MOORE v. ALLISON

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

)

MARQWANN D. MOORE, Case No. 1:19-cv-231

Plaintif )

aintiff ) UNITED STATES MAGISTRATE JUDGE

y ) RICHARD A. LANZILLO

)

ALLISON, et al. )

JOSHUA ALLISON, et al., ) MEMORANDUM OPINION AND

Defendants ) ORDER ON DEFENDANTS’ MOTION

) TO DISMISS [ECF No. 14]

)

1. Introduction

Plaintiff Marqwann Moore, an inmate in the custody of the Erie County Prison, initiated

this pro se action on August 19, 2019. ECF No. 1. In his complaint, Moore asserts violations of

the First and Fourth Amendments to the United States Constitution based on the conduct of

police officers Joshua Allison and Jason Russell during a traffic stop and subsequent cavity

search on July 21, 2019.! Id. Moore seeks compensatory and punitive damages pursuant to 42

U.S.C. § 1983. Id.

Presently pending is Defendants’ motion to dismiss for failure to state a claim [ECF No.

14] and brief in support [ECF No. 15]. In their motion, Defendants construe Moore’s complaint

as raising a First Amendment retaliation claim, a Fourth Amendment claim for excessive force, a

Fourth Amendment claim for unreasonable search and seizure, and a state law claim for

intentional infliction of emotional distress. ECF No. 15 at 3. In his response in opposition to

Defendants’ motion, Moore clarifies that he is “not challenging [the] legality of his arrest,” but

' Although he does not refer to it in his complaint, Moore’s excessive force claims may also implicate the Eighth

Amendment.

rather “only the excessive force .. . and retaliation used.” ECF No. 17 97. It also appears that

Moore has abandoned his intentional infliction of emotional distress (IIED) claim.” See,

generally, ECF No. 17. With these clarifications in mind, this matter is ripe for disposition.?

II. Factual Background

The following allegations from Moore’s complaint are accepted as true for purposes of

this motion. On July 21, 2019, Moore was operating his vehicle around 1:10 a.m. when Russell

and Allison began following him in an unmarked City of Erie patrol unit. ECF No. 5 43.

Defendants followed Moore for several blocks before flashing their lights and initiating a traffic

stop. Id.§5. After answering a few initial questions, Moore questioned the legitimacy of the

traffic stop, noting that he had not been speeding or driving erratically. /d. 6. This caused

Russell to become “blatantly upset” and ask for Moore’s identification. Id.

After examining Moore’s identification, Russell asked Moore to exit his vehicle. Id. □ 7.

Moore indicated that he did not feel safe doing so and accused the officers of harassment. □□□

Russell become flushed and agitated and told Moore that his “black ass is going to jail.” Jd.

When Moore attempted to use his cell phone to dial 911 and speak with a supervising officer,

Russell reached into the window of Moore’s vehicle, unlocked the door, “dragged [Moore] out of

the vehicle,” placed him in handcuffs, and informed him that he was being arrested for “not

being compliant” and “driving under a dui suspension.” Jd. 8-9.

? Moore did not respond to Defendants’ arguments concerning the ITED claim in his response. Consequently, the

Court concludes that Moore is either not asserting a claim for ITED or has elected to abandon that theory of liability.

See, e.g., Tambasco v. United States Dept. of Army, 2018 WL 1203466, at *2 (M.D. Pa. Mar. 8, 2018) (dismissing

claims as unopposed when the plaintiff failed to respond to arguments made by the defendants in support of their

motion to dismiss); Lada v. Delaware County Community College, 2009 WL 3217183, at *10 (E.D. Pa. Sept. 30,

2009) (“To put it simply: plaintiffs who fail to brief their opposition to portions of motions to dismiss do so at the

risk of having those parts of the motions to dismiss granted as uncontested.”).

3 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge to conduct all

proceedings in this case, including the entry of final judgment, as authorized by 28 U.S.C. § 636.

After securing Moore, Defendants drove him to the Erie Police Station in the back of

their patrol car. Jd. { 10. During the ride, Allison told Russell that he was going to “enjoy

giving this fat fuck a cavity search since he thinks he’s Johnny Cochran or a lawyer.” Jd. Once

they reached the station, Russell and Allison escorted Moore to a cell, ripped his clothes off, and

performed a cavity search of Moore’s rectum while several other officers watched. Jd. 12. An

unknown officer “put his finger inside [Moore’s] rectum twice” and discovered a small bag of

narcotics. Id. J 12. Moore contends that this caused “anal bleeding and extreme discomfort.”

Td.

Following the search, Moore’s handcuffs were removed and he was placed in a holding

cell. Moore ultimately pled guilty to a summary offense of driving with a suspended license and

a misdemeanor offense for possession of narcotics. ECF No. 14-3.4

Il. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a

motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to

relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)

(citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.

2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed

pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to state a claim to relief that is

* Because Moore’s state criminal docket is a matter of public record, the Court may consider that document without

converting Defendants’ motion to dismiss into a motion for summary judgment. In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Basile v. Township of Smith, 752 F.Supp.2d 643, 648 n. 4 (W.D. Pa.

2010) (observing that common pleas court dockets are the type of public record that can be considered on a motion

to dismiss without conversion).

plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard

established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court

must accept as true all well-pled factual allegations in the complaint and views them in a light

most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir.

2002).

While a complaint does not need detailed factual allegations to survive a motion to

dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555.

A “formulaic recitation of the elements of a cause of action will not do.” Jd. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a

plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.

Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 Gd Cir. 2004) (citing Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal

conclusions disguised as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan, 478

U.S. at 286). See also McTernan y. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir.

2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions.”).

Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the

following three-step approach:

First, the court must ‘tak[e] note of the elements a plaintiff must plead to state a

claim.’ Second, the court should identify allegations that, ‘because they are no more

than conclusions, are not entitled to the assumption of truth.’ 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.’

Burtch vy. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.”

Iqbal, 556 U.S. at 679.

Finally, because Plaintiff is proceeding pro se, the allegations in the complaint must be

held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner,

404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to

state a valid claim upon which relief could be granted, it should do so despite the litigant’s

failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence

construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364

(1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition

prepared by a prisoner may be inartfully drawn and should be read “with a measure of

tolerance”).

IV. Analysis

In his complaint, Moore alleges that Defendants retaliated against him for “exercising”

and “vocalizing” his constitutional rights during the initial traffic stop and used excessive force

when they removed him from his vehicle and performed the cavity search at the police station.

Defendants respond that: (1) Moore’s retaliation claim is barred by Heck v. Humphrey, 512 U.S.

477 (1994); (2) Moore has failed to state a claim for excessive force; (3) Russell is entitled to

qualified immunity for his actions during the traffic stop; and (4) Moore’s request for

unliquidated damages should be stricken pursuant to Local Rule of Civil Procedure 8. ECF No.

15 at 4.° To the extent necessary to resolve the pending motion, each of these defenses will be

addressed in turn.

5 Defendants also urge the Court to decline to exercise supplemental jurisdiction over Moore’s state law claim for

IED. The Court need not consider this request because it appears that Moore has abandoned his {ED claim.

A. Heck v. Humphrey

Moore first contends that Russell and Allison violated his right to free speech by arresting

him in retaliation for “exercising” and “vocalizing” his constitutional rights. Moore alleges that

Defendants’ agitation and anger when Moore questioned the legality of the traffic stop led

directly to his subsequent arrest. Defendants respond that this claim is barred by the “favorable

termination” rule established by the United States Supreme Court in Heck v. Humphrey, 512 U.S.

477 (1994).

As a general matter, the First Amendment “prohibits government officials from

subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out.”

Hartman v. Moore, 547 U.S. 250, 256 (2006) (citation omitted). This protection encompasses “a

significant amount of verbal criticism and challenge directed at police officers,” Houston v. Hill,

482 U.S. 451, 461 (1987), including “nonprovocatively voicing an objection to what one

objectively feels is a highly questionable detention by a police officer.” Perez v. Vega, 2019 WL

1045387, at *4 (E.D. Pa. Mar. 5, 2019). To establish a claim for retaliation, a plaintiff must

allege: “(1) that he engaged in constitutionally-protected activity; (2) that the government

responded with retaliation; and (3) that the protected activity caused the retaliation.” George v.

Rehiel, 738 F.3d 562, 585 (3d Cir. 2013). Where the alleged retaliation results in the plaintiffs

arrest, the plaintiff “must also show the absence of probable cause for the arrest.” Yoast v.

Pottstown Borough, -- F.Supp.3d --, 2020 WL 529882, at *4 (E.D. Pa. Feb. 3, 2020). See also

Walker v. Clearfield Cnty. DA, 413 Fed. Appx. 481, 483 (d Cir. 2011) (noting that the absence

of probable cause is a fourth element required to state a First Amendment retaliatory arrest

claim).

In the instant case, Moore pleaded guilty to several of the criminal charges stemming

from his arrest. Based on Moore’s admission of guilt, Defendants maintain that he cannot

establish the final element of his retaliation claim — the absence of probable cause — without

running afoul of Heck’s “favorable termination” rule. The Court agrees.

In Heck, the Supreme Court held that “to recover damages [or other relief] for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that

the conviction or sentence has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus[.|” Heck, 512 U.S. at 486-87

(footnote and internal citation omitted). In other words, “a prisoner cannot use § 1983 to obtain

damages where success would necessarily imply the unlawfulness of a (not previously

invalidated) conviction or sentence.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).

As recently reiterated by the United States Supreme Court, “[t]he presence of probable

cause ... generally defeats] a First Amendment retaliatory arrest claim.” Nieves v. Bartlett, 139

S. Ct. 1715, 1726 (2019). Consequently, Moore’s First Amendment retaliatory arrest claim

hinges on whether he can demonstrate that Russell and Allison lacked probable cause when they

arrested him. Hartman, 547 U.S. at 258; Nieves, 139 S. Ct. at 1726. Moore cannot make that

demonstration without impugning the validity of his guilty plea in the underlying criminal

proceeding. A review of the state court docket for his criminal case confirms that his plea has

not been “reversed on direct appeal, expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. Consequently, Moore’s

retaliatory arrest claim is barred by Heck and must be dismissed.°

B. Failure to state a claim

Moore next contends that Russell and Allison violated his Fourth Amendment right to be

free from unreasonable searches and seizures by utilizing excessive force: (1) when removing

him from his vehicle, and (2) while performing a cavity search for narcotics at the Erie Police

Station. Defendants counter that the force used in each instance was reasonable under the

circumstances and that their actions are protected by qualified immunity.’

“Use of excessive force by a state official effectuating a search or seizure violates the

Fourth Amendment.” Estate of Smith v. Marasco, 430 F.3d 140, 148 Gd Cir. 2005). “To state a

claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff

must show that a ‘seizure’ occurred and that it was unreasonable.” Curley v. Klem, 499 F.3d

199, 203 n.4 (3d Cir. 2007) (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999))

(internal quotation marks omitted). Because there appears to be no dispute that Moore was

seized, “the only question is whether the alleged use of force during that seizure was

unreasonable.” Ansell v. Ross Twp, Penn., 419 Fed. Appx. 209, 212 Gd Cir. 2011).

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham vy.

Connor, 490 U.S. 386, 396 (1989) (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). The

Supreme Court has provided a series of considerations to guide courts in assessing the

5 Said dismissal is without prejudice to Moore’s ability to reassert his claims should his guilty plea ultimately be

reversed or otherwise overturned.

7 Because the Court concludes that Moore has failed to state a claim, it need not consider whether qualified

immunity applies at this time. However, Defendants are free to reassert the doctrine of qualified immunity m

response to an amended complaint, should one be filed.

reasonableness of the use of force including “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Jd. (citing Tennessee v. Garner,

A471 U.S. 1, 8-9 (1985)). In addition, the Court of Appeals for the Third Circuit has directed

courts to consider “the duration of the action, whether the action takes place in the context of

effecting 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.” Ansell, 419 Fed. Appx. at 213 (quoting

Sharrar vy. Felsing, 128 F.3d 810, 822 (3d Cir. 1997)). Whether an officer’s use of force was

reasonable “is an inherently fact-based inquiry.” McKay v. Krimmel, 2020 WL 1479133, at *3

(E.D. Pa. Mar. 25, 2020).

Turning first to the vehicle incident, Moore alleges only that Russell “physically

restrained [Moore] and dragged him out of the vehicle and handcuffed him.” ECF No. 5

This occurred immediately after Moore refused Russell’s request to exit his vehicle because he

feared for his safety and believed the traffic stop was illegal. Jd. These bare-bones allegations

are insufficient to create a plausible inference that a constitutional violation occurred, even at the

pleadings stage. Among other things, Moore fails to provide critical details such as where

Russell grabbed him, how much force he used to remove him from his vehicle and place him in

handcuffs, and whether Moore was resistant or compliant at the time. Nor does he specify

whether he sustained any physical injury. Desabatino v. Biagini, 2020 WL 3469757, at *5

(W.D. Pa. June 24, 2020) (“[T]he presence or absence of physical injury is probative evidence of

whether the force used was excessive.”) (quoting Velius v. Twp. of Hamilton, 754 F. Supp. 2d

689, 694 (D.N.J. 2010)). In the absence of these and other details, Moore has failed to plead a

right to relief that rises above the speculative level. However, because of the possibility that

such facts exist, the Court will provide Moore with an opportunity to amend his complaint to

cure these deficiencies.

The Court reaches the same conclusion with respect to the cavity search. Moore alleges

that an unidentified officer put on gloves, stripped him, told him to bend over, and then probed

his rectum with a finger twice and removed a baggie of illegal narcotics causing “anal bleeding

and extreme discomfort.” /d. While a strip search may constitute a “significant intrusion on an

individual’s privacy,” United States v. Whitted, 541 F.3d 480, 486 (3d Cir. 2008), strip searches

do not violate the Fourth Amendment when they take place in the prison or detention facility

setting and where officials conduct searches in a reasonable manner to maintain security and

search for contraband or weapons. See Florence v. Board of Chosen Freeholders of Cty. of

Burlington, 621 F.3d 296, 309-11 Gd Cir. 2010); Millhouse vy. Arbasak, 373 Fed. Appx. 135, 137

(3d Cir. 2010) (holding that prison officials may conduct visual body cavity searches if

performed in areasonable manner). Allegations that a strip search was degrading or

embarrassing also fail to state a constitutional violation. See Millhouse, 373 Fed. Appx. at 137

(body cavity strip “searches, even if embarrassing and humiliating, do not violate the

constitution”). However, an excessive force claim may arise under the Fourth or Eighth

Amendment if the search is conducted in a physically abusive manner. See, e.g., Jordan v.

Cicchi, 428 Fed. Appx. 195, 199-200 (3d Cir. 2011) (explaining that an excessive force claim

arising from a strip search may proceed under either the Fourth Amendment or the Eighth □

Amendment); Robinson v. Ricci, 2012 WL 1067909, at *17 n. 6 (D.N.J. Mar. 29, 2012) (noting

that, in addition to a possible Fourth Amendment violation, the “Eighth Amendment may be

implicated where the strip search or visual body cavity search was conducted in a brutish and

unreasonable manner”).

Here, Moore has failed to allege facts suggesting that he experienced a brutish or

physically abusive intrusion. His description of the incident states only that an unidentified

officer “put his finger inside [Moore’s] rectum twice” while he was handcuffed. There is

nothing in the complaint to create an inference that the officer used more force than was

necessary to discover and confiscate the contraband in Moore’s rectum. See Hudson v.

MeMillian, 503 U.S. 1, 7 (1992) (noting that the constitutional prohibition of excessive force

“necessarily excludes . .. de minimus uses of physical force”) (quoting Whitley v. Albers, 475

U.S. 312, 327 (1986)). Moreover, while Moore indicates that he experienced discomfort and

bleeding, he does not allege that he sustained a serious injury. See id. at 7 (noting that the

absence of a serious injury, while not dispositive, is relevant to the Court’s excessive force

inquiry). In the absence of specific factual allegations suggesting that the amount of force used

to conduct the search was unreasonable, Moore’s excessive force claim must be dismissed. As

discussed below, however, Moore will again be provided an opportunity to amend his pleading.

A. 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 Court should 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 is equally applicable to pro se litigants and those represented by counsel.

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

Here, because it is not clear that amendment would be futile as to Moore’s Fourth

Amendment claims, the Court will provide Moore with an opportunity to file an amended

complaint. Moore should provide, in detail, any and every fact that he believes will help him to

establish the legal elements of his excessive force claims. Moore is reminded that an amended

complaint “must be complete in all respects. It is a new pleading which stands by itself as an

adequate complaint without reference to the complaint already filed.” Williams v. Ferdarko,

2018 WL 3653272, at *1 n. 1 (W.D. Pa. Aug. 1, 2018) (quoting Young v. Keohane, 809 F.Supp.

1185, 1189 (M.D. Pa. 1992)).

Moote’s retaliation claim, on the other hand, is barred by Heck v. Humphrey. Although

that claim must be dismissed without prejudice, Moore should only include it in his amended

complaint if he can demonstrate that his guilty plea in the underlying criminal case has been

reversed or otherwise overturned.

V. Conclusion

For the reasons stated herein, Defendants’ motion to dismiss [ECF No. 14] is

GRANTED. Moore may attempt to remedy the deficiencies identified in this order by filing an

amended complaint, if factually warranted, within thirty (30) days of this order. Failure to file an

amended complaint within that timeframe will result in dismissal of this action, with prejudice.

oD

fai ARD A. LANZILLO

United States Magistrate Judge

Dated: July 1, 2020