Wright v. Whitehall Twp.

• Decision Date: 12 January 2021
• Docket Number: No. 5:20-cv-02664,5:20-cv-02664
• Parties: YOLANDA WRIGHT, Individually and on behalf of her minor son, MEKHI BURKETT, and ROSE RITA BAILEY, Individually and on behalf of her minor son, JAWUANE JOHNSON, Plaintiffs, v. WHITEHALL TOWNSHIP, MICHAEL MARKS, AARON REED, MICHAEL SLIVKA, KENNETH STEPHENS, TIMOTHY DUGAN, BRIAN CUTH, JEFFREY APGAR, MATTHEW RESZEK, MICHAEL P. HARAKAL, JR., WHITEHALL-COPLAY SCHOOL DISTRICT, LORIE D. HACKETT, and ROBERT HARTMAN, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

YOLANDA WRIGHT, Individually and on behalf of her minor son, MEKHI BURKETT,and ROSE RITA BAILEY, Individually and on behalf of her minor son, JAWUANE JOHNSON, Plaintiffs, v. WHITEHALL TOWNSHIP, MICHAEL MARKS, AARON REED, MICHAEL SLIVKA, KENNETH STEPHENS,TIMOTHY DUGAN, BRIAN CUTH, JEFFREY APGAR, MATTHEW RESZEK,MICHAEL P. HARAKAL, JR., WHITEHALL-COPLAY SCHOOL DISTRICT,LORIE D. HACKETT, and ROBERT HARTMAN, Defendants.

No. 5:20-cv-02664

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

January 12, 2021

OPINION

Motion to Dismiss the Amended Complaint, filed by Whitehall Township, Michael Marks, Aaron Reed, Michael Slivka, Kenneth Stephens, Timothy Dugan, Brian Cuth, Jeffrey Apgar, and Matthew Reszek, ECF No. 10—GRANTED.

Motion to Dismiss the Amended Complaint, filed by Whitehall-Coplay School District, Lorie D. Hackett, and Robert Harman, ECF No. 18—GRANTED.

Motion to Dismiss the Amended Complaint, filed by Michael Harakal, Jr., ECF No. 19—GRANTED.

Joseph F. Leeson, Jr. United States District Judge

I. INTRODUCTION

This is a civil rights action stemming from an altercation between police officers and a group of African American teenagers attending a high school basketball game in Whitehall, Pennsylvania. Plaintiffs' 93-page Amended Complaint asserts myriad federal and state law claims against individual Whitehall Township police officers, as well as the Whitehall-Coplay School District and Whitehall Township. Presently before the Court are three motions in which Defendants seek dismissal of the majority of Plaintiffs' claims. Upon consideration of the allegations in the Amended Complaint, as well as the arguments put forward in Defendants' motions and by Plaintiffs in opposition thereto, for the reasons set forth below the three motions to dismiss are granted with leave to amend, subject to the provisions set forth hereinafter.

II. BACKGROUND

A. Facts Alleged in Plaintiffs' Amended Complaint¹

The incident at the heart of this lawsuit occurred on January 28, 2020. On that date, African American teenagers Mekhi Burkett, then 16 years old, and Jawuane Johnson, then 17 years old, attended a basketball game at Whitehall High School, where they were both students.² Plaintiffs' Amended Complaint ("Am. Compl."), ECF No. 6, ¶¶ 26-27. The two boys were seated in the top row of the bleachers surrounding the basketball court along with several other African American teenagers. Id. ¶ 28.

According to the Amended Complaint, the group of teens was preparing to enjoy the basketball game when they were approached by Whitehall Township Police Officer Kenneth Stephens, who was in attendance as part of his normal duties.³ Am. Compl. ¶ 29. OfficerStephens, who is white, began questioning the group about Nyceire Allen, another African American teen who had joined the group in the bleachers. Id. ¶ 30. What exactly transpired next is less than clear. The Amended Complaint avers in somewhat opaque terms that "[a]ccording to the affidavit of probable cause,⁴ Mr. Allen 'reportedly gave [Robert Hartman, the Whitehall High School Athletic Director] attitude'" before joining the group in the bleachers, which caused Hartman, "a Caucasian male, [to] somehow determine that Mr. Allen's 'attitude' necessitated the intervention of law enforcement to remove him from the premises." Id. ¶¶ 31-32. Plaintiffs allege that Officer Stephens, at the command of Hartman, demanded that Allen "come with him."⁵ Id. ¶ 36.

Whitehall Police Officers Brian Cuth, Aaron Reed, and Timothy Dugan, each of whom is white, then joined Officer Stephens in the bleachers. Am. Compl. ¶ 39. According to the Amended Complaint, Burkett and Johnson asked Officers Stephens, Cuth, Reed, and Dugan the reason for Allen's removal. Id. ¶ 40. Simultaneously, Athletic Director Hartman, who was standing at the base of the bleachers, again insisted that Officer Stephens remove Allen. Id. ¶ 43. Plaintiffs aver that this "necessitated [Officer] Stephens to use physical force toward Mr. Allen and the group, including [ ] Burkett and Johnson." Id. ¶ 44. In particular, Officer "Stephens and/or Cuth and/or Reed and/or Dugan, becoming visibly frustrated [and] . . . grabbed one of theblack teens by the shirt and attempted to drag him out of the crowd." Id. ¶ 45. During this process, Officer "Stephens and/or Cuth and/or Reed and/or Dugan violently came into contact with several other teens, including [ ] Burkett and Johnson, causing [ ] Stephens and/or Cuth and/or Reed and/or Dugan to fall into the crowd." Id. ¶ 46. Around this time, Officer Jeffrey Apgar, who is also white, led a German Shepherd K-9 officer named "Mex" into the group.⁶ Id. ¶¶ 47-48. Plaintiffs state that additionally, "either [Officer] Cuth, Reed, Dugan or Stephens" reached out and shoved Burkett, causing him to fall down several rows of bleachers. Id. ¶ 50. Burkett and Johnson then made their way to the floor of the gym. Id. ¶ 51. During the encounter and following when Burkett and Johnson were on the floor of the gym, no one advised the teens they were under arrest, nor did any officer attempt to restrain them or take them into custody. See id. ¶¶ 52-53.

The Amended Complaint alleges that at some point when Burkett and Johnson were on the gym floor, Officer Apgar lifted "Mex" up off the ground by his harness and began swinging the barking dog around at the teens.⁷ Am. Compl. ¶ 55. Around this time, the police officers began directing adults and children from the gym floor into the hallway.⁸ Id. ¶ 56. However, shortly after the hallways were full of people, the officers attempted to move everyone back into the gym, yelling for people to "clear the hallway" and "get in the gym." Id. ¶ 58.

The Amended Complaint next avers that while all of this was happening, Johnson was caught in a doorway between the gym and hallway, and between officers' conflicting directivesto exit the gym and to return to the gym from the hallway. Am. Compl. ¶ 61. Burkett was holding on to Johnson's backpack and attempting to pull Johnson back into the gym, at which point Officer "Reed and/or [Michael] Slivka and/or Stephens and/or Dugan and/or Cuth and/or Apgar and/or [Matthew] Reszek . . . grabbed [ ] Johnson and drug him several feet out into the hallway." Id. ¶¶ 62-63, 65. According to the Amended Complaint, despite never resisting, Officer "Reed and/or Slivka and/or Stephens and/or Dugan and/or Cuth and/or Apgar and/or Reszek . . . slam[ed] [ ] Johnson's head into a wall with such force that he suffered a concussion," and then "tackled him to the ground where he again hit his head."⁹ Id. ¶ 67.

During the melee, Burkett, who was still holding on to Johnson's backpack, was dragged into the hallway. Am. Compl. ¶ 68. Burkett was then "put in a chokehold by Reed and/or Slivka and/or Stephens and/or Dugan and/or Cuth and/or Apgar and/or Reszek, who also pinned his arm behind his back," causing him to fall to the ground and strike his head. Id. ¶ 69. According to the Amended Complaint, the officers continued to hold Burkett in a "chokehold" despite his stating that he "couldn't breathe" and that the officer was going to "break [his] arm." Id. ¶ 70. The officers then lifted Burkett off of the ground, while one of them continued to hold him in a chokehold, and "slammed" his head into the floor causing him to sustain a concussion.¹⁰ Id. ¶ 73. As a consequence of his restrained posture, Burkett was not, nor was he capable, of resisting arrest. Id. ¶ 71.

Burkett and Johnson were then taken into custody and brought to the Whitehall Township Police Department, along with two other African American students. Am. Compl. ¶ 75. The Amended Complaint avers that "despite there being several non-African Americans" among the group of teens "that the officers referred to as an 'angry mob', only the black teens were arrested and charged with crimes."¹¹ Id. ¶ 76. Burkett and Johnson were held in custody for over an hour before being permitted to speak with their parents, during which time they did not receive any medical care. Id. ¶¶ 77-78. When Burkett's mother, Yolanda Wright, saw her son for the first time, she observed bruises on him, and inquired as to whether he had received any medical treatment. Id. ¶¶ 79-80. The responding police officer stated that Burkett was not injured. Id. ¶ 81.

According to the Amended Complaint, the following day, "Defendant Officers engaged in a scheme, plan and design to assist in covering up their and their fellow Defendant Officers [sic] outrageous conduct by, inter alia, filing false police reports, lying about the incident, and maliciously prosecuting Plaintiffs on false and fabricated charges." Am. Compl. ¶ 82. Plaintiffs claim this is evidenced by the fact that the affidavit of probable cause "fails to mention [ ] Johnson's head being slammed into the wall/locker, [ ] Burkett being suplexed, head first, into the ground by Defendant Officers, or the K-9 being lifted from the ground and swung around."¹² Id. ¶¶ 82-83.¹³

Based upon the above averments, the Amended Complaint purports to assert the following twenty-two causes of action:¹⁴

• Claims One and Ten:¹⁵ Excessive force in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution (Burkett/Johnson v. Reed, Slivka, Stephens, Dugan, Cuth, Apgar, and Reszek)

• Claims Two and Eleven: Retaliation in violation of the First Amendment (Burkett/Johnson v. Reed, Slivka, Stephens, Dugan, Cuth, Apgar, and Reszek)

• Claims Three and Twelve: Deliberately indifferent policies, practices, customs, training, and supervision in violation of the First, Fourth, and Fourteenth Amendments (Burkett/Johnson v. Michael Marks, Michael Harakal, and Whitehall Township)

• Claims Four and Thirteen: State-created danger-substantive due process violation of the Fourteenth Amendment (Burkett/Johnson v. Whitehall-Coplay School District, Hackett, and Hartman)

• Claims Five and Fourteen: Conspiracy to violate civil rights under 42 U.S.C. § 1983 (Burkett/Johnson v. Reed, Slivka, Stephens, Dugan, Cuth,

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