McCall v. City of Phila.

• Decision Date: 30 August 2019
• Docket Number: CIVIL ACTION NO. 18-4622
• Citation: McCall v. City of Phila., 396 F.Supp.3d 549 (E.D. Pa. 2019)
• Parties: James Albert MCCALL, III and Yaaseen Nixon, Plaintiffs, v. CITY OF PHILADELPHIA, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

396 F.Supp.3d 549

James Albert MCCALL, III and Yaaseen Nixon, Plaintiffs,

v.CITY OF PHILADELPHIA, et al., Defendants.

CIVIL ACTION NO. 18-4622

United States District Court, E.D. Pennsylvania.

Filed August 30, 2019

Peter C. Bowers, Peter C. Bowers & Assoc., Alexander Ginsburg, Peter Bowers PC, Philadelphia, PA, for Plaintiffs.

Jonathan Cooper, Philadelphia Law Department, Craig A. Sopin, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

Rufe, District Judge.

Plaintiffs James Albert McCall, III and Yaaseen Nixon, by and through counsel, filed suit against the City of Philadelphia ("the City") and Philadelphia Police Department Officers Deayoung Park, Matthew Farley, Bruce Wright and Timothy Dougherty ("Police Officers"), asserting violations of their Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, and numerous state tort laws. Plaintiffs also brought the same state tort law claims against Good Luck Chinese Restaurant, Ling Lin, and Zhou Zhao ("Restaurant Defendants"). Defendants have filed motions to dismiss Plaintiff's Complaint. Upon consideration of the motions and responses thereto, Defendants' motions will be granted in part and denied in part.

I. BACKGROUND¹

Plaintiff McCall entered the Good Luck Chinese Restaurant on the evening of September 3, 2016, and purchased a fruit salad from employee Ling Lin. Later that evening he returned to request a refund or exchange because he believed the fruit was not fresh. A verbal disagreement allegedly ensued between McCall and Lin, during which Lin threw money at McCall, and McCall overturned a trash can inside the store before leaving. As McCall walked home, Lin allegedly threw a glass bottle at him and continued to follow him.

McCall reached the front steps of his home, just as Lin allegedly told him that he was "going to jail." McCall's wife came outside, and Lin allegedly spit in her face. Lin's husband, who appears to be fellow employee Zhou Zhao, also was present and allegedly approached McCall. McCall's step-son, Plaintiff Yaaseen Nixon, came out of the house, saw Zhao approach his step-father, and allegedly pushed Zhao away to prevent any harm. McCall, his wife, and Nixon then entered their home to avoid any further discord. Lin allegedly reported the incident to Police Officer Wright that night, and no charges were pursued based on that complaint.

On October 25, 2016, almost two months later, Lin and Zhao allegedly appeared at the Philadelphia Police Department and were interviewed by Officer Park about the September 3 incident; the Complaint does not allege who initiated the interview. Lin told Park that McCall's wife pointed a shotgun at her during the disagreement and that Nixon punched Zhao, facts which were not mentioned in the initial September 3 complaint. Despite having access to the initial complaint, Officer Park proceeded to draft an affidavit of probable cause, presumably related to the search of Plaintiffs' home, which was approved by the Philadelphia District Attorney's Office that same day.

On October 26, 2016, the City's Police Department, by and through its officers and employees, conducted a search of Plaintiffs' home, which allegedly yielded no evidence of a crime. Approximately two days later, the Defendant Police Officers arrested both McCall and Nixon, and charged them with criminal conspiracy, aggravated assault, possession of an instrument of a crime, terroristic threats, simple assault, and recklessly endangering another person and carrying firearms in public. On July 5, 2017, Plaintiffs appeared in the Philadelphia Common Pleas court, and the criminal charges were withdrawn. Plaintiffs McCall and Nixon allege that they were subjected to excessive force, unlawful arrest and search, and malicious prosecution.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" lacks enough substance to demonstrate that he is entitled to relief.² In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party.³ Courts are not, however, bound to accept as true legal conclusions framed as factual allegations.⁴ Something more than a mere possibility of a claim must be alleged; a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."⁵ The complaint must set forth "direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory."⁶ Deciding a motion to dismiss, courts may consider "only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim."⁷

III. DISCUSSION

A. Federal Claims Pursuant to § 1983

Plaintiffs have brought federal claims under 42 U.S.C. § 1983 against the City and Police Officers based on violations of his Fourth and Fourteenth Amendment rights. Section 1983 is not a source of substantive rights, but a means of vindicating violations of federal constitutional and statutory rights committed by state actors.⁸ To state such a claim, Plaintiffs therefore must allege (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law.⁹

As an initial matter, the City and Police Officers argue that Plaintiffs' reference to the Fourteenth Amendment in their Complaint is an attempt to bring additional substantive due process claims in this case, and therefore is barred by the "more specific provision" rule.¹⁰ The Court construes the reference to the Fourteenth Amendment simply as incorporating Plaintiffs' Fourth Amendment claims of unreasonable use of force, unlawful arrest and search, and malicious prosecution against the City and Police Officers as state actors.¹¹

1. Claims Against Police Officers

Officer Park does not move to dismiss the unlawful arrest and malicious prosecution claims brought against him at this time, as he acknowledges that those claims "are at least conceivably related to Plaintiffs' factual allegations."¹² However, Officer Park does move to dismiss the claims of excessive force and unlawful search against him, and Officers Farley, Wright, and Dougherty move to dismiss all claims against them.¹³ In a rather general manner, Police Officers argue that Plaintiffs did not plead any facts or allege any personal involvement giving rise to those contested claims.¹⁴

A defendant's personal involvement, personal knowledge of, or acquiescence in an alleged wrong is necessary to sustain a § 1983 claim.¹⁵ Liability may not be predicated on the operation of respondeat superior , and such allegations must be made with appropriate particularity.¹⁶ Here, Plaintiffs allege that "Defendant Officers arrested" Plaintiffs and brought various criminal charges against them "[w]ithout cause or justification," which were later withdrawn.¹⁷ Given that the allegations were against all Police Officers, and not just Officer Park, Plaintiffs have properly pled enough factual allegations regarding the personal involvement of Officers Farley, Wright, and Dougherty in the alleged unlawful arrests and malicious prosecutions. Thus, Police Officers' motion to dismiss the unlawful arrest and malicious prosecution claims will be denied.¹⁸

Plaintiffs also have stated sufficient facts regarding Police Officers' personal involvement in the allegedly unlawful search to survive the motion to dismiss. Plaintiffs assert that although Officer Park had access to the initial September 3, 2016 complaint, which made no mention of a weapon being involved in the disagreement, he proceeded to draft an affidavit of probable cause related to Plaintiffs' home on October 25, 2016, which was approved by the Philadelphia District Attorney's Office that same day.¹⁹ Plaintiffs further allege that "[o]n or about October 26, 2016, without cause or justification, the Defendant City of Philadelphia Police Department, by and through its officers and employees, conducted a search of Plaintiffs' home address ... [which] yielded no evidence of a crime."²⁰ Such allegations have placed the Police Officers on notice of the unlawful search claim against them by reference to them as employees of the Philadelphia Police Department, and their motion to dismiss also will be denied on this claim.²¹

The Court does, however, agree with Police Officers that Plaintiffs' excessive force claim lacks any factual specificity or personal involvement. Whether a police officer used excessive force in violation of a citizen's Fourth Amendment rights depends on whether the amount of force used was "objectively reasonable."²² Determining objective reasonableness requires analyzing the "nature and quality of the intrusion on the individual's Fourth Amendment interests," which is balanced "against the countervailing governmental interests at stake."²³ Here, Plaintiffs do not assert any factual allegations as to how, or even if, any of the Police Officers imposed force upon them. Although the Third Circuit has held that the reasonableness of the use of force is normally a jury question, which may be appropriate at the summary judgment stage under some circumstances,²⁴ there must be some force alleged to survive a motion to dismiss. As Plaintiffs solely have alleged that they were subjected to "an unreasonable use of force,"²⁵ and nothing more, Plaintiffs therefore have failed to state a plausible claim for excessive force.

2. Claims Against the City²⁶

The City moves to dismiss the § 1983 claims against it by arguing that Plaintiffs have pled only conclusory allegations regarding the elements of municipal liability.²⁷ The Court agrees.

Section 1983 liability against a municipal entity cannot be based on a theory of respondeat superior or...