Kelley v. O'Malley, 2:17-cv-01599-NBF

• Decision Date: 13 September 2018
• Docket Number: 2:17-cv-01599-NBF
• Citation: 328 F.Supp.3d 447
• Parties: Calisia KELLEY and Johnnie Mae Kelley, Co-Administrators of the Estate of Bruce Kelley Jr., Deceased, Plaintiffs, v. Brian O'MALLEY, both in his Official and Individual Capacities as Sergeant for the Allegheny County Port Authority; Dominic Rivotti, in both his Official and Individual Capacities as Officer for the Allegheny County Port Authority, John Doe # 1 Police Officer, in his Official and Individual Capacities; John Doe # 2 Police Officer, in both his Official and Individual Capacities; John Doe # 3, Supervisor of O'Malley Rivotti and John Doe Police Officers, in his/her Official and Individual Capacities; Allegheny County Port Authority ; Matthew Porter, in his Official and Individual Capacities as Chief of the Allegheny County Port Authority Police; the County of Allegheny; and the Allegheny County Port Authority Police Department, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

328 F.Supp.3d 447

Calisia KELLEY and Johnnie Mae Kelley, Co-Administrators of the Estate of Bruce Kelley Jr., Deceased, Plaintiffs,

v.Brian O'MALLEY, both in his Official and Individual Capacities as Sergeant for the Allegheny County Port Authority; Dominic Rivotti, in both his Official and Individual Capacities as Officer for the Allegheny County Port Authority, John Doe # 1 Police Officer, in his Official and Individual Capacities; John Doe # 2 Police Officer, in both his Official and Individual Capacities; John Doe # 3, Supervisor of O'Malley Rivotti and John Doe Police Officers, in his/her Official and Individual Capacities; Allegheny County Port Authority ; Matthew Porter, in his Official and Individual Capacities as Chief of the Allegheny County Port Authority Police; the County of Allegheny; and the Allegheny County Port Authority Police Department, Defendants.

2:17-cv-01599-NBF

United States District Court, W.D. Pennsylvania.

Signed September 13, 2018

Noah Geary, Washington, PA, for Plaintiffs.

Gregory A. Evashavik, Evashavik, DiLucente & Tetlow, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

Nora Barry Fischer, United States District Judge

I. INTRODUCTION

Presently before the Court are the respective Motions to Dismiss filed by Allegheny County Port Authority, Allegheny County Port Authority Police Department, Brian O'Malley, Matthew Porter, and Dominic Rivotti, (Docket No. 10 (hereinafter "Port Authority Motion") ), and County of Allegheny, (Docket No. 13 (hereinafter "Allegheny County Motion") ) (collectively , "Defendants"), pursuant to Federal Rules of Civil Procedure 12(b)(1), (5), and (6). Plaintiffs Calisia Kelley and Johnnie Mae Kelley ("Plaintiffs") have asserted claims against Defendants for excessive force in violation of the Fourth Amendment to the United States Constitution, a civil rights violation under the Civil Rights Act of 1964, 42 U.S.C. § 1983, and a Monell claim. Having considered Plaintiffs' Complaint, (Docket No. 1), the Port Authority Motion and the brief in support of same, (Docket No. 12 (hereinafter "Port Authority Brief"), the Allegheny County Motion and the brief in support of same, (Docket No. 14 (hereinafter "Allegheny County Brief"), Plaintiffs' responses in opposition, (Docket Nos. 15-17, 20), and Defendants' replies to Plaintiffs' responses, (Docket No. 22 (hereinafter "Port Authority Reply"), 23 (hereinafter "Allegheny County Reply") ), the Port Authority Motion and the Allegheny County Motion are GRANTED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Johnnie Mae Kelley and Calisia Kelley, are the co-administrators of the Estate of Bruce Kelley, Jr. (Docket No. 1, at ¶ 1). Their claims arise from an incident between the deceased, Bruce Kelley, Jr., and certain Allegheny County Port Authority Police Officers. The following is a recitation of the facts as alleged in the Complaint, which the Court will accept as true for the sole purpose of deciding the pending motions.¹

On Sunday, January 31, 2016 in the afternoon, Bruce Kelley, Jr. was spending time with his father in a gazebo in Linear Park in the Borough of Wilkinsburg. (Id. at ¶¶ 23-24). Two Port Authority police officers approached and accused

Kelley, Jr. and his father, Kelley, Sr., of open container violations. (Id. at ¶ 25). While Kelley, Sr. interacted with the two officers, Kelley, Jr. stood passively hugging the gazebo. (Id. at ¶ 27). During the interaction between the officers and Kelley, Sr., Kelley, Jr. walked away from the officers and the gazebo. (Id. at ¶ 30). Back-up was called and numerous police officers responded. (Id. at ¶ 31). As he was walking away from the officers, Kelley, Jr. pulled out a knife. (Id. at ¶ 32). He carried this knife for his self-protection because he was homeless at the time. (Id. at ¶ 33). Kelley, Jr. walked away from the officers at a slow pace as the officers pursued him. (Id. at ¶ 36).

At some point, the police officers called for the Port Authority K-9 Unit, and approximately fourteen Port Authority Officers cornered Kelley, Jr. in front of a house on Whitney Avenue. (Id. at ¶¶ 37-39). With guns drawn, the officers told Kelley, Jr. to drop the knife. (Id. at ¶ 39). Kelley, Jr. refused to do so. (Id. at ¶ 40). The Port Authority Police K-9 Unit arrived, including Defendants O'Malley and Rivotti and their german shepherd dog. (Id. at ¶ 41). Defendant O'Malley told Kelley, Jr. that he would sic the dog on Kelley, Jr. if he did not drop the knife. (Id. at ¶ 42). In response, Kelley, Jr. replied that he would stab the dog to protect himself. (Id. at ¶ 43). Defendant O'Malley released the dog and it attacked Kelley, Jr., biting Kelley, Jr.'s left arm while Kelley, Jr. held the knife in his right hand. (Id. at ¶¶ 44-45). Kelley, Jr. slashed at the dog to defend himself and the dog was wounded. (Id. at ¶¶ 46-47). Defendants O'Malley and Rivotti then shot Kelley, Jr. seven times, including two shots in the back, killing him. (Id. at ¶ 48). The K-9 dog also died as a result of his injuries, though this was unknown to the officers on the scene at the time of the shooting. (Id. at ¶ 49).

Plaintiffs filed a Complaint in this Court on December 11, 2017 asserting that Defendants O'Malley and Rivotti used unreasonable, excessive, deadly force by shooting Kelley, Jr. in the back repeatedly and killing him. (Id. at ¶ 51). The Port Authority Motion was filed on May 4, 2018 on behalf of Defendants Allegheny County Port Authority, Allegheny County Port Authority Police Department, Brian O'Malley, Matthew Porter, and Dominic Rivotti (collectively, the "Port Authority Defendants"). (Docket No. 10). The Allegheny County Motion followed on May 7, 2018. (Docket No. 13). The Motions are now fully briefed and ripe for disposition. (Docket Nos. 10-11, 13, 14-17, 22-23).

III. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim satisfies the plausibility standard when the facts alleged "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). While the plausibility standard is not "akin to a ‘probability requirement,’ " Twombly , 550 U.S. at 556, 127 S.Ct. 1955, it does require a pleading to show "more than a sheer possibility that a defendant has acted unlawfully," Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "Where a complaint pleads facts that are ‘merely consistent with a defendant's liability,’ it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ " Id. (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). Avoiding dismissal under Rule 12(b)(6) requires a pleading party's complaint to provide "enough factual matter" to allow the case to move beyond the pleading stage of litigation; the pleader must "nudge his or her claims across the line from conceivable to plausible." Phillips , 515 F.3d at 234-35 (quoting Twombly , 550 U.S. at 556, 570, 127 S.Ct. 1955 ) (brackets omitted).

In deciding a 12(b)(6) motion, the Court of Appeals has instructed district courts in the Third Circuit to apply a three-step analysis: (1) "it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’ " (2) "it should identify allegations that, ‘because they are no more than conclusions, are not entitled to the assumption of truth;’ " and, (3) "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Connelly v. Lane Construction Corp. , 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal , 556 U.S. at 675, 679, 129 S.Ct. 1937 ; Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 224 (3d Cir. 2011) ).

In making the third determination in this three-step analysis, the court must be mindful that the matter pleaded need not include "detailed factual allegations," Phillips , 515 F.3d at 231 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ), and, as noted, the court must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc. , 343 F.3d 651, 653 (3d Cir. 2003) ). Moreover, a pleading party need only "put forth allegations that ‘raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].’ " Fowler v. UPMC Shadyside , 578 F.3d 203, 213 (3d Cir. 2009) (quoting Graff v. Subbiah Cardiology Assoc., Ltd. , No. 08-207, 2008 WL 2312671 (W.D. Pa. June 4, 2008) ). A well-pleaded complaint, even when "it strikes a savvy judge that actual proof of [the] facts is improbable," will not be dismissed as long as the pleader demonstrates that his or her claim is plausible. Phillips , 515 F.3d at 234 (quoting Twombly , 550 U.S. at 555-56, 127 S.Ct. 1955 ).

Nevertheless, the facts provided do need to raise the expectation of relief above a purely speculative level, and must include more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Phillips , 515 F.3d at 231 (quoting Twombly , 550 U.S. at 554-56, 127 S.Ct. 1955 ). Rule 8(a)(2) "requires a ‘showing,’ rather than a blanket assertion, of an entitlement to relief." Id. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Fowler , 578 F.3d at 210 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

IV. DISCUSSION

At the outset, the Court agrees that the Port Authority Police Department is improperly named for the reasons set forth in the Port Authority Brief, (Docket No. 11, at 6-7)....