Velardo v. Lewko

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

YANIRA VELARDO and : Civil No. 3:18-CV-1885

NAKIA VELARDO, :

:

Plaintiffs, :

: (Judge Mariani)

v. :

: (Magistrate Judge Carlson)

EDWARD LEWKO, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

I. Introduction

This case, which comes before us for consideration of a motion to dismiss,

involves a September 28, 2016 incident in which police allegedly entered the home

of Yanira Velardo at 2:00 a.m. without a warrant searching for a criminal suspect.

Inside the home, Velardo confronted the officers demanding that they produce a

warrant before searching her home in the early morning hours. This encounter then

swiftly escalated to physical violence, and after a scuffle between Velardo; her

daughter, Nakia; and police, Velardo was arrested for obstruction of justice. The

authorities then compounded those charges after Velardo refused to plead guilty or

waive her right to a preliminary hearing. Ultimately, all of the charges lodged against

Velardo were either dismissed or resulted in not guilty verdicts.

It is against the backdrop of these well-pleaded facts that Velardo and her

daughter bring this federal civil rights lawsuit. The defendants—who are alleged to

have made a warrantless entry into Velardo’s home at 2:00 a.m., forcibly restrained

Velardo when she protested their warrantless entry, and then lodged criminal charges

against Velardo which resulted in dismissals or acquittals—now move to dismiss

this complaint, alleging that Velardo has completely failed to state a claim upon

which relief may be granted.

For the reasons set forth below, with our review currently limited to an

assessment of the plaintiffs’ well-pleaded allegations, we disagree. Therefore, we

recommend that this motion to dismiss be denied.

II. Statement of Facts and of the Case

The well-pleaded facts set forth in the Velardos’ complaint, which guide us in

evaluating the legal sufficiency of the plaintiffs’ claims, recite that:

11. On September 28, 2016, Officers Peter Cordaro and Edward Lewko

initiated criminal proceedings against Yanira Velardo by seizing her,

arresting her and filing a criminal complaint charging her with one

count of obstruction of justice.

12. According to the affidavit of probable cause sworn to by Officers

Cordaro and Lewko, the charges relate to an incident on September 28,

2016 wherein Yanira Velardo allegedly physically obstructed officers

from arresting her daughter, by stepping in between them and pushing

Officer Maivaun Houssein.1

13. The arrest of Yanira Velardo’s daughter took place at Yanira

Velardo’s home at 1:55 a.m., without a warrant. Nakia Velardo was

also a resident of that same home, and also had a privacy interest in the

home.

14. Yanira Velardo repeatedly asked officers for a warrant if they

wished to come in her home or arrest her daughter. Defendants did not

have an arrest warrant or any warrant permitting entry into Yanira

Velardo’s home.

15. Defendant Lewko testified that the force he knocked on the door

with was enough force to actually knock the door open.

16. Yanira Velardo came out of her bedroom and found her front door

already opened by police, who could not and would not produce a

search or arrest warrant.

17. Defendant Lewko testified that the officers were looking for another

man who went by the name “Dinero” and that was the real reason they

went to the house.

18. Defendant Lewko alleges that he identified “Dinero” from his J-Net

photo from his police vehicle while traveling at a normal rate of speed

past the home of Yanira Velardo, in the dark at 1:30 a.m. According to

Defendant Lewko, “Dinero” is a dark-skinned black male at 1:30 a.m.

and was allegedly, according to Officer Lewko, standing outside Yanira

Velardo’s home.

19. Defendant Lewko had an alleged victim in his car who was intimate

with “Dinero.” She did not identify the black male standing outside

1 At her preliminary hearing, the charges against Ms. Velardo’s daughter, Ayana

Velardo, were withdrawn by the same officers involved in this arrest.

Yanira Velardo’s house as “Dinero” but defendant Lewko supposedly

did.

20. The man named “Dinero” was not at Yanira Velardo’s home, and

when police searched her home they only found three females and small

children.

21. After repeated requests to see a warrant by Yanira Velardo, officers

finally pushed their way into her home, without a warrant or consent,

and attempted to arrest her daughter. In the process, they used force on

Yanira Velardo, throwing her to the ground, putting a knee in her back

and arresting her. All the above was done at 1:55 a.m. without an arrest

warrant, search warrant, or any exigency at all.

22. The police officers lacked the necessary warrant, consent, or

exigency to enter Yanira Velardo’s home at 2 a.m.

23. Defendants charged Yanira Velardo with crimes. Originally, Yanira

Velardo was only charged with one count of obstruction of justice.

Yanira Velardo refused the Commonwealth’s request to waive her

preliminary hearing or plead guilty, and decided to have a hearing in

front of Magisterial District Judge Rick Cronauer. Because Yanira

Velardo refused to waive her constitutional rights and rights under the

Pennsylvania Rules of Criminal Procedure, defendants added a charge

of resisting arrest at the start of that hearing.

24. Yanira Velardo filed a Habeas Corpus motion in the Luzerne

County Court of Common Pleas. The Honorable Judge Joseph F.

Sklarosky, Jr. dismissed the charge of resisting arrest for lack of

probable cause or a prima facie case.

25. Yanira Velardo ultimately went to trial on the obstruction of justice

charge and was found not guilty.

(Doc. 1, ¶¶ 11-25.)

Based upon these allegations relating to the warrantless entry into Velardo’s

home, her forcible restraint and arrest by police inside her home, and the subsequent

meritless prosecution of Velardo, Yanira and Nakia Velardo have filed a 9-count

civil complaint against the three arresting police officers, Edward Lewko, Maivaun

Houssein, and Peter Cordaro. The first four counts of this complaint allege federal

civil rights violations under the Fourth and Fourteenth Amendments, and

specifically bring claims of false arrest, malicious prosecution, use of excessive

force, failure to intervene, and conspiracy to violate the civil rights of the plaintiffs.

(Id., Counts I-IV.) Counts five through nine of the complaint, in turn, allege the state

law analogues to many of these federal civil rights claims, including assault, battery,

false arrest and false imprisonment, intentional infliction of emotional distress, and

trespass. (Id., Counts V-IX.)

The defendants have moved to dismiss this complaint in its entirety, arguing

that each of these nine counts fails as a matter of law, and further asserting that the

defendants are entitled to qualified immunity from damages on the plaintiffs’ federal

civil rights claims. (Doc.10.) This motion to dismiss is fully briefed and is therefore

ripe for resolution. For the reasons set forth below, it is recommended that the motion

to dismiss be denied.

III. Discussion

A. Rule 12(b)(6) – The Legal Standard

The defendants have moved to dismiss this complaint pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure, which provides for dismissal when

a complaint “fail[s] to state a claim upon which relief can be granted.” With respect

to this benchmark standard for legal sufficiency of a complaint, the United States

Court of Appeals for the Third Circuit has aptly noted the evolving standards

governing pleading practice in federal court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)] and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal –U.S.–, 129 S. Ct. 1937 (2009) pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the Court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a ... plaintiff can prove facts that the ... plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id. at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather,

in conducting a review of the adequacy of complaint, the Supreme Court has advised

trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id. at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions. Rather, a complaint must recite factual

allegations sufficient to raise the plaintiff’s claimed right to relief beyond the level

of mere speculation. As the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible claim for relief.’ In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to ‘show’ such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

Two years after Fowler, the Third Circuit further observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. (1955)).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id. at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.” Id.

Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also, U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir.

2002) (holding that “[a]lthough a district court may not consider matters extraneous

to the pleadings, a document integral to or explicitly relied upon in the complaint

may be considered without converting the motion to dismiss in one for summary

judgment.”). However, the court may not rely on other parts of the record in

determining a motion to dismiss. Jordan v. Fox, Rothschild, O’Brien &Frankel, 20

F.3d 1250, 1261 (3d Cir. 1994).

B. This Complaint is Not Subject to Dismissal as a Matter of Law

1. The Complaint Alleges Sufficient Facts to Withstand

Dismissal

In their motion to dismiss, the defendants raise a number of threshold issues

which initially warrant brief consideration. First, the defendants contend as a general

matter that the complaint fails because it lacks sufficient specificity. (Doc. 12, p. 4.)

We disagree. Recognizing that “[a] complaint satisfies the plausibility standard

[prescribed by Rule 12(b)(6)] when the factual pleadings ‘allow[ ] the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged,’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), we believe

that the detailed factual recital in this complaint plainly states facts which, if proven,

would plausibly support the plaintiffs’ legal claims. Therefore, this complaint is not

subject to dismissal as unduly vague.

2. The Complaint Does Not Assert a Fourteenth Amendment

Claim Separate and Apart from the Fourth Amendment

Claims Made by the Plaintiffs

The defendants’ motion to dismiss also asserts that the plaintiff may not bring

some general freestanding Fourteenth Amendment claims against these defendants

because the actions of the police officers are subsumed by a more specific provision

of the Bill of Rights, the Fourth Amendment. See Albright v. Oliver, 510 U.S. 266,

274, 114 S. Ct. 807, 813, 127 L. Ed. 2d 114 (1994). We agree, but note that as we

construe the plaintiffs’ complaint, it is not asserting some general Fourteenth

Amendment claim. Rather, the gist of the Velardos’ constitutional tort claims

involve alleged violations of the Fourth Amendment, which has been selectively

incorporated and applied to local police officers through the Fourteenth Amendment.

Viewed in this light, there are no general freestanding Fourteenth Amendment

claims asserted by the plaintiffs independent of their Fourth Amendment claims, and

accordingly there are no such claims to dismiss.

3. The Plaintiffs’ Fourth Amendment Claims and Their State

Law Analogues Are Not Subject to Dismissal on the

Pleadings

Focusing then upon the plaintiffs’ Fourth Amendment claims and their related

state law analogues, while the defendants’ motion to dismiss independently

challenges each of the nine counts set forth in the Velardos’ complaint, for the most

part these defense arguments share a common legal and factual theme, the assertion

that the police conduct on September 28, 2016, was so objectively reasonable that it

did not in any way offend the Fourth Amendment. Thus, the motion to dismiss, and

the plaintiffs’ response to that motion, in the first instance call upon us to consider

this cardinal provision of the Bill of Rights, which provides that:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

Broadly speaking, the Fourth Amendment imposes two requirements on law

enforcement. First, it forbids unreasonable searches and seizures. In addition, the

Fourth Amendment prescribes the requisites for a valid warrant, noting that “no

warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be

seized.” As the text of the Fourth Amendment implies, in assessing the

reasonableness of a search for purposes of the Fourth Amendment, there is a strong

constitutional preference for searches conducted pursuant to search warrants. As the

Supreme Court has noted:

Although the text of the Fourth Amendment does not specify when a

search warrant must be obtained, this Court has inferred that a warrant

must generally be secured. “It is a ‘basic principle of Fourth

Amendment law,’ ” we have often said, “ ‘that searches and seizures

inside a home without a warrant are presumptively unreasonable.’ ”

Kentucky v. King, 563 U.S. 452, 459, 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865

(2011) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164

L.Ed.2d 650 (2006)).

This principle applies with particular force to searches conducted inside a

person’s home. The home holds a special status under the Fourth Amendment. Thus:

[W]hen it comes to the Fourth Amendment, the home is first among

equals. At the Amendment’s “very core” stands “the right of a man to

retreat into his own home and there be free from unreasonable

governmental intrusion.”

Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013)

(quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d

734 (1961)).

Indeed, these principles deeming the home first among equals under the

Fourth Amendment and viewing warrantless searches as presumptively

unreasonable have been expressly extended to the scenario presented in this case:

the warrantless entry into a private person’s home for the purpose of searching for a

suspect who is not a resident in that home. For the past four decades it has been black

letter law that in the absence of either consent or some exigent circumstance, the

Fourth Amendment forbids warrantless entry into a third party’s home to search for

a fugitive who is not a resident at that home. Steagald v. United States, 451 U.S. 204,

216, 101 S. Ct. 1642, 1650, 68 L. Ed. 2d 38 (1981).

Applying these principles in the instant case, to the extent that this complaint

lodges Fourth Amendment illegal search and related trespass claims against the

defendants, it is clear from the well-pleaded facts in this case that police did not have

a warrant when they entered the Velardos’ home in the early morning hours of

September 28, 2016. Nor did they have consent to search, since the complaint alleges

that Yanira Velardo vociferously objected to the police presence inside her home at

2:00 a.m., and demanded that the police produce what the Fourth Amendment

requires—a warrant. Thus, the only means by which the defendants can defeat this

particular claim is if they can show that the warrantless entry was justified by some

exigency.

This is the path that the defense chooses to follow in their motion to dismiss,

arguing that exigency existed here which defeats this complaint as a matter of law.

The difficulty with this proposition is twofold, however. First, it conflicts with the

basic tenet of civil procedure that, when considering a motion to dismiss, our

discretion is cabined by the well-pleaded facts set forth in the complaint; we must

accept as true all allegations in the complaint, and all reasonable inferences that can

be drawn from those well-pleaded facts, construed in the light most favorable to the

plaintiff. Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d

Cir. 1994). In essence, the defendants’ motion turns this proposition on its head and

would ask us to construe a set of facts in a light most favorable to them, and dismiss

this lawsuit based upon their own favorable version of the facts. This we cannot do.

Second, this argument ignores the fundamentally fact-bound nature of any

exigency inquiry under the Fourth Amendment. Simply put, such inquiries typically

are not amenable to resolution as a matter of law on the pleadings alone. Rather:

To determine whether a law enforcement officer faced an emergency

that justified acting without a warrant, this Court looks to the totality of

circumstances. See Brigham City v. Stuart, 547 U.S. 398, 406, 126

S.Ct. 1943, 164 L.Ed.2d 650 (2006) (finding officers’ entry into a home

to provide emergency assistance “plainly reasonable under the

circumstances”); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct.

946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of

a person to prevent him from returning to his trailer to destroy hidden

contraband was reasonable “[i]n the circumstances of the case before

us” due to exigency); Cupp, 412 U.S. at 296, 93 S.Ct. 2000 (holding

that a limited warrantless search of a suspect’s fingernails to preserve

evidence that the suspect was trying to rub off was justified “[o]n the

facts of this case”); see also Richards v. Wisconsin, 520 U.S. 385, 391–

396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per se

exception to the knock-and-announce requirement for felony drug

investigations based on presumed exigency, and requiring instead

evaluation of police conduct “in a particular case”). We apply this

“finely tuned approach” to Fourth Amendment reasonableness in this

context because the police action at issue lacks “the traditional

justification that ... a warrant ... provides.” Atwater v. Lago Vista, 532

U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent

that established justification, “the fact-specific nature of the

reasonableness inquiry,” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct.

417, 136 L.Ed.2d 347 (1996), demands that we evaluate each case of

alleged exigency based “on its own facts and circumstances.” Go–Bart

Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75

L.Ed. 374 (1931)

Missouri v. McNeely, 569 U.S. 141, 149–50, 133 S. Ct. 1552, 1559, 185 L. Ed. 2d

696 (2013).

In the instant case, the plaintiffs’ complaint alleges that police conducted a

warrantless entry into a private residence at 2:00 a.m., based upon a speculative—

but incorrect—assumption that a man who was wanted for some offense might be

located in the home. Police then forcibly restrained, arrested, and prosecuted the

lawful occupants of this home when they resisted this invasion of their house. There

is nothing in this factual recital which suggests that some urgent exigency existed

which as a matter law justified foregoing the firmly rooted constitutional protections

of the Fourth Amendment which clearly required a search warrant in this setting.

Therefore, to the extent that the defendants rely upon claims of exigency to defeat

these Fourth Amendment search and seizure claims, their motion to dismiss should

be denied.

The defendants’ motion to dismiss fares no better when it challenges the other

Fourth Amendment claims presented by the plaintiffs. For example, similar

considerations apply to the excessive force claims made by the Velardos in their

complaint. An arrestee’s excessive force claim, like the claims made here, are also

judged against the Fourth Amendment’s reasonableness standard, a constitutional

benchmark which applies to local police through the Fourteenth Amendment. Thus,

“[A] free citizen’s claim that law enforcement officials used excessive

force in the course of making an arrest, investigatory stop, or other

‘seizure’ of his person ... [is] properly analyzed under the Fourth

Amendment’s ‘objective reasonableness’ standard.” Graham v.

Connor, 490 U.S. 386, 388 (1986). Determining whether the force used

to effect a seizure was reasonable under the Fourth Amendment

requires a careful balancing of “the nature and quality of the intrusion

of the individual’s Fourth Amendment interests” against the

government’s interests in effecting the seizure. Id. at 396. The test is

one of reasonableness, and thus a “court must determine the objective

‘reasonableness’ of the challenged conduct, considering the severity of

the crime at issue, whether the suspect poses an immediate threat to the

safety of the officer or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Couden v. Duffy, 446 F.3d 483,

497 (3d Cir. 2006) (citation omitted); see also Sharrar v. Felsing, 128

F.3d 810, 822 (3d Cir. 1997). Included among the factors that may be

relevant to this determination, courts may consider “the duration of the

[officer’s] action, whether the action takes place in the context of

effectuating an arrest, the possibility that the suspect may be armed, and

the number of persons with whom the police officers must contend at

one time.” Id. (internal quotations omitted). Courts are instructed that

the surrounding events must be considered from “the perspective of a

reasonable officer on the scene.” Id.

Samuels v. Pocono Mountain Reg’l Police Dep’t, No. 3:13-CV-2922, 2015 WL

10567834, at *3 (M.D. Pa. Dec. 17, 2015), report and recommendation adopted in

part, No. 3:13-CV-02922, 2016 WL 1221831 (M.D. Pa. Mar. 29, 2016).

Analyzing this particular excessive force claim in light of the multi-facetted,

and fact-specific, constitutional standard of reasonableness prescribed by the courts

and the Fourth Amendment, we conclude that the plaintiffs have sufficiently pleaded

Fourth Amendment excessive force claims to allow those claims to proceed past the

pleading stage. Fairly construed, the complaint alleges that the police officers

unlawfully entered the plaintiffs’ home at 2:00 a.m., and then forcibly subdued two

women, throwing Yanira Velardo to the ground, putting a knee in her back, and

arresting her inside the home. At this early stage of the proceedings, where we are

limited to a consideration of the pleadings alone, we believe that the plaintiffs have

adequately pleaded an excessive force claim. Instead, the ultimate question of the

reasonableness of the use of force in this case turns on factual matters outside the

pleadings. As such, this issue is not amenable to resolution through a motion to

dismiss, where our judgment is cabined and confined by the well-pleaded facts in

the complaint and the motion to dismiss these claims should also be denied.

Closely related to this excessive force claim is a failure to intervene claim

brought by Velardo which alleges that the police officers who failed to intervene in

this physical altercation which entailed excessive force are themselves civilly

culpable for this failure to intervene. Courts recognize failure to intervene claims,

albeit in a narrow set of circumstances. In order to sustain a failure to intervene

claim, the plaintiffs must ultimately plead and prove three elements: “(1) the officer

had a duty to intervene; (2) the officer had the opportunity to intervene; and (3) the

officer failed to intervene.” Ledcke v. Pennsylvania Dep’t of Corr., No. 1:12-CV-

1580, 2014 WL 12638878, at *6 (M.D. Pa. July 31, 2014) (quoting Smith v.

Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)), report and recommendation

adopted, No. 1:12-CV-1580, 2014 WL 12639241 (M.D. Pa. Aug. 25, 2014). This is

an exacting burden of proof and persuasion, but like the defining issues which

govern the underlying excessive force claim, the outcome of this failure to intervene

claim is guided by an evaluation of factual matters outside the pleadings. Thus, in

order to make a fully-informed decision regarding the viability of this failure to

intervene claim, we would have to determine whether excessive force was used;

whether the officers had an opportunity to intervene and prevent this use of force;

and whether the officers failed to intervene. Because these are fact-bound

determinations, they generally are not amenable to resolution on a motion to dismiss,

but must await consideration of matters outside the pleadings, particularly when it is

“allege[d] that the officers communicated and worked collectively during the use of

force.” Shuey v. Schwab, No. CIV.A. 3:08-CV-1190, 2010 WL 479938, at *5 (M.D.

Pa. Feb. 4, 2010). In the instant case, fairly construed, the Velardos’ complaint

alleges that the defendant police officers acted collectively in entering her home,

confronting the plaintiffs, and physically restraining them through what is alleged to

have been the use of excessive force. Indeed, the complaint contains a conspiracy

count which expressly alleges that the defendants engaged in collective, coordinated

activities. These allegations of collective action by the officers are sufficient at the

pleading stage of this litigation to state a failure to intervene claim and preclude

dismissal of this claim as a matter of law on the pleadings alone.

In this case the plaintiffs further allege that the defendants violated their

constitutional rights through their unlawful arrest and malicious prosecution of

Yanira and Nakia Velardo. These claims also implicate the plaintiffs’ rights under

the Fourth Amendment to the United States Constitution since under the Fourth

Amendment, an arrest without probable cause is a constitutional violation that may

be redressed under 42 U.S.C. § 1983. See Walmsley v. Philadelphia, 872 F.2d 546,

551 (3d Cir. 1989) (citing Patzig v. O’Neill, 577 F.2d 841, 848 (3d Cir. 1978).

However, in order to make out a false arrest claim, a plaintiff must demonstrate that

police lacked probable cause to arrest. Groman v. Twp. of Manalpan, 47 F.3d 628,

634 (3d Cir. 1995). Similarly:

To prove malicious prosecution under section 1983, a plaintiff must

show that: (1) the defendants initiated a criminal proceeding; (2) the

criminal proceeding ended in plaintiff’s favor; (3) the proceeding was

initiated without probable cause; (4) the defendants acted maliciously

or for a purpose other than bringing the plaintiff to justice; and (5) the

plaintiff suffered deprivation of liberty consistent with the concept of

seizure as a consequence of a legal proceeding.

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003) (emphasis added).

Thus, whether characterized as a false arrest, or couched in terms of malicious

prosecution, proof that probable cause was lacking is essential to any § 1983 claim

arising out of the arrest and prosecution of an individual. For purposes of the Fourth

Amendment, probable cause to arrest exists “whenever reasonably trustworthy

information or circumstances within a police officer’s knowledge are sufficient to

warrant a person of reasonable caution to conclude that an offense has been

committed by the person being arrested.” U.S. v. Myers, 308 F.3d 251, 255 (3d Cir.

2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). An arrest by a police officer

without a warrant “is reasonable under the Fourth Amendment where there is

probable cause to believe that a criminal offense has been or is being committed.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In conducting an inquiry into

whether probable cause to arrest existed, a court should consider the totality of the

circumstances presented, and “must assess the knowledge and information which

the officers possessed at the time of arrest, coupled with the factual occurrences

immediately precipitating the arrest.” United States v. Stubbs, 281 F.3d 109, 122

(3d Cir. 2002).

Although “[t]he probable-cause standard is incapable of precise definition or

quantification,” Maryland v. Pringle, 540 U.S. 366, 371 (2003), all interpretations

of probable cause require “a belief of guilt that is reasonable as opposed to certain.”

Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citing Hill v.

California, 401 U.S. 797, 804 (1971)). Probable cause “does not require the same

type of specific evidence of each element of the offense as would be needed to

support a conviction.” Wright, 409 F.3d at 602 (quoting Adams v. Williams, 407

U.S. 143, 149 (1972)). Accordingly, the evidentiary standard for probable cause is

significantly lower than that required for conviction. Id. (citing Michigan v.

DeFillippo, 443 U.S. 31, 36 (1979)); see also Wilson v. Russo, 212 F.3d 781, 789

(3d Cir. 2000) (holding that probable cause requires only a “fair probability” that a

person committed the relevant crime). Because an arrest is made with probable cause

if at the moment it was made the facts and circumstances within the officer’s

knowledge “were sufficient to warrant a prudent man in believing that [the suspect]

had committed or was committing an offense,” Beck v. Ohio, 379 U.S. 89, 91 (1964),

the constitutional validity of an arrest does not turn on whether the suspect actually

committed any crime, Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). Thus,

“[t]he determination that probable cause exists is fundamentally a factual analysis

that must be performed by officers at the scene. It is the function of the court to

determine whether the objective facts available to the officers at the time of arrest

were sufficient to justify a reasonable belief that an offense was being committed.”

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984).

In short, given the fact-bound nature of any probable cause determination, the

plaintiffs’ allegations regarding the unjustified nature of these arrests, and the

ultimate rejection of these criminal charges on their merits in state court, it cannot

be said at the outset of this litigation that these false arrest claims fail as a matter of

law. Therefore, the motion to dismiss these claims should be denied without

prejudice to renewal upon a more fulsome factual record.

The defendant police officers advance one further argument in support of their

motion to dismiss the plaintiffs’ malicious prosecution claim, arguing that such a

claim cannot lie against the police officers because it is prosecutors, and not police,

who make charging decisions. While this may be true as a general proposition, it is

also well-settled that:

Police officers (as opposed to prosecutors) may be liable for malicious

prosecution if they “conceal or misrepresent material facts” to the

prosecutor. Halsey, 750 F.3d at 297 (quoting Pierce v. Gilchrist, 359

F.3d 1279, 1292 (10th Cir. 2004)). In particular, an officer is liable if

he “fails to disclose exculpatory evidence to prosecutors, makes false

or misleading reports to the prosecutor, omits material information

from the reports, or otherwise interferes with the prosecutor’s ability to

exercise independent judgment in deciding whether to prosecute.”

Thomas v. City of Philadelphia, 290 F. Supp. 3d 371, 379 (E.D. Pa. 2018) (quoting

Finnemen v. SEPTA, 267 F. Supp. 3d 639 (E.D. Pa. 2017)).

In this case, with the scope of our review limited solely to the complaint itself,

we believe that this pleading sufficiently alleges that the police officers entered the

Velardos’ residence in contravention of the Fourth Amendment, became involved in

an altercation with the plaintiffs when they asserted their Fourth Amendment rights,

and then initially and unilaterally arrested and charged the plaintiffs with obstruction

of justice for conduct which may have consisted of nothing more than the attempted

assertion of constitutional rights. This course of conduct, if proven, may sufficiently

establish that the officers’ actions interfered with the ability of prosecutors to

exercise their independent judgment to prosecute to justify a malicious prosecution

charge. At a minimum, resolution of this question entails some consideration of the

facts surrounding the underlying state criminal case, and the degree of information

shared by police with prosecutors. Such an inquiry cannot be made through a motion

to dismiss, but must await the development of the factual record, a task that is more

appropriately undertaken through a motion for summary judgment.

4. Qualified Immunity Is Not Appropriate at this Juncture

In addition, the defendants argue in this motion to dismiss that they are entitled

to qualified immunity from damages. The defense of qualified immunity shields

government officials from civil liability so long as their conduct “does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct. 305, 308 (2015).

A qualified immunity analysis entails two inquiries—whether the plaintiff has

alleged a violation of a constitutional right, and whether that right was “clearly

established” at the time of the defendants’ alleged misconduct. Pearson v. Callahan,

555 U.S. 223, 232 (2009). In conducting this analysis, a court must inquire “into the

reasonableness of the official action,” Anderson v. Creighton, 483 U.S. 635, 641

(1987), as qualified immunity “protect[s] all but the plainly incompetent and those

who knowingly violate the law.” Kelly v. Borough of Carlisle, 622 F.3d 248, 254

(3d Cir. 2010). However, the existence of factual disputes, supported by evidence in

the record, may render qualified immunity unavailable in some cases. Thus,

“although qualified immunity is a question of law determined by the court, when

qualified immunity depends on disputed issues of material fact, those issues must be

determined by the jury.” Monteiro, 436 F.3d at 405; see also Johnson v. Jones, 515

U.S. 304, 313 (1995) (qualified immunity may turn on disputed issues of fact);

Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (“While the qualified immunity

defense is frequently determined by courts as a matter of law, a jury should decide

disputed factual issues relevant to that determination”).

When we consider the first benchmark standard we must address when

evaluating a qualified immunity defense, the question of whether the plaintiffs’

Fourth Amendment rights were clearly established, we are constrained to observe

that many of the guiding Fourth Amendment principles that apply to this case have

long been settled and were clearly established in 2016 when this incident took place.

For example, for nearly 40 years it has been clearly established that in the absence

of either consent or some exigent circumstances, the Fourth Amendment forbids

warrantless entry into a third party’s home to search for a fugitive who is not a

resident at that home. Steagald v. United States, 451 U.S. 204, 216, 101 S. Ct. 1642,

1650, 68 L. Ed. 2d 38 (1981). Likewise, the prohibition on the use of excessive force

to make an arrest and the necessity that police possess probable cause before

arresting a suspect are longstanding and settled tenets of Fourth Amendment

jurisprudence. Graham v. Connor, 490 U.S. 386, 388 (1986).

Moreover, to the extent that the defendants seek qualified immunity based

upon their assertions that some exigency existed which justified foregoing a warrant;

that their use of force was reasonable under the circumstances; or that there was

probable cause to arrest the plaintiffs, each of these defenses rest on what are

currently contested factual averments, and it is clear that “when qualified immunity

depends on disputed issues of material fact, those issues must be determined by the

jury.” Monteiro, 436 F.3d at 405. Accordingly, we may not resolve these issues of

qualified immunity at this stage of the litigation, where the applicable law is clear

but the facts are in dispute. Instead, the resolution of these matters must await

another day, and some other proceeding in the nature of a trial or summary judgment

motion.

5. The Plaintiffs’ Claim of Intentional Infliction of Emotional

Distress May Not Be Summarily Dismissed

Finally, the defendants seek the dismissal of the plaintiffs’ intentional

infliction of emotional distress claims; claims which are premised upon what the

plaintiffs allege was their unjustified and unwarranted criminal prosecution at the

hands of the defendants. Such claims are judged by exacting legal standards. Under

Pennsylvania law, the elements of a claim for intentional infliction of emotional

distress are as follows: “(1) the conduct [of the defendant] must be extreme and

outrageous; (2) it must be intentional or reckless; (3) it must cause emotional

distress; [and] (4) that distress must be severe.” Hoy v. Angelone, 691 A.2d 476, 482

(Pa. Super. Ct. 1997). This claim also requires an allegation of some type of physical

injury, harm, or illness related to the distress. Robinson v. Family Dollar, Inc., No.

14-3189, 2015 WL 3400836 (E.D. Pa. May 27, 2015) (citing Corbett v.

Morgenstern, 934 F. Supp. 680, 684 (E.D. Pa. 1994)). It is difficult to make out a

cognizable claim for intentional infliction of emotional distress, in no small part

because “the conduct must be ‘so extreme in nature as to go beyond all possible

bounds of decency such that it would be regarded as utterly intolerable to civilized

society.’ ” Regan v. Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa. 1999).

Thus, with respect to claims for intentional infliction of emotional distress,

“courts have been chary to allow recovery for a claim of intentional infliction of

emotional distress. Only if conduct which is extreme or clearly outrageous is

established will a claim be proven.” Hoy v. Angelone, 720 A.2d 745, 753-54 (Pa.

1998). Indeed, the Restatement (Second) of Torts instructs that “[i]t has not been

enough that the defendant has acted with intent which is tortious or even criminal,

or that he has intended to inflict emotional distress, or even that this conduct has

been characterized by ‘malice,’ or a degree of aggravation that would entitle the

plaintiff to punitive damages for another tort.” Restatement (Second) of Torts § 46,

comment d; Hoy, 720 A.2d at 754. In keeping with these restrictive standards, the

Pennsylvania Supreme Court has provided examples of conduct found to state a

claim for intentional infliction of emotional distress, and such examples demonstrate

the extraordinary nature of the theory:

Cases which have found a sufficient basis for a cause of action of

intentional infliction of emotional distress have had presented only the

most egregious conduct. See e.g., Papieves v. Lawrence, 437 Pa. 373,

263 A.2d 118 (1970)(defendant, after striking and killing plaintiff's son

with automobile, and after failing to notify authorities or seek medical

assistance, buried body in a field where discovered two months later

and returned to parents (recognizing but not adopting section 46));

Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236

(1981)(defendants intentionally fabricated records to suggest that

plaintiff had killed a third party which led to plaintiff being indicted for

homicide); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265

(3d. Cir. 1979) (defendant’s team physician released to press

information that plaintiff was suffering from fatal disease, when

physician knew such information was false).

Hoy, 720 A.2d at 754.

Applying these very exacting benchmarks, federal and state courts in

Pennsylvania have reached contrasting, and somewhat irreconcilable results when

considering the question of whether a false claim of criminal conduct is sufficiently

outrageous to constitute intentional infliction of emotional distress. A number of

courts have concluded that false allegations of criminal conduct simply are not

sufficiently extreme to give rise to tort liability for intentional infliction of emotional

distress. See Motheral v. Burkhart, 400 Pa. Super. 408, 583 A.2d 1180 (Pa. Super

1990) (holding that a claim of intentional infliction of emotional distress would not

lie where defendant allegedly lied to police and by doing so had plaintiff arrested

and detained); McClain v. Munn, No. CIV.A. 06-278, 2008 WL 975059, at *6 (W.D.

Pa. Apr. 9, 2008); Simmons v. Poltrone, No. CIV.A. 96-8659, 1997 WL 805093, at

*4 (E.D. Pa. Dec. 17, 1997); Mastromatteo v. Simock, 866 F. Supp. 853, 859 (E.D.

Pa. 1994) (holding that allegations that a police officer manufactured facts to support

probable cause for an arrest warrant resulting in detention of plaintiff did not state a

claim for intentional infliction of emotional distress); Denenberg v. American

Family Corp. of Columbus, 566 F.Supp. 1242 (E.D. Pa. 1983) (finding claim was

not stated where defendant allegedly falsely instituted civil lawsuits against

plaintiff).

In contrast, other courts have held that in some instances, intentional false

allegations of criminal wrongdoing, if acted upon by the authorities to the detriment

of a plaintiff, will support a claim of intentional infliction of emotional distress.

Banyas v. Lower Bucks Hospital, 293 Pa. Super. 122, 437 A.2d 1236 (1981)

(defendants intentionally fabricated records to suggest that plaintiff had killed a third

party which led to plaintiff being indicted for homicide); Watson v. Haverford Twp.

Police Dep’t, No. CIV.A. 10-6731, 2011 WL 2200306, at *5 (E.D. Pa. June 6, 2011);

Watson v. Abington Twp., No. CIV.A.01–5501, 2002 WL 32351171, at *1, *9 (E.D.

Pa. Aug. 15, 2002) (denying dismissal of plaintiffs’ claim where defendant police

officers falsely arrested one plaintiff, drove another out of business, and arrested and

seized items from a third plaintiff using a search warrant they knew to be false);

Gilbert v. Feld, 788 F.Supp. 854, 857 (E.D. Pa. 1992) (holding that claim had been

stated where defendants were alleged to have “procured the institution of criminal

charges against [plaintiff] by providing false and misleading information to and by

concealing information from” the district attorney’s office).

While these contrasting results are not readily reconcilable, the outcomes of

these cases are frequently fact-specific. Further, among the factual considerations

that appear to influence the courts’ judgment in this regard are the gravity of the

criminal accusation; the severity of the collateral consequences which flow from the

false accusation; whether the person making the accusation is able to procure some

official action against the plaintiff by the authorities based upon the false accusation;

and the extent to which the authorities are affirmatively misled by the accuser’s false

statements. Id. In this case, the plaintiffs allege facts which suggest that some of

these aggravating factors may be present. Recognizing the fact-specific nature of

these claims, at the pleading stage we believe that the plaintiffs have asserted

sufficient well-pleaded facts for this claim to proceed forward, subject to a later

assessment of whether the undisputed material facts will support this claim under

the highly exacting legal benchmarks set by Pennsylvania law.

IV. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the

defendant’s motion to dismiss the plaintiffs’ complaint (Doc. 10) be DENIED.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within

fourteen (14) days after being served with a copy thereof. Such party

shall file with the clerk of court, and serve on the magistrate judge and

all parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is

made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge,

however, need conduct a new hearing only in his or her discretion or

where required by law, and may consider the record developed before

the magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

Submitted this 22d day of August 2019.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge