Zavec v. Collins
| Decision Date | 27 July 2017 |
| Docket Number | NO. 3:16-cv-00347,3:16-cv-00347 |
| Parties | DAWN ZAVEC, et al. Plaintiffs, v. ROBERT COLLINS, BRIAN GIST, and CITY OF WILKES-BARRE, Defendants. |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE CAPUTO)
Presently before me is a partial motion to dismiss (Doc. 23) Plaintiffs Dawn Zavec, individually, o/b/o M.Z., a minor, and as administrator of the estate of Joseph Zavec's Second Amended Complaint (Doc. 22) filed by Defendants Robert Collins ("Officer Collins"), Brian Gist ("Officer Gist"), and City of Wilkes-Barre (collectively "Defendants").
For the reasons that follow, Defendants' partial motion to dismiss the Second Amended Complaint will be granted in part and denied in part.
The pertinent facts, as set forth in Plaintiffs' Second Amended Complaint (Doc. 22), are as follows:
On November 10, 2014, at approximately 9:30 p.m., Wilkes-Barre Police Officers Robert Collins and Gist encountered Plaintiffs Dawn Zavec ("Mrs. Zavec"), Joseph Zavec ("Mr. Zavec"),1 and their daughter, M.Z., at their home on Weston Lane in the City of Wilkes-Barre while responding to a parking complaint involving Mr. Zavec and a neighbor. Doc. 22, at ¶ 11.
Officers Collins and Gist approached the Zavecs' door and spoke to them about the parking issue. Id. at ¶¶ 13, 14, 16, 17. The Officers became aware of both Mr. and Mrs.Zavec's disabilities during the encounter. Id. at ¶¶ 15, 18, 19, 20, 24-28. Mrs. Zavec was injecting medicine into her stomach within plain view of Officer Collins as he spoke to Mr. Zavec at the front door of the home. Id. at ¶ 14. A disposal container for Mrs. Zavec's needles and injection equipment was located in plain view as well. Id. at ¶ 15. Further, Mrs. Zavec explained to the Officers that she was holding an ice pack on her stomach because she had just given herself an injection of multiple sclerosis medication. Id. at ¶¶ 18-20. Mr. Zavec's speech disability, a pronounced stutter, was also apparent. Id. at ¶¶ 13, 14, 24-28.
While speaking to Mr. Zavec about his neighbor's parking complaint, Officers Collins and Gist began inspecting Mr. Zavec's vehicle and informed him that his window tint and tires were illegal. Id. at ¶ 21. Mr. Zavec, who was a licensed vehicle safety inspector in Pennsylvania, told the Officers that, in his opinion, the tints and tires were legal. Id. at ¶ 23.
At some point during the conversation, Officer Collins began mocking Mr. Zavec's speech impediment. Id. at ¶ 24-25. At that time, Mr. Zavec was inside his home and was conversing with the Officers, who were on the sidewalk in front of the home, through the front screen door. Id. at ¶ 26. Mrs. Zavec, who was inside the home seated on the couch, witnessed Officer Collins mocking Mr. Zavec's speech. Id. at ¶ 27.
Officer Gist then joined Officer Collins in mocking Mr. Zavec, and began to video and audiotape Mr. Zavec with a cell phone. Id. at ¶ 29. Officer Gist angled his cell phone in such a way as to film the conversations and activities which were occurring inside the Zavec home, including conversations Mr. and Mrs. Zavec were conducting privately with each other. Id. at ¶¶ 29, 31, 33, 34.
According to Plaintiffs, Officer Gist did not have a warrant to record the inside of the Zavecs' home and the conversations therein. Id. at ¶ 32. Moreover, Plaintiffs allege that they did not consent to any such recording. Id. at ¶ 35, 39, 55. Plaintiffs further contend that there was no reason for the Officers to continue interacting with them because the parking dispute had already been resolved. Id. at ¶ 41.
Mr. Zavec eventually ceased talking to the Officers. While still inside the home, he began speaking to Mrs. Zavec, at one point telling her "he [Officer Collins] just did it again,"which was apparently a reference to Officer Collins continuing to mock Mr. Zavec's speech. Id. at ¶ 34. Shortly thereafter, Mrs. Zavec came out of the home and onto the front porch and asked Officers Collins and Gist to Id. at ¶ 40.
Mr. Zavec remained inside the home and observed the interaction between Mrs. Zavec and the Officers through the screen door. Id. at ¶ 46. Officer Collins then asked Mrs. Zavec if she thought Mr. Zavec was being "unruly" and whether she heard Mr. Zavec tell the Officers to "go fuck themselves." Id. at ¶ 47, 49. Mr. Zavec confirmed that he had, indeed, said that. Id. at ¶ 50. Mr. Zavec further expressed anger that Officer Gist was recording the incident on his cell phone. Id. at ¶ 51. During the entire encounter, Officer Collins continued to mock and ridicule Mr. Zavec's speech impediment. Id. at ¶ 53.
Mrs. Zavec remained on the porch near the screen door and Mr. Zavec was now standing just outside the door next to Mrs. Zavec. Id. at ¶ 54. Frustrated and embarrassed by Officer Collins' mockery, Mr. Zavec threatened Officer Collins that, if the Officer continued to mock him, Mr. Zavec would "knock [his] black fucking head off." Id. at ¶ 56, 58.
After Mr. Zavec levied the threat, Officer Collins began screaming, and immediately charged at Mrs. Zavec, tackling her onto the living room floor. Id. at ¶ 59-60.
Officer Gist stopped recording the incident with his cell phone and entered Plaintiffs' home to join Officer Collins in his attack on Mrs. Zavec. Id. at ¶ 61, 63. One of the Officers pinned Mrs. Zavec to the ground and "trampled" on top of her while she cried that they were hurting her, screamed for help, and begged them to stop. Id. at ¶ 62, 64. One of the Officers also stepped on Mrs. Zavec's stomach, which is where she had earlier given herself an injection, and Officer Collins put his knees in Mrs. Zavec's eyes. Id. at ¶ 65-66. While Officers Collins and Gist were "trampling" on Mrs. Zavec, Mr. Zavec was telling the Officers that Mrs. Zavec had multiple sclerosis and that they were going to "kill" her. Id. at ¶ 67. Mrs.Zavec was able to get up off the ground, but her left leg was completely numb from the Officers' assault and, at some point, she lost control of her bladder. Id. at ¶ 68, 71- 72.
It was at this point that Officers Collins and Gist turned their attention to Mr. Zavec and pinned him to the floor as well. Id. at ¶ 68, 73. Mrs. Zavec yelled at the Officers to get Mr. Zavec off his stomach because he also has medical conditions when, suddenly, Officer Collins removed his Taser from its holster and pointed it at Mrs. Zavec' s face with his finger on the trigger, saying "I'm not telling you again," as he pulled her head back by her hair. Id. at ¶ 74, 76. M.Z., the Zavecs' daughter, attempted to assist Mrs. Zavec, but Officer Gist grabbed M.Z. by her shirt and threw her against a wall, breaking a hot wax warmer which dripped hot was on M.Z.'s back. Id. at ¶ 77. In the midst of all the commotion, the Zavecs' puppy broke free from its crate which led Officer Collins to draw his firearm and threaten to shoot the puppy. Id. at ¶ 78-79. As a result of the Officers' actions, Plaintiffs' personal property was damaged. Id. at ¶ 80.
Eventually, a neighbor called an ambulance for Mrs. Zavec. Id. at ¶ 71-72, 84-85. Before it arrived, Officers Collins and Gist left with Mr. Zavec in custody. Id. at ¶ 87. Following the incident, neither Mrs. Zavec nor M.Z. were charged with any crimes relating to this incident. Id. at ¶ 89. Mr. Zavec, on the other hand, was charged with misdemeanor terroristic threats, misdemeanor resisting arrest, summary disorderly conduct, and summary defiant trespass. Id. at ¶ 90. Mr. Zavec subsequently pled guilty to one count of summary disorderly conduct. Id. at ¶ 58, 92. The remaining charges were dismissed. Id. at ¶ 92.
In light of the above, Plaintiffs instituted the instant lawsuit (Docs. 1, 15, 22), asserting the following causes of action: (1) unreasonable search in violation of 42 U.S.C. § 1983, stemming from Officer Gist's video and audio recording of the encounter, Doc. 22, ¶¶ 96-99; (2) unreasonable entry into Plaintiffs' home in violation of 42 U.S.C. § 1983, id. at ¶¶ 100-103; (3) unreasonable seizure in violation of 42 U.S.C. § 1983, id. at ¶¶ 104-107; (4) use of excessive force in violation of 42 U.S.C. § 1983, id. at ¶¶ 108-111; (5) deprivation of personal property without due process of law in violation of 42 U.S.C. § 1983, id. at ¶¶ 112-115; (6) First Amendment retaliation against Mr. Zavec in violation of 42 U.S.C. § 1983,id. at ¶¶ 116-119; (7) failure to accommodate in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Rehabilitation Act § 504, 29 U.S.C. § 794, id. at ¶¶ 120-144; (8) assault, id. at ¶¶ 145-148; (9) battery, id. at ¶¶ 149-152; and (10) trespass, id. at ¶¶ 153-155.
Defendants have filed a partial motion to dismiss Plaintiffs' Second Amended Complaint. See Doc. 23. The motion has been fully briefed and is now ripe for disposition.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of their claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail. Id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
"A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The statement required by Rule 8(a)(2) must give...
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