascertain whether an exception to the warrant requirement may apply. At this early procedural stage, Broadwater's complaint successfully states a § 1983 claim against Fow, Swink, Hockenberry, and Rush for excessive force and an unlawful search.
Fow, Swink, Hockenberry, and Rush also assert their entitlement to qualified immunity. Application of qualified immunity requires two distinct questions. First, the court must determine whether the defendant violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Curley v. Klem, 499 F.3d 199, 206 (3d Cir.2007); Williams v. Bitner, 455 F.3d 186, 190 (3d Cir.2006). Second, the court must analyze whether the right in question was "clearly established" at the time the defendant acted. Pearson, 555 U.S. at 232, 129 S.Ct. 808. A right is "clearly established" if a reasonable state actor under the circumstances would have known that his or her conduct impinged upon constitutional mandates. Id., at 231, 129 S.Ct. 808; Williams, 455 F.3d at 191; see also Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The court may eschew difficult constitutional issues and award qualified immunity to a defendant if it is apparent
The court has already concluded supra that Broadwater adequately alleges that Fow, Hockenberry, and Rush violated his constitutional rights. The complaint also makes sufficient allegations against Swink for the same violations. According to the complaint, Swink deployed the prongs of his taser into Broadwater twice. (Doc. 1 ¶¶ 30, 77). He also handcuffed Broadwater behind his back, despite being aware of Broadwater's prior shoulder and wrist surgeries. (Id. ¶¶ 40, 42). Broadwater remained handcuffed in the back seat of Swink's patrol car for approximately 30 minutes, despite voicing numerous complaints about the pain caused by the handcuffs. (Id. ¶¶ 45, 47, 49). Broadwater also contends that Swink failed to intervene during Fow's alleged use of excessive force. (Id. ¶¶ 71-74). Finally, Swink participated in the allegedly unlawful search of Broadwater's home. (Id. ¶¶ 39, 55).
Solely in the context of these allegations, the court must determine whether Fow, Swink, Hockenberry, and Rush would have known that their conduct was unconstitutional. There is no doubt that the subject constitutional rights were clearly established on the date of the incident in question—September 29, 2010. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) and Sharrar v. Felsing, 128 F.3d 810 (3d Cir.1997) (abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir.2007)) set forth factors governing the reasonableness of an officer's use of force. Green v. N.J. State Police, 246 Fed.Appx. 158, 163 (3d Cir.2007). Smith v. Mensinger, 293 F.3d 641 (3d Cir.2002) and Baker v. Monroe Township, 50 F.3d 1186 (3d Cir.1995) clearly established liability for a failure to intervene in the use of excessive force. Garbacik v. Janson, 111 Fed.Appx. 91, 94 (3d Cir.2004). The prohibition against warrantless searches of a home dates back to the nation's founding. See U.S. CONST. amend. IV.
Fow, Swink, Hockenberry, and Rush argue that it would not be reasonably apparent to troopers in their position that their use of force, or failure to intervene, amounted to a constitutional violations.
Jobe alleges that Broadwater cannot successfully assert against him a claim of supervisory liability pursuant to § 1983. Jobe states that he was retired from the PSP when the incident in question took place, he was never the direct field supervisor of any of the named trooper defendants, and he was not in charge of developing policy for the PSP. (Doc. 5, at 4). Jobe further asserts that Broadwater did not plead the allegations against him with sufficient particularity. (Id.) Jobe contends that Broadwater named him as a defendant in an attempt to disqualify him from presenting expert testimony at trial. (Id. at 4-5). Broadwater responds that Jobe established and maintained a policy that directly violated Broadwater's constitutional rights. Broadwater claims that Jobe knew of and acquiesced in a prior pattern of similar incidents or circumstances involving Fow and other PSP troopers.
A supervisory defendant in a § 1983 action may not be liable based merely on the theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Instead, the plaintiff must allege that the supervisory defendant was personally involved in the incident at hand. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005). Unfortunately, the term "personal involvement" is not universally defined in applicable case law. See Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 72 (3d Cir.2011) ("Plaintiffs acknowledge that the `terminology' used to describe `supervisory liability' is `often mixed.'"). Overall, the supervisor must somehow exhibit a "deliberate indifference" to the deprivation of the plaintiff's constitutional rights. Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Mere knowledge and acquiescence in a subordinate's constitutional violations may also qualify as personal involvement. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Allegations that a supervisor "tolerated past or ongoing misbehavior" may suffice. Baker v. Monroe Twp., 50 F.3d 1186, 1191 n. 3 (3d Cir.1995) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 724-25 (3d Cir.1989)). To establish knowledge and acquiescence of a subordinate's misconduct, a plaintiff must allege the defendant's (1) contemporaneous knowledge of the offending incident or knowledge of similar incidents in the past, and (2) actions or inactions which communicated approval of the subordinate's behavior. See C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir.2000). A plaintiff may not allege that a supervisory defendant had constructive knowledge of a subordinate's unconstitutional conduct simply because of his role as a supervisor. See McQueen v. Phila. Hous. Auth., Civ. A. No. 02-8941, 2003 WL 22533726, at *3 (E.D.Pa. Sept. 26, 2003). A failure to train only amounts to deliberate indifference "where the need for more or different training is obvious" and the lack of training can be expected to result in constitutional violations. Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir.1999) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
In assessing Count II of the instant complaint, the court disregards a number of legal conclusions couched as factual allegations, such as Broadwater's averment that "[t]he Defendant supervisors ignored a pattern of similar constitutional violations that occurred as a result of their actions or inactions." (See Doc. 1 ¶¶ 127)—The actual factual allegations against Jobe are slim.
The court finds that Broadwater has failed to state a claim against Jobe for supervisory liability. Broadwater does not allege that Jobe was responsible for establishing and maintaining, or correcting, any policy, practice, or custom for the PSP. There are no allegations that Jobe was responsible for monitoring and supervising troopers after their completion of training. Broadwater does not allege that Jobe ever
Broadwater relies primarily on three cases in opposition to Jobe's motion to dismiss. In Zion v. Nassan, 727 F.Supp.2d 388 (W.D.Pa.2010), a state trooper and his partner opened fire and killed an unarmed person in his car. 727 F.Supp.2d at 392-93. The estate representative and children of the decedent brought a supervisory liability claim pursuant to § 1983 against the PSP Police Commissioner, the trooper's Area Commander, the trooper's Commanding Officer, and the trooper's direct supervisor. Id. at 391-93. The complaint included numerous allegations of the defendant trooper's violent propensities both before and during his employment as a state trooper. Id. at 392-93. Notably, a civil jury previously found the trooper liable for the shooting death of a twelve-year old boy. Id. at 392. The complaint specifically alleged that the trooper's supervisors were aware of these incidents. Id. at 392-93. The supervisors did not order additional training of the trooper, and one even ordered a subordinate to alter the trooper's employment records. Id. In denying the defendant's motion to dismiss, the court noted that it was a "close question," but that plaintiffs adequately alleged sufficient facts establishing that the supervisors were aware of a pattern of violent behavior on behalf of the trooper and did nothing to remedy the situation. Id. at 407.
In Barber v. Pennsylvania State Police, Civ. A. No. 06-1713, 2007 WL 2071896 (W.D.Pa. Jul. 19, 2007), the court denied the PSP Commissioner's motion to dismiss plaintiff's supervisory liability claim. 2007 WL 2071896, at *3. The plaintiff specifically alleged that the PSP Commissioner occupied a position of responsibility, in which he "knew or should have know [sic] of the aforementioned problems and misconduct of the Pennsylvania State Police. . . ." Id. at *4. The plaintiff also alleged that other PSP troopers, other than the officer in question, had used excessive force on individuals. Id. The court reasoned that other legal claims involving the use of excessive force should have placed the Commissioner on notice of the problem and alerted him to the need for further training and supervision. Id. Similarly, in Owens v. Hahnemann Univ., Civ. A. No. 94-4654, 1995 WL 392516 (E.D.Pa. Jun. 27, 1995), the court denied the defendant's motion to dismiss a supervisory liability claim resulting from a correctional facility inmate's suicide. The court gave credence to the plaintiff's allegations that the defendant, a psychiatrist, was aware of the number of suicides in correctional facilities, was aware of procedures available to minimize the risk of suicides, and deliberately chose not to pursue such measures. 1995 WL 392516 at *2.
The key factors in Zion, Barber, and Owens were the supervisory defendants' knowledge of ongoing constitutional issues
When a complaint fails for a lack of factual specificity, courts generally grant leave to amend before dismissing a complaint unless amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.2000). Amendment would be futile in the instant case because Broadwater acknowledges that he asserted all facts against Jobe that are available to him. (Doc. 11, at 18).
Broadwater's remaining claim seeks damages from the Commonwealth and the PSP under § 504 of the Rehabilitation Act
The Commonwealth and the PSP do not contest, for the purposes of the instant motion, that Broadwater is disabled or that he is entitled to the benefit of a lawful exercise of police powers. Instead, they argue that Broadwater does not allege that he was discriminated against on the basis of his disability. To the contrary, Broadwater specifically alleges that the Commonwealth and the PSP "failed to properly train troopers to have peaceful encounters with mentally and physically disabled persons and failed to establish a proper policy for handling such encounters. . . ." (Doc. 1 ¶ 137). Indeed, the troopers who interacted with Broadwater were purportedly well aware of his disabilities and were attempting to escort him to a hospital for a mental health evaluation. (Id. ¶¶ 18-27). Broadwater also alleges that the Commonwealth and the PSP "created a culture where [Fow] felt comfortable openly referring to Mr. Broadwater as a `retard' and as `Mr. Crazy' in official PSP communications. . . ." (Id. ¶ 147). In light of these factual allegations, Broadwater adequately states a claim against the Commonwealth and the PSP under the ADA and § 504.
For the foregoing reasons, the court will deny the motions (Docs. 12, 30) to dismiss Count I of the complaint but the court will dismiss any potential claim based on allegations of an unlawful arrest. The court will grant Jobe's motion (Doc. 5) to dismiss Count II. The court will deny the Commonwealth and the PSP's motion (Doc. 12) to dismiss Count III of the complaint. Additionally, the court will order Broadwater to show cause why the action against defendants "John Does 1-5" should not be dismissed for failure to serve the summons and complaint within 120 days pursuant to Federal Rule of Civil Procedure 4(m).
An appropriate order follows.
AND NOW, this 14th day of May, 2013, upon consideration of three motions to dismiss, filed by defendants Clifford Jobe, Jr. (Doc. 5), Christian Fow (Doc. 30), and the remaining defendants, Commonwealth of Pennsylvania, Pennsylvania State Police, Nathan Swink, Ralph Hockenberry, and David Rush (Doc. 12), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
29 U.S.C. § 794.
42 U.S.C. § 12132.
