Bartol v. Arbogast

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHERINE BARTOL, :

Plaintiff :

: No. 1:21-cv-00180

v. :

: (Judge Kane)

DAUPHIN COUNTY d/b/a DAUPHIN :

COUNTY JUDICIAL CENTER :

BOOKING FACILITY PRISON, et al., :

Defendants :

MEMORANDUM

Plaintiff Katherine Bartol (“Plaintiff”) commenced this action in February 2021. (Doc.

No. 1.) In her operative, first amended complaint, Plaintiff asserts due process, excessive force,

and related claims against Dauphin County d/b/a Dauphin County Judicial Center Booking

Facility Prison (“Booking Center”) and Correctional Officers Pamela Arbogast, Andrew Burkins,

and Scott Grieb (“CO Defendants”) (Doc. No. 27). Before the Court are two motions: (1) a

motion to dismiss filed by Defendants Burkins and Grieb (“Moving Defendants”) pursuant to

Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 35); and (2) Plaintiff’s motion for leave to

file a surreply in opposition to the Moving Defendants’ motion to dismiss (Doc. No. 40). For the

following reasons, the Court will grant in part the Moving Defendants’ motion to dismiss (Doc.

No. 35) to the extent of dismissing Count II without prejudice and Count IV with prejudice. The

Court will deny Plaintiff’s motion for leave to file a surreply. (Doc. No. 40.)

I. BACKGROUND

Plaintiff’s allegations, which the Court must assume are true for purposes of resolving the

Moving Defendants’ motion to dismiss, see Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir.

2004), establish the following facts. Late one night in April 2019, local police officers initiated a

traffic stop of Plaintiff’s vehicle because “she was driving without headlights.” (Doc. No. 27 ¶

10.) The officers directed Plaintiff to exit her vehicle and walk a straight line, although Plaintiff

was not intoxicated, and then requested that she submit to a breathalyzer test. (Id. ¶¶ 11-13.)

Plaintiff had “facial and dental injuries (including a plastic plate in her mouth) from [her prior]

car accident that made it difficult.” (Id. ¶ 13.) The officers arrested and handcuffed Plaintiff on

“minor charges, including DUI,” and transported her to the Booking Center for the purpose of

obtaining a blood sample. (Id. ¶¶ 14-16.)

Plaintiff arrived at the Booking Center without her purse or eyeglasses. (Id. ¶ 17.) The

officers cuffed her ankles, while the CO Defendants “put [her] up against a wall,” searched her,

and “punched and hit her,” bruising her legs and hip. (Id. ¶¶ 18-20.) After directing Plaintiff to

sit at a table, the CO Defendants “rifled through her coat pockets,” removing personal items,

including prayer cards and religious medals for which they mocked her, stating, “[o]ooo what’s

this?” (Id. ¶¶ 21-22.) The CO Defendants also found two “alprazolam pills that were prescribed

to [a] gravely ill person for whom Plaintiff had been caring.” (Id. ¶ 23.) The CO Defendants

“laughed at Plaintiff and accused her of dealing drugs,” disbelieved that the pills were for her

friend, and stated, “Book her!” (Id. ¶¶ 24-25.) When Plaintiff informed the CO Defendants of

her head injuries and the fact that she suffered from severe Post Traumatic Stress Disorder

(“PTSD”), they yelled, “[s]hut up and do what you’re told.” (Id. ¶ 26.) Defendant Arbogast had

Plaintiff sign a blood-test refusal form. (Id. ¶ 27.) Although Plaintiff was confused, the CO

Defendants refused to read the form aloud a second time or to let her read the form herself. (Id.

¶¶ 27-29.) Plaintiff alleges that one CO Defendant began “chanting and yelling, ‘absolutely not,

that is a refusal.’” (Id. ¶ 30.)

The CO Defendants eventually placed Plaintiff in a cell. (Id. ¶ 31.) At that point, the CO

Defendants began to subject Plaintiff to a course of degrading, threatening, and abusive physical

and verbal conduct, during which conduct she was panic-stricken and crying, the pain in her legs

intensifying from the CO Defendants’ punches. (Id. ¶¶ 35-36.) Plaintiff alleges that Defendant

Arbogast: (1) ordered her to remove her shirt and lift up her bra, stating, “[p]eople like you hide

drugs in their bras and I want to make sure you’re not hiding any”; (2) directed her to “put on a

paper shirt so that she ‘didn’t hang’ herself”; (3) stated, with another CO Defendant, “[t]he pretty

ones always get off by the judge,” and “[s]he makes me sick”; (4) laughed and told her that they

were holding her because she did not answer their questions, stating, in chorus with the other CO

Defendants, “[s]ee, you don’t know”; (5) forcefully “grabbed [her] hand and severely twisted it

to take [her] fingerprints”; (6) directed her not to open her bag to check her personal items; and

(7) upon her release, “threw [her] shirt at her and told her to change outside[.]” (Id. ¶¶ 32-34, 37,

42-43, 49-52.)

Plaintiff further alleges that the CO Defendants refused to allow her to make a phone call,

“chant[ed] that [she] was the most uncooperative one they had at the Booking Center,” and

yelled, “[t]hank God I didn’t have a freak like her for a teacher.” (Id. ¶¶ 38, 45, 48.) One CO

Defendant “began making growling sounds outside Plaintiff’s cell,” stating, “Katherine, you’re a

fucking whiner,” adding, “go to hell, you fucking bitch.” (Id. ¶ 40.) Another or the same CO

Defendant yelled, “[w]e hate people like you here,” exclaiming “[s]hut the fuck up or I swear I’ll

beat the hell out of you and you’ll never get out of here.” (Id. ¶ 41.) At about 4 a.m., a male CO

Defendant “entered Plaintiff’s cell and repeatedly yelled ‘Sit’ to Plaintiff, as though [she] were a

dog,” and either the same or the other male CO Defendant told her, “[y]ou will come out and do

what you’re told and cooperate if you want to get out of here.” (Id. ¶¶ 46-47.) Plaintiff alleges

that because of the CO Defendants’ conduct, she suffered severe emotional distress, sustained

severe injuries including bruises on her legs and hip, and “suffered and continues to suffer

injuries and damages.” (Id. ¶¶ 69-70, 75, 81, 89, 99, 107, 114, 118-19.)

Based on these allegations, Plaintiff asserts against the CO Defendants (i.e. Arbogast and

the Moving Defendants) three causes of action under 42 U.S.C. § 1983 for due process (Count I),

excessive force (Count II), and equal protection (Count III) violations, a federal conspiracy claim

under 42 U.S.C. § 1985(c) (Count IV), and two state law claims for battery (Count VI) and

intentional infliction of emotional distress (“IIED”) (Count VII). (Id. ¶¶ 53-99, 108-119.) She

seeks compensatory and punitive damages, attorney’s fees, and litigation costs. (Id. at 17.) The

Moving Defendants filed their motion to dismiss and a brief in support on January 31, 2022

(Doc. Nos. 35-36), Plaintiff filed a brief in opposition on February 14, 2022 (Doc. No. 37), and

the Moving Defendants filed a reply brief on February 18, 2022 (Doc. No. 39). Plaintiff filed her

motion for leave to file a surreply on February 25, 2022 (Doc. No. 40), the Moving Defendants

filed a response and brief in opposition to that motion on March 2, 2022 (Doc. Nos. 41-42), and

the time for filing a reply brief has expired. Accordingly, both motions are ripe for disposition.

II. LEGAL STANDARD

Federal notice and pleading rules require the complaint to provide the defendant notice of

the claim and the grounds upon which it rests. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,

232 (3d Cir. 2008). When reviewing the sufficiency of a complaint pursuant to a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all

material allegations in the complaint and all reasonable inferences that can be drawn from them,

viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618

F.3d 300, 314 (3d Cir. 2010). However, the Court need not accept legal conclusions proffered as

factual allegations. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, a civil

complaint must “set out ‘sufficient factual matter’ to show that the claim is facially plausible.”

See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)).

Consistent with the Supreme Court’s rulings in Twombly and Iqbal, the Third Circuit has

identified three steps a district court must take when determining the sufficiency of a complaint

under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a claim; (2) identify

any conclusory allegations contained in the complaint “not entitled” to the assumption of truth;

and (3) determine whether any “well-pleaded factual allegations” contained in the complaint

“plausibly give rise to an entitlement to relief.” See Santiago v. Warminster Twp., 629 F.3d 121,

130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679). A complaint is properly dismissed

where the factual content in the complaint does not allow a court “to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678.

III. DISCUSSION

Before turning to the merits of the Moving Defendants’ motion to dismiss, the Court

addresses a contention upon which their motion to dismiss hinges: they contend that the Court

should, in deciding the motion, consider affidavits and transcripts of depositions taken in this

case. (Doc. No. 36 at 9, 11, 13-15, 22.) The Court disagrees. When evaluating a Rule 12(b)(6)

motion to dismiss as applied to the allegations in a particular complaint, the Court may “consider

only the complaint, exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents if the complainant’s claims are based upon these documents.”

See Guidotti v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (quoting

Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010)). The affidavits and testimony cited by the

Moving Defendants are not contained in or attached to the complaint, do not include matters of

public record, and do not constitute undisputedly authentic documents upon which Plaintiff’s

claims are based. Therefore, the Court may not consider those documents in evaluating the

merits of the Moving Defendant’s motion to dismiss. See id.; see also Gorton v. Air & Liquid

Sys. Corp., 303 F. Supp. 3d 278, 303 (M.D. Pa. 2018) (declining to consider “depositions, i.e.,

evidence extrinsic to the complaint, in deciding” motions to dismiss); Hertzler v. W. Shore Sch.

Dist., No. 1:12-cv-00534, 2013 WL 53982, at *1 (M.D. Pa. Jan. 3, 2013); Gomery v. Versatile

Mobile Sys. Inc., No. 1:07-cv-02292, 2008 WL 2357693, at *1 (M.D. Pa. June 4, 2008) (noting

impropriety of considering deposition testimony on a motion to dismiss); cf. Grp. Against Smog

& Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (noting that a principal

“difference[] between a motion to dismiss for lack of subject matter jurisdiction and a motion to

dismiss for failure to state a claim” is that “a court may consider evidence beyond the pleadings

such as testimony and depositions when considering” a jurisdiction-based motion to dismiss).

Nor can the Court consider Plaintiff’s affidavit, submitted in connection with her motion

for leave to file a surreply, in which she raises facts controverting the Moving Defendants’

arguments and the contents of the affidavits and testimony upon which they rely. (Doc. No. 40-

2.) Accordingly, because Plaintiff’s motion for leave to file a surreply is based on her request

that the Court consider her affidavit in deciding the Moving Defendants’ motion to dismiss (Doc.

No. 40), the Court declines to grant her leave and will not consider the contents of her affidavit

(Doc. No. 40-2). Having disposed of this preliminary matter, the Court turns to the merits of the

Moving Defendants’ motion as to each of Plaintiff’s claims.

A. Federal Claims

Plaintiff asserts her federal claims pursuant to 18 U.S.C. § 1983. Section 1983 is the

vehicle by which private citizens can seek redress for violations of federal constitutional rights

committed by state officials. See 42 U.S.C. § 1983. The statute provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subject, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . . .

See id. Section 1983 “does not . . . create substantive rights; it provides only remedies for

deprivations of rights established elsewhere in the Constitution or federal laws.” See Kneipp v.

Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim for relief under § 1983, a plaintiff

“must allege the violation of a right secured by the Constitution and laws of the United States”

and “show that the alleged deprivation was committed by a person acting under color of state

law.” See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West

v. Atkins, 487 U.S. 42, 48 (1988)).

As to all four of Plaintiff’s federal claims (Counts I-IV), the Moving Defendants argue

that Plaintiff has failed to establish any violations of her constitutional rights under § 1983 and,

further, that qualified immunity shields them from liability. The Court will address the Moving

Defendants’ arguments concerning the facial sufficiency of Plaintiff’s claims before evaluating

their affirmative defense of qualified immunity.

1. Fourteenth Amendment Due Process Claim (Count I)

In Count I of her amended complaint, Plaintiff alleges that the CO Defendants (Arbogast

and the Moving Defendants) violated her substantive and procedural due process rights by

subjecting her, while she was a pretrial detainee, to “physical and/or emotional abuse” wholly

unrelated to a legitimate governmental purpose. (Doc. No. 27 ¶ 57.) She asserts that the CO

Defendants knew that she suffered from PTSD and other injuries but nonetheless repeatedly

intimated and frightened her with obscenities, threats, and physical abuse in an effort to

exacerbate her emotional state. (Id. ¶ 59.) Plaintiff also avers that the CO Defendants retaliated

against her for refusing to submit to a blood test, and that their physical and emotional abuse

“was malicious and demonstrated a reckless indifference to Plaintiff’s liberty interest, i.e[.], to be

safe and free from punishment.” (Id. ¶ 69.)

In asserting that Count I is facially deficient, the Moving Defendants raise two principal

contentions: (1) that Plaintiff has failed to plausibly allege the Moving Defendants’ personal

involvement in the excessive force allegations underlying her complaint; and (2) that Plaintiff

has failed to state an excessive force claim because she relies on “unproven accusations of

violence by [the Moving Defendants].” (Doc. No. 36 at 12-15.) The Moving Defendants argue

that Plaintiff has “vaguely accuse[d] [them] of ‘physical abuse’ and [] says that one or both of

them (or someone else entirely) may have hit her hip and legs.” (Id. at 13.) Relying on

affidavits and deposition testimony, the Moving Defendants further argue that none of the

conduct alleged in the complaint is true and therefore falls short of adequately alleging their

personal involvement in the use of excessive force. (Id. at 12-15.)

Having reviewed the allegations in the complaint in the light most favorable to Plaintiff,

drawing all inferences in her favor, as well as the parties’ briefing, the Court concludes that

Plaintiff has stated a claim for violations of her substantive due process rights as guaranteed in

the Fourteenth Amendment. It is well-settled that the Due Process Clause of the Fourteenth

Amendment “protects pretrial detainees from ‘the use of excessive force that amounts to

punishment.’”1 See Jacobs v. Cumberland Cnty., 8 F.4th 187, 194 (3d Cir. 2021) (quoting

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)). To plead such a claim, Plaintiff must

1 Regarding Plaintiff’s claims of verbal abuse and harassment, such claims generally do not give

rise to Fourteenth Amendment violations. See S.M. v. Lakeland School Dist., 148 F.Supp.2d

542, 551 (M.D. Pa. 2001). The Court therefore confines its discussion of Count I to whether

Plaintiff’s allegations of physical force give rise to a Fourteenth Amendment claim.

plausibly allege that the Moving Defendants purposely or knowingly subjected her to objectively

unreasonable force while she was a pretrial detainee. See id. The standard is one of “objective-

reasonableness.” See id. Whether the use of force was objectively unreasonable “requires

‘careful attention to the facts and circumstances of each particular case.’” See id. (quoting

Graham, 490 U.S. at 396). Such circumstances include: (1) the “relationship between the need

for the use of force and the amount of force used”; (2) “the extent of the plaintiff’s injury”; (3)

any “effort made by the officer to temper or to limit the amount of force”; (4) “the severity of the

security problem at issue”; (5) the “threat reasonably perceived by the officer”; and (6) “whether

the plaintiff was actively resisting.” See id. (quoting Kingsley v. Hendrickson, 576 U.S. 389,

397 (2015)).

Here, Plaintiff alleges that she was that she was confined to a cell for several hours

following an arrest and that the Moving Defendants and Defendant Arbogast, all state actors,

punched and hit her. These allegations satisfy the threshold element, required under § 1983, that

Plaintiff plead the Moving Defendants’ personal involvement in the alleged use of force. See,

e.g., Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Plaintiff further alleges that the use

of force was unnecessary, that she sustained severe bruises, that there was no security problem at

issue or a reasonably perceived threat, and that she was not actively resisting. These allegations

suffice to state a claim that Moving Defendants purposely subjected her to wholly unprovoked

and objectively unreasonable force, all in violation of her substantive due process rights. See

Jacobs, 8 F.4th at 194. Accordingly, the Court will deny the Moving Defendants’ motion to

dismiss Count I as to Plaintiff’s substantive due process claim.2

2 Discovery may reveal, as the Moving Defendants argue, that Plaintiff’s alleged injuries are

insufficient to prove the level of force required to establish a constitutional violation. Cf. Burr v.

Hasbrouck Heights Police Dep’t, 131 F. App’x 799, 803 (3d Cir. 2005) (not precedential)

To the extent Plaintiff asserts a procedural due process claim, however, Plaintiff does not

mention that claim anywhere in her briefing and makes only passing reference to the claim in her

amended complaint. (Doc. Nos. 1, 37.) Specifically, she alleges that, “[a]s a detainee, [her] right

to procedural due process was violated by Defendants’ physical and emotional abuse.” (Doc.

No. 27 ¶ 68.) That claim sounds in violations of substantive due process rights, and Plaintiff

does not otherwise allege that she was deprived of a “protected property interest” without being

afforded an adequate “procedure for challenging the deprivation.” See Nicolette v. Caruso, 315

F. Supp. 2d 710, 721 (W.D. Pa. 2003). Thus, the Court will dismiss in part Count I to the extent

of dismissing Plaintiff’s procedural due process claim.

2. Fourth Amendment Excessive Force Claim (Count II)

Because Plaintiff alleges that she was a “pretrial detainee” when the Moving Defendants

used excessive force against her, she has necessarily failed to state a claim under the Fourth

Amendment. See Leone v. Towanda Borough, No. 3:12-cv-00429, 2012 WL 2590387, at *5

(M.D. Pa. July 3, 2012) (noting that the Fourth Amendment protects against excessive force used

during the course of arrest, whereas the Fourteenth Amendment’s protections apply once an

arrestee becomes a pretrial detainee). Therefore, the Court will grant the Moving Defendants’

motion to dismiss Count II. However, at this juncture of the proceedings, the Court will not

foreclose Plaintiff from asserting, as an alternative to her Fourteenth Amendment claim, an

adequately pleaded Fourth Amendment excessive force claim in a second amended complaint.

Whether she was a pretrial detainee at the time force was used is a fact-intensive issue that need

(affirming grant of summary judgment as to excessive force claim where officer caused small

bruises to the plaintiff’s arms but “was objectively reasonable”). Nevertheless, at this stage of

the proceedings, construing Plaintiff’s allegations in the light most favorable to her, the Court

concludes that she has plausibly alleged a substantive due process cause of action.

not be decided as a matter of law at this time,3 particularly given that the Moving Defendants did

not squarely address this issue in their motion papers. Accordingly, the Court will dismiss Count

II without prejudice.

3. Equal Protection Claim (Count III)

Regarding Count III, as they did in addressing Counts I and II, the Moving Defendants

base their motion to dismiss on affidavits and deposition testimony that the Court cannot

consider in evaluating their motion. They do not discuss the elements of Plaintiff’s equal

protection claim. (Doc. No. 36.) Absent any specific arguments from the Moving Defendants,

the Court concludes that Plaintiff’s allegations state a claim for violations of her equal protection

rights based on her class-of-one theory of liability. To plead such a claim, Plaintiff must allege

that (1) the Moving Defendants “treated h[er] differently from others similarly situated”; (2)

“[they] did so intentionally”; and (3) “there was no rational basis for the difference in treatment.”

See Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006). Construing the allegations

in her complaint in a light most favorable to her, Plaintiff alleges that the Moving Defendants

punched and hit her because she was a “pretty” retired teacher. (Doc. No. 27 ¶¶ 37, 45.) These

allegations suffice to plead that she was intentionally treated differently than others without there

being any rational basis for the difference in treatment. Accordingly, and again given the

Moving Defendants’ failure to raise any specific arguments challenging whether Plaintiff has

sufficiently alleged the elements of this claim, the Court will deny the Moving Defendants’

motion to dismiss Count III.

3 The standard for determining when an arrestee becomes a pretrial detainee turns on factors

including “the length of time in custody, whether the arrestee has been transferred out of custody

of the arresting officers, and whether the arrestee has been arraigned . . . .” See Leone, 2012 WL

2590387, at *5 (internal quotation marks omitted).

4. Federal Conspiracy Claims (Count IV)

Neither the Moving Defendants nor Plaintiff address the elements of the conspiracy claim

asserted in Count IV pursuant to 42 U.S.C. § 1985. Nevertheless, the Court will dismiss Count

IV in light of the broad consensus among courts that a plaintiff cannot maintain a class-of-one

equal protection claim pursuant to § 1985, which requires allegations that “the conspiracy was

motivated by race or class-based invidious discrimination.” See Jackson v. Gordon, 145 F.

App’x 774, 778 (3d Cir. 2005) (not precedential); see, e.g., McCleester v. Dep’t of Lab. &

Indus., No. 3:06-cv-00120, 2007 WL 2071616, at *15 (W.D. Pa. July 16, 2007) (observing an

“emerging consensus among federal authority . . . fall[ing] against the ‘class of one’ theory in the

§ 1985(3) context”); Welsh v. Male, No. 05-cv-06838, 2007 WL 906182, at *4 (E.D. Pa. Mar.

22, 2007) (stating that a “‘class of one’ is not the type of group that could legitimately be

subjected to class-based animus”); see also Cataldo v. Moses, No. 02-cv-02588, 2005 WL

705359, at *19 (D.N.J. Mar. 29, 2005); Overcash v. Shelnutt, 753 F. App’x 741, 746 (11th Cir.

2018) (not precedential); C & H Co. v. Richardson, 78 F. App’x 894, 901 (4th Cir. 2003). The

Court will therefore dismiss Count IV with prejudice.

5. Affirmative Defense of Qualified Immunity

The Moving Defendants contend that they are entitled to qualified immunity as to all of

Plaintiff’s federal claims. (Doc. No. 21 at 20-21.) Their contentions, however, hinge on the

affidavits and deposition testimony upon which they rely. For example, they argue that they

“never improperly (or at all) touched Plaintiff.” (Id. at 20.) As the Court already discussed,

supra, it cannot consider the affidavits and testimony upon which the Moving Defendants rely

and, therefore, finds the Moving Defendants’ qualified immunity arguments unavailing.

Further, the factual allegations in the amended complaint do not support application of

the qualified immunity defense in this case. “The doctrine of qualified immunity protects

government officials from liability for civil damages unless a plaintiff pleads facts showing

(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Wood v. Moss, 572 U.S. 744, 745 (2014)

(internal quotation marks omitted). The United States Court of Appeals for the Third Circuit has

“cautioned that ‘it is generally unwise to venture into a qualified immunity analysis at the

pleading stage as it is necessary to develop the factual record in the vast majority of cases.’” See

Rankin v. Majikes, 3:14-cv-00699, 2014 WL 6893693, at *10 (M.D. Pa. Dec. 5, 2014) (quoting

Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (not precedential)); see also

Taylor v. Rosa, 856 F. App’x 376, 378 n.3 (3d Cir. 2021) (not precedential) (stating, “[b]ecause

qualified immunity is a defense, it will be upheld on a [motion to dismiss] only when the

immunity is established on the face of the complaint” (internal quotation marks omitted) (second

alteration in original)).

Here, Plaintiff has pleaded facts sufficient to overcome the Moving Defendants’ defense

of qualified immunity at this stage of the proceedings. As to the first element required to

establish the defense (statutory or constitutional violations), the Court has already determined

that Plaintiff has adequately pleaded violations of her constitutional rights under Counts I and III.

Regarding the second element, it is well-settled that “[t]he right to be free from an unprovoked

beating is clearly established.” See Hill v. Algore, 85 F. Supp. 2d 391, 409 (D.N.J. 2000); see

also Millar v. Windsor Twp., No. 1:04-cv-02529, 2006 WL 2460899, at *4 (M.D. Pa. Aug. 23,

2006) (rejecting qualified immunity defense given that “the right to be free from excessive force

was clearly established at the time of the alleged violation”). Therefore, the Moving Defendants

have not established their entitlement to qualified immunity at this time.

B. State Law Claims

The Moving Defendants challenge the sufficiency of Plaintiff’s state law claims for

battery (Count VI) and IIED (Count VII). (Doc. No. 36 at 22-26.) They argue that both claims

are insufficiently pleaded and that, even if they were, sovereign immunity bars both claims under

42 Pa. C.S. §§ 8540, 8541, and 8550. (Id.)

1. Battery (Count VI)

Under Pennsylvania law, “[t]he tort of battery has been described as an unconsented

touching that is either harmful or offensive.” See Cooper ex rel. Cooper v. Lankenau Hosp., 51

A.3d 183, 191 (Pa. 2012) (citing C.C.H. v. Philadelphia Phillies, Inc., 940 A.2d 336, 340 n.4 (Pa.

2008) (defining “battery” as “‘a harmful or offensive contact’ with the person of another”

(quoting Dalrymple v. Brown, 701 A.2d 164, 170 (Pa. 1997))). Applying this standard here, the

Court concludes that Plaintiff’s allegations of the unprovoked use of force suffice to plead a

claim of state law battery. See id. Further, Plaintiff’s allegations, construed in a light most

favorable to her, suffice to plead that the Moving Defendants engaged in willful misconduct such

that official immunity under state law does not, at least based on the face of the complaint, bar

her from pursuing a state law battery claim against them. See 42 Pa. C.S. § 8550 (noting that

“willful misconduct” falls outside the scope of the official immunity). Having concluded both

that Plaintiff’s allegations state a battery cause of action and that the Moving Defendants have

failed to establish their entitlement to state law immunity based on the allegations in the

amended complaint, the Court will deny their motion to dismiss Count VI.

2. Intentional Infliction of Emotional Distress (Count VII)

Finally, the Court turns to Plaintiff’s IIED claim, which requires allegations that the

Moving Defendants’ conduct: “(1) was intentional or reckless; (2) was extreme and outrageous;

(3) actually caused the distress; and (4) caused distress that was severe.” See Betz v. Satteson,

259 F. Supp. 3d 132, 194 (M.D. Pa. 2017) (quoting Regan v. Twp. of Lower Merion, 36 F. Supp.

2d 245, 251 (E.D. Pa. 1999)), aff’d, 715 F. App’x 213 (3d Cir. 2017). Plaintiff must also plead

“physical injury or harm[.]” See id. (quoting K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28

F. Supp. 3d 356, 376 (M.D. Pa. 2014)). The alleged conduct must be “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community.” See Lawson v.

Pennsylvania SPCA, 124 F. Supp. 3d 394, 409 (E.D. Pa. 2015) (quoting Kasper v. Cnty. of

Bucks, 514 F. App’x 210, 217 (3d Cir. 2013) (not precedential)).

Assuming the truth of Plaintiff’s allegations, the Court finds that she has stated an IIED

claim. She alleges that she was hit, punched, and physically and verbally abused and assaulted

in a manner that resulted in severe bruising and emotional harm and distress. These allegations

state a plausible IIED claim, i.e., intentional, extreme, and outrageous conduct that caused severe

distress. See Miller v. Burgett, No. 19-cv-05309, 2021 WL 2351993, at *3 (E.D. Pa. June 9,

2021) (holding that a “punch . . . in the face, allegedly without any provocation or justification,

easily meets the elements of IIED”); see also Mirra v. Fynes, No. 13-cv-01677, 2015 WL

2118042, at *6 (E.D. Pa. May 6, 2015) (holding punch in face without provocation sufficient to

overcome summary judgment as to IIED claim); Monroe v. Mullooley, No. 10-cv-01208, 2011

WL 337333, at *3 (W.D. Pa. Feb. 3, 2011) (stating that a “single punch” would typically “be

unlikely to rise to the level of outrageousness required by this tort” but denying motion to

dismiss as too early a “juncture in the proceedings” to dispose of such a claim).

The Moving Defendants argue that they are shielded from IIED liability under 42 Pa.

C.S.A. § 8541 (providing that “no local agency shall be liable for any damages on account of any

injury to a person or property caused by any act of the local agency or an employee thereof or

any other person”). As with Count IV, however, Plaintiff has plausibly alleged that the Moving

Defendants engaged in willful conduct, which falls outside the scope of immunity under the

relevant statutory provision. See id. § 8542(a). Accordingly, the Court will deny the Moving

Defendants’ motion to dismiss Plaintiff’s IIED claim asserted in Count VII.

C. Leave to Amend

The Third Circuit has “instructed that if a complaint is vulnerable to 12(b)(6) dismissal, a

district court must permit a curative amendment, unless an amendment would be inequitable or

futile.” See Phillips, 515 F.3d at 236 (citing Grayson v. Mayview State Hosp., 293 F.3d 103,

108 (3d Cir. 2002)). “An amendment is futile if the amended complaint would not survive a

motion to dismiss for failure to state a claim upon which relief could be granted.” Alvin v.

Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (citing Smith v. NCAA, 139 F.3d 180, 190 (3d Cir.

1998), rev’d on other grounds, 525 U.S. 459 (1999)). As her complaint currently stands,

Plaintiff has failed to adequately plead three of her claims: (1) her § 1983 procedural due process

claim asserted under Count I; (2) her § 1983 Fourth Amendment claim asserted under Count II;

and (3) her § 1985 equal protection conspiracy claim asserted under Count IV. The Court will

grant Plaintiff leave to amend her complaint only as Count II as it would be neither inequitable

nor futile to permit her to do so. She may file a second amended complaint as to Count II to cure

the deficiencies identified in this Memorandum. The Court will not, however, grant Plaintiff

leave to amend either her procedural due process claim asserted under Count I or her § 1985

conspiracy claim asserted under Count IV because any amendment would be futile. The Court

will therefore dismiss Plaintiff’s procedural due process claim asserted under Count I, as well as

Count IV, with prejudice.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part the Moving Defendants’ motion

(Doc. No. 35) to the extent of dismissing Count II without prejudice and dismissing Counts I

(only as to the procedural due process claim) and IV with prejudice. The Court will deny the

motion to dismiss as to Counts I (as to the substantive due process claim), III, VI, and VII. The

Court will also deny Plaintiff’s motion for leave to file a surreply (Doc. No. 40) in opposition to

the Moving Defendants’ motion. An appropriate Order follows.

s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania