Opinion
Civil Action 2:20-cv-01656
06-30-2021
RICK HELLER and HEATHER HELLER, his wife, and JUSTINE SHAW, Plaintiffs, v. CHIEF WILLIAM HAMMERLE, OFFICERS TYLER GARLICK, SAMUEL BEUCHER, and THOMAS PATTON
CATHY BISSOON DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
ECF No. 16
LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons set forth herein, it is respectfully recommended that Defendants' Motion to Dismiss the Complaint (ECF No. 16) be denied. More specifically, it is recommended that Plaintiffs' §1983 claims for Constitutional violations, and claims under other allegedly applicable law, be allowed to proceed and that this Court decline Defendants' request to convert their Motion to one for Summary Judgement. In so recommending, the Court notes that Defendants remain entitled to move for summary judgment, and to file an appropriate Motion, together with, e.g., properly authenticated documents/other materials and accompanying filings (such as a Concise Statement of Material Facts) at a later time.
See ECF No. 17 at 7-8 (“[I]n considering the additional facts and matters established in the attached documentation, which Plaintiffs have left out of their Complaint, this Court should treat the instant Motion to Dismiss as one for summary judgment.”).
I. FACTUAL AND PROCEDURAL HISTORY; COMPLAINT
A. Factual History
Plaintiffs Rick and Heather Heller, and the latter's daughter, Justine Shaw (“Plaintiffs”), residents of Connellsville, Fayette County, Pennsylvania, filed this October 30, 2020 civil rights action regarding the May 15, 2020 early morning (approximately 4 a.m.) execution of a search warrant -with multiple police cars and “in a SWAT team manner” - at their residence, the handcuffing and “arrest” of Rick Heller, their involuntary transportation to and detention for questioning at the Connellsville Police Station, and the confiscation/retention of property seized. ECF No. 1. Plaintiffs allege Defendants' conduct arose from an unreasonable suspicion of the involvement of Heather Heller's adult son, Marshall Shaw, in shots fired in the vicinity earlier that night. They further allege that Defendants, Connellsville Police officials, purposefully and knowingly obtained and executed an invalid nighttime search warrant - on grounds of belief of an active shooter in their home - by misrepresentations in the Affidavit of Probable Cause to the Application for Search Warrant, including that a neighbor's home security video showed an (apparently male) individual entering Plaintiffs' home following an argument/altercation with another man in the street, exiting armed and firing multiple shots at the man (who had entered his orange compact car and was driving away), re-entering Plaintiffs' home, re-exiting and retrieving shell casings from the front yard, and re-entering the home. Plaintiffs' contention, at the time Rick Heller was first shown the video during his detention and at present, is that the video, rather than clearly showing any individual's movement in/out of their residence, shows indeterminative shadows and/or light reflections from windows and doors of several homes in close proximity.
The police units present and securing Plaintiffs' residence apparently included the Connellsville, Uniontown and Pennsylvania State Police. ECF No. 17 at 9.
The Complaint alleges that: “During the search, Defendants Hammerle, Garlick, Patton and Beucher, acting in concert and conspiracy, seized the Plaintiffs' personal belongings including a 9mm pistol with two magazines, an apple iphone, Motorola cell phone, cricketphone, and apple i-pad. Everything seized from the Plaintiffs' home was returned to the Plaintiffs when the[y] were released from custody on May 16, 2020 except for the pistol and magazines.” ECF No. 1. Cf. Application for Search Warrant as quoted in ECF No. 17 at 15 (warrant for search & seizure of “All persons present inside the residence, any firearms, specifically a. 9mm pistol and/or .9mm shell casings, or ammunition”).
“While he was in the police cruiser, Defendants . . . repeatedly asked . . . Rick Heller where his step-son was. When . . . Heller tried to tell Defendants . . . that his son has not lived with the Plaintiffs for three years, Defendant Garlick told . . . Heller that ‘If your son is in the house, he is going to get f[---]ing killed'.”). ECF No. 1.
The exact language of the Affidavit provides:
On Friday, May 15, 2020, at 2359 hours Connellsville Police responded to the area of the 400 Blk of S. 9th Str. for a report of shots fired.
On arrival officers were told by residents of the area that they witnessed a person fire approximately eight (8) guns shots at an orange compact car that drove away down Graham Ave. Officers were able to find four (4) .9mm shell casings on the 400 Blk of S. 9th St. Officers then canvased the area for possible victims or suspects but were unable to locate either. Surveillance video from nearby residence showed that an argument between two unknown individuals both believed to be male, happened around 409 S. 9th St. The two can be seen pushing one another and heard yelling obscenities at each other. Video shows an unknown person getting into a vehicle while the other person involved walks into 409 S. 9th St. only to return and fire multiple gunshots at the vehicle. The actor then runs back into 409 S. 9th St. A short time later a person again exits 409 S. 9th St. and picks up shell casings from the sidewalk before going back into the residence.
Officers have the house surrounded and did knock on the door but did not get an answer. Lights are on and a vehicle registered to Rick Heller of 409 S. 9th St. is parked near house. Due to the severity of the offenses and the general safety of the surrounding public, I respectfully request a Night time search warrant for 409 9th St., all persons present, and for a .9mm pistol.ECF No. 17 at 14-15 (emphasis added).
Cf. ECF No. 17 at 8 (stating that Defendants “reviewed various surveillance video in the neighborhood” that night). The video selected for introduction as evidence in support of summary judgment if the Court were to convert the Motion to Dismiss was assertedly obtained from “Plaintiffs' immediate neighbor at the intersection in question, Wendi Forcina.” Id. Defendants' Brief does not indicate that the video was submitted to or reviewed by the Magistrate Judge issuing the emergency search warrant. See ECF No. 17 at 11; id. at 25 (“Thereafter, Patton presented the Affidavit and Application to a neutral magistrate . . . who conducted his own independent review of the documents and determined the information set forth therein did, in fact, establish probable cause ....”). The Brief does indicate that the tin awning of the Forcina residence was pierced by a bullet hole when - as captured on video - shots were fired during a street altercation between two men on foot outside the residence and in the 300-400 blocks of South 9th Street. See also supra n. 5.
Plaintiffs commenced this action on October 30, 2020, with the filing of their Complaint. Plaintiffs' Complaint brings, with some duplication, seven claims, together with a claim for punitive damages. They include: First Amendment freedom of association; Fourth Amendment freedom from unlawful arrest or imprisonment, from unlawful search and seizure of property, and from “reckless investigation”; State law claims for intentional infliction of emotional distress (“IIED”), abuse of process, and false arrest/imprisonment.
Although Plaintiffs sought leave to amend, ECF No. 12, which was granted, no amendment was made prior to the expiration of leave. Defendants' Motion to Dismiss, ECF No. 16, and Brief in Support, ECF No. 17, were filed on January 21, 2021. Defendants' Brief in Support includes as Exhibits: Police Department Incident Report dated May 15, 2015 (Ex. 1); Executed Application for Search Warrant dated May 16, 2020 (Ex. 2); Affidavit of Probable Cause (Ex. 3); and Forcina Residence Surveillance Video (Ex. 4). As Plaintiffs note, no Concise Statement of Material Facts has been submitted. Plaintiffs' Response in Opposition and Defendants' Reply were filed at ECF Nos. 18 and 19, respectively. Accordingly, the issues raised in the Defendants' Motion are ripe for disposition.
III. GENERAL STANDARD OF REVIEW
A. On Motion to Dismiss under Rule 8
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations
omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
B. Consideration of Matters Outside the Complaint
In ruling on a motion to dismiss, the Court may consider “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” together with any document “integral to or explicitly relied upon in [framing] the complaint.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). However, if the Court in its discretion considers other matters outside the pleadings, the motion must be converted to a factual challenge akin to a motion for summary judgment, and the parties provided reasonable opportunity to present all material relevant to a summary judgment motion prior to the Court's adjudication. Fed.R.Civ.P. 12(d). See infra Section IV(A).
The Third Circuit has specified that courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). It has also specified that courts may consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). See also Golden v. Cook, 293 F.Supp.2d 546, 551 (W.D. Pa. 2003) (“[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings ‘in related or underlying cases which have a direct relation to the matters at issue.'”) (citations omitted).
C. Leave to Amend in Action Under § 1983
The United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a District Court is dismissing a claim pursuant to Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte “permit a curative amendment unless such an amendment would be inequitable or futile.” 515 F.3d 224, 245 (3d Cir. 2008). The Court notes that Plaintiffs have specifically requested leave to amend were the Court be inclined to grant any portion of Defendants' Motion. ECF No. 18 at 23.
IV. ANALYSIS
A. Consideration of the Incident Report and Video; Conversion to Summary Judgment
Defendants request that this Court convert their Motion to Dismiss to one for Summary Judgment, consider the Exhibits to their Brief in Support, including the May 15, 2020 Police Incident Report (comprised of multiple putative contemporaneous Officer statements) and the Forcina Video, and in reliance thereon find that the search warrant and the Defendants' related conduct were grounded in probable cause. The Court concurs, as do Plaintiffs, that the Affidavit of Probable Cause and Application for Search Warrant may be properly considered under Defendants' Motion to Dismiss and without conversion to summary judgment, as those documents are integral to the Complaint and undisputed. ECF No. 18 at 5 (“Plaintiffs have no objections to the court's consideration of the Application for Search Warrant or Affidavit of Probable Cause as the Plaintiffs have specifically alleged Defendant Patton lied in these documents and that all of the Defendants knew that he lied.”). The Court deems it inappropriate however, to grant Defendants' request that it short-cut the usual procedural stages in a § 1983 action, including evaluation of probable cause by a jury, in the absence of, e.g., normal summary judgment prerequisites such as the authentication of Defendants' additional proffered evidence to the Court; submission of a Concise Statement of Material Facts; a plenary hearing, oral argument or other proceedings as warranted; and provision of opportunity for response and/or discovery by Plaintiffs. Cf. id. (“Plaintiffs further object to any factual arguments stemming from information taken from these unauthenticated, non-public documents. “). More particularly:
As noted in Section III(B), supra, in considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See e.g., Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014); Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider, as an exception to this general rule, “undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)). And “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Assn, 288 F.3d 548, 560 (3d Cir. 2002).
See also Shelley v. Wilson, 339 Fed.Appx. 136, 137 n. 2 (3d Cir. Aug.3, 2009) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004)) (“In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.”); West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir.2010) (concluding that although a district court may not generally consider matters extraneous to pleadings when ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), it may consider documents integral to or explicitly relied upon in a complaint).
The Court rejects Defendants' assertion that the subject exhibits are a matter of public record or judicial notice. The Court concurs with the holding of its sister court for the Middle District of Pennsylvania that “a police incident investigation report produced by the [Defendant] Police Department, while it may be available to the public, does not fall into any of the categories identified [by the Third Circuit] in Pension” and therefore is not a public record for the purpose of consideration on the Defendants' motion to dismiss. Hadesty v. Rush Twp. Police Dep't, CV 3:14-2319, 2016 WL 1039063, at *4 (M.D. Pa. Mar. 15, 2016).
Defendants' assertion that the decision in Hadesty is somehow in tension with that of the Third Circuit in Shelley v. Wilson is meritless. See Shelley v. Wilson, 339 Fed.Appx. 136, 138 (3d Cir. 2009) (affirming dismissal where the underlying Report and Recommendation concluded “under controlling precedent, assertions omitted from an affidavit of probable cause are omitted with reckless disregard for the truth when such omitted facts are material and it is reasonable that a judge would want to know those facts in making a probable cause determination. . . . [Here, t]he magistrate judge was correct in determining that the omitted facts were immaterial . . . .”). Neither this Circuit decision nor even the underlying Report contain any substantive discussion in tension with Hadesty. Cf. Ribaudo v. Desimone, 3:18-CV-01190, 2019 WL 1906269, at *4-6 (M.D. Pa. Apr. 5, 2019), report and recommendation adopted, 3:18-CV-1190, 2019 WL 1903404 (M.D. Pa. Apr. 29, 2019) (“While some courts have taken judicial notice of police reports and criminal complaints in resolving a motion to dismiss, others have declined to do so.”); id. (citing Rankin v. Majikes, No. 3:CV-14-699, 2014 WL 6893693, at *7 (M.D. Pa. Dec. 5, 2014) (citations omitted); see also Hadesty, supra); Morozin v. Johnson, No. CIV.A. 11-2653, 2011 WL 5837146, at *3 (E.D. Pa. Nov. 18, 2011) (refusing to consider numerous documents, including a police criminal complaint and an affidavit of probable cause).) The Court also finds persuasive the “policy note” in Hadesty that: “allowing police reports or criminal complaints and their contents to fall within the public record exception under Rule 12(b)(6) would likely incentivize improper bolstering by police officers to protect against and prevent litigation. Considering and assigning weight to police reports and corresponding police officer statements at such an early stage in litigation would create an enormous burden for plaintiffs to overcome in order to bring a Fourth Amendment claim. This would create an unlevel playing field and would fly in the face of federal pleading standards. In addition, consideration of these documents as public records would likely require the court to make credibility determinations, which is improper at the motion to dismiss stage.” Id. But cf. Shaffer v. City of Pittsburgh, CIV.A. 14-1674, 2015 WL 4878497, at *5 (W.D. Pa. Aug. 14, 2015), affd, 650 Fed.Appx. 111 (3d Cir. 2016) (concluding that “the Court may take into consideration the police reports and the affidavit of probable cause attached to the motion to dismiss . . . as the authenticity of those documents are undisputed and based on Plaintiff's claims”). The Court notes that the permissibility of consideration in Shaffer appears based on the undisputedly authentic and integral - and not a public records - exception. See supra, noting the Circuit's prior holding in Mayer, 605 F.3d at 230.
In addition, although Defendants emphasize Plaintiffs' failure to contest the authenticity or veracity of the Incident Report (as opposed to the Affidavit of Probable Cause) in their Complaint, said Report was neither a subject of nor necessary to their statement of claims under Rule 8. Cf. ECF No. 17 at 5 n. 1 (“Plaintiffs neither aver in their Complaint that Defendants falsified the attached Police Report, nor do they plead facts which question the authenticity of the Police Report.”). Moreover, to the extent Defendants' pleadings suggest that the police statements presented in the Incident Report may serve to establish the truth of the facts and chronology asserted, Defendants err. To the contrary, it is not beyond dispute that the Incident Report is a truthful description of the basis for probable cause. Thus, to accept it for the truth of the matters asserted therein at this stage would amount to a premature and inappropriate credibility determination. See e.g., Ribaudo v. Desimone, No. 3:18-cv-1190, 2019 WL 1906269, *4 (M.D. Pa. Apr. 5, 2019) (holding that “a court may take notice of such documents only to establish their existence and legal effect, or to determine what statements they contained . . . not for the truth of the matters asserted' ”) (quoting Fine v. ESPN, Inc., 11 F.Supp.3d 209, 223 (N.D.N.Y. 2014)).
A document such as a police incident report is not integral to a Section 1983 claim, such as one for false arrest, simply because its contents are relevant to a plaintiff's allegations; to the contrary, it may become integral where the plaintiff clearly relied upon it in preparing and/or incorporated it into his complaint. See Joyner v. Cty. of Cayuga, 5:20-CV-60 (MAD/TWD), 2020 WL 1904088, at *3 (N.D.N.Y. Apr. 17, 2020) (acknowledging that a minority of courts have considered police records such as incident reports and criminal complaints at the pleading stage, but noting the better majority view that such documents are not “integral” to a false arrest complaint); id. (providing multiple case citations).
Cf. ECF No. 17 (citing to the Incident Reports' police officer statements as “establishing” the facts stated therein); id. at 24 (“[T]he authentic documents establish that Plaintiffs were not arrested but, rather, were taken into police custody, or detained, for questioning ....”).
Id. (noting that it would be particularly improper to consider such documents “for the truth of their factual assertions in connection with a Fed.R.Civ.P. 12(b)(6) motion to dismiss” where the plaintiff is accusing defendant of falsifications).
Finally, the Court concurs with Defendants that the contents of the Forcina video are referenced/alleged in the Complaint, i.e. that the Complaint premises its claims in substantial part on Plaintiffs' assertion that the video does not - as by, e.g., an alleged clear depiction of an agitated “shooter” entering their home for a firearm, firing at a fleeing vehicle, and re-entering their home still armed - support reasonable probable cause for search and seizure of their home, persons and property. The Court emphasizes, however, that its consideration of Defendants' unauthenticated video at this juncture would be a discretionary exception to the general rule and that it does not appear from the Complaint that all of Plaintiffs' claims are entirely dependent on its content, or that the video alone would entirely resolve any question of either misrepresentation in the Affidavit or the existence of probable cause.
Compare, e.g., Santulli v. Moy, 18CV122NGGVMS, 2019 WL 3429081, at *2 (E.D.N.Y. July 30, 2019) (concluding complaint did not incorporate or rely upon content of surveillance video where subject matter was only discussed in “vague terms” and therefore “insufficiently ‘clear, definite and substantial'” to allow the court to rely on that evidence on motion to dismiss); Gersbacher v. City of New York, 134 F.Supp.3d 711, 718 (S.D.N.Y. 2015) (concluding videos would not be considered where they were hyperlinked in a footnote to a report referenced in the complaint but not relied upon).
Heller's parked vehicle.”). Cf. ECF No. 18 at 8 (“Rick Heller's automobile is . . . in fact red.”). Cf. ECF No. 17 at 8 (police statement of notice of shots fired “in the general vicinity of Plaintiffs' residence near a shopping center called “Martin's Plaza”); id. (Plaintiffs reside at 409 S. Ninth Street). Compare Affidavit of Probable Cause (“[A]t 2359 hours Connellsville Police responded to the area of the 400 Blk of S. 9th Str. for a report of shots fired.”). The Court notes, as a matter of public record and as Defendants requested, the mapped locations referenced. It observes that Plaintiffs appear to reside on a short one-way residential section of a main thoroughfare running through Connellsville, and connecting to both Highway 201 in one direction and Highway 119 in the other; their residence is approximately 3 minutes by car and 12 minutes on foot from Martin's Plaza. The Court further observes that Plaintiffs' residence appears to be located on the other side of an empty lot, and that it is the lot itself which adjoins Graham Avenue (“the intersection in question”). Cf. ECF No. 17 at 8 (identifying surveillance video provided by Plaintiffs' “immediate neighbor”). Whether probable cause existed to believe a shooter (rather than, e.g., a target) was in Plaintiffs' residence may be further confused by an apparent tension between Defendants' accounts of the target driving away - following shots fired - in an orange compact car and their attachment of probable cause importance to the subsequent presence of an orange car parked at Plaintiff's residence. ECF No. 17 at 25 (“The color of the car reported by callers at the time of the shooting matched Mr.
The Federal Rules of Civil Procedure provide that, upon the filing of a motion for failure to state a claim upon which relief can be granted, if “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Fed.R.Civ.P. 12(b) (emphasis added). The parties must be given adequate notice that the motion to dismiss will be considered under Rule 56. See Rose v. Bartle, 871 F.2d 331, 342 (3d Cir.1989); see also Fed.R.Civ.P. 12(b) (“[A]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”). Under this provision, if documents outside the pleadings are presented in connection with a 12(b)(6) motion to dismiss, the Court has discretion to “either convert the motion to dismiss into a motion for summary judgment, or to ignore the matters presented outside the pleadings and continue to treat the filing as a motion to dismiss.” Ribaudo v. Desimone, Civil 3:18-CV-01190, 2019 WL 1906269, at *4-6 (M.D. Pa. Apr. 5, 2019), report and recommendation adopted, 2019 WL 1903404 (M.D. Pa. Apr. 29, 2019); Yuratovich v. U.S. Dep't of Justice, No. CV 13-5651 (NLH), 2015 WL 8328328, at *3 (D.N.J. Dec. 8, 2015).
In sum, while Courts have taken varying approaches to the consideration of additional evidence and requests to convert a motion to dismiss to one for summary judgment, they have consistently done so through the holistic lens of the full circumstances of the case. This Court thus concludes it most in the interests of the integrity and efficiency of the action sub judice to decline to initiate appropriate procedural prerequisites to consideration of Defendants' additional evidence (e.g., notice to the parties; opportunities to amend, respond, undertake discovery; authentication; scheduling of oral argument/hearing, etc.) until they may elect to follow the conventional summary judgment procedures set forth in the applicable Rules.
Cf. ECF No. 18 at 10 (“In Torres v. Beverage, Civil Action 16-962, United States District Court, W.D. Pennsylvania, March 21, 2017, the court stated: ‘Defendants submitted a videotape of the subject incident to the Court as an exhibit to their Brief in Support of the Motion to Dismiss .... This videotape presents a version of events that differs significantly from that alleged by Plaintiff in his Complaint. At this stage of the proceedings, the Court cannot consider the video evidence . . . .'”); Adelman v. Jacobs, CV 18-607, 2019 WL 1651612, at *1-3 (W.D. Pa. Apr. 17, 2019) (setting forth its criteria for consideration of Defendant's video exhibit as: “Consistent with the Supreme Court's mandate in Scott v. Harris, 550 U.S. 372 (2007), when reviewing a motion to the dismiss, to the extent that the video is referenced in and relied upon in the complaint and played in open Court as part of oral argument, the Court will view the events shown in the videotape ‘in the light depicted by the videotape. '”) (emphasis added); id. (“Because the videotape in question was referenced in the Plaintiffs' Amended Complaint and presented at oral argument and neither party disputes the authenticity of the video, it may properly be considered by this Court.”); id. (proceeding to evaluate whether a “reasonable juror could conclude” that the video supported plaintiff's assertion) (citing Scott, 550 U.S. at 380); Winston v. Bauer, 1:09-CV-224-SJM, 2010 WL 3811314, at *5 (W.D. Pa. Sept. 21, 2010) (concluding that “because the videotape in question is both referenced in the complaint and integral to certain of Plaintiff's § 1983 claims, they may be considered by this Court.”).
Cf ECF No. 18 at 11 (‘‘Plaintiffs respectfully request that the court refuse to treat convert Defendants' Motion to Dismiss into a motion for summary judgment as Plaintiffs have not been afforded an opportunity to engage in discovery.”). Cf. also Ribaudo, 2019 WL 1906269, at *4-6 (declining to convert case, and noting that defendant “has not framed his arguments as summary judgment arguments”, “the parties have not complied with Local Rule 56.1, and, thus, unless the parties are ordered to do so by the Court, the Court does not benefit from the sharpening of the factual disputes that is envisioned by that rule”, and “conversion is particularly inappropriate in this case because [plaintiff] has not had the opportunity for reasonable discovery”) (citing E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that converting a motion to dismiss into a motion for summary judgment “is not appropriate where the parties have not had an opportunity for reasonable discovery”) and Kurdyla v. Pinkerton Sec., 197 F.R.D. 128, 131 (D.N.J. 2000) (“A court should not convert a motion . . . when little or no discovery has occurred.”)); Palma v. Atl. Cty., 53 F.Supp.2d 743, 752 (D.N.J. 1999) (declining to “consider these exhibits in resolving Defendants' motion to dismiss because the parties have not been notified that the motion will be considered under Rule 56, and the parties have not been afforded a reasonable opportunity to present all pertinent material”); Mozelle v. City of Pleasantville, CIV.A. 12-1700 JEI, 2012 WL 2945721, at *2 (D.N.J. July 2, 2012) (declining “Defendants' invitation to convert this Motion to Dismiss into one for summary judgment” where “there has been little to no discovery”); Johnson v. City of New York, 12 CIV. 4431 KPF, 2013 WL 6171937, at *3-4 (S.D.N.Y. Nov. 25, 2013)(where Defendant moved for judgment on the pleadings having submitted additional materials, including a video allegedly implicating plaintiff in criminal activity, the Court held oral argument, allowed time for plaintiff's consultation with counsel, notified the parties of its intent to convert the motion to one for summary judgment, held a subsequent conference to ascertain if either party required discovery or supplemental briefing, allowed additional submissions, and thence proceeded to ruling).
The Court further observes in response to Defendants' Motion to Dismiss and the parties' filings:
B. Section 1983
Pursuant to 42 U.S.C. § 1983, private citizens are afforded a means to redress violations of federal law committed by state actors. In pertinent part, § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....Id. Section 1983 is not a source of substantive rights, but merely a method for vindicating violations of federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). To establish a Section 1983 claim, a plaintiff must show a deprivation of a “right secured by the Constitution and the laws of the United States ... by a person acting under color of state law.” Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995)). There is no dispute that Defendants were acting under color of state law at all times relevant to this litigation.
C. First Amendment Freedom of Affiliation
Plaintiffs allege, in Count I of their Complaint, violation of their First Amendment “right to be free from retaliation based on familial affiliation”, stating simply that Defendants' unconstitutional actions “were motivated by the Plaintiffs' relationship to their son/step-son/brother” and thus violated this right. On initial review, the Court is inclined to largely concur with Defendants' analysis of this claim. See ECF No. 17 at 17-22. Free association with family members is among the rights protected from retaliation by the First Amendment. Id. But it is unclear on the face of the present pleading whether Plaintiffs have stated a sustainable claim within the scope of protected associational activities and meeting the First Amendment requirements of either (a) interference with their relationship and/or (b) retaliatory motive. Id.; Penberth v. Krajnak, 2009 WL 3236045 (3d Cir. 2009); Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986). As this action will proceed, it is recommended that this claim be allowed to proceed as well. However, in the interest of judicial efficiency, the Court notes several impediments, and that absent amendment consistent with the good faith mandates of Federal Rules of Civil Procedure 8 and 11, and/or supportive evidence, Plaintiffs may be unable to maintain this claim.
Cf. ECF No. 18 at 14 (“[T]he Constitution protects against unjustified government interference with an individual's choice to enter into and maintain certain intimate or private relationships.”) (quoting Bd. Of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987)).
D. Fourth Amendment Freedom from Unlawful Arrest or Imprisonment
Plaintiffs allege, in Count II of their Complaint, simply that Defendants' conduct violated their “Fourth Amendment right to be free from unlawful arrest and unlawful imprisonment.” Plaintiffs clearly intend this Count as a claim for Fourth Amendment violations related to Rick Hellers' putative arrest and Plaintiffs' involuntary transportation and detention.
The Fourth Amendment provides that:
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. CONST. amend. IV.
The Fourth Amendment's prohibition against unreasonable seizures protects individuals from arrest without probable cause. Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995) (citing Papachristou v. City of Jacksonville, 405 U.S. 156, 169 (1972)). “Probable cause exists whenever reasonably trustworthy information or circumstances within a police officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). The law of the state where the arrest occurred controls whether the arrest is valid. Myers, 308 F.3d at 255 (citing Ker v. California, 374 U.S. 23, 37 (1963)). In determining whether probable cause exists to support an arrest, the analysis must be based upon the totality of circumstances including “the objective facts available to the officers at the time of the arrest.” Sharrar v. Felsing, 128 F.3d 810, 818 (3d 9 Cir. 1997) (citing Illinois v. Gates, 462 U.S. 213, 230-31 (1983)). Subjective intentions of police officers are irrelevant to a Fourth Amendment probable cause analysis. Whren v. United States, 517 U.S. 806, 813 (1996). Similarly, to state a claim for false imprisonment, a plaintiff must establish that he was detained, and that the detention was unlawful. James v. City of Wilkes-Barre, 700 F.3d 675, 682-83 (3d Cir. 2012). That is, “where the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Although determinations of probable cause are usually the province of the jury, a district court “may conclude that ‘probable cause did exist as a matter of law if the evidence, viewed in the light most favorably to the [p]laintiff, reasonably would not support a contrary factual finding.'” Smith v. Marasco, 318 F.3d 497, 514 (3d Cir.2003) (internal citation and quotations omitted) (emphasis added); ECF No. 17 at 24.
On the pleadings and evidence appropriately considered at this juncture, and construing all facts in the light most favorable to Plaintiffs, they have stated a claim for arrest/detention without probable cause.
E. Fourth Amendment Unlawful Search and Seizure
Plaintiffs allege, in Count III of their Complaint, that Defendants' “execution of the search warrant and the seizure [and damage] of the Plaintiffs' personal possessions” violated their right to be free from unlawful searches and seizures.
As Defendants observe:
In regard to searches of one's home or possessions, the Fourth Amendment protects against unreasonable searches and seizures and, as such, a warrant supported by probable cause is required to search a home. Willard v. Pennsylvania Soc. for the Prevention of Cruelty to Animals, 525 Fed.Appx. 217, 220 (3d Cir.2013) (citing Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006)). Consequently, the validity of Plaintiffs' claims . . . centers on the issue of whether Hammerle, Garlick, Beucher and Patton had probable cause to conduct the actions in question.ECF No. 17 at 23. In other words, as to both Counts II and III, Defendants move for dismissal on the basis of probable cause.
As Plaintiffs correctly observe:
When a search is executed pursuant to a warrant issued by an independent magistrate, a Plaintiff may raise two types of challenges under §1983 to challenge the probable cause determination of the officer who applied for the warrant.” Kitko v. Young, 2013 U.S. Dist. LEXIS 134459, *23 (W.D. Pa. 2013). The plaintiff may challenge the legal sufficiency of the affidavit of probable cause
presented to the magistrate. See Dintino v. Echols, 243 F.Supp.2d 255, 262-63 (E.D. Pa. 2003); Orsatti v. New Jersey State Police, 71 F.3d 480, 483 (1995). Or, the plaintiff may challenge the veracity of affidavit itself. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). To challenge the validity of a search warrant by asserting that law enforcement agents submitted a false affidavit to the issuing judicial officer, the plaintiff must satisfy the two-part test developed by the Supreme Court in Franks v. Delaware. 438 U.S. 154, 155-56 (1978); see also Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). “The plaintiff must prove, by a preponderance of the evidence, (1) that the affiant knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) that such statements or omissions are material, or necessary, to the finding of probable cause.” Sherwood, 113 F.3d at 399, citing Franks, 438 U.S. at 171-72.ECF No. 18 at 17-18.
The Court notes the Complaint's allegations as to the absence of probable cause, the specifications of the Search Warrant and the items assertedly seized and retained. See generally, ECF No. 18. On the pleadings and evidence appropriately considered at this juncture, and construing all facts in the light most favorable to Plaintiffs, they have stated a claim for unconstitutional search/seizure.
F. Fourth Amendment “Reckless Investigation”
Plaintiffs allege, in Count IV of their Complaint, that “in failing to properly and adequately investigate prior to raiding the Plaintiffs' home and unlawfully incarcerating [or detaining] the Plaintiffs, Defendants acted intentionally or recklessly, in a manner that shocks the conscience [as by, i.e., intentionally “lying on a search warrant”]”; ECF No. 18 at 18 (quoting Briscoe v. Jackson, 2 F.Supp.3d 635, 644 (E.D. Pa. 2014) (quoting Martin v. Anderson, No. 072965, 2008 WL 4761734, at *9 n.8 (E.D. Pa. Oct. 29, 2008)).
Although the Third Circuit Court of Appeals has not recognized a claim for reckless investigation under the Fourteenth Amendment, see Harvard v. Cesnalis, 973 F.3d 190, 207 (3d Cir. 2020), some District Courts have addressed this claim. See Geness v. Cty. of Fayette, No. CV 16-876, 2016 WL 6652758, at *5 (W.D. Pa. Nov. 9, 2016), aff'd sub nom. Geness v. Cox, 902 F.3d 344 (3d Cir. 2018) (referring to “failure to investigate” claims in discussing reckless investigation). See Geness at *5 (“To bring a successful due process claim for failure to investigate, a plaintiff must show that a police officer acted intentionally or recklessly, in a manner that shocks the conscience, in failing to investigate. Failure to investigate is considered in tandem with the strength or weakness of the probable cause evidence.”). See ECF No. 17 at 29 (“To the extent that Plaintiffs at Count IV merely attempt to re-assert the claims already raised by them at Counts II and III, said claims should be dismissed for the reasons stated above. In addition, to the extent that Plaintiffs' Fourth Amendment claim at Count IV is premised upon the contention that [Defendants] undertook a “constitutionally deficient investigation”, the critical issue for the Court's analysis is, again, whether they had probable cause to do so.”).
Here again, on the pleadings and evidence appropriately considered at this juncture, and construing all facts in the light most favorable to Plaintiffs, they have stated a claim
G. State Law Intentional Infliction of Emotional Distress (“IIED”)
Plaintiffs allege, in Count V of their Complaint, and without citation to any law, that Defendants' willful “extreme and outrageous conduct” caused them continuing mental, emotional, and related physical injuries.
In order to establish a claim for IIED under Pennsylvania law, a plaintiff must demonstrate that a defendant's conduct was extreme and outrageous, that it caused the plaintiff severe emotional distress, and that the defendant acted with the intent to cause that distress or with knowledge that such distress was substantially certain to occur. Brown v. Muhlenberg Twp., 269 F.3d 205, 217 (3d Cir. 2001). An IIED claim will only survive where “‘the conduct has been 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.'” Reedy v. Evanson, 615 F.3d 197, 231-32 (3d Cir. 2010) (quoting Field v. Phila. Elec. Co., 565 A.2d 1170, 1184 (Pa. Super. Ct. 1989)). Plaintiff must has suffered “‘some type of resulting physical harm due to the defendant's outrageous conduct, '” which must be supported by competent medical evidence. Reedy, 615 F.3d at 231 (quoting Field, 565 A.2d at 1184).
Given the allegations of falsification by Defendants, Plaintiffs' arrest/protracted detention, and their resultant injuries, Plaintiffs have stated a claim. Compare ECF No. 17 at 32 (“[T]he authentic documentation establishes that the detainment of Plaintiffs by Hammerle, Garlick, Beucher and Patton was uneventful and based upon probable cause. Plaintiffs were not arrested, physically injured, or subjected to excessive force.”). But the Court observes the “extreme and outrageous” conduct required, the types of conduct generally found to give rise to liability for IIED, and that this claim will be subjected to a significantly higher standard in later, e.g., summary judgment, proceedings.
Cf. ECF No. 18 at 22-23 (providing no analogous case law in Plaintiff's Brief in Opposition).
H. State Law Abuse of Process
Plaintiffs allege, in Count VI of their Complaint, and without citation to any law, that “because of Plaintiff's familial affiliations”, Defendants “pursued baseless proceedings . . . against the Plaintiffs without lawful cause and without a legitimate purpose”, which constituted “abuse of process in violation of Pennsylvania law.”
A claim for malicious abuse of civil process can be considered as arising under the umbrella of due process. Bracey v. Huntingdon Cty., Civ. No. 1:14-CV-2271, 2018 WL 4518341, at *6-7 (M.D. Pa. July 17, 2018), report and recommendation adopted sub nom. Bracey v. Park, Civ. No. 1:14-CV-2271, 2018 WL 4507598 (M.D. Pa. Sept. 19, 2018). However, “[t]he gravamen of [a malicious abuse of process claim] is not the wrongful procurement of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to accomplish.” Jenn-Ching Luo v. Owen J. Roberts Sch. Dist., 737 Fed.Appx. 111, 116 (3d Cir. 2018). See also ECF No. 18 at 19 (“Abuse of process is a common law tort recognized in Pennsylvania as ‘the perversion of legal process after it has begun ‘primarily to accomplish a purpose for which it is not designed.' Ciolli v. Iravani, 625 F.Supp.2d 276, 296 (E.D. Pa. 2009)(Davis, J.) (quoting Werner v. Plater-Zyberk, 799 A.2d 776, 785 (Pa. Super. Ct. 2002)). Thus, “[t]o establish a claim for malicious abuse of process, a plaintiff must show (1) the defendant has set legal process in motion for an improper ulterior purpose, and (2) the defendant has committed a willful act in the use of process which perverts the regular conduct of the proceeding to accomplish the improper purpose.” Id. (quoting Dunne v. Twp. of Springfield, Civ. No. 08-5605, 2011 WL 2269963, at *8 (D.N.J. Jan. 31, 2011) (quoting Voytko, 445 F.Supp. at 32), affd, 500 F. App'x. 136 (3d Cir. 2012). See also id. (“[T]here is no cause of action for abuse of process if the claimant, even with bad intentions, merely carries out the process to its authorized conclusion.”) (quoting Cameron v. Graphic Management Assoc., Inc., 817 F.Supp. 19, 21 (E.D. Pa. 1992)); (“In sum, under Pennsylvania law, “[t]he gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it[.]”) (quoting McGee v. Feege, 535 A.2d 1020, 1023, 517 Pa. 247, 253 (Pa. 1987) (quoting Publix Drug Co. v. Breyer Ice Cream Co., 32 A.2d 413, 415, 347 Pa. 346, 349-50 (Pa. 1943))).
See also ECF No. 17 at 33-34:
Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish. The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself such as the surrender of property or the payment of money by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the assurance [sic] of the process itself, which constitutes the tort.Id. (quoting McGee). Illegitimate purposes in considering an abuse of process claim include, for example, extortion, forcing a defendant to surrender a legal right, or blackmail. Mawson v. Pittson Police Dep't, No. 13-1714, 2014 WL 3735133, at *10 (M.D. Pa. July 28, 2014).Finally, just as “the existence of probable cause does not itself negate a claim for abuse of process”, the absence of probable cause does not create one, as this cause of action looks to perversion of the process itself. See supra. Cf ECF No. 18 at 20 (quoting Teeple v. Carabba, Civil Action 07-2976, United States District Court, Eastern District of Pennsylvania, December 22, 2009).
The Court recommends that the abuse of process claim be allowed to proceed; however, in the interest of judicial efficiency the Court notes its impression of significant impediments to this claim as presently stated, and that absent amendment consistent with the good faith mandates of Federal Rules of Civil Procedure 8 and 11, and/or supportive evidence, Plaintiffs may prove unable to maintain under a summary judgment analysis.
I. State Law False Arrest/False Imprisonment
Plaintiffs allege, in Count VII of their Complaint, and without citation to any law, that Defendants falsely arrested and imprisoned the Plaintiffs “with no basis in fact or law to do so in violation of the laws of Pennsylvania.” But see also ECF No. 18 at 20-21 (“The elements of false imprisonment under Pennsylvania law are: (1) the detention of another person and (2) the unlawfulness of such detention.”)(citing Reiber v. Fillipone, Civil Action 15-6192 (E.D. Pa. 2016) (citing Cooper v. Muldoon, No. 05-4780, 2006 WL 1117870, at *3 (E.D. Pa. Apr. 26, 2010)). As Defendants note, “[u]nder Pennsylvania law, the claims of false arrest and false imprisonment are coextensive. See Glass v. City of Phila., 455 F.Supp.2d 302, 365 (E.D. Pa. 2006)(citing Olender v. Tp. of Bensalem, 32 F.Supp.2d 775, 791 (E.D.Pa.1999)); Brockington v. City of Phila., 354 F.Supp.2d 563, 572, n. 10 (E.D. Pa.2005)(internal citation omitted). The standards for the existence of probable cause are the same under Pennsylvania and federal law. See Russoli v. Salisbury Tp., 126 F.Supp.2d 821, 869 (E.D. Pa.2000).” ECF No. 17 at 37.
To the extent Plaintiffs intended a claim under, e.g., 18 Pa.C.S. §§ 2903 (False Imprisonment) or 42 Pa.C.S.A. §8902 (Arrest Without Warrant) these are purely Commonwealth criminal statutes and Pennsylvania's designation of procedural policies, without any implied personal right or private remedy or indication of a legislative intent to create one. A bare criminal statute is generally insufficient to support a private right to bring a civil action. Cf. Matthews v. Wash. Mut. Bank, F.A., Civ. No. 05-100, 2006 U.S. Dist. LEXIS 56738, *8-10 (E.D. Pa. Aug. 14, 2006) (quoting Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Author., 382 F.3d 412, 421 (3d Cir. 2004)).
On the pleadings and evidence appropriately considered at this juncture, and construing all facts in the light most favorable to Plaintiffs, they have stated a claim for false arrest/ false imprisonment.
J. Punitive Damages
Finally, Defendants seek dismissal, and aver that Plaintiffs cannot meet the standard to show entitlement to punitive damages. It is not clear at this juncture that Plaintiffs would not be to punitive damages under any possible factual development of their claims. Because Plaintiffs are not yet clearly precluded from discovering evidence that Defendants' behavior meets the standard required for punitive damages, Defendants' request for dismissal of any punitive damages claim is premature and should be denied.
Defendants do not appear to dispute that they can be held liable for punitive damages in their individual, as opposed to official, capacities. ECF No. 17 at 38 (noting that “punitive damages are not available against municipal-type entities and individuals working in their official capacity for such entities in Section 1983 claims”). Defendants' assertion that they have not been sued in that capacity overreaches a reasonable interpretation of the pleadings. See ECF No. 18 at 21 (“Punitive damages will be awarded in a § 1983 action where “the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.”) (citing Smith v. Wade, 461 U.S. 30, 56 (1983)).
V. CONCLUSION
As more specifically set forth above, the Court concludes that the considerations to full or partial continuation of this action will be more assessable following an appropriate period and scope of discovery. Consequently, it is respectfully recommended that Defendants' Motion to Dismiss, ECF No. 16, and the request to convert it to a motion for summary judgment at this time, be denied.
In accordance with the Federal Magistrate Judge's Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing such objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.