JENNINGS v. BORST

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUSAN JENNINGS, et al., Case No. 5:18-cv-05624-JDW

Plaintiffs,

v.

OFFICER WILLIAM BORST, et al.,

Defendants.

MEMORANDUM

In this civil rights action, Plaintiffs allege that they suffered injuries at the hands of two

police officers that the Borough of Slatington employed. They bring claims against the officers,

their supervisors, and the Borough. Defendants ask the Court to dismiss the entire case for failure

to state a claim. For the reasons that follow, the Court concludes that Plaintiffs have not pled

viable claims against the supervisors or the Borough. The Court also concludes they have not pled

and cannot, as a matter of law, plead claims for violation of the Pennsylvania Constitution.

However, the Court concludes that Plaintiffs have adequately pled their remaining claims.

I. FACTUAL BACKGROUND

A. The Arrests

On January 2, 2017, Donald Jennings, Susan Jennings, and their twin sons Jonathan and

Andrew Jennings were in their family home at 141 Center Street, Slatington, Pennsylvania.

Shortly after 8 p.m., the family heard banging at the front door as someone screamed, “Police!

Police.” (ECF No. ¶¶ 10, 13.) Susan opened the door, Donald and Andrew were just behind her,

and Jonathan was standing in the living room. (Id. ¶ 14.) When Susan asked the purpose of the

officers’ visit, Officer William Borst said something to the effect of, “We’re here for him.” (Id. ¶

15). At that time, the officers had not secured a search warrant for the home or an arrest warrant

for any member of the Jennings family. (Id. ¶ 29.)

Andrew twice asked if the officers had a warrant. In response, Officer Borst entered the

house and pushed Susan against the wall, causing her to fall over. (Id.) Officer Borst grabbed

Andrew by his shirt, pulled him through the vestibule, and told him, “Stand up straight.” (Id. ¶

16.) Andrew explained that he could not stand up because he had stitches on his foot. (Id. ¶ 17.)

Officer Borst dragged Andrew onto the porch, told him that he was under arrest, and threw

him against the wall. (Id. ¶¶ 18-19.) Andrew slumped to the ground, supported by a bent knee

and one foot. (Id.) Officer Borst then threatened to taser Andrew and kicked him, causing him to

fall. (Id. ¶ 20.) While Andrew was on the floor, Officer Borst again kicked him, put his knee on

Andrew’s back, twisted Andrew’s arms behind his back, and placed handcuffs on him. (Id. ¶ 21.)

Officer Borst then pulled Andrew to his feet. (Id.) When Andrew asked what he had done and

suggested Officer Borst did not know which twin he was, Officer Borst replied, “Yeah I know who

you are–you’re the one that likes to hit women.” (Id. ¶ 22.) Andrew indicated that he did not

know what Officer Borst was referencing. (Id.)

Given that Andrew and Jonathan are twins, Officer Borst might have misidentified Andrew

as Jonathan, who was allegedly the subject of a verbal complaint made by his wife. (Id. ¶ 23.)

While Officer Borst was arresting Andrew, Officer (now Sgt.) Deron Dorward entered the

Jennings’ house, searched it, located Jonathan in the living room, and detained him. (Id. ¶ 24.)

Officer Dorward grabbed Jonathan’s right arm and put it in a “chicken wing” behind his back.

(Id.) Officer Dorward then pushed Jonathan forward onto the living room couch face first and

cuffed both of Jonathan’s wrists together. (Id. ¶ 27.) Officers Borst and Dorward then dragged

both Andrew and Jonathan to a patrol car located on an adjacent street. (Id. ¶ 31.)

Susan followed the officers to the door and asked where they were taking her sons. (Id. ¶

32.) One of the officers replied that if Susan did not get back in the house, they were going to

arrest her too. (Id.) Donald walked down the steps and asked, “What are they being charged with

and where are you taking them?” (Id. ¶ 33.) Officer Borst replied, “Lehigh County Prison.” (Id.)

When Donald inquired as to the specific charges, Officer Borst yelled at Donald to get back in the

house and chased Donald up into his home. (Id.)

B. Charges And Incarceration

The officers took Jonathan and Andrew to the Slatington Police Department, where

Jonathan was placed in a cell and Andrew was handcuffed to the bar. (Id. ¶ 34.) Officer Borst

filled out sworn Affidavits of Probable Cause and Criminal Complaints against both. (Id. ¶ 35.)

The Complaint against Jonathan included charges for simple assault/physical, disorderly conduct,

obstructing administration of law, resisting arrest, and harassment/physical contact. (Id. ¶ 36.)

The Complaint against Andrew included charges for obstructing administration of law, resisting

arrest, and disorderly conduct. (Id. ¶ 37, 38.) Plaintiffs allege that Officer Borst’s Affidavits of

Probable Cause were false. (Id.) Andrew and Jonathan were transported to Lehigh County Central

Booking and processing where they were arraigned by video. (Id. ¶ 39.) Based on Officer Borst’s

recommendation, bail was set in the amount of $15,000 for Andrew and $25,000 for Jonathan. (Id.

¶ 39.) On January 4, 2017, Officer Borst also swore out Citations for disorderly conduct against

Donald and Susan Jennings for the events that took place on January 2, 2017. Plaintiffs allege that

those citations were also false. (Id. ¶¶ 43-46.)

A preliminary hearing was scheduled on February 17, 2017. At that time, Officer Borst

agreed to withdraw the charges of obstruction, resisting arrest and simple assault against Andrew

and Jonathan and to dismiss the remaining charges of disorderly conduct and harassment by way

of Accelerated Rehabilitation Disposition (“ARD”). (Id. ¶ 48.) Susan and Donald Jennings, on

the other hand, insisted upon proceeding with their hearing that day. At that point, Officer Borst

threatened to bring additional misdemeanor charges for disorderly conduct if Susan and Donald

Jennings contested their summary citations. (Id. ¶ 49, 50.) After Susan and Jonathan continued

to insist upon proceeding with the hearing, Officer Borst withdrew the criminal charges brought

against them. (Id. ¶ 51, 52.)

C. Procedural History

On December 31, 2018, Plaintiffs filed a Complaint against Officer Borst, Sgt. Dorward,

police Chief David Rachman, the Borough of Slatington (“Borough”), and Slatington Borough

Council. (ECF No. 1.) On March 8, 2019, Defendants filed a motion to dismiss. (ECF No. 6.)

II. LEGAL STANDARD

A district court may dismiss a plaintiff’s complaint for failure to state a claim upon which

relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter to ‘state a claim to

relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged. Id. The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Id. (quoting Twombly, 550 U.S. at 556-57).

In determining whether a Complaint is sufficient, the court must “accept all factual

allegations as true, construe the Complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading, the plaintiff may be entitled to relief.” Fowler

v. UPMC Shadyside, 578 F.3d 203, 210 (2009) (quoting Phillips v. County of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008)). However, the Court must disregard “rote recitals of the elements of a

cause of action, legal conclusions, and mere conclusory statements.” Id. (quoting James v. City of

Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012)); Edinboro Coll. Park Apartments v. Edinboro

Univ. Found., 850 F.3d 567, 572 (3d Cir. 2017).

III. ANALYSIS

A. Federal Rule Of Civil Procedure 8(a)(2)

Defendants move to dismiss the Complaint because it is “overly verbose and redundant”

in violation of Federal Rule of Civil Procedure 8(a)(2). (ECF No. 6 at 4.) In support of their

argument, Defendants emphasize that the Complaint consists of 233 paragraphs, spread over 70

pages. However, the Court does not perceive Plaintiffs’ Complaint as unduly long, especially

given the complexity of the case. Indeed, the case is comprised of fourteen counts and involves

multiple parties. Thus, the Complaint includes a “Pre-Discovery Factual Allegations” section,

which lays out the relevant facts that form a distinct narrative upon which Plaintiffs base their

claims. Additionally, of the 226 paragraphs contained in the Complaint, 140 of them detail the

counts that Plaintiffs bring against Defendants. These paragraphs are not redundant but are

necessary to establish Plaintiffs’ causes of action. Accordingly, the Court declines to dismiss the

case on the basis that its length is unwarranted.

B. Qualified Immunity

In their motion to dismiss, Defendants seek to dismiss Plaintiffs’ Section 1983 claims

against Officer Borst, Sgt. Dorward, and Chief Rachman for unlawful seizure/false arrest (Count

I); false imprisonment and/or detention (Count II); unlawful search (Count V); failure to intervene

(Count VI); and supervisory liability-policy making liability against Chief Rachman (Count IX)

on grounds of qualified immunity. The doctrine of qualified immunity insulates government

officials who are performing discretionary functions from liability for civil damages. See James

v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). To assess whether a government official’s conduct is entitled to qualified

immunity, a court must first determine if, assuming the facts alleged in the Complaint are true,

Defendant’s conduct violated a constitutional or statutory right; and, if so, whether the right at

issue was clearly established when the conduct took place. Saucier v. Katz, 533 U.S. 194, 201

(2001); Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Qualified immunity is an

affirmative defense for which the defendants bear the burden of proof. See Brown v. Cwynar, 484

F. App’x 676, 680 (3d Cir. 2012).

Here, Defendants do not argue that any rights at issue were not clearly established. Instead,

they argue only that the Complaint does not allege a violation of a constitutional or statutory right.

The problem, however, is that Defendants do not provide any analysis to support their argument.

They do not highlight particular claims against them and analyze the pleadings nor do they conduct

any of the other analysis necessary to establish qualified immunity. Instead, they just use the

phrase “qualified immunity” and cross their fingers in the hopes that the Court will dismiss the

claims against them.

“Qualified immunity” is not a talismanic phrase that relieves Defendants of their burden to

show that their actions did not violate Plaintiffs’ clearly established constitutional rights.

Defendants’ motion to dismiss fails to grapple with any of the facts alleged in the Complaint and

thus does little to convince the Court that Defendants have satisfied their burden of establishing

qualified immunity. Moreover, the Court disagrees with Defendants’ characterization of the

Complaint, which contains numerous allegations that, if proven, could amount to violations of

Plaintiffs’ constitutional rights. The Court will therefore deny Defendants’ motion to dismiss

Plaintiffs’ causes of action against the individual Defendants on the basis of qualified immunity.

Of particular note, Defendants point out that Andrew and Jonathan Jennings agreed to ARD

with respect to the charges of disorderly conduct and harassment and argue that ARD does not

constitute a resolution of the matter in Andrew’s and Jonathan’s favor. The Court understands

Defendants to be arguing that, under Heck v. Humphrey, Plaintiffs would be barred from bringing

claims under Section 1983 arising out of those charges. See Heck v. Humphrey, 512 U.S. 477

(1994). More specifically, Heck established that “a § 1983 action that impugns the validity of the

plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on

direct appeal or impaired by collateral proceedings.” Gilles v. Davis, 427 F.3d 197, 211 (3d Cir.

2005). The Third Circuit has held that ARD is not a favorable termination under Heck. See Id.

Therefore, Heck bars parties from invoking Section 1983 to challenge charges that were resolved

through ARD. At this stage, it is not clear to the Court whether Plaintiffs’ false arrest and false

imprisonment claims call into question the criminal ARD disposition. If so, Heck would bar those

claims. However, at this early stage of the litigation, the Court cannot conclude that Heck bars

any claim here.

C. Supervisory Liability Claim

In Count IX of the Complaint, Plaintiffs assert claims of supervisory liability against the

Borough, Borough Council, and Chief Rachman. To state a claim for supervisory liability, a

plaintiff must

(1) identify the specific supervisory practice or procedure that the supervisor

failed to employ, and show that (2) the existing custom and practice without the

identified, absent custom or procedure created an unreasonable risk of the

ultimate injury, (3) the supervisor was aware that this unreasonable risk existed,

(4) the supervisor was indifferent to the risk; and (5) the underling's violation

resulted from the supervisor's failure to employ that supervisory practice or

procedure.

Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d

1099, 1118 (3d Cir. 1989)). Additionally, to establish a claim for supervisory liability,

Fed.R.Civ.P. 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief”

that rises “above the speculative level.” McTernan v. City of York, PA, 564 F.3d 636, 657 (3d Cir.

2009) (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)).

The Complaint does not martial any facts to show that anyone failed to employ a specific

supervisory practice or custom, nor does it provide facts to indicate that anyone was aware of and

indifferent to the risk created by the absence of such a practice or custom. Instead, the Complaint

states only in conclusory terms that the officers’ violations resulted from Chief Rachman’s failure

to employ a specific supervisory practice or custom. Because Plaintiffs do not make out a plausible

claim for supervisory liability pursuant to Fed.R.Civ.P. 8(a)(2), the Court will grant Defendants’

motion and dismiss it.

D. Monell Claim

In Count X, Plaintiffs assert a claim against the Borough for municipal liability. A

municipality can be liable only if an alleged constitutional transgression “implements or executes

a policy, regulation, or decision officially adopted by the governing body or informally adopted

by custom.” McTernan v. City of York, PA, 564 F.3d 636, 657 (3d Cir. 2009) (quoting Beck v. City

of Pittsburgh, 89 F.3d 966, 971 (3d Cir.1996)); Monell v. Dep't of Social Servs. New York City,

436 U.S. 658 (1978). A government policy or custom can be established in two ways: Policy is

made when a decisionmaker, who possesses final authority to establish a municipal policy with

respect to the action, issues an official proclamation, policy, or edict. See McTernan, 564 F.3d at

657 (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Custom, on the

other hand, requires a showing that the practice of state officials in question, though not authorized

by law, is so permanent and well-settled as to virtually constitute law. See Id. Custom requires

proof of knowledge and acquiescence by the decisionmaker. See Watson v. Abington Twp., 478

F.3d 144, 154 (3d Cir.2007); Beck, 89 F.3d at 971.

Plaintiffs allege in their pleadings that the Borough either failed to develop policies or

developed and maintained policies and customs that caused the underlying violations of Plaintiffs’

constitutional rights. More specifically, Plaintiffs insist that the Borough tolerated and ratified,

among other things, the unreasonable use of force by police officers and the improper exercise of

police powers. Additionally, Plaintiffs maintain that the Borough failed to develop policies

regarding, among other things, 1) the monitoring of officers suffering from emotional,

psychological, or drug dependent problems, 2) the sanctioning of officers who were the subject of

prior lawsuits or who violated the Constitutional rights of citizens, and 3) the screening of officers

during the hiring process.

Nevertheless, Plaintiffs offer minimal, if any, factual support that such policies and

customs exist or how those policies or customs, if true, caused their injuries. Moreover, Plaintiffs’

allegations are too broad and do not define a policy or custom that relates directly to the conduct

at issue. These pleading deficiencies are fatal to Plaintiffs’ Monell claim. See McTernan, 564

F.3d at 658 (a claimant “must identify a custom or policy, and specify what exactly that custom or

policy was”). Simply put, the factual allegations contained in the Complaint are insufficient to

raise “a right to relief above the speculative level” under Fed.R.Civ.P. 8(a)(2), Phillips v. Cty. of

Allegheny, 515 F.3d 224, 232 (3d Cir. 2008), or satisfy the “rigorous standards of culpability and

causation” required for municipal liability. McTernan, 564 F.3d at 658 (quoting Bd. of Comm'rs

of Bryan County v. Brown, 520 U.S. 397, 405, (1997)). Accordingly, the Court will grant

Defendants’ motion to dismiss Plaintiffs’ Monell claim, without prejudice, to be repled within

fourteen days if Plaintiffs have sufficient factual support. The Court will also dismiss Plaintiffs’

claims against the police officers, the Borough Council, and each member of the Borough Council

in their official capacity, as they are coextensive with Plaintiffs’ Monell claims against the

Borough. See Cuvo v. De Biasi, 169 F. App'x 688, 693 (3d Cir. 2006) (affirming dismissal of

claims against police officers in official capacity as redundant of surviving claims against

township).

E. State Law Claims

In Counts XI through XIV, Plaintiffs assert state law claims for assault and battery,

trespass, civil conspiracy, and constitutional violations against Officers Borst and Sgt. Dorward.

Defendants contend that all state actions should be dismissed based on governmental immunity.

Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”) provides that political

subdivisions and their employees are immune against civil damage actions, except as provided for

under the PSTCA itself. 42 Pa.C.S.A. §§ 8541 et seq. However, under the PSTCA, an agency

employee is not afforded immunity from suit if his conduct constituted a “crime, actual fraud,

actual malice or willful misconduct.” 42 Pa. C.S.A § 8550. Willful misconduct is “conduct

whereby the actor desired to bring about the result that followed or at least was aware that it was

substantially certain to follow, so that such desire can be implied.” Renk v. City of Pittsburgh, 641

A.2d 289, 293 (1994) (citing Evans v. Philadelphia Transportation Company, 212 A.2d 440

(1965)). In other words, “willful misconduct” requires evidence that defendants “actually knew

that their conduct was illegal.” Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582,

600–01 (3d Cir. 1998). With this framework in mind, the Court considers each of the state law

claims against Officer Borst and Sgt. Dorward.

1. Assault and battery

Under Pennsylvania law, police officers may be liable for assault and battery when their

use of force is unnecessary or excessive. See Bornstad ex rel. Estate of Bornstad v. Honey Brook

Twp., Civ. A. No. 03–3822, 2005 WL 2212359, at *22 (E.D.Pa. Sept. 9, 2005). Therefore, in order

to establish that police officers acted with willful misconduct in the context of an assault and

battery, Plaintiffs must show that the officers intentionally used excessive force. Johnson v. City

of Philadelphia, 105 F. Supp. 3d 474, 482 (E.D. Pa. 2015), aff'd, 837 F.3d 343 (3d Cir. 2016)

(citing Lucas v. City of Philadelphia, No. 1778 C.D. 2011, 2012 WL 8691954 (Pa.Commw.Ct.

June 6, 2012).

The facts alleged in the Complaint state a claim for the intentional use of excessive force.

According to the Complaint, the officers used substantial force against Andrew and Jonathan

Jennings when neither of them was resisting the officers or otherwise posing a threat to the officers.

In addition, Officer Borst pushed Susan Jennings when he entered the house. These facts are

sufficient to permit the claims to move forward, and discovery will reveal whether the Complaint

accurately recites them.

2. Trespass

A claim for trespass under Pennsylvania law requires a showing that “someone

intentionally entered [the] land in the possession of another without a privilege to do so.” Klein v.

Madison, 374 F. Supp. 3d 389, 431 (E.D.Pa. 2019); Kopka v. Bell Tel. Co. of Pa., 91 A.2d 232,

235 (1952) (quoting Restatement of Torts § 163); see also Woodham v. Dubas, 256 F. App'x 571,

576 (3d Cir. 2007) (per curiam) (holding jury's determination that officer entered property with

permission precluded trespass verdict). In order to establish that his entry was privileged and

therefore lawful, a police officer must show that he had a warrant, the owner consented, or there

were exigent circumstances. Klein v. Madison, 374 F. Supp. 3d 389, 432 (E.D.Pa. 2019). Here,

the Complaint alleges that the officers lacked a warrant and did not have permission when they

entered the Jennings’ home. Moreover, nothing in the Complaint suggests the existence of exigent

circumstances. The Complaint therefore states a plausible claim.

3. Civil conspiracy

In Count XIV, Plaintiffs assert a claim for civil conspiracy. In order to state a cause of

action for civil conspiracy under Pennsylvania law, a plaintiff must show “that two or more persons

combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful

means.” Klein v. Madison, 374 F. Supp. 3d 389, 432 (E.D.Pa. 2019) (quoting Thompson Coal Co.

v. Pike Coal Co., 412 A.2d 466, 472 (1979)). “Proof of malice, i.e., an intent to injure, is essential

in proof of a conspiracy.” Id. Moreover, a claim of civil conspiracy “must be based on an existing

independent wrong or tort that would constitute a valid cause of action if committed by one actor.”

Levin v. Upper Makefield Twp., Bucks Cnty., Pa., 90 F. Appx. 653, 667 (3d Cir. 2004). Because

proof of malice is an essential element of a cause of action for civil conspiracy, it too falls under

Section 8550’s exception for willful misconduct. Torres v. Allentown Police Dep't, No. CIV.A.

13-3066, 2014 WL 4081477, at *10 (E.D.Pa. 2014).

Defendants have not challenged the adequacy of the pleading with respect to civil

conspiracy. The Court therefore assumes that Plaintiffs have stated such a claim. Instead,

Defendants argue only that the PTSCA bars the civil conspiracy claims. However, the facts

alleged, including the use of excessive force, trespass, and malicious prosecution, all give rise to

an inference of malice. Therefore, the Court will deny the motion with respect to the civil

conspiracy claim.

4. Claims under the Pennsylvania Constitution

In Count XII, Plaintiffs assert claims arising under the Pennsylvania Constitution. “[N]o

Pennsylvania statute establishes, and no Pennsylvania court has recognized a private cause of

action for damages under the Pennsylvania Constitution.” Pocono Mountain Charter Sch. v.

Pocono Mountain Sch. Dist., 442 F. App'x 681, 687 (3d Cir. 2011) (citing Jones v. City of Phila.,

890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006) (“[N]either Pennsylvania statutory authority nor

appellate case law has authorized the award of money damages for violation of the Pennsylvania

Constitution.”)). Therefore, the Court will dismiss Plaintiffs’ state constitutional law claims.

IV. CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion to dismiss Plaintiffs’

Supervisory Liability, Monell, and state constitutional law claims but denies Defendants’ motion

to dismiss with respect to Plaintiffs’ remaining claims. An appropriate Order follows.

BY THE COURT:

/s/ Joshua D. Wolson

JOSHUA D. WOLSON

Dated: September 16, 2019