Hernandez v. Masinick

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL HERNANDEZ,

Plaintiff, CIVIL ACTION NO. 3:22-cv-00198

v. (SAPORITO, M.J.)

KEVIN MASINICK, et al.,

Defendants.

MEMORANDUM

This federal civil rights action for damages under 42 U.S.C. § 1983

commenced when the plaintiff, Angel Hernandez, appearing through

counsel, filed his original complaint on February 9, 2022. (Doc. 1.) The

original complaint named two defendants: The Commonwealth of

Pennsylvania and the Pennsylvania State Police (the “Commonwealth

Defendants”). On June 3, 2022, Hernandez filed a four-count amended

complaint, adding a third defendant: Kevin Masinick, a Pennsylvania

state trooper, in both his personal and official capacities. (Doc. 13.)

The Commonwealth Defendants have filed a motion for partial

dismissal of the amended complaint. (Doc. 16.) That motion is fully

briefed and ripe for decision. (Doc. 17; Doc. 25-2; Doc. 28.)

Appearing separately through his own counsel, Trooper Masinick

has also filed a motion for partial dismissal of the amended complaint.

(Doc. 19.) That motion is also fully briefed and ripe for decision. (Doc. 27;

Doc. 32; Doc. 33.)

For the reasons set forth herein, the Commonwealth Defendants’

motion will be granted, and Trooper Masinick’s motion will be granted in

part and denied in part.

I. BACKGROUND

In his amended complaint, Hernandez alleges that, on November 2,

2021, at about 7:00 p.m., he was riding his 2009 Yamaha motorbike

southbound on Second Mountain Road in North Manheim Township,

Schuylkill County, Pennsylvania. At the same time and on the same

stretch of road, Trooper Masinick was driving an unmarked

Pennsylvania state police vehicle, a 2019 Ford Explorer, northbound.

Upon observing Hernandez riding his motorbike, Masinick suddenly and

without warning turned on his emergency lights and intentionally drove

his vehicle the wrong way into oncoming traffic on Second Mountain

Road, where he intentionally and violently—or, alternatively, negligently

and recklessly—struck Hernandez and his motorbike with the front of

the Ford Explorer, causing serious injuries to Hernandez.

The amended complaint alleges that, when he intentionally caused

the collision of vehicles, Trooper Masinick had a conscious desire to

terminate Hernandez’s freedom through the action of ramming the

motorbike with his police vehicle. The amended complaint further alleges

that, at the time of this incident, Hernandez did nothing to physically

threaten Trooper Masinick or anyone else, and Hernandez was not

operating the motorbike in any way that could have caused any risk of

injury to himself, to any pedestrians, or to other motorists.

At the time of this incident, Trooper Masinick is alleged to have

been acting within the scope of his authority and on the business of the

Commonwealth Defendants as an agent, servant, workman, or employee

of the Commonwealth Defendants. The amended complaint further

alleges that the Commonwealth Defendants failed to adequately train or

supervise their police officers with respect to the use of excessive force in

stopping, detaining, or arresting individuals, including the use of police

vehicles to intentionally strike other vehicles or individuals without

cause or justification.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.

2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The amended complaint is set out in four counts. Count I asserts a

§ 1983 federal civil rights claim against Trooper Masinick only, alleging

violations of his rights under the Fourth, Fifth, and Fourteenth

Amendments to the United States Constitution.1 Count II asserts

supplemental state-law assault and battery claims against all three

defendants. Count III asserts a § 1983 substantive due process claim

against Trooper Masinick only, based on a “state created danger” theory

of liability. Count IV asserts supplemental state-law negligence claims

against all three defendants. For relief, Hernandez seeks an award of

1 Count I of the amended complaint also alleged violations of the

plaintiff’s rights under various provisions of the Pennsylvania state

constitution, but those claims have been voluntarily dismissed by the

plaintiff pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil

Procedure. (Doc. 15.) See generally Pocono Mountain Charter Sch. v.

Pocono Mountain Sch. Dist., 442 Fed. 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.”) (citing Jones v. City of Philadelphia, 890 A.2d 1188, 1208

(Pa. Commw. Ct. 2006)); Berry v. City of Philadelphia, 188 F. Supp. 3d

464, 477 (E.D. Pa. 2016).

compensatory and punitive damages, plus reasonable attorney’s fees and

costs.

A. The Commonwealth Defendants’ Motion to Dismiss

In their motion to dismiss, the Commonwealth Defendants seek

dismissal of any official-capacity § 1983 claims against Trooper

Hernandez under Counts I and III on the ground that such claims are

barred by Eleventh Amendment immunity. They seek dismissal of the

intentional tort claims against them in Count II on the ground that such

claims are barred by state sovereign immunity. Finally, they argue that

the plaintiff’s request for punitive damages with respect to the remaining

claims against the Commonwealth Defendants—the negligence claims

asserted in Count IV—should be stricken because sovereign immunity

bars the recovery of punitive damages from the Commonwealth

Defendants. The Commonwealth Defendants do not seek dismissal of the

plaintiff’s negligence claims (set forth in Count IV) to the extent he seeks

compensatory damages only.

1. Official-Capacity and Intentional Tort Claims

In his opposition brief, Hernandez concedes that dismissal of his

official-capacity § 1983 claims and his state-law intentional tort claims

against the Commonwealth Defendants is appropriate. See M.S. ex rel.

Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 430 (M.D. Pa.

2014); Cooper ex rel. Transp. Workers Union Local 234 v. Se. Pa. Transp.

Auth., 474 F. Supp. 2d 720, 721 n.2 (E.D. Pa. 2007).

Accordingly, the plaintiff’s § 1983 claims against Trooper Masinick

in his official capacity (set forth in Counts I and III of the amended

complaint) and the plaintiff’s state-law assault and battery claims

against the Commonwealth Defendants (set forth in Count II) will be

dismissed with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.

2. Punitive Damages

The only surviving claim against the Commonwealth Defendants is

the plaintiff’s negligence claim, set forth in Count IV of the amended

complaint. The amended complaint demands an award of punitive

damages with respect to all defendants. The Commonwealth Defendants

have requested that this request for punitive damages be stricken as a

against them.

Although Pennsylvania has waived its sovereign immunity with

respect to certain types of state-law negligence claims against the

Commonwealth or its agencies, see 42 Pa. Cons. Stat. Ann. § 8522, it has

explicitly limited that waiver to certain categories of compensatory

damages only, see id. § 8528(c). Punitive damages simply may not be

recovered from the Commonwealth or its agencies. See Feingold v. Se. Pa.

Transp. Auth., 517 A.2d 1270, 1276–77 (Pa. 1986).

Accordingly, the plaintiff’s request an award of punitive damages

will be stricken as against the Commonwealth Defendants.2

B. Trooper Masinick’s Motion to Dismiss

In his motion, Trooper Masinick seeks dismissal of the plaintiff’s

Fifth Amendment claim, set forth in Count I of the amended complaint,

on the ground that such claims are not cognizable against a state official.

He also seeks dismissal of the plaintiff’s Fourth Amendment unlawful

seizure and false arrest claim for failure to state a claim or, alternatively,

on qualified immunity or Younger abstention grounds. Trooper Masinick

does not seek dismissal of the plaintiff’s § 1983 excessive force or state-

created-danger claims, nor the plaintiff’s state-law tort claims.

2 Our ruling on this issue does not preclude the plaintiff from

recovering punitive damages from Trooper Masinick in his individual

capacity, should the evidence developed through discovery support such

relief.

1. Fifth Amendment Claim

In his opposition brief, Hernandez concedes that dismissal of his

§ 1983 Fifth Amendment claim against Trooper Masinick is appropriate.

See M.S., 43 F. Supp. 3d at 430; Cooper, 474 F. Supp. 2d at 721 n.2; see

also Highhouse v. Wayne Highlands Sch. Dist., 205 F. Supp. 3d 639, 648

(M.D. Pa. 2016) (“It is well-established . . . that the Fifth Amendment

restricts the actions of federal officials, not state actors.”).

Accordingly, the plaintiff’s § 1983 Fifth Amendment claim against

Trooper Masinick (set forth in Count I of the amended complaint) will be

dismissed with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.

2. Fourth Amendment Unreasonable Seizure Claims

The plaintiff brings his federal claims for damages under 42 U.S.C.

§ 1983. Section 1983 provides in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, 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 . . . .

42 U.S.C. § 1983. Section 1983 does not create substantive rights, but

instead provides remedies for rights established elsewhere. City of

Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983

claim, a plaintiff must establish that the defendants, acting under color

of state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible

for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005).

In Count I of the amended complaint, the plaintiff asserts that

Trooper Masinick’s conduct constituted an unreasonable seizure of his

person, in violation of his Fourth Amendment rights. In support, the

plaintiff relies on two alternative legal theories: (1) Masinick lacked

probable cause to effect the arrest or seizure of Hernandez (i.e., a “false

arrest” theory of liability); and (2) Masinick used unreasonable or

excessive force to effect the arrest or seizure of Hernandez (i.e., an

“excessive force” theory of liability).

Masinick does not seek dismissal of the § 1983 excessive force claim

at this stage, but he presents several arguments in support of his

contention that Hernandez has failed to state a § 1983 false arrest claim

upon which relief can be granted: (a) the amended complaint fails to

allege that any actual arrest occurred; (b) the seizure at issue was a

traffic stop rather than an arrest, which requires only reasonable

suspicion rather than probable cause; and (c) the seizure was supported

by probable cause (or reasonable suspicion) based on multiple traffic

citations that were subsequently filed against Hernandez. In the

alternative, the defendant state trooper argues that, under Younger v.

Harris, 401 U.S. 37 (1971), we should abstain and stay these proceedings

until after the state courts enter final judgment in the plaintiff’s

summary traffic offense proceedings. The defendant also interposes a

qualified immunity defense with respect to the plaintiff’s § 1983 false

arrest claim.

a. Younger Abstention

We consider first the defendant’s argument that we should abstain

to avoid interfering with ongoing state proceedings involving several

traffic citations issued to Hernandez as a result of his encounter with

Trooper Masinick.

In support of his motion to dismiss, Masinick has attached copies of

state court docket sheets documenting the filing of seven separate

summary traffic proceedings against Hernandez, all of which purportedly

arise out of his November 2, 2021, encounter with Trooper Masinick.

(Doc. 19-1.) Masinick asks us to take judicial notice of these docket

sheets, which indicate that on November 24, 2021, Hernandez was

charged with the following summary traffic offenses: (1) driving on a

suspended or revoked license; (2) driving without insurance; (3) driving

without a state inspection certificate; (4) driving without a state

registration; (5) driving with unsafe tires; (6) driving without proper

headlights; and (7) driving without proper taillights.

But we have consulted the publicly available court records to

ascertain the current status of these proceedings, learning that all have

been designated “inactive.” See, e.g., Commonwealth v. Hernandez,

Docket Nos. MJ-21303-TR-0004792-2021 (Schuylkill Cty. (Pa.) Magis.

Dist. Ct.). Thus, in the absence of “an ongoing state judicial proceeding,”

abstention is not warranted. See ACRA Turf Club, LLC v. Zanzuccki, 748

F.3d 127, 131 (3d Cir. 2014). Moreover, based on the factual allegations

of the amended complaint and the nature of the summary traffic offenses

that were charged, it does not appear that litigation of this case would

interfere with the state proceedings in any event.

b. Unreasonable Seizure

In a recent decision, the Supreme Court of the United States

explained that there are two distinct types of unreasonable seizure:

“seizures by control and seizures by force.” Torres v. Madrid, 141 S. Ct.

989, 1001 (2021) (emphasis in original). “[E]ach type of seizure enjoys a

separate common law pedigree that gives rise to a separate rule.” Id.

[A] seizure by acquisition of control involves either

voluntary submission to a show of authority or the

termination of freedom of movement. A prime example

of the latter comes from Brower [v. County of Inyo, 489

U.S. 593 (1989)], where the police seized a driver when

he crashed into their roadblock. Under the common law

rule of arrest, actual control is a necessary element for

this type of seizure. Such a seizure requires that a

person be stopped by the very instrumentality set in

motion or put in place in order to achieve that result.

Id. (citations and internal quotation marks omitted).3

3 Trooper Masinick does not seek dismissal of the plaintiff’s § 1983

excessive force claims. But we note the Supreme Court’s ultimate holding

in Torres that “the application of physical force to the body of a person

with intent to restrain is a seizure even if the person does not submit and

is not subdued.” Id. at 1003; see also id. at 1001 (“[The] requirement of

control or submission never extended to seizures by force.”). We find it

beyond dispute that, based on the allegations of the amended complaint,

Trooper Masinick’s ramming of his police SUV into Hernandez on his

motorbike constitutes a seizure for purposes of an excessive force claim.

Here, based on the allegations of the amended complaint, the

plaintiff has clearly pleaded sufficient facts to establish a seizure by

control—that is, an arrest. Such a seizure occurs whenever “there is a

governmental termination of freedom of movement through means

intentionally applied.” Brower v. Cty. of Inyo, 589 U.S. 593, 597 (1989);

see also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“Whenever an officer

restrains the freedom of a person to walk away, he has seized that

person.”). Indeed, the Supreme Court in Brower provided an example

that closely resembles the facts alleged in this case: “If . . . the police

cruiser had pulled alongside the fleeing car and sideswiped it, producing

the crash, then the termination of the suspect’s freedom of movement

would have been a seizure.” Brower, 589 U.S. at 597; see also Beshers v.

Harrison, 495 F.3d 1260, 1265–66 (3d Cir. 2007) (finding a seizure where

evidence on summary judgment would support a reasonable factfinder’s

conclusion that a police officer intentionally collided his vehicle with the

plaintiff’s).

Trooper Masinick argues that, rather than an arrest, the incident

at issue in this case falls within the “traffic stop” exception to the Fourth

Amendment. As this court recently explained in another case:

A well-established exception to the Fourth

Amendment’s warrant requirement permits an officer to

conduct a brief, investigatory stop when the officer has

a reasonable, articulable suspicion that criminal activity

is afoot. Accordingly, a routine traffic stop is

constitutional when it is supported by reasonable

suspicion. Reasonable, articulable suspicion is a less

demanding standard than probable cause and requires

a showing considerably less than preponderance of the

evidence.

United States v. Jones, ___ F. Supp. 3d ____, 2022 WL 2911675, at *10

n.9 (M.D. Pa. July 22, 2022) (citations, internal quotation marks, and

brackets omitted) (emphasis added); United States v. Gooch, 915 F. Supp.

2d 690, 702 (W.D. Pa. 2012) (“A routine traffic stop is constitutional when

it is supported by reasonable suspicion.”) (emphasis added).

But while the encounter alleged in the complaint literally involved

both “traffic” and a “stop,” it was anything but a “routine traffic stop.”

Hernandez and Trooper Masinick were allegedly traveling along the

same roadway in opposite directions when Masinick suddenly crossed

into the opposing lane of traffic and intentionally rammed the front of his

police SUV into Hernandez and his motorbike, causing serious injuries

to Hernandez. The “routine traffic stop” to which this exception applies

“is presumptively temporary and relatively brief.” United States v. Elias,

832 F.2d 24, 26 (3d Cir. 1987). “[T]he purpose of the stop is limited and

the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648,

653 (1979). Under these circumstances, where an officer applied

potentially deadly force in intentionally ramming his police vehicle into

a motorbike, we find the “routine traffic stop” exception to the Fourth

Amendment simply inapplicable. Cf. United States v. Johnson, Criminal

No. 08-CR-18, 2008 WL 4287288, at *7 (M.D. Pa. Sept. 17, 2008) (“[T]he

investigative detention of the taxicab in which [the plaintiff] was a

passenger was not a ‘routine’ traffic stop. Harrisburg police blocked the

cab from exiting the narrow alleyway, ordered the occupants to exit at

gunpoint, and placed the driver and Johnson in handcuffs. This show of

force is certainly greater than that which a driver should expect when

stopped for the ‘run of the mill’ traffic violation.”).

Finally, the defendant contends that, even if a seizure or arrest did

occur, Trooper Masinick had probable cause to seize Hernandez.

Masinick points to several summary traffic citations that were issued to

Hernandez based on the events of their encounter. Because the amended

complaint does not allege any facts regarding these traffic citations,

Masinick points us to publicly available state court docket records. But

these docket reports document only the filing of summary traffic citations

and the issuance of summonses to Hernandez; ultimately, the cases were

designated “inactive,” and no further activity was docketed. In particular,

there is no entry noted in these docket sheets to indicate that a neutral

judicial officer made any determination of probable cause, and the

cursory information provided by these docket sheets does not articulate

any facts whatsoever to support the filing of the citations. The Fourth

Amendment’s probable cause requirement cannot be satisfied by the

mere filing of criminal charges. See Kalina v. Fletcher, 522 U.S. 118, 129

(1997); see also Gerstein v. Pugh, 420 U.S. 103, 117 (1975) (“[W]e do not

think prosecutorial judgment standing alone meets the requirements of

the Fourth Amendment.”). Moreover, we note that the charging officer

listed on these docket sheets was not Trooper Masinick, but another state

trooper, non-party Aaron J. Sidella. Viewing these judicially noticed facts

and the allegations of the amended complaint in the light most favorable

to the non-moving plaintiff, we are unable to impute the charging officer’s

observation of these alleged traffic infractions to Masinick as well.

c. Qualified Immunity

Trooper Masinick has also interposed the affirmative defense of

qualified immunity with respect to the plaintiff’s § 1983 false arrest claim

The doctrine of qualified immunity protects government officials

from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan, 555 U.S.

223, 231 (2009) (internal quotation marks omitted). “Qualified immunity

balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id. Qualified immunity “provides

ample protection to all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“Thus, so long as an official reasonably believes that his conduct complies

with the law, qualified immunity will shield that official from liability.”

Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555

U.S. at 244).

A qualified immunity determination involves a two-pronged

inquiry: (1) whether a constitutional or federal right has been violated;

and (2) whether that right was “clearly established.” Saucier v. Katz, 533

U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236

(permitting federal courts to exercise discretion in deciding which of the

two Saucier prongs should be addressed first). Although qualified

immunity is generally a question of law that should be considered at the

earliest possible stage of proceedings, a genuine dispute of material fact

may preclude summary judgment on qualified immunity. Giles v.

Kearney, 571 F.3d 318, 325–26 (3d Cir. 2009). The Third Circuit has also

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.” Newland v. Reehorst, 328

Fed. App’x 788, 791 n.3 (3d Cir. 2009) (per curiam).

For the reasons we have discussed in the preceding section, we find

that the plaintiff has pleaded a plausible § 1983 false arrest claim. With

respect to the second Saucier prong, we now find also that the

constitutional right implicated was clearly established at the time of the

incident, at least based on the limited factual context before us at this,

the pleadings stage. Based on the pleadings alone—alleging that the

defendant state trooper intentionally rammed his police SUV into the

plaintiff and his motorbike head-on while both were traveling along a

road in opposite directions, without any cause or justification—this may

be a case where the Fourth Amendment violation was obvious, and thus

there need not be a materially similar case for the right to be clearly

established. See Brosseau v. Haugen, 543 U.S. 194, 199 (2004); Hope v.

Pelzer, 536 U.S. 730, 738 (2002).

But we need not decide this issue on that basis because there were

materially similar cases to place a reasonable police officer on notice that

the conduct alleged in this case would violate clearly established Fourth

Amendment rights. The claimed violation of Hernandez’s rights, asserted

in his § 1983 false arrest claim, occurred on November 2, 2021. We find

that three of the cases we cited in the preceding section—Torres, Brower,

and Beshers—are materially similar to the facts underlying this action,

and all three were decided well before November 2, 2021.4

Thus, under the circumstances presented in this case, viewing all

judicially noticed facts and the allegations of the amended complaint in

the light most favorable to the non-moving plaintiff, we find that

Hernandez’s right to be free from a police officer intentionally ramming

his police vehicle into Hernandez and his motorbike head-on while both

were traveling along a road in opposite directions, without any cause or

4 The most recent decision, Torres, was decided in March 2021.

justification, was clearly established at the time of the alleged violation,

and therefore Trooper Masinick is not entitled to qualified immunity with

respect to Hernandez’s § 1983 false arrest claim for monetary damages.

We note, however, that this determination is made based solely on

the factual allegations of the amended complaint and on the publicly

available state court docket records of which we have taken judicial

notice at the request of this defendant. The context of this claim and any

related defenses may evolve through the exchange of discovery, making

it appropriate to revisit the issue of qualified immunity again on

summary judgment or at trial, if supported by the evidence.

Accordingly, the motion for partial dismissal by Trooper Masinick

will be denied with respect to the plaintiff’s § 1983 false arrest claim, set

forth in Count I of the amended complaint.

C. Leave to Amend

The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile, Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). The plaintiff has conceded that dismissal of his § 1983 official-

capacity claims, his state-law intentional tort claims against the

Commonwealth Defendants, and his § 1983 Fifth Amendment claims

should be dismissed. Based upon the facts alleged in the complaint, it is

clear that any amendment with respect to the plaintiff’s claim for

punitive damages against the Commonwealth Defendants would be

futile. Therefore, our dismissal of the aforementioned claims will be

without leave to amend.

IV. CONCLUSION

For the foregoing reasons, the Commonwealth Defendants’ motion

for partial dismissal (Doc. 16) will be granted and Trooper Masinick’s

motion for partial dismissal (Doc. 19) will be granted in part and denied

in part. The plaintiff’s § 1983 official-capacity claims, his state-law

intentional tort claims against the Commonwealth Defendants, and his

§ 1983 Fifth Amendment claims against Trooper Masinick will be

dismissed for failure to state a claim upon which relief can be granted,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and his

request for punitive damages will be deemed stricken with respect to the

Commonwealth Defendants only.

An appropriate order follows.

Dated: February 2, 2023 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge