DIMITRI v. CITY OF PHILADELPHIA

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

VIRGINIA R. DIMITRI, ET AL., :

: Case No. 19-cv-01329-JMY

Plaintiffs :

:

v. :

:

CITY OF PHILADELPHIA, ET AL., :

:

Defendants :

MEMORANDUM

YOUNGE, J. OCTOBER 15, 2019

Before the Court is Defendants’—City of Philadelphia (“City”) and City of Philadelphia Police

Department (“PPD”) (collectively, “Defendants”)—Motion to Dismiss for Failure to State a Claim

(Dkt. 2). The Court finds this matter appropriate for resolution without oral argument. Fed. R.

Civ. P. 78; L.R. 7.1(f). For the reasons that follow, Defendants’ Motion will be granted.

I. BACKGROUND

A. Facts1

Plaintiff, Virginia R. Dimitri, individually and as Administratrix of the Estate of Daniel J.

Dimitri (hereinafter, “Plaintiffs”), brings this action against Defendants in connection with the

tragic death of her son, Daniel J. Dimitri. Compl. ¶ 1. On January 31, 2017, Daniel J. Dimitri was

crossing the street in Philadelphia when he was struck and killed by a motor vehicle operated by

Adam Soto “who, at that time, was an off-duty police officer.” Id. ¶ 4. It is alleged that at the time

of the accident, Adam Soto was drag-racing at an excessive speed against a fellow off-duty police

officer, Anthony Forest. Id. ¶¶ 5-7, 21. At the time of the accident, both Adam Soto and Anthony

1 Unless otherwise noted, the following facts are taken from Plaintiffs’ Complaint (“Compl.”) (Dkt. 1).

Forest were employed as police officers with the City of Philadelphia Police Department. Id. ¶ 8.

Therefore, Plaintiffs maintain that Defendants were responsible at all times for the monitoring of

Officers Soto and Forest. Id. ¶ 9.

Plaintiffs assert that Defendants knew, or should have known at the time of the accident,

that Officers Soto and Forest both had substance abuse issues, as well as the “propensit[y] to

operate vehicles at excessive speeds and/or drag race[.]” Id. ¶¶ 13-14, 22. Plaintiffs further assert

that Defendants had a documented substance abuse policy, yet failed to implement it against

Officers Soto and Forest, and such failure to follow internal policies was the proximate cause of

Daniel J. Dimitri’s death. Id. ¶¶ 12, 15-16. Plaintiffs also allege that Defendants were aware that

Officers Soto and Forest had both been previously reprimanded for operating their vehicles at

excessive speeds/careless driving, and yet disregarded a documented policy requiring Defendants

to remove the driving privileges of employees with moving violations. Id. ¶¶ 24-26.

Consequently, Plaintiffs allege that “Defendants individually and/or collectively caused the death

of” Daniel J. Dimitri. Id. ¶ 27.

Based on this course of events, Plaintiffs assert six claims for relief:

COUNT 1: 42 U.S.C. § 1983, asserted against Defendant City

COUNT 2: 42 U.S.C. § 1983, asserted against Defendant PPD

COUNT 3: 42 U.S.C. § 8542, asserted against Defendant City

COUNT 4: 42 U.S.C. § 8542, asserted against Defendant PPD

COUNT 5: Wrongful Death, asserted against Defendants City and PPD

COUNT 6: Survival Action, asserted against Defendants City and PPD

See generally id. at 17-21. Plaintiffs request general damages, delay damages, costs of suit, and

such other relief as the Court deems just and equitable. Id.

B. Procedural History

Plaintiffs filed this action in the Court of Common Pleas, Philadelphia County, on January 29,

2019. Notice of Removal (Dkt. 1) at 6. Defendants removed the action to this Court on March

29, 2019, pursuant to 28 U.S.C. § 1441. See id.

On April 5, 2019, Defendants filed their Motion to Dismiss For Failure to State a Claim

(“Motion”) (Dkt. 2). On May 15, 2019, Plaintiffs filed their Response (“Response”) (Dkt. 6) as

well as a Motion to Compel Answers to Interrogatories and Requests for Production of Documents

(“Motion to Compel”) (Dkt. 5). The Court denied Plaintiffs’ Motion to Compel on June 27, 2019

(“Order on Motion to Compel”) (Dkt. 8).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed when a

plaintiff’s allegations fail to set forth a set of facts, which, if true, would entitle the complainant to

relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). When considering a motion to

dismiss, “[w]e accept as true all allegations in the plaintiff’s complaint as well as all reasonable

inferences that can be drawn from them, and we construe them in a light most favorable to the

non-movant.” Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (citing Sheridan

v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). To survive dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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.

Our Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:

(1) “it must tak[e] note of the elements [the] plaintiff must plead to state a claim;” (2) “it should

identify allegations that, ‘because they are no more than conclusions, are not entitled to the

assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly give rise to an entitlement

to relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal,

556 U.S. at 675, 679).

When a motion to dismiss is granted, the court must decide whether to grant leave to

amend. The Third Circuit has a liberal policy favoring amendments and, thus, leave to amend

should be freely granted. See, e.g., Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000); Dole v.

Arco Chemical Co., 921 F.2d 484, 486 (3d Cir. 1990). However, a court need not grant leave to

amend when permitting a plaintiff to amend would be an exercise in futility. City of Cambridge

Retirement System v. Altisource Asset Management Corp., 908 F.3d 872, 879 (3d Cir. 2018)

(“Leave to amend is properly denied if amendment would be futile, i.e., if the proposed complaint

could not ‘withstand a renewed motion to dismiss.’”) (quoting Jablonski v. Pan. Am. World

Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988)); see also In re Burlington Coat Factory Securities

Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (recognizing that denial of leave to amend is not

an abuse of discretion where the pleadings before the court demonstrate that further amendment

would be futile).

III. DISCUSSION

Defendants argue that Plaintiffs’ Complaint, and the claims alleged therein, should be

dismissed with prejudice for several reasons. See generally Motion. First, Defendants argue that

Plaintiffs’ claims against Defendant PPD must be dismissed because Defendant PPD cannot be

sued as a matter of law. Id. at 5. Second, Defendants contend that Plaintiffs’ Monell claim against

Defendant City fails because none of the actions of the off-duty police officers operating their

personal vehicles constitutes “state action.” Id. at 6. Lastly, Defendants maintain that Plaintiffs

have failed to plead sufficient facts for Defendant City to be liable under the Motor Vehicle

Exception of the Tort Claims Act. Id. at 9. In their Response, Plaintiffs only address Defendants’

Monell argument, noting that “[i]n all candor to the Court, Plaintiffs may not make out a claim that

could withstand a future motion to dismiss . . . but Plaintiffs should have the opportunity to engage

in discovery and amend their complaint, if necessary, based on obtaining information in the

exclusive possession of Defendants.” Response at 8-10. The Court will address each of

Defendants’ arguments in turn.

A. Claims Asserted Against Defendant PPD

The ancillary municipal defendant in this action, City of Philadelphia Police Department,

must be dismissed as a matter of law because the police department does not have an independent

corporate existence from the City of Philadelphia. Gremo v. Karlin, 363 F. Supp. 2d 771, 780

(E.D. Pa. 2005) (dismissing with prejudice city police department and detective division as they

were not separate legal entities); see Baldi v. City of Philadelphia, 609 F. Supp. 162, 168 (E.D. Pa.

1985); see also Frazier v. City of Philadelphia, 2006 WL 3000959, at *1 (E.D. Pa. Oct. 18, 2006)

(finding that the Philadelphia sheriff’s office was not a suitable entity, but that the City and its

employees were). Furthermore, suits against the police department must be made in the name of

the City of Philadelphia:

[N]o [department of the City of Philadelphia] shall be taken to have

had, since the passage of the act to which this is a supplement, a

separate corporate existence, and hereafter all suits growing out of

their transactions . . . shall be in the name of the city of Philadelphia.

53 Pa. Stat. Ann. § 16257; see also Baldi, 609 F. Supp. at 168.

B. 42 U.S.C. § 1983 Monell Claim Asserted Against Defendant City

The parties dispute whether Plaintiffs have sufficiently alleged facts in their Complaint

demonstrating that Officers Soto and Forest were acting under color of state law at the time of the

accident and whether the Officers’ actions were the result of Defendant City’s policies, customs,

or practices.

Section 1983 provides a remedy against “any person” who, under color of state law,

deprives another person of rights protected by the Constitution. See 42 U.S.C. § 1983. In Monell

v. Department of Social Services of New York, 436 U.S. 658, 690 (1978), the Supreme Court held

that Congress intended municipalities and other local government entities to be included among

those persons to whom Section 1983 applies. Thus, local governments are considered to be

“persons” subject to liability under Section 1983 when official policy or custom brings about a

constitutional injury. See id. If a constitutional violation is proven to result from a local

government’s official policy, practice, or custom, that government or governmental entity may be

held liable. See Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997) (citing Monell, 436

U.S. at 690). Accordingly, the analysis requires the separation of two issues: “(1) whether

plaintiff’s harm was caused by a constitutional violation, and (2) if so whether the city is

responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992).

In order to establish a claim under Section 1983, Plaintiffs must first demonstrate that a

violation of a right secured by the constitution occurred and that the alleged deprivation was

committed by a person acting under color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137,

1141 (3d Cir. 1995); see also Washington-Pope v. City of Philadelphia, 979 F. Supp. 2d 544, 551

(E.D. Pa. 2013). “[U]nder ‘color’ of law means under ‘pretense’ of law.” Screws v. United States,

325 U.S. 91, 111 (1945). “If an individual is possessed of state authority and purports to act under

that authority, his action is state action.” Griffin v. Maryland, 378 U.S. 130, 135 (1964). Our

Court of Appeals has found that the same rule applies to off-duty police officers such that they

also act under color of state law for purposes of a Section 1983 claim when they purport to exercise

official authority. Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). Officers act

under color of law if they depend upon the “cloak of the state’s authority” as a means to commit

the alleged acts, and if that authority enables the officer to do what he did. Id. at 815-16. Thus, it

follows that a police officer’s “purely private acts which are not furthered by any actual or

purported state authority are not acts under color of state law.” Id. at 817; see also Mark, 51 F.3d

at 1150 (“It is well settled that an otherwise private tort is not committed under color of law simply

because the tortfeasor is an employee of the state.”).

To determine if an officer’s actions constitute “state action,” courts often ask whether the

nature of the actions performed by the officer is consistent with actions taken by a police officer.

See Barna, 42 F.3d at 816. “An off-duty officer’s actions are purely private when he or she

becomes involved in a dispute without any evidence of police actions calculated to preserve the

peace, protect life and property, arrest violators of the law or prevent crime.” Pryer v. City of

Philadelphia, 2004 WL 603377, at *4 (E.D. Pa. Feb. 19, 2004). Moreover, finding that an off-

duty officer acted under color of law generally requires several indicia of official action. See

Barna, 42 F.3d at 817 (courts look for “indicia of police authority”). Such factors often deemed

relevant, but not per se determinative, include: whether the officer was on-duty, whether the

officer’s actions were related to his job as a police officer, whether the officer identified himself

as a police officer, wore a police uniform or plainclothes, flashed a badge, or used a police car or

other police equipment. See, e.g., Barna, 42 F.3d at 816 (whether actions were related to official

police duties); Griffin, 378 U.S. at 135 (whether police officer identified himself as an officer);

Bonenberger v. Plymouth Township, 132 F.3d 20, 24 (3d Cir. 1997) (“[O]ff-duty police officers

who flash a badge or otherwise purport to exercise official authority generally act under color of

law.”); Hunte v. Darby Borough, 897 F. Supp. 839, 841 (E.D. Pa. 1995) (off-duty officer who

allegedly assaulted two individuals did not act under color of law because he was not in uniform,

did not display a police badge, did not identify himself as a police officer and did not attempt

arrest); Pryer, at *15-16 (off-duty officer was not acting under color of state law when the

underlying nature of the incident was personal and the officer was in plainclothes, was driving his

own car, and never gave any indication he was on official business).

Accepting as true all allegations in Plaintiffs’ Complaint, it seems evident to the Court that,

as currently alleged, the underlying nature of the accident was in large part personal. For example,

Plaintiffs merely assert in their Complaint that Daniel J. Dimitri was “killed by a motor vehicle

operated by Adam Soto, who, at that time, was an off-duty police officer,” and that Soto and Forest

where [(sic)] racing their vehicles” . . . [and] “engaging in a ‘drag race’ . . . prior to Soto striking

the decedent.” Compl. ¶¶ 4-7. These facts suggest that the accident as described had nothing to

do with official police business. Plaintiffs do not clearly allege whether the Officers were in

uniform or plainclothes, whether they were operating their personal vehicles or a police vehicle,

whether they were driving at excessive speeds as a matter of police business, and whether at any

time Officers Soto or Forest identified themselves as officers or flashed their badges prior to the

accident. Thus, the Court finds that Plaintiffs have failed to sufficiently allege facts in their

Complaint demonstrating that Officers Soto and Forest were acting under color of state law at the

time of the accident.

As noted above, claims against the City of Philadelphia are analyzed under the standard

for municipal liability set forth in Monell. However, local governments may not be found liable

for the actions of their employees on a garden-variety respondeat superior theory. Bd. of Cnty.

Comm’rs, 520 U.S. at 404. For this reason, Plaintiffs’ Monell claim cannot move forward as

currently pled, as Plaintiffs have failed to state a claim for an underlying constitutional violation

committed by a state actor. See, e.g, Mark, 51 F.3d at 1149-50 (it is irrelevant for purposes of

Section 1983 liability whether the municipality’s policies caused an injury when plaintiff fails to

establish a constitutional injury); Kneipp v. Tedder, 95 F.3d 1199, 1212 n.29 (3d Cir. 1995) (“Of

course, had there not been an underlying constitutional violation in the first instance, plaintiff’s

‘failure to train’ claim against the city would not stand.”); see also Collins, 503 U.S. at 122-23.

In summary, the Court finds that Plaintiffs have failed to plead facts in their Complaint

sufficient to raise state action, and therefore Plaintiffs have failed to plead an underlying

constitutional violation which is required in order to establish municipal liability under Section

1983. See Monell, 436 U.S. at 690.

C. TCA Claim Against Defendant City

Arguing for dismissal of the Political Subdivision Tort Claims Act (“TCA”) state claim,

Defendant City argues that “the motor vehicle exception does not apply because Forest and Soto

were operating their personal cars while off duty and while engaging in an activity not sanctioned

by their employer.” Motion at 10. The Court agrees.

The TCA provides municipalities with general immunity from tort liability, as follows:

Except as otherwise provided in this subchapter, no local agency

shall be liable for any damages on account of any injury to a person

or property caused by an act of the local agency or an employee

thereof or any other person.

42 Pa.C.S.A. § 8541. Importantly, the TCA enumerates eight exceptions to immunity for local

agencies. Plaintiffs claim that Defendant City is liable under the “motor vehicle” exception to the

TCA, which provides:

(a) Liability imposed.—A local agency shall be liable for damages

on account of an injury to a person or property within the limits set

forth in this subchapter if both of the following conditions are

satisfied and the injury occurs as a result of one of the acts set forth

in subsection (b):

(1) The damages would be recoverable under common law or a

statute creating a cause of action if the injury were caused by a

person not having available a defense under section 8541 (relating

to governmental immunity generally) or section 8546 (relating to

defense of official immunity); and

(2) The injury was caused by the negligent acts of the local agency

or an employee thereof acting within the scope of his office or duties

with respect to one of the categories listed in subsection (b). As used

in this paragraph, “negligent acts” shall not include acts or conduct

which constitutes a crime, actual fraud, actual malice or willful

misconduct.

(b) Acts which may impose liability.—The following acts by a local

agency or any of its employees may result in the imposition of

liability on a local agency:

(1) Vehicle liability…

42 Pa.C.S.A. § 8542 (emphasis added).

In this Court’s view, Plaintiffs have failed to allege facts demonstrating that the motor vehicle

exception to the TCA applies. A plain reading of the statute reveals that the motor vehicle

exception to the TCA is triggered solely by the use of a motor vehicle in the exclusive possession

or control of the City of Philadelphia, the exception does not apply to the use of a vehicle by an

off-duty police officer in their personal pursuits. See Lockwood v. City of Pittsburgh, 751 A.2d

1136, 1139 (Pa. 1988) (“Because of the clear intent to insulate government from exposure to tort

liability, the exceptions to immunity are to be strictly construed.”).

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion will be granted. An appropriate order follows.

BY THE COURT:

/s/ Judge John Milton Younge

Judge John Milton Younge