Mintz v. Upper Mount Bethel Twp., CIVIL ACTION NO. 12-6719

• Decision Date: 19 June 2013
• Docket Number: CIVIL ACTION NO. 12-6719
• Parties: STUART MINTZ, et al., Plaintiffs, v. UPPER MOUNT BETHEL TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

STUART MINTZ, et al., Plaintiffs,

v.UPPER MOUNT BETHEL TOWNSHIP, et al., Defendants.

CIVIL ACTION NO. 12-6719

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 19, 2013

MEMORANDUM

STENGEL, J.

Stuart and Paula Mintz (collectively, Plaintiffs) bring this nine-count action against North Bangor Fire Company, Upper Mount Bethel Township, and various individual officials. Plaintiffs seek damages and an injunction stemming from a July 10, 2010, motor vehicle accident in which Mr. Mintz sustained serious injuries. Before me are two motions to partially dismiss the complaint, the first filed by North Bangor Fire Company (Company), Fire Chief Frederick Farleigh, and Fire Company President Christopher Louszko, and the second filed by Upper Mount Bethel Township (Township) and Chairman of the Board of Supervisors Edward Nelson (collectively, Moving Defendants). The remaining defendant, Assistant Fire Chief Zachary Romano, answered. For the following reasons, I will grant the motion in part and deny it in part.

I. BACKGROUND

Plaintiffs set forth the following facts in their complaint, which I accept as true for the purpose of the instant motions. Mr. Mintz was a member of the North Bangor Fire Company in Upper Mount Bethel Township. Compl. ¶ 10. On July 10, 2010, Mr. Mintzreported to the fire hall to perform equipment maintenance. Id. ¶ 20. Mr. Romano, the assistant fire chief, was present and directing the activities of Mr. Mintz and other North Bangor firefighters. Id. ¶ 21. Mr. Romano, who was at the time only twenty years old, was also drinking alcohol. Id. ¶¶ 22, 42. Mr. Romano directed everyone prepare for the Tatamy Fireman's Parade, which involved a parade of fire trucks and a celebration at the Tatamy Fire Hall, some thirteen miles from North Bangor Fire Company. Id. ¶¶ 23, 29-30. Mr. Romano determined which fire trucks were to be taken and who was going to drive them. Id. ¶ 24. Mr. Romano directed Mr. Mintz to travel with him in a tanker truck. Id. ¶ 25.

Mr. Romano stopped to purchase beer on the way to the parade. Id. ¶ 26. Mr. Romano consumed alcohol while driving the tanker truck to and during the parade, and also at the post-parade celebration. Id. ¶¶ 27, 35, 40-41. Following the celebration, Mr. Romano ordered Mr. Mintz and all other North Bangor firefighters present to return to North Bangor Fire Company in their assigned trucks. Id. ¶ 45. Mr. Mintz returned to the tanker truck driven by Mr. Romano. Id. ¶ 46. Mr. Romano lost control of the tanker truck roughly three miles from Tatamy Fire Hall while attempting to navigate a turn. The tanker truck flipped on its side, coming to rest on the shoulder. Id. ¶¶ 48-49. Mr. Mintz suffered serious injuries in the crash. Id. ¶ 51.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than justspeculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "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.' 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "[C]onclusory or 'bare-bones' allegations will no[t] . . . survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

My inquiry at the motion to dismiss stage is two-fold. First, I must separate the factual and legal elements of each claim. I "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler, 578 U.S. at 210-11. And second, I must "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. (quoting Iqbal, 556 U.S. at 679). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

III. DISCUSSION

Plaintiffs allege nine counts: by Plaintiffs, for deprivation of "various Federal Constitutional Rights" pursuant to 42 U.S.C. § 1983,¹ against all defendants (Count I); byPlaintiffs, for deprivation of Fourth and Fourteenth Amendment rights pursuant to § 1983, against all defendants (Count II); by Plaintiffs, for supervisory liability pursuant to § 1983, against all individual defendants (Count III); by Plaintiffs, for municipal liability pursuant to § 1983, against Company and Township (Count IV); by Plaintiffs, for deprivation of rights under Article 1, Section 1 of the Pennsylvania Constitution, against all defendants (Count V); by Plaintiffs, for state-created danger pursuant to § 1983, against all defendants (Count VI); by Mr. Mintz, for state-law negligence, against Mr. Romano (Count VII); by Mr. Mintz, for state-law respondeat superior, against Company and Township (Count VIII); and by Mrs. Mintz, for state-law loss of consortium, against all defendants (Count IX).

Township and Mr. Nelson move to do dismiss all claims against them.² Company, Mr. Farleigh, and Mr. Louszko move to dismiss Mrs. Mintz's § 1983 claim for loss of consortium³ and Counts I, II, and V.

A. Count I

Plaintiffs allege in Count I that "Defendants deprived [Mr. Mintz] of various Federal Constitutional Rights." Compl. ¶ 63. Moving Defendants contend that, by not specifying which constitutional rights Mr. Mintz was allegedly deprived, Plaintiffs effectively present a stand-alone § 1983 claim that must be dismissed. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) ("[Section 1983] does not, by its own terms,create substantive rights."). I do not reach this issue, since Plaintiffs make clear in their response that the "various Federal Constitutional Rights" they refer to are those under the Fourth and Fourteenth Amendments alleged in Counts II-IV and VI. Doc. No. 13-2 at 15. Because Count I is merely duplicative of those counts, it is dismissed with prejudice. Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 626-27 (E.D. Pa. 2010) (dismissing count that was "nothing more than a duplication" of another count).

B. Counts II, III, and IV

As indicated, Plaintiffs assert Fourth and Fourteenth Amendment claims against Mr. Romano directly in Count II;⁴ against Mr. Farleigh, Mr. Louszko, and Mr. Nelson on the basis of supervisory liability in Count III;⁵ and against Company and Township on the basis of municipal liability in Count IV. Because supervisory and municipal liability necessarily depends on the existence of an underlying constitutional violation, Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010); Munoz v. City of Union City, 481 F. App'x 754, 760 (3d Cir. 2012), I first address whether Plaintiffs have plausibly alleged Fourth and Fourteenth Amendment claims against Mr. Romano, the underlying active tortfeasor.⁶

1. Fourth Amendment

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." Moving Defendants contend that Count II must be dismissed because Plaintiffs allege neither an unlawful search nor an unlawful seizure. Plaintiffs counter that they have plausibly alleged an unlawful seizure because "there has clearly been a 'termination of freedom of movement' in this matter." Doc. No. 13-2 at 16 (quoting Brower v. Cnty. of Inyo, 489 U.S. 593, 597 (1989)). "The seizure," Plaintiffs argue, "is the denial of freedom of movement to [Mr. Mintz] via the significant injuries he suffered in the accident." Doc. No. 13-2 at 17. I am not persuaded.

The Fourth Amendment does not reach every injurious consequence of state action. Irick v. City of Philadelphia, CIV.A. 07-0013, 2008 WL 2120171, at *5 (E.D. Pa. May 20, 2008). "For example, if a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure[,]" although there has certainly been injury. Berg v. Cnty. of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000). Rather, a Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." Brower, 489 U.S. at 597. For this reason, "[n]egligent, accidental, or unintentional conduct that has the coincidental effect of producing a seizure will not substantiate" a Fourth Amendment claim. Brice v. City of York, 528 F. Supp. 2d 504, 510 (M.D. Pa. 2007).

Here, there is no allegation—nor would one make any sense—that Mr. Romanointentionally crashed the tanker truck he was driving in an effort to seize his passenger, Mr. Mintz. Plaintiffs effectively concede this point throughout their complaint, e.g., Compl. ¶ 48 ("Assistant Fire Chief Romano negligently, carelessly, and with deliberate indifference to the safety of the plaintiff drove the fire truck . . . .") (emphasis added), and they cannot advance their Fourth Amendment claim by pointing only to Mr. Mintz's injuries. Counts III and IV are therefore dismissed without prejudice as to Moving Defendants insofar as Plaintiffs have failed to plausibly allege the existence of an underlying Fourth Amendment violation by Mr. Romano.

2. Fourteenth Amendment

The Due Process Clause of the Fourteenth Amendment provides in relevant part that "[n]o state shall . . . deprive any person of life, liberty, property, without due process of law . . . ." This provision has long been held "to 'guarante[e] more than fair process' and to cover a substantive sphere as well." Cnty. of Sacramento v. Lewis, 523 U.S. 833,...