# MILLAN v. REYNOLDS

> District Court, E.D. Pennsylvania · August 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10667099

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10667099

## How later opinions describe it (automated extraction)

- stating that “high public officials” are entitled to absolute privilege for statements “made or [actions] taken in the course of the official's duties or powers and within the scope of his authority...or jurisdiction.”

## Opinion text

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

JULIO R. MILLAN, :
Plaintiff :
:
v. : CIVIL NO. 23-2600
:
MAYOR J. WILLIAM REYNOLDS, :
BETHLEHEM POLICE, et al. :
Defendants. :

MEMORANDUM

Schmehl, J. /s/ JLS August 23, 2024

I. INTRODUCTION
Before the Court is the motion of Defendants, Mayor J. William Reynolds (“Mayor
Reynolds”), Sergeant Blake Kuntz (“Sergeant Kuntz”), and Bethlehem Police (collectively
“Defendants”), to dismiss the Amended Complaint filed by Plaintiff, Julio R. Millan (“Plaintiff”
or “Millan”). Millan filed an Amended Complaint raising federal violations of his First, Fourth,
Eighth, and Fourteenth Amendment rights and a negligence cause of action. Based upon the
parties’ submissions, Defendants’ motion will be granted, and this matter will be dismissed.
II. BACKGROUND
On May 20, 2023, there was an LGBTQ+ event in a public park. (See Bethlehem Police
Dept. Incident/Offense Report, ECF 18, pp. 28-30, (“Report”)) Three people at the event and
Mayor Reynolds called the police because Millan was making people uncomfortable by his
“argumentative questioning, lack of distance in confronting individuals face-to-face, and
abnormal physical behaviors like crouching down and staring.” (Report; ECF 17 at ¶ 11.) To
respond to the situation, Sergeant Kuntz allegedly grabbed Millan’s left hand, twisted his wrist,
and yanked it down. (ECF 17 at ¶ 12; ECF 16, p. 4 ¶ 4.) Millan asserts that Sergeant Kuntz then
removed him by force while “constantly touching and telling [him] where to go” and told him
not to return. (ECF 16 at 4.1, ¶ 5; Report at 2.) The entire interaction between Sergeant Kuntz
and Millan was captured on body camera footage. (ECF 17, Ex. A.)
On July 6, 2023, Millan filed a Complaint against Mayor Reynolds. (See ECF 1.) On

October 31, 2023, Millan filed a Complaint against Sergeant Kuntz. (Case No. 23-4241.) This
Court consolidated both actions by Order on January 18, 2024. (ECF 15.) Millan then filed an
Amended Complaint on February 5, 2024. (ECF 16.) Defendants responded by filing a Motion to
Dismiss on February 20, 2024. (ECF 17.) Finally, Millan filed a response to Defendants’ Motion
to Dismiss on March 1, 2024. (ECF 18). Although far from clear from the face of his Amended
Complaint, Millan seemingly seeks damages for alleged violations of his First, Fourth, Eighth,
and Fourteenth Amendment rights. (ECF 16 at 1.A, ¶ 1; ECF 17 at ¶¶ 7-9.) He also seems to
assert a negligence claim against Sergeant Kuntz. (ECF 17 at ¶ 9.)
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) governs the Court’s motion to dismiss analysis.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim of relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies the
plausibility standard when the facts alleged “allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors, Inc., 662
F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility standard is
not “akin to a ‘probability requirement,’” there nevertheless must be more than a “sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis to a 12(b)(6) motion: (1)
“[i]t must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should

identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679). See Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d
560, 563 (3d Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010).
In our analysis of a motion to dismiss, the Court of Appeals allows us to also consider
documents “attached to or submitted with the complaint, and any ‘matters incorporated by
reference or integral to the claim, items subject to judicial notice, matters of public record,
orders, [and] items appearing in the record of the case.’” Buck v. Hampton Tp. School Dist., 452

F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice
& Procedure § 1357 (3d ed. 2004)).
IV. DISCUSSION
Defendants’ motion seeks dismissal of Plaintiff’s Amended Complaint due to his failure to
state a claim on which relief can be granted. Although far from clear from the face of his
Amended Complaint, Millan is seemingly seeking damages for alleged violations of his First,
Fourth, Eighth, and Fourteenth Amendment rights against Mayor Reynolds, Sergeant Kuntz, and
the city of Bethlehem. (ECF 16 at 1.A, ¶ 1; 1.A.1, ¶ 1.) He also seems to assert a negligence
claim against Sergeant Kuntz. The Court will now address each claim.
A. “Municipal Liability” (Monell) Claim
Millan filed suit against Mayor Reynolds and Sergeant Kuntz in their individual and
official capacities. As Millan seeks to impose liability on them in their individual capacities for
official actions taken under color of state law, their official capacity actions act as another way to

sue the municipality of which they are agents. See Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir.
1988) (citing Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690 n. 55 (1978)).
A claim against a municipality for a violation of civil rights under 42 U.S.C. §1983 is subject to
the framework of Monell. Under Monell, “a municipality cannot be held liable under § 1983 on a
respondeat superior theory.” 436 U.S. at 691. In other words, employment of a tortfeasor is
insufficient grounds to hold a municipality legally responsible. Id.
Instead, in order to attribute liability to the City of Bethlehem, Millan must prove (1) an
underlying constitutional violation, (2) the identity of the officials or governmental bodies with
final policy making authority, and (3) whether they “have, through their decisions, ‘caused the
deprivation of rights at issue by policies which affirmatively command that it occur or by

acquiescence in a longstanding practice or custom which constitutes the “standard operating
procedure” of the local governmental entity.’” Simmons v. City of Philadelphia, 947 F.2d 1042,
1062 (3d Cir. 1991) (quoting Jett v. Dallas Independent School District, 491 U.S. 701, 737
(1989)). Millan must also prove that the relevant policy was the “moving force” behind the
constitutional violation, Monell, 436 U.S. at 694, and the policymakers acted with “deliberate
indifference” when they enacted it. Simmons v. City of Philadelphia, 947 F.2d at 1059–60
(quoting City of Canton v. Harris, 489 U.S. 378 (1989)).
Under Monell, “[p]roof of a single incident of unconstitutional activity is not
sufficient…unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy” Pelzer v. City of Philadelphia, 656 F. Supp. 2d 517, 532
(E.D. Pa. 2009) (quoting City of Okla. City v. Tuttle, 471 U.S. 808, 823–824 (1985)). However,
to establish that a practice or custom violates §1983, a plaintiff must demonstrate that the policy
is “‘so permanent and well settled’ as to virtually constitute law.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Monell, 436 U.S. at 690). There must
also be a “direct causal link” between the custom or practice and the resulting deprivation. Bd. of
Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404 (1997).
Here, there is no evidence to support a Monell claim. Millan does not plead any facts to
prove a policy, much less a “longstanding practice or custom” so well-established as to “virtually
constitute law,” which could have acted as the “moving force” behind the constitutional
violations that he allegedly suffered. There is therefore no policy alleged in which Mayor
Reynolds and Sergeant Kuntz could have acted with “deliberate indifference” in their
interactions with Millan. Further, a direct causal link between a policy and the resulting
deprivation of his rights cannot be proven, and there is also no evidence of other similar

incidents tending to prove the existence of a policy. Instead, Millan simply asserts “municipality
liability” without any factual support whatsoever, see ECF 16 at 1.A.1, ¶1, and the use of bald
legal conclusions is contrary to the pleading requirements of Federal Rule of Civil Procedure 8.
See Ashcroft v. Iqbal, 556 U.S. 662. Additionally, even if Millan were to be operating under a
respondeat superior theory, as already stated, such a theory cannot impose liability on a
municipality under Monell. Accordingly, all of Plaintiff’s claims against the City of Bethlehem
are dismissed.
B. First Amendment
To prevail on a First Amendment retaliation claim under 42 U.S.C. § 1983, Millan must
demonstrate that (1) “he engaged in ‘constitutionally protected conduct,” (2) the Defendants
“engaged in ‘retaliatory action sufficient to deter a person of ordinary firmness from exercising

his constitutional rights,’” and (3) “‘a causal link [existed] between the constitutionally protected
conduct and the retaliatory action.’” Palardy v. Twp. of Millburn, 906 F.3d 76, 80–81 (3d Cir.
2018) (quoting Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)). Additionally, the right
to peaceably assemble is often given a nearly identical analysis to that of free speech by courts.
See De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937) (“The right of peaceable assembly is
a right cognate to those of free speech and free press and is equally fundamental.”).
Here, Millan fails to allege any protected conduct or speech. Instead, he claims he sat
down at the event in the park and asked the speakers “if they are open for questions,” and when
they instructed him to wait until after the event was finished, he stood up and walked around.
(ECF 16 at 1B.) Millan fails to plead that he was engaged in constitutionally protected conduct,

and even if he did, his First Amendment claim would still fail because there is no evidence that
Defendants engaged in retaliatory conduct. Millan was neither arrested nor given a citation by
Sergeant Kuntz. (Report, pp. 28-30.) Further, he admits that three people and Mayor Reynolds
only involved the police because he was making “people feel uncomfortable.” (ECF 16 at 1B.)
Accordingly, Millan’s First Amendment retaliation claim fails.
Moreover, Defendants, as government officials, are entitled to qualified immunity. See
Harlow v. Fitzgerald, 457 U.S. 800 (1982); Malley v. Briggs, 475 U.S. 335 (1986). In Harlow,
the Supreme Court held “that government officials performing discretionary functions generally
are shielded 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.”
457 U.S. at 818 (emphasis added); see also Reichle v. Howards, 566 U.S. 658, 664–65 (2012)
(“The ‘clearly established’ standard is not satisfied here. This Court has never recognized a First
Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was

such a right otherwise clearly established at the time of…arrest.”). Additionally, in Malley, the
Supreme Court recognized that “as a matter of public policy, qualified immunity provides ample
protection to all but the plainly incompetent or those who knowingly violate the law.” 475 U.S.
at 335. Claims for qualified immunity are thus analyzed under a two-step process.
First, the court must determine whether the facts, taken in the light most
favorable to the plaintiff, show a constitutional violation. If the plaintiff fails to make out
a constitutional violation, the qualified immunity inquiry is at an end; the officer is
entitled to immunity…[However, o]nce it is determined that evidence of a constitutional
violation has been adduced, courts evaluating a qualified immunity claim move to the
second step of the analysis to determine whether the constitutional right was clearly
established. That is, in the factual scenario established by the plaintiff, would a
reasonable officer have understood that his actions were prohibited? The focus in this
step is solely upon the law. If it would not have been clear to a reasonable officer what
the law required under the facts alleged, he is entitled to qualified immunity.

Bennett v. Murphy, 274 F.3d 133, 136–37 (3d Cir. 2002).
Here, there was no constitutional violation, as Millan was neither arrested nor given a
citation, so the inquiry should end there. Further, even if Sergeant Kuntz’s behavior towards
Millan rose to the level of a constitutional violation, his actions are entitled to qualified immunity
because it was not clearly established at the time of his interaction with Millan that asking a
person who is making multiple people uncomfortable to not return would give rise to a First
Amendment violation. Additionally, he did not act on plain incompetence or knowingly violate
the law, and “this accommodation for reasonable error exists because ‘officials should not err
always on the side of caution’ because they fear being sued.” Hunter v. Bryant, 502 U.S. 224,
229 (1991) (quoting Davis v. Scherer, 468 U.S. 183, 196 (1984)).
Meanwhile, Mayor Reynolds had no direct interaction with Millan, so he does not need to
raise a qualified immunity defense. Further, to the extent that Mayor Reynolds was acting in his
official capacity by involving the police due to others’ concern over Millan’s awkward behavior,
Pennsylvania courts have recognized his entitlement to absolute immunity. See Lindner v.

Mollan, 544 Pa. 487, 490, 677 A.2d 1194, 1195 (1996) (stating that “high public officials” are
entitled to absolute privilege for statements “made or [actions] taken in the course of the
official's duties or powers and within the scope of his authority...or jurisdiction.”); see also
Kramer v. City of Pittsburgh, 2020 WL 5797940, at *4 (W.D. Pa. Sept. 29, 2020). Accordingly,
Plaintiff’s First Amendment cause of action is dismissed.
C. Fourth Amendment
Plaintiff’s Fourth Amendment cause of action can be split into two claims: (1) a false
arrest claim and (2) an excessive force and battery claim.
1. False Arrest
A Fourth Amendment seizure is objectively analyzed under a reasonable person standard,

in which a seizure occurs only when, under the totality of circumstances, a reasonable person
believes that he or she was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554
(1980). To prevail on a claim under 42 U.S.C. § 1983, Millan must demonstrate (1) “a violation
of a right secured by the Constitution and the laws of the United States” (2) “by a person acting
under color of state law.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)
(quoting Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993)). More specifically, to succeed on
his false arrest claim, Millan must prove that he was arrested without probable cause. Groman v.
Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). However, ‘[a]n informal admonition by
police not to transgress the law and a warning of potential legal consequences for such
transgression cannot constitute an ‘arrest.’” Daniels v. Cnty. of Media, 2001 WL 487859, at *4
(E.D. Pa. Mar. 5, 2001), aff'd sub nom. Daniels v. Borough of Media, 29 F. App'x 100 (3d Cir.
2002).
Here, Millan did not suffer a deprivation of liberty that is sufficient to prevail on a false

arrest claim under the Fourth Amendment. Plaintiff was never arrested or even handed a citation.
Like in Dibella v. Borough of Beachwood, in which the Third Circuit did not recognize a Fourth
Amendment seizure because the plaintiffs were not arrested, required to post bail, banned from
traveling, or required to report to Pretrial Services, in this case, Millan too was never restrained
of his liberty in any of those ways. 407 F.3d 599 (3d Cir. 2005). Additionally, Sergeant Kuntz
only warned Millan of potential legal consequences (arrest) that may result from his behavior
that was making people uncomfortable, and his words cannot therefore be seen as a threat to
unreasonably deprive him of his liberty. Given the totality of circumstances, a reasonable person
in Millan’s position would not have felt like he or she was falsely arrested, and just because
Millan felt that he was does not constitute a seizure in violation of the Fourth Amendment. See

California v. Hodari D., 499 U.S. 621, 628 (1991) (“Mendenhall establishes that the test for
existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he
was being ordered to restrict his movement, but whether the officer's words and actions would
have conveyed that to a reasonable person.”).
The body camera footage from Sergeant Kuntz serves as further evidence. (ECF 17, Ex.
A.) The Supreme Court has held that courts should view facts “in the light depicted by the
videotape.” Scott v. Harris, 550 U.S. 372, 380–81 (2007). The footage clearly shows around 6:02
that Sergeant Kuntz placed his left hand on Millan’s right shoulder and did not, as Millan alleges,
twist his wrist or yank it down. Further, at around 6:10 in the video, Sergeant Kuntz tells Millan
that he is “going to get arrested today if [he does] not stop” to inform him of the potential legal
consequences to his actions. Lastly, around 7:15 in the video, Sergeant Kuntz tells Plaintiff that
“multiple people feel uncomfortable” due to his behavior. Given the totality of the circumstances
depicted on the videotape, it is objectively clear that there was no unreasonable “arrest” in

violation of the Fourth Amendment. Moreover, even though Millan seems to allege that the
footage was doctored, there is no proof to his allegation besides a groundless accusation towards
Captain Michelle Kott and Bethlehem Police Department that violates the pleading requirements
of F.R.C.P. 8. (See ECF 16 at 3, ¶ 2; ECF 18 at 33).
Furthermore, the Amended Complaint does not seem to assert a Fourth Amendment
cause of action against Mayor Reynolds, but if it does, that action must be dismissed as well. To
the extent Mayor Reynolds could be liable, it is inapplicable here because he did not instigate
any “arrest” of Millan. See Berg v. Cnty. of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (“§
1983 liability for an unlawful arrest can extend beyond the arresting officer to other officials
whose intentional actions set the arresting officer in motion.”); see also Helen v. Turner, 2020

WL 4582018, at *17 (D.N.J. Aug. 10, 2020) (“To hold a public official liable under Section 1983
for causing a false arrest or imprisonment, a plaintiff must show that the official ‘instigated’ the
arrest.”). Instead, “[t]he proper inquiry in a section 1983 claim based on false arrest ... is not
whether the person arrested in fact committed the offense but whether the arresting officers had
probable cause to believe the person arrested had committed the offense.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (quoting Dowling v. City of Phila., 855 F.2d 136,
141 (3d Cir.1988)). Millan fails to allege that Sergeant Kuntz did not believe or should not have
believed the reports that Millan’s behavior was making people uncomfortable. See United States
v. Katzin, 769 F.3d 163, 171 (3d Cir. 2014) (“Where the particular facts of a case indicate that
law enforcement officers ‘act[ed] with an objectively “reasonable good-faith belief” that their
conduct [was] lawful, or when their conduct involve[d] only simple, “isolated” negligence,’ there
is no illicit conduct to deter.”) (internal citations omitted). Accordingly, Plaintiff’s false arrest
claim is dismissed.

2. Excessive Force and Battery
An excessive force claim in the arrest context is analyzed under the Fourth Amendment’s
reasonable person standard. Graham v. Connor, 490 U.S. 386, 394–95 (1989) (“Where…the
excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is
most properly characterized as one invoking the protections of the Fourth Amendment…all
[such] claims…should be analyzed under the Fourth Amendment and its “reasonableness”
standard.”). To prevail on an excessive force claim as an unreasonable seizure under the Fourth
Amendment, Plaintiff must prove that (1) “a ‘seizure’ occurred” and (2) “it was unreasonable.”
Est. of Smith v. Marasco, 430 F.3d 140, 148 (3d Cir. 2005) (internal quotations omitted).
Here, no seizure occurred, so the excessive force claim must be dismissed. Even if a

seizure occurred, however, the action must still be dismissed because Sergeant Kuntz’s behavior
towards Millan was objectively reasonable. To determine whether the force used in a seizure is
“reasonable” under the Fourth Amendment mandates “a careful balancing of ‘the nature and
quality of the intrusion on the individual's Fourth Amendment interests' against the
countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (citing Tennessee v.
Garner, 471 U.S. 1, 8 (1985)). In this case, Sergeant Kuntz placing his hand on Millan’s
shoulder was objectively reasonable given that it is well-settled that “the right to make an arrest
or investigatory stop necessarily carries with it the right to use some degree of physical coercion
or threat thereof to effect it,” and the reasonableness of his use of force must be assessed “from
the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. Clearly, Millan was making people uncomfortable, which is why Sergeant Kuntz
was brought to the scene. It was objectively reasonable for Sergeant Kuntz to direct Millan away
from the event to follow through with his investigatory stop.

Furthermore, “[a] claim brought under Pennsylvania law for excessive force by a police
officer is a claim for assault and battery.” Garey v. Borough of Quakertown, 2012 WL 3562450,
at *5 (E.D. Pa. Aug. 20, 2012) (quoting Russoli v. Salisbury Twp., 126 F. Supp. 2d 821, 870
(E.D. Pa. 2000)). That is because, “[i]n making a lawful arrest, a police officer may use such
force as is necessary under the circumstances to effectuate the arrest.” Renk v. City of Pittsburgh,
537 Pa. 68, 76 (1994). Thus, “[t]he reasonableness of the force used in making the arrest
determines whether the police officer's conduct constitutes an assault and battery.” Id. Under
Pennsylvania law, an “[a]ssault is an intentional attempt by force to do an injury to the person of
another, and a battery is committed whenever the violence menaced in an assault is actually
done, though in ever so small a degree, upon the person.” Renk, 537 Pa. at 76 (quoting Cohen v.

Lit Brothers, 166 Pa.Super. 206, 209 (1950)). Here, however, as stated above, Sergeant Kuntz’s
use of “force” was objectively reasonable, and the body camera footage serves as indisputable
evidence in support of that reasonableness. There is also no evidence that he intentionally
attempted to cause injury to Millan. Finally, Sergeant Kuntz is entitled to qualified immunity. As
such, Plaintiff’s excessive force and battery claim fails and his Fourth Amendment cause of
action is dismissed.
D. Eighth Amendment Claim
Although Defendants do not specifically address Plaintiff’s Eighth Amendment cause of
action in their Motion to Dismiss, it still must be dismissed for failure to state a claim. Millan
states that he is setting forth a cruel and unusual punishment claim under the Eighth Amendment
without offering any factual evidence or case law in support of his claim. (ECF No. 16 at 6.)
Bald legal conclusions violate the pleading requirements of F.R.C.P. 8.
To note, although no static test exists for an Eighth Amendment cruel and unusual

punishment claim, it is well-settled that “the Eighth Amendment prohibits punishments which,
although not physically barbarous, involve the unnecessary and wanton infliction of pain, or are
grossly disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346
(1981) (internal citations and quotations omitted). Additionally, the Eighth Amendment “must
draw its meaning from the evolving standards of decency that mark the progress of a maturing
society.” Id. (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)). Finally, the
determination cannot be purely subjective, and “judgment[s] should be informed by objective
factors to the maximum possible extent.” Id. (quoting Rummel v. Estelle, 445 U.S. 263, 274–275
(1980)).
Here, there is no evidence for Plaintiff to sustain a cruel and unusual punishment claim.

The footage clearly shows that Sergeant Kuntz only touched Millan’s shoulder briefly, and as
already discussed, his actions were objectively reasonable under the circumstances. Further, as
Millan states himself, he did not commit any crimes, (See ECF No. 16 at 4 ¶ 1), so there could
not be a grossly disproportionate punishment. His claim of cruel and unusual punishment must
therefore fail. Accordingly, Plaintiff’s Eighth Amendment cause of action is dismissed.
E. Fourteenth Amendment
To prevail on a § 1983 equal protection claim under the Fourteenth Amendment, Plaintiff
must prove (1) his membership in a protected class and (2) that he received different treatment
from that received by similarly situated individuals who are not in his protected class. Keenan v.
City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992). As such, Millan “must allege both
protected-class status and differential treatment of similarly situated non-class members.”
D'Altilio v. Dover Twp., 2007 WL 2845073, at *8 (M.D. Pa. Sept. 26, 2007) (citing Keenan, 983
F.2d at 465) (emphasis added).

Here, Millan fails to allege differential treatment. Millan was aware that three people and
Mayor Reynolds involved the police because his behavior was making people uncomfortable.
(ECF 16 at 1B.) He did not allege, however, that others were acting abnormally at the event as
well but did not have the police called on them. There is also no evidence, nor is it alleged that
Sergeant Kuntz’s interaction with Millan was motivated by an unjustifiable standard such as race
or gender or that he intended to prevent Millan from exercising his constitutional rights.
Therefore, Plaintiff’s Fourteenth Amendment cause of action is dismissed.
F. Negligence
If Plaintiff is asserting a negligence cause of action against Defendants, which is far from
clear from the face of his Amended Complaint, it must be dismissed because none of his

allegations fall under the exceptions to the Tort Claims Act. As stated in relevant part in the
Political Subdivision Tort Claims Act, “Except as otherwise provided in this subchapter, 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.” 42 Pa. C.S. §8451.
Here, Defendants are being sued in their official capacities as employees of Bethlehem Police,
and they are thus subject to the Tort Claims Act. 42 Pa.C.S. §8545 (“An employee of a local
agency is liable for civil damages on account of any injury to a person or property caused by acts
of the employee which are within the scope of his office or duties only to the same extent as his
employing local agency….”).
Under the Tort Claims Act, a local agency is liable for damages resulting on account of
an injury to a person or property only when two conditions are met: (1) “The damages would be
recoverable under common law or a statute;” and (2) “The injury was caused by the negligent
acts of the local agency or an employee thereof acting within the scope of his office or duties

with respect to one of the categories listed in subsection (b).” 42 Pa.C.S. §8542. Subsection b
lists nine exceptions that may result in the imposition of liability: (1) Vehicle liability; (2) Care,
custody or control of personal property; (3) Real property (4) Trees, traffic controls and street
lighting (5) Utility service facilities; (6) Streets; (7) Sidewalks; (8) Care, custody or control of
animals and (9) Sexual abuse. Id. Otherwise, the local agency and its employees are protected by
governmental immunity.
Here, Plaintiff fails to allege any of these exceptions to immunity. Accordingly, his
negligence cause of action is dismissed.
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted. As any amendment

would be futile, Plaintiff’s Amended Complaint is dismissed with prejudice.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10667099. Public record. Not legal advice.