# RUIZ-RIVERA v. CITY AND COUNTY OF LANCASTER

> District Court, E.D. Pennsylvania · September 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10401716

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** September 9, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10401716

## How later opinions describe it (automated extraction)

- holding equal protection claim lacked merit, in part, because plaintiffs “point[ed] to no evidence that [the officers] treated similarly situated individuals differently. They d[id] not even identify other individuals who might be similarly situated” (footnote omitted)

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IVAN RUIZ-RIVERA, :
:
Plaintiff, : CIVIL ACTION NO. 21-2105
:
v. :
:
CITY AND COUNTY OF LANCASTER; :
POLICE OFFICER JACOB BINGHAM :
#316; POLICE OFFICER LAPP (Badge :
Number Unknown); FICTITIOUS :
DESIGNATION – JOHN DOES (#1-25); :
and FICTITIOUS DESIGNATION – ABC :
CORPORATIONS (#1-25), :
:
Defendants. :

MEMORANDUM OPINION
Smith, J. September 9, 2021
The plaintiff has filed this action claiming that city police officers violated his
constitutional rights and committed state-law torts when one officer followed him onto his
property, eventually tased him in the back, and then that officer and other officers tackled the
plaintiff and repeatedly punched him. The defendants, which include the officers involved in the
incident, the city which employed the officers, and the county, have filed the instant motion to
dismiss some of the plaintiff’s claims in the operative complaint. More specifically, they have
requested that the court dismiss the plaintiff’s (1) claims for due process violations, (2) claims for
violations of the Pennsylvania Constitution, (3) claim for an unconstitutional conspiracy under the
Civil Rights Act, (4) state-law tort claims because they are barred by Pennsylvania’s Political
Subdivision Tort Claims Act, (5) references to declaratory or injunctive relief because the plaintiff
lacks standing to seek these forms of relief, and (6) references to the First Amendment, Fifth
Amendment, and equal protection.
As discussed below, the court will grant in part and deny in part the defendants’ motion to
partially dismiss. The court will dismiss the plaintiff’s Fourteenth Amendment due process claim
because his claim is covered more specifically by the Fourth Amendment. The court will also
dismiss the plaintiff’s due process claim (or any other possible claim) under the Pennsylvania

Constitution, to the extent he is seeking money damages, because he may not assert such a cause
of action. As for the plaintiff’s conspiracy claims, he has failed to include sufficient allegations for
the court to reasonably infer that the defendants conspired to violate his constitutional rights, so
the court will also dismiss this claim. Regarding the plaintiff’s state-law tort claims, which include
three intentional torts and a negligent infliction of emotional distress claim, the Political
Subdivision Tort Claims Act bars these claims against the city. And, while this Act would bar the
negligent infliction of emotional distress claim against the individual officers, it does not bar the
intentional tort claims asserted against them.
Concerning the plaintiff’s claims for injunctive and declaratory relief, at this early stage
the court cannot say that the plaintiff lacks standing to seek these forms of relief against the

defendants. Finally, despite issues with the plaintiff’s operative pleading which the court describes
below, he has seemingly pleaded a viable claim under the First Amendment. However, he has
failed to plausibly plead a claim under the Fifth Amendment or the Equal Protection Clause, so
the court must dismiss these claims.
I. ALLEGATIONS AND PROCEDURAL HISTORY
The plaintiff, Ivan Ruiz-Rivera (“Ruiz-Rivera”), commenced this action by filing a
complaint against the defendants, City and County of Lancaster, Police Officer Jacob Bingham,
Police Officer Lapp, and numerous fictitious individual and entity defendants on May 6, 2021. On
May 10, 2021, Ruiz-Rivera filed an amended complaint against the same defendants.
In the amended complaint, Ruiz-Rivera alleges that he is a 50-year-old, male Hispanic-
American, who lives in the city and county of Lancaster, Pennsylvania. Am. Compl. at ¶ 6, Doc.
No. 2. Officers Bingham and Lapp are members of the City of Lancaster Police Department. Id. at
¶¶ 8, 9.

On or about December 6, 2019, at 5:04 a.m., Officer Bingham arrived at 33 Belmont Street
in the City of Lancaster. Id. at ¶ 14. Officer Bingham claimed that he arrived at this location
because he received a dispatch regarding an incident of domestic violence there involving Ruiz-
Rivera.1 Id. at ¶ 12. The domestic assault was allegedly taking place in or near a red SUV. Id. at ¶
14.
Upon Officer Bingham’s arrival at the scene, a red SUV was parked in front of the
residence located at 33 Belmont Street. Id. Officer Bingham exited his police cruiser and
approached the red SUV. Id. at ¶ 15. Ruiz-Rivera apparently noticed Officer Bingham’s police
cruiser and other police vehicles in front of the residence, so he approached Officer Bingham and
instructed him to leave his property. Id. Officer Bingham responded by telling Ruiz-Rivera that he

was on a public street and not on his property. Id. at ¶ 16.
Ruiz-Rivera continued to instruct Officer Bingham to leave his property and then walked
away from him. Id. at ¶ 17. When Ruiz-Rivera began to walk away, Officer Bingham started to
“aggressive[ly] follow” him onto his property, without his permission to do so. Id. As Officer
Bingham followed Ruiz-Rivera, he asked, “Who is here with you?” Id. at ¶ 18. Ruiz-Rivera
responded by stating, “None of your business, leave my house.” Id. Officer Bingham did not leave
and continued to trespass on Ruiz-Rivera’s property and ask him “who is here with you?” Id. at ¶

1 Ruiz-Rivera claims that “[t]he aforementioned call did not come from the residence in question, nor did it come from
anyone who lived within the residence.” Am. Compl. at ¶ 13. He appears to cast doubt as to whether Officer Bingham
received any such dispatch or the contents of the dispatch. See id. at ¶ 12 (indicating that Officer Bingham “alleged”
that he was dispatched to 33 Belmont Street based on report of domestic violence involving Ruiz-Rivera).
19. Ruiz-Rivera continuously asked Officer Bingham to leave the property, but Officer Bingham
did not do so. Id. at ¶ 20.
Apparently, in response to one of Officer Bingham’s questions about who was with Ruiz-
Rivera, Ruiz-Rivera responded by saying, “your mother” and then walked away. Id. at ¶ 21. Officer

Bingham then again “aggressively followed” Ruiz-Rivera until telling him to “stop walking away
. . . you are gonna get tased.” Id. at ¶ 22. After Ruiz-Rivera walked away anyway, Officer Bingham
tased him in the back for several seconds, yelling “get on the ground.”2 Id.
Upon being tased, Ruiz-Rivera was screaming in pain and yelling to “leave me alone.” Id.
at ¶ 23. At this point, Officer Bingham, Officer Lapp, and other officers tackled Ruiz-Rivera and
started to punch him, without provocation. Id. While being struck by the officers, Ruiz-Rivera
asked them why they were hitting him and asked them whether he had hit them. Id. at ¶ 24.
The officers eventually handcuffed Ruiz-Rivera. Id. at ¶ 25. After being handcuffed, Ruiz-
Rivera continuously asked the officers to leave his property and not allow his children to see what
was happening. Id. He also asked if he could turn around on his back, but Officer Bingham said

that he needed to “stay like that.” Id. at ¶ 26.
Because of the conduct of the police officer defendants, Ruiz-Rivera “suffered severe
injuries to his person, which left him bloody, bruised, battered and mentally affected.” Id. at ¶ 28.
He claims he suffered “mental shock, trauma and mental distress.” Id. at ¶ 34.
Ruiz-Rivera claims that the police officers used excessive force and committed battery
against him. Id. at ¶ 29. Based on information he has received, Ruiz-Rivera believes that these
officers “have committed such brutal acts in the past against innocent victims.” Id. at ¶ 30. He also

2 The plaintiff avers that the entire encounter was recorded on Officer Bingham’s body camera. Am. Compl. at ¶ 27.
The plaintiff claims that despite this recording, Officer Bingham falsified the incident report by stating that Ruiz-
Rivera had gotten into a fighting stance, even though he was actually walking away when he was tased in the back.
Id.
believes that other complaints have been made against these officers and Internal Affairs has
investigated the complaints. Id. at ¶ 31.
With regard to the City of Lancaster and the City of Lancaster Police Department, Ruiz-
Rivera alleges that they have a

well-known and documented custom, policy and practice of not taking reasonable
steps to properly train its [sic] police officers to not violate the constitutionally
protected rights of the citizens of the Commonwealth of Pennsylvania. More
particularly the residence [sic] of Lancaster, Pennsylvania. This includes, but is not
limited to, the unlawful tasing of citizens.

Id. at ¶ 35. He claims that “[e]ach year, hundreds of law-abiding citizens are victims of police
brutality by . . . City of Lancaster employees (police officers) that result in their being charged and
prosecuted for crimes they are innocent of.” Id. at ¶ 36. He also avers that
[p]olice brutality is rampant in Lancaster. The City of Lancaster and their police
department has [sic] a Custom [sic] of condoning alleged instances of police
brutality without punishing its [sic] officers. The Defendants has [sic] a history of
exonerating officers for allegedly using excessive force against its [sic] citizens.
Officers within the police department are secure in knowing that a reported incident
will not result in any disciplinary proceeding unless another officer can verify that
the force was excessive. The City of Lancaster has permitted and tolerated the
practice of unjustified and unreasonable uses of excessive force by its officers under
the color of state law.

Id. at ¶ 37.
Based on the aforementioned allegations, Ruiz-Rivera asserts a number of causes of action
in the amended complaint. Those causes of action are:
Count I: “Violation of 42 U.S.C. § 1983 and 1985 [–] Monell Claim While
Acting Under the Color of State Law” against the City of Lancaster

Count II: “Violation of Fourth Amendment Right of United States
Constitution and Article 1 of the Pennsylvania Constitution Due
Process Rights” against all defendants

Count III: “Violation of Civil Rights While Acting Under the Color of Law for
Failure to Interven [sic] Under 42 U.S.C. § 1983” against Officer
Bingham, Officer Lapp, and John Doe Officers 1-25
Count IV: “Conspiracy to Violate Ruiz-Rivera’s Constitutional Civil Rights
and Other Rights in Violation of 42 U.S.C. § 1983” against Officer
Bingham, Officer Lapp, and John Doe Officers 1-25

Count V: “Violation of Fourteenth Amendment Due Process Rights” against
all defendants

Count VI: Assault and Battery against Officer Bingham, Officer Lapp, and
John Doe Officers 1-25

Count VII: Excessive Force against Officer Bingham, Officer Lapp, and John
Doe Officers 1-25

Count VIII: Negligent Infliction of Emotional Distress against all defendants

Count IX: State Law Claims of Assault, Battery, Trespass, and Negligent
Infliction of Emotional Distress against all defendants

Id. at 9–21 (most capitalization and emphasis omitted). For his requests for relief, Ruiz-Rivera
seeks, inter alia, compensatory and punitive damages, attorney’s fees, and costs and expenses.3
Id. at 21–22.
The defendants have responded to the amended complaint by filing a motion to dismiss
parts of the amended complaint on June 21, 2021. Doc. No. 5. The plaintiff filed a brief in
opposition to the motion to partially dismiss on July 5, 2021. Doc. No. 6. The motion to partially
dismiss is ripe for disposition.
II. DISCUSSION
A. Standard of Review – Motions to Dismiss Under Rule 12(b) of the Federal Rules of
Civil Procedure

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a
complaint or a portion of a complaint for failure to state a claim upon which relief can be granted.

3 Ruiz-Rivera also generally references declaratory and injunctive relief in his introductory paragraph, see Am. Compl.
at 2, and mentions that such relief is “authorized by” 28 U.S.C. §§ 2201-2202 and Rule 57 of the Federal Rules of
Civil Procedure. Id. at ¶ 3.
Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests “the sufficiency of the
allegations contained in the complaint.” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)
(citation omitted). As the moving party, “[t]he defendant bears the burden of showing that no claim
has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citation omitted).

In general, a complaint is legally sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “The touchstone of
[this] pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Although Rule 8(a)(2) does “not require heightened fact pleading of specifics,” it does require the
recitation of “enough facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In
other words, “[t]he 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. (quotation omitted).

“In ruling on a 12(b)(6) motion, courts can and should reject legal conclusions, unsupported
conclusions, unwarranted references, unwarranted deductions, footless conclusions of law, and
sweeping legal conclusions in the form of actual allegations.” Bright v. Westmoreland Cnty., 380
F.3d 729, 735 (3d Cir. 2004) (citation and internal quotation marks omitted). The court must
“accept as true all [factual] allegations in the complaint and all reasonable inferences that can be
drawn from them after construing them in the light most favorable to the non-movant.” Jordan v.
Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994) (citations omitted).
B. Analysis
In the motion to dismiss, the defendants assert that the court should dismiss certain portions
of the amended complaint. More specifically, the defendants argue that the court should dismiss
(1) any claims for due process violations, including any purported due process claims under the

Pennsylvania Constitution, in Counts II and V of the amended complaint; (2) the cause of action
for a conspiracy in Count IV of the amended complaint; (3) any state law tort claims for negligent
infliction of emotional distress, trespass, or assault and battery asserted against the defendants in
Counts VI, VIII, and IX of the amended complaint; (4) any claims for declaratory or injunctive
relief; (5) any claims for violations of the First or Fifth Amendments; and (6) any claims for
violations of the Equal Protection Clause. See Defs.’ City of Lancaster, Police Officer Jacob
Bingham and Police Officer Lapp’s Partial Mot. to Dismiss Pl.’s Am. Compl. at 4–5, Doc. No. 5.
The court addresses each argument in turn.
1. Due Process Claims
In Counts II and V of the amended complaint, Ruiz-Rivera appears to assert causes of

action for violations of his due process rights under both the United States and Pennsylvania
Constitutions. See Am. Compl. at 13, 17. The defendants contend that the court should dismiss
any due process claims because excessive force claims such as those Ruiz-Rivera is asserting here,
are analyzed under the reasonableness standard of the Fourth Amendment instead of under a
substantive due process standard under the Fourteenth Amendment. See Defs.’ City of Lancaster,
Police Officer Jacob Bingham and Police Officer Lapp’s Mem. of Law in Supp. of Their Partial
Mot. to Dismiss Pl.’s Am. Compl. (“Defs.’ Br.”) at 9–10, Doc. No. 5 (citing Graham v. Connor,
490 U.S. 386 (1989); Albright v. Oliver, 510 U.S. 266, 273 (1994); Betts v. New Castle Youth Dev.
Ctr., 621 F.3d 249, 260–61 (3d Cir. 2010)). The defendants also argue that to the extent that Ruiz-
Rivera is seeking a private right of recovery under the Pennsylvania Constitution, no such cause
of action exists. See id. (citing Kaucher v. Cnty. of Bucks, No. CIV. A. 03-1212, 2005 WL 283628,
at *11 (E.D. Pa. Feb. 7, 2005)).
Unfortunately, Ruiz-Rivera’s response to the defendants’ arguments here are difficult to

comprehend. Most of the plaintiff’s response consists of him repeating the defendants’ contentions
and referencing the holdings of the cases cited by the defendants. See Pl.’s Resp. to Defs.’ Partial
Mot. to Dismiss Pl.’s Am. Compl. (“Pl.’s Resp.”) at ECF pp. 2–3, Doc. No. 6. It nonetheless
appears that he is opposing the complete dismissal of Counts II and V because he believes he “has
specifically enumerated the specific provision of the Constitution for which he seeks relief from
the defendants.” Id. at 3.
Due to the convoluted nature of Ruiz-Rivera’s response, the court cannot tell whether he
is actually trying to preserve any possible due process claim. Nevertheless, he may not assert such
a claim here because his excessive force claims relating to his arrest arise under the Fourth
Amendment.

In this regard, “if a constitutional claim is covered by a specific constitutional provision,
such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process.” United
States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (citation omitted); Graham v. Connor, 490 U.S.
386, 394 (1989) (“In addressing an excessive force claim brought under § 1983, analysis begins
by identifying the specific constitutional right allegedly infringed by the challenged application of
force. In most instances, that will be either the Fourth Amendment’s prohibition against
unreasonable searches of the person, or the Eighth Amendment’s ban on cruel and unusual
punishments, which are the two primary sources of constitutional protection against physically
abusive governmental conduct. The validity of the claim must then be judged by reference to the
specific constitutional standard which governs that right, rather than to some generalized
‘excessive force’ standard.”). Here, Ruiz-Rivera appears to acknowledge that the specific
constitutional provision applicable to his excessive force claims is the Fourth Amendment. See

Pl.’s Resp. at 2 (“Plaintiff’s claim in Count II states that his constitutionally protected rights under
the Fourth Amendment to the United States Constitution were violated. He is using the correct
vehicle to claim a violation of his rights under the Fourth Amendment.”). As Ruiz-Rivera has made
no argument that he somehow has a valid due process claim or identify the facts in the amended
complaint that would make out such a claim outside the excessive force context, the court will
grant the defendants’ request to strike with prejudice any due process claims from the amended
complaint, including those possibly included in Count II and Count V in their entirety.
With regard to any claim for a due process violation under the Pennsylvania Constitution,
it appears that Ruiz-Rivera indicates that he is not asserting a due process violation but a violation
of Article I, Section 8 of the Pennsylvania Constitution, which provides:

The people shall be secure in their persons, houses, papers and possessions from
unreasonable searches and seizures, and no warrant to search any place or to seize
any person or things shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation subscribed to by the
affiant.

Pa. Const. Art. I, § 8.
Even if Ruiz-Rivera is asserting a claim under this section of the Pennsylvania
Constitution, he has not stated a plausible claim for relief here as there is no private right of action
for damages for violations of the Pennsylvania Constitution. See Moss v. Pennsylvania, 838 F.
App’x 702, 708 (3d Cir. 2020) (“Moreover, to the extent that Moss alleged violations of the
Pennsylvania Constitution, he failed to state a claim, as Pennsylvania does not recognize a private
right of action for damages in a lawsuit alleging a violation of the Pennsylvania Constitution.”
(citing Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Cmwlth. 2006))); Miles v. Zech,
788 F. App’x 164, 167 (3d Cir. 2019) (per curiam) (“To the extent that Miles intended to allege
violations of the Pennsylvania Constitution, he failed to state a claim, as Pennsylvania does not

have a statutory equivalent to § 1983 and does not recognize a private right of action for damages
stemming from alleged violation of the state constitution.” (citing Gary v. Braddock Cemetery,
517 F.3d 195, 207 n.4 (3d Cir. 2008))); Pocono Mountain Charter Sch. v. Pocono Mountain Sch.
Dist., 442 F. App’x 681, 687 (3d Cir. 2011) (“No Pennsylvania statute establishes, and no
Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania
Constitution.”). Ruiz-Rivera has not even attempted to explain how he can assert a claim for
damages under the Pennsylvania Constitution. Accordingly, to the extent that Ruiz-Rivera is
seeking damages for a violation of the Pennsylvania Constitution in Count II of the amended
complaint, the court dismisses this claim with prejudice.
2. Conspiracy

In Count IV of the amended complaint, Ruiz-Rivera purports to assert a cause of action for
a section 1983 conspiracy against Officer Bingham, Officer Lapp, and the John Doe Officers. See
Am. Compl. at 15–17. The defendants argue that the court should dismiss this count because Ruiz-
Rivera has failed to allege the necessary supporting facts to show or support a reasonable inference
that the officer defendants had an unlawful agreement. Defs.’ Br. at 10–11. In response to this
argument, the plaintiff contends that he has properly alleged a section 1983 conspiracy insofar as
he
alleges in his First Amended Civil Action Complaint . . . that Defendant City of
Lancaster and its Police Department has well known and documented customs,
policies, and practices of not reasonably training its police officers in the use of
force, including the use of tasers as is alleged in Plaintiff’s complaint. Plaintiff
further alleges that hundreds of citizens in Lancaster are victims of police brutality
by Defendant City of Lancaster. Plaintiff further alleges that Defendant City of
Lancaster does not discipline its officers involved in excessive force complaints
unless there is the verification of a fellow officer. Plaintiff alleges that Defendant
Bingham falsified his police report to attempt to justify his use of force.

Pl.’s Resp. at ECF pp. 3–4.
Although Ruiz-Rivera has correctly identified certain allegations in the amended
complaint, he does not adequately explain how those allegations show or provide a reasonable
inference of a conspiracy between Officer Bingham, Officer Lapp, and the John Doe Officers. To
plead a plausible section 1983 conspiracy claim, a plaintiff must allege that “two or more
conspirators reach[ed] an agreement to deprive [the plaintiff] of a constitutional right under color
of law.” Berrios v. City of Philadelphia, 96 F. Supp. 3d 523, 534 (E.D. Pa. 2015) (citing Parkway
Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 700 (3d Cir. 1993)). “Such a conspiracy requires
a meeting of the minds.” Id. (citing Startzell v. City of Philadelphia, 533 F.3d 183, 205 (3d Cir.
2008)). Thus, to prevail in a conspiracy claim under section 1983, the plaintiff must allege and
prove:
(1) two or more persons conspire to deprive any person of [constitutional rights];
(2) one or more of the conspirators performs . . . an overt act in furtherance of the
conspiracy; and (3) that overt act injures the plaintiff in his person or property or
deprives the plaintiff of any right or privilege of a citizen of the United States,”
with the added gloss under § 1983 that “the conspirators act ‘under the color of
state law.’”

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 n.15 (3d Cir. 2018) (alterations in original)
(quoting Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 162 (3d Cir. 2001)).
Here, Ruiz-Rivera’s allegations fall short of plausibly alleging an agreement between
Officer Bingham, Officer Lapp, and the John Doe Officers. The court cannot discern how the
custom, practice, or policy of the City of Lancaster or its police department of not properly training
their officers in the use of force, combined with hundreds of other citizens in Lancaster being
victimized by police brutality, the City of Lancaster not disciplining its officers for using excessive
force unless another officer corroborates the excessive force, and Officer Bingham falsifying his
police report shows an agreement between Officer Bingham, Officer Lapp, and the John Doe
officers to violate Ruiz-Rivera’s constitutional rights. Ruiz-Rivera does not even attempt to tie

these averments together to show a plausible allegation of a conspiratorial agreement. No
agreement can be inferred from these allegations, so all the court is left with is bare assertions of
conspiracy. Unfortunately for the plaintiff, “bare assertion[s] of conspiracy will not suffice.”
Twombly, 550 U.S. at 556. Accordingly, the court will grant the part of the motion to dismiss Ruiz-
Rivera’s section 1983 conspiracy claim in Count IV of the amended complaint.
3. State Law Claims for Negligent Infliction of Emotional Distress, Assault, Battery, and
Trespass

Ruiz-Rivera appears to assert a number of state-law claims in the amended complaint. In
Count VI of the amended complaint, Ruiz-Rivera asserts a cause of action for assault and battery
against Officer Bingham, Officer Lapp, and the John Doe Officers. See Am. Compl. at 17–19. In
Count VIII, Ruiz-Rivera asserts a cause of action for negligent infliction of emotional distress. Id.
at 19–20. Then, in Count IX, he asserts “State Law Claims” apparently consisting of the torts of
assault, battery, trespass, and negligent infliction of emotional distress. Id. at 20–21.
The defendants have moved to have the court dismiss all the aforementioned state law
claims. They contend that the court should dismiss the assault and battery causes of action in count
IX because they are duplicative of the causes of action contained in Count VI. Defs.’ Br. at 11.
They also argue that Ruiz-Rivera has failed to recite any facts that would support causes of action
for trespass or negligent infliction of emotional distress. Id. They further assert that Pennsylvania’s
Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541 (“PSTCA”), bars any state-law claims
against the City of Lancaster and against Officer Bingham and Officer Lapp in their official and
individual capacities. Id. at 11–12.
With regard to the defendants’ claim regarding the duplicative nature of Ruiz-Rivera’s
state-law assault and battery claims, it does not appear that he responds to this in his opposition

brief. See generally Pl.’s Resp. at ECF pp. 5–13. Overall, and as discussed later in this opinion,
there is an issue with how Ruiz-Rivera has organized his claims, as he devotes Count VI to a claim
for assault and battery, but then repeats the cause of action in Count IX, which looks like a catch-
all count for state-law claims.4 He also includes a standalone count for the cause of action of
negligent infliction of emotional distress (Count VII), but he also includes this cause of action in
Count IX. In any event, it is unknown why these claims are pleaded in this manner, but Ruiz-
Rivera cannot double recover simply because he mentions the same causes of action, based on the
same facts, multiple times. As such, the court will grant the part of the motion seeking to strike the
assault and battery claim included in Count IX as duplicative.5
Concerning the defendants’ contention relating to the sufficiency of Ruiz-Rivera’s factual

allegations to support his causes of action for negligent infliction of emotional distress or trespass,
there is a fundamental flaw in their argument. More specifically, the defendants have not conducted

4 With respect to Count VI, although not mentioned by the defendants, the allegations in this count are unusual. In this
regard, Ruiz-Rivera includes a cause of action (potentially under section 1983) for excessive force in Count VII of the
amended complaint. As far as the court is aware, there is no cause of action for assault and battery under section 1983,
yet in Count VI Ruiz-Rivera claims that he is “seeking relief under Title VI of the Civil Rights Act of 1964; 42 U.S.C.
§ 1981, 1982, 1983, 1986 and 1988; the First, Fourth, Fifth and Fourteenth Amendments to the United States
Constitution, other constitutional provisions, federal statutes and state laws.” Am. Compl. at 18–19. Thus, it appears
that Ruiz-Rivera is attempting to assert an assault and battery claim under some other provision of the Constitution or
federal law, in addition to a state-law claim. At bottom, the haphazard manner in which the amended complaint is
drafted makes it difficult to identify precisely which causes of action or theories of relief Ruiz-Rivera is actually
asserting in this case.
5 The defendants did not move to have the court strike one of the two causes of action for negligent infliction of
emotional distress as duplicative. See Defs.’ Br. at 11. They also did not request that the court strike any section 1983
claim for assault and battery because it would seemingly be duplicative of an excessive force claim. As such, although
the court has expressed concerns with the manner in which the amended complaint is drafted, the court has not
reconciled the duplicative nature of these other causes of action.
any analysis here. They have not identified the elements of either cause of action or explained why
Ruiz-Rivera’s factual allegations do not support either cause of action. Instead, they have
essentially included a single, conclusory sentence stating that Ruiz-Rivera has not alleged any facts
to support these claims. Without any analysis, the court will not grant this part of the motion.6

6 If the court was to address the defendants’ argument, the court would deny this part of the motion with respect to the
trespass claim. Under Pennsylvania law, “‘[o]ne who intentionally enters land in the possession of another without a
privilege to do so is liable’” for trespass. Kopka v. Bell Tel. Co. of Pa. 91 A.2d 232, 235 (Pa. 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). If a law enforcement
officer lawfully enters private property because the entry is privileged (i.e. the officer has a warrant, exigent
circumstances justify warrantless entry, the officer has the owner’s consent), the officer is not liable for trespass. See
Dorkoski v. Pensyl, Civ. A. No. 4:05-705, 2007 WL 775602, at *9 (M.D. Pa. Mar. 9, 2007) (“To the extent that the
court has found that exigent circumstances justified the defendants’ entry into the plaintiff’s property, the defendants’
entry was not unprivileged and the plaintiffs’ state law claim fails.”). Here, Ruiz-Rivera alleges that Officer Bingham
unlawfully followed him onto his property, without permission, and that he was assaulted on his property. See Am.
Compl. at ¶¶ 17–25. As such, it appears that Ruiz-Rivera has plausibly pleaded a cause of action for trespass under
Pennsylvania law.
As for the negligent infliction of emotional distress claim, Ruiz-Rivera’s allegations are a bit more
problematic. Under Pennsylvania law,

the cause of action for negligent infliction of emotional distress is restricted to four factual scenarios:
(1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the
plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby
reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious
injury to a close relative.

Toney v. Chester Cnty. Hosp., 961 A.2d 192, 197–98 (Pa. Super. 2008) (citing Doe v. Philadelphia Cmty. Health
Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa. Super. 2000), aff’d 767 A.2d 548 (Pa. 2001)). A plaintiff
proceeding in a cause of action for negligent infliction of emotional distress “must also allege ‘some physical harm’
resulting from her emotional distress. The ‘physical harm’ cannot be temporary or transitory in nature but must be
repeated or ongoing.” Drumheller v. Johnson & Johnson, Civ. A. No. 20-6535, 2021 WL 1853407, at *16 (E.D. Pa.
May 10, 2021). Sufficient allegations of physical harm resulting from emotional distress include allegations that a
plaintiff’s “emotional shock manifested in nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated
hysterical attacks, stress, and anxiety.” Id. (citation and internal quotation marks omitted).
Here, Ruiz-Rivera acknowledges that he is proceeding under the second theory, i.e. that he was subjected to
a physical impact. See Pl.’s Resp. at ECF p. 10 (“Mr. Ruiz clearly suffered a physical impact when he was tased and
assaulted by multiple officers in his front yard. Mr. Ruiz suffered emotional distress from the fear of his neighbors
and children witnessing the event and from the attack itself.”). Under this theory, a plaintiff may recover “emotional
distress damages that are accompanied by direct physical injury caused by a defendant’s negligence. These so-called
‘parasitic’ damages are allowed even where the physical injury is relatively minor.” Shumosky v. Lutheran Welfare
Servs. of Ne. PA, Inc., 784 A.2d 196, 200 (Pa. Super. 2001) (citation omitted).
The issues the court identifies with the amended complaint are that Ruiz-Rivera really does not plead that
any officer acted negligently here. Instead, his factual allegations describe what would appear to be intentional (or at
worst, reckless conduct) and the amended complaint includes references to seemingly most legally cognizable mental
states other than negligence. See, e.g., Am. Compl. at ¶ 87 (“All Defendants’ conduct was done knowingly,
intentionally, willfully, maliciously, wantonly, grossly intentional [sic], recklessly and with deliberate indifference . .
. .”); id. at ¶ 89 (“Defendants’ conduct, in concert with each other, was done knowingly, intentionally, willfully,
maliciously, wantonly, grossly intentionally, and recklessly . . . .”). In addition, while Ruiz-Rivera mentions that the
defendants’ actions caused him to suffer emotional distress, he has not identified the physical harm he incurred from
With regard to the defendants’ claims of PSTCA immunity, the court notes that this Act
grants the City governmental immunity from liability for any damages resulting
from an injury to a person or property caused by any act of the City, its employee,
or any other person, except as specifically provided for under 42 Pa.C.S.A. § 8542.
This immunity extends to an employee of the City who is liable for civil damages
caused by acts which are within the scope of his office or duties. An employee may
be indemnified for the payment of a judgment arising from a lawsuit when the
employee was acting, or reasonably believed that he was acting, within the scope
of his duties. 42 Pa.C.S.A. § 8548(a). An employee’s immunity does not extend to
acts that are judicially determined to be crimes, actual fraud, actual malice, or
willful misconduct. 42 Pa.C.S.A. § 8550.

Renk v. City of Pittsburgh, 641 A.2d 289, 292 (Pa. 1994). Also, aside from the exceptions for
criminal activity, fraud, “actual malice, or willful misconduct[,]” there are eight enumerated
exceptions to PSTCA immunity: (1) vehicle liability; (2) care, custody, or control of personal
property; (3) real property; (4) trees, traffic controls, and street lighting; (5) utility services
facilities; (6) streets; (7) sidewalks; (8) care, custody, or control of animals; and (9) sexual abuse.
42 Pa. C.S. § 8542(b)(1)-(9).
Here, the City of Lancaster would be immune from any claims based on willful or
malicious conduct. The PSTCA waives this immunity only with respect to certain negligent acts,
which do not include “acts or conduct which constitute[] a crime, actual fraud, actual malice or
willful misconduct.” Id. § 8542(a)(2). Ruiz-Rivera’s causes of action for assault, battery, and
trespass are intentional torts and based on allegations of willful conduct. As such, the City of
Lancaster is immune from suit for these claims under the PSTCA. See, e.g., Madar v. City of
Philadelphia, Civ. A. No. 19-6033, 2021 WL 2156362, at *13 (E.D. Pa. May 27, 2021)
(determining that PSTCA barred plaintiff’s trespass claim and pointing out that “[t]respass is an
intentional tort to ‘the extent deliberate conduct is averred,’ to the extent that the claim avers

the emotional distress and his being assaulted is not the type of physical harm contemplated in this type of cause of
action. As such, he appears to have not pleaded a plausible claim for negligent infliction of emotional distress.
mistaken conduct, it does not fall within an exception to governmental immunity for negligence.”
(quoting Win & Son, Inc. v. City of Philadelphia, 162 F. Supp. 3d 449, 466–67 (E.D. Pa. 2016)));
Lakits v. York, 258 F. Supp. 2d 401, 407 (E.D. Pa. 2003) (dismissing state-law assault and battery
claims against borough because borough was immune from claims for intentional torts under

PSTCA). With regard to Ruiz-Rivera’s negligent infliction of emotional distress claim, the PSTCA
would also bar this claim. Although it is a negligence-related claim, the factual allegations
supporting it do not fall within any of the nine exceptions laid out in 42 Pa. C.S. § 8542(b). See
Young v. Scott Twp., 469 F. Supp. 3d 298, 310 (M.D. Pa. 2020) (“Plaintiffs bring three tort claims
under Pennsylvania law: assault, battery, and negligent infliction of emotional distress. The Scott
Township Defendants assert that the [PSTCA] grants them immunity. The PSTCA certainly
applies to Plaintiffs’ claim of negligent infliction of emotional distress.”).
From an individual liability standpoint, the allegations that Officer Bingham trespassed on
the plaintiff’s property and tased him sufficiently allege willful misconduct by Officer Bingham.
In addition, the allegations that Officer Bingham, Officer Lapp and other officers tackled the

plaintiff and then punched him are sufficient to allege willful misconduct. Moreover, these
allegations set forth plausible claims under Pennsylvania law for assault, battery, and trespass,
which are intentional torts that would fall outside of the PSTCA. See Sanford v. Stiles, 456 F.3d
298, 315 (3d Cir. 2006) (“Willful misconduct has been defined by the Pennsylvania Supreme Court
as ‘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 a desire can be implied.’ Otherwise stated,
the term ‘willful misconduct’ is synonymous with the term ‘intentional tort.’” (quoting Renk v.
City of Pittsburgh, 641 A.2d 289 (1994))); see also Boyden v. Twp. of Upper Darby, 5 F. Supp. 3d
731, 744 (E.D. Pa. 2014) (“Taking the facts Boyden has pled as true, he has stated a claim for
excessive force, and so he has also stated a claim for assault and battery. We will therefore deny
the motion to dismiss as to this state law claim.”). Accordingly, the court will not dismiss the
plaintiff’s state law claims against Officer Bingham, Officer Lapp, or the John Doe officers at this
time because the PSTCA does not provide them with immunity for these claims.

The plaintiff’s negligent infliction of emotional distress claim, however, requires a
different result. As explained above, this cause of action relates to a negligent act that does not fall
within the enumerated exceptions to immunity. Therefore, the court must dismiss the negligent
infliction of emotional distress claim as asserted against Officer Bingham, Officer Lapp, and the
John Doe Officers in counts VIII and IX of the amended complaint.
4. Ruiz-Rivera’s Claims for Injunctive or Declaratory Relief
The defendants contend that the court should strike Ruiz-Rivera’s claims for injunctive and
declaratory relief in paragraph 3 of the amended complaint because he has failed to allege the
specific type of declaratory or injunctive relief he is seeking or why it is necessary. Defs.’ Br. at
12. As such, the defendants assert that he has failed to show that he has Article III standing to

assert these forms of relief. Id. (citations omitted).
While the defendants accurately note that Ruiz-Rivera has not identified the specific type
of declaratory relief or injunctive relief he is seeking in this case, the court does not find that he
lacks standing at this early stage to assert such relief. Interestingly, the defendants cite to McBride
v. Cahoone, 820 F. Supp. 2d 623 (E.D. Pa. 2011) in support of their standing argument when
McBride actually supports a determination that Ruiz-Rivera has standing here.
In McBride, the defendants claimed that the plaintiff “lack[ed] standing to bring claims for
injunctive and declaratory relief because [he] allege[d] no facts demonstrating that his injury is
likely to be repeated.” 820 F. Supp. 2d at 633. The Honorable Legrome D. Davis, now retired,
rejected this argument. See id. (“Although this is a close question, we cannot conclude at this
nascent stage of the proceedings that [the plaintiff] lacks standing to assert his claims for
prospective relief.”). In addressing the defendants’ standing argument, Judge Davis explained that
[t]he three “irreducible” constitutional elements of standing are: (1) an injury in fact
that is actual or imminent, not “conjectural” or “hypothetical”; (2) a causal
connection between the injury and the conduct complained of—the injury must be
fairly traceable to the challenged action of the defendant; and (3) a showing that it
is likely, as opposed to merely speculative, that a favorable decision will redress
the injury.

Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). Judge Davis then noted
that the defendants focused on the “injury in fact” prong of the standing test. Id. He concluded that
the plaintiff had sufficiently alleged an imminent injury because he had alleged that the defendants
acted pursuant to an official policy in violating his rights. He explained that
[w]hile we are aware that in analyzing standing, courts generally decline to presume
that a [defendant] will violate the law in the future, we believe the analysis does,
and should, differ when an official policy mandates the allegedly unconstitutional
conduct. . . . [T]he presence of an official policy greatly increases the likelihood
that any individual, including [the plaintiff] will imminently suffer the very same
deprivation of liberty [the plaintiff] claims to have suffered in the past.

Id. at 635 (internal citation omitted).
Here, other than indicating that it is unclear the type of injunctive or declaratory relief Ruiz-
Rivera is seeking, the defendants do not identify which aspect of the elements for constitutional
standing Ruiz-Rivera is lacking. Nonetheless, at this early stage in the proceedings, and as Ruiz-
Rivera has alleged that the defendant officers were acting pursuant to an official policy when they
violated his rights, the court cannot say at this time that he lacks constitutional standing to seek
declaratory or injunctive relief. As such, the court will deny the defendants’ request that the court
strike the claims for declaratory and injunctive relief in paragraph 3 of the amended complaint.
5. Ruiz-Rivera’s References to the First Amendment, Fifth Amendment, and Equal
Protection

The defendants point out that while he does not expressly include a claim for a First or
Fifth Amendment violation in the title of any count of the amended complaint, Ruiz-Rivera does
randomly reference these amendments in multiple ad damnum clauses. See Defs.’ Br. at 12 (citing
amended complaint). In addition, they note that Ruiz-Rivera also generally asserts that he was not
afforded “equal protection under the law.” Id. at 12–13 (citing Am. Compl. at ¶¶ 42(a), 70). They
contend that the court should strike these references as he has not pleaded sufficient facts to assert
an equal protection claim or a violation of the First or Fifth Amendments. Id. at 13.
With regard to the First Amendment, it appears that Ruiz-Rivera is attempting (albeit not
via an actual count in the amended complaint)7 to assert a First Amendment retaliation claim. A
plaintiff asserting that a defendant retaliated against them in violation of the First Amendment
must allege that (1) he engaged in activity protected under the First Amendment, (2) the defendant
retaliated against him, (3) the retaliatory action was sufficient to deter a person of ordinary firmness

7 The fact that Ruiz-Rivera is specifically setting out some causes of action in specific counts of the amended complaint
and yet, is also claiming that he is pursuing causes of action under various constitutional amendments and statutes
thrown into an ad damnum clause is very problematic. As an example, when Ruiz-Rivera asserts a cause of action for
negligent infliction of emotional distress in Count VIII of the amended complaint, such a claim is undeniably only a
state-law tort claim. Yet, in the ad damnum clause for this count, Ruiz-Rivera alleges that he

seeks relief under Title VI of the Civil Rights Act of 1964; 42 U.S.C. §§ 1981, 1982, 1983, 1986
and 1988; the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution,
other constitutional provisions, federal statutes and state laws in an amount not less than
$350,000.00, attorney’s fees, costs, expenses and interest.

Am. Compl. at 20. It is unclear how the plaintiff could possibly obtain relief under Title VI of the Civil Rights Act of
1964 for negligent infliction of emotional distress.
Yet, there is no Rule of Civil Procedure requiring plaintiffs to assert their proposed causes of action in
separate counts, the court is giving Ruiz-Rivera significant latitude despite the haphazard manner in which this
amended complaint is pleaded. Certainly, the manner in which this amended complaint has been pleaded makes it
difficult for all involved to discern precisely what Ruiz-Rivera’s legal theories are in this action.
from exercising his rights, and (4) a causal connection exists between the protected activity and
the alleged retaliatory action. See Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006).
Here, Ruiz-Rivera alleges that he responded to Officer Bingham’s question about who was
with him by stating “your mother.” Am. Compl. at ¶ 21. At this point, Officer Bingham

aggressively followed him and, soon thereafter, tased him. Id. at ¶¶ 21–22. Officer Bingham and
other officers then tackled Ruiz-Rivera and then punched him while he was on the ground. Id. at
¶ 23. These allegations would seemingly reflect that (1) Ruiz-Rivera engaged in First Amendment
activity when he spoke to Officer Bingham, (2) Officer Bingham retaliated against him by tasing
him and then punching him, (3) tasing someone and striking them would be sufficient to deter a
person of ordinary fitness from exercising their rights, and (4) there is a sufficient causal
connection between Ruiz-Rivera’s comment and the alleged retaliatory actions by Officer
Bingham. As such, the court reluctantly finds that the allegations, at this early stage, are sufficient
to assert a First Amendment retaliation claim.
With regard to the Fifth Amendment, while it surely is not evident from the amended

complaint, Ruiz-Rivera purports to be asserting a claim that the defendants violated his right to
self-incrimination under the Fifth Amendment. Pl.’s Resp. at ECF pp. 17, 18. If this is in fact his
claim, Ruiz-Rivera has failed to state a plausible claim under the Fifth Amendment.8
The Fifth Amendment provides in pertinent part that “[n]o person . . . shall be compelled
in any criminal case to be a witness against himself.” U.S. Const. amend V. The fact that Officer

8 To the extent that Ruiz-Rivera was possibly trying to assert a due process claim under the Fifth Amendment, he
could not do so because “the Fifth Amendment applies to actions of the federal government.” B&G Constr. Co., Inc.
v. Director, Office of Workers’ Compensation Prog., 662 F.3d 233, 246 n.14 (3d Cir. 2011) (explaining difference
between due process claims under Fifth and Fourteenth Amendment). There are no allegations that any of the
defendants are federal actors.
Bingham asked Ruiz-Rivera questions about who he was with is insufficient to raise a Fifth
Amendment claim.
In this regard, to the extent that this is somehow an implied part of Ruiz-Rivera’s claim,
there is no basis to find that Officer Bingham had to read Ruiz-Rivera Miranda warnings prior to

asking him questions. Law enforcement officers must provide a suspect with specific warnings of
the suspect’s Fifth Amendment rights prior to a “custodial interrogation.” Miranda v. Arizona, 384
U.S. 436, 444 (1966). A “custodial interrogation” is “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.” Id. An “interrogation” under Miranda “refers not only to express
questioning, but also to any words or actions on the part of the police . . . that the police should
know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 301 (1980).
Here, Ruiz-Rivera’s Fifth Amendment rights were not violated by Officer Bingham asking
questions because there are no plausible allegations in the amended complaint that he was in

custody at the time the questions were asked. Instead, as Ruiz-Rivera repeatedly admits, he was
continuing to walk around his property while Officer Bingham questioned him; thus, he was not
deprived of his freedom of action in any significant way. Officer Bingham was also “following”
him and there are no allegations indicating that he was impeding Ruiz-Rivera’s movement until
the time that Ruiz-Rivera was tased. At that point, Ruiz-Rivera does not identify any questions
that any officer asked him.
Even if Ruiz-Rivera was somehow in custody at the time Officer Bingham questioned him,
he still would not have a section 1983 claim for a Fifth Amendment violation as he does not allege
that any statements he made were used against him at a trial. See King v. Cavallo, Civ. A. No. 19-
1005, 2019 WL 2246803, at *5 n.5 (E.D. Pa. May 22, 2019) (“King also alleges that Cavallo failed
to provide him Miranda warnings. That allegation does not state a constitutional claim because
King does not also allege that he made statements during a custodial interrogation that were used
against him at trial.”); see also Renda v. King, 347 F.3d 550, 557–58 (3d Cir. 2003) (“[I]t is the

use of coerced statements during a criminal trial, and not in obtaining an indictment, that violates
the Constitution.”).9 “The proper—and exclusive—remedy for a violation of these measures is the
exclusion of the unwarranted statements at trial, not a claim for civil damages.” Morency v. City
of Allentown, No. 5:19-cv-5304, 2020 WL 1935640, at *12 (E.D. Pa. Apr. 22, 2020) (citing United
States v. Patane, 542 U.S. 630, 642 (2004)). Therefore, the court will strike without prejudice any
claim for a violation of the Fifth Amendment in the amended complaint. See Castillo v. Guzley,
No. 19-cv-4002, 2019 WL 5068571, at *6 (E.D. Pa. Oct. 8, 2019) (“Here, Castillo has done nothing
more than allege that he was never read his Miranda warnings with respect to his arrest on or about
June 22, 2019. There are no allegations that he was questioned in a custodial interrogation, that he
provided answers to law enforcement during that time, that any subsequent criminal charges were

brought against him, or that his statements to law enforcement were used against him in a
subsequent trial. Accordingly, Castillo’s Fifth Amendment claim will be dismissed without
prejudice.”).

9 The Third Circuit has also discussed the failure to provide Miranda warnings in relation to a section 1983 claim as
follows:

[V]iolations of the prophylactic Miranda procedures do not amount to violations of the Constitution
itself. The right protected under the Fifth Amendment is the right not to be compelled to be a witness
against oneself in a criminal prosecution, whereas the “right to counsel” during custodial
interrogation recognized in Miranda . . . is merely a procedural safeguard, and not a substantive
right.

Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) (internal citations omitted).
Regarding any claims that Ruiz-Rivera’s equal protection rights were violated, even though
he uses the phrase “equal protection” in the amended complaint, he does not plausibly allege an
equal protection violation. “The Equal Protection Clause of the Fourteenth Amendment commands
that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’

which is essentially a direction that all persons similarly situated should be treated alike.” City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (internal quotation and citation
omitted). A plaintiff must identify a similarly situated individual whom the state treated differently
to establish an equal protection claim and the failure to do so warrants dismissal of the claim. See,
e.g., Karns v. Shanahan, 879 F.3d 504, 521 (3d Cir. 2018) (holding equal protection claim lacked
merit, in part, because plaintiffs “point[ed] to no evidence that [the officers] treated similarly
situated individuals differently. They d[id] not even identify other individuals who might be
similarly situated” (footnote omitted)); Mann v. Brenner, 375 F. App’x 232, 238 (3d Cir. 2010)
(affirming dismissal of equal protection claim because plaintiff failed to plausibly plead that he
was treated differently than other similarly situated individuals—i.e., Borough Managers—who[m

the former mayor of Kutztown] treated differently than he treated [plaintiff].” (citation omitted)).
“[G]eneral accusations and the invocation of the Equal Protection Clause are not enough.” Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
Here, Ruiz-Rivera states in his brief in response to the motion to dismiss that he “brings a
valid claim under the Equal Protection Clause of the Fourteenth Amendment when he, as a
Hispanic male, was intentionally treated differently from similarly situated citizens when he was
tased, assaulted, and handcuff[ed] without cause after a verbal exchange with a Caucasian police
officer.” Pl.’s Resp. at ECF p. 18. Despite this claim, while the amended complaint mentions that
Ruiz-Rivera is a Hispanic male, it contains no factual allegations that he was treated differently
than anyone else. Moreover, it actually appears to contain allegations that he has been treated the
same as other people. For example, he avers that “all of said officers have committed such brutal
acts in the past against innocent victims.” Am. Comp. at ¶ 30. He also claims that “several
complaints have been made against the Defendants in the past and such complaints have been

investigated by Internal Affairs.” Id. at ¶ 31. He further asserts that “hundreds of law-abiding
citizens are the victims of police brutality by Defendant City of Lancaster employees (police
officers) that result in their being charged and prosecuted for crimes they are innocent of.” Id. at ¶
36. Finally, he claims that “[p]olice brutality is rampant in Lancaster.” Id. at ¶ 37. These allegations
show that he is apparently (and unfortunately) being treated the same as many other citizens in
Lancaster. Accordingly, Ruiz-Rivera has failed to properly plead an equal protection claim against
the defendants.
C. Leave to Amend
A district court should generally provide leave to amend unless amending would be
inequitable or futile. See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (stating

general rule). Also, “in civil rights cases district courts must offer amendment—irrespective of
whether it is requested—when dismissing a case for failure to state a claim unless doing so would
be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
252 (3d Cir. 2007). In this case, the court does not find that amending the complaint with regard
to the claims that the court is dismissing without prejudice would be futile, so the court will grant
the plaintiff leave to file a second amended complaint.
III. CONCLUSION
As the court explained above, the court will dismiss with prejudice the plaintiff’s due
process claim under the Fourteenth Amendment as the Fourth Amendment is the specific
constitutional provision forming the basis of his excessive force claim. In addition, to the extent
that the plaintiff is attempting to recover damages for any violation of the Pennsylvania
Constitution, whether via a due process claim or a claim under Article I, Section 8 of the
Pennsylvania Constitution, he has not stated a plausible cause of action and the court will also

dismiss this claim with prejudice. With regard to his conspiracy claims, the plaintiff has not
included sufficient allegations that would show a reasonable inference of a conspiracy between the
defendants here, so the court will dismiss this claim without prejudice. The court will also dismiss
with prejudice the plaintiff’s state-law tort claims against the city and his claim for negligent
infliction of emotional distress against the defendant officers. Finally, the court will dismiss
without prejudice the plaintiff’s claims under the Fifth Amendment and the Equal Protection
Clause due to his failure to assert a plausible constitutional violation.
The court will deny the motion to partially dismiss to the extent the defendants sought to
have the court (1) dismiss the plaintiff’s state-law tort claims for trespass, assault, and battery
against the individual officers, (2) strike the plaintiff’s references to injunctive or declaratory relief,

and (3) strike the plaintiff’s reference to the First Amendment in various ad damnum clauses.
Additionally, although the court is granting the plaintiff leave to file a second amended complaint,
the court urges the plaintiff, if he files this second amended complaint, to craft the document in a
manner which clearly specifies the factual allegations in the case and the legal theories upon which
he is seeking relief.
The court will enter a separate order.
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10401716. Public record. Not legal advice.