Opinion

Cody, II v. Howell

Court
District Court, M.D. Pennsylvania
Filed
Oct 15, 2024
Cited by
0 cases
Authority
More cited than 31.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN CODY, II, : Civil No. 1:24-CV-927

:

Plaintiff, :

:

v. :

:

MARC HOWELL, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is the motion to dismiss the complaint, filed by Defendants

Marc S. Howell, Stephen Marte, Even McKenna,1 Austin Snyder, Brandon

Braughler, City of Harrisburg Police Department,2 and the City of Harrisburg,

(collectively “Defendants”) seeking to dismiss the complaint filed by Plaintiff

Jonathan Cody, II (“Cody”) as barred by the statute of limitations, subject to the

defense of qualified immunity, and failing to state a claim upon which relief can be

granted. (Doc. 8.) The complaint alleges constitutional violations for use of

1 Defendant McKenna’s name is spelled “Even” in the captions of the parties’ papers and as

“Evan” in the body of Defendants’ motion and brief in support. The court will use the spelling

included in the case caption.

2 The City of Harrisburg Police Department is not a Defendant in the action before this court.

(See Doc. 1-3.) However, the court includes the City of Harrisburg Police Department for

completeness because Defendants include this entity in the text of its motion and because City of

Harrisburg Police Department was named as a Defendant in Plaintiff’s praecipe for writ of

summons. (Docs. 8, p. 2; 8-2.) The court reiterates, the City of Harrisburg Police Department is

not named in the complaint.

excessive force and conspiracy to violate constitutional rights against Defendants.

For the reasons that follow, the motion will be granted in part and denied in part.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

According to Plaintiff’s allegations, the instant claims arise from an incident

that occurred on February 6, 2022, when Defendant Marc Howell (“Howell”)

“operated a motor vehicle while on duty for the Harrisburg Police Department and

unexpectedly turned into a pedestrian crosswalk which was being used by Plaintiff;

this caused Plaintiff to strike the vehicle.” (Doc. 1-3, ¶ 9.) Cody explained how

Defendant Howell “had caused [him] to physically strike the police car to prevent

himself from being run over in a well marked and legally protected pedestrian

lane.” (Id. ¶ 10.) Defendant Howell then ordered Cody to remain on the sidewalk,

and Cody complied with this order. (Id. ¶ 11.) A second officer arrived and began

speaking with Cody. (Id. ¶ 12.) At this time, “[e]veryone appeared relatively

cordial . . . and the Plaintiff waited for a supervisor to arrive to take his complaint

about Defendant’s Howell’s driving.” (Id.)

More officers arrived and began discussing the incident with Defendant

Howell. (Id. ¶ 13.) After the officers began discussing the incident, “Defendant

Howell began falsely claiming that Plaintiff had deliberately hit his police car with

something as it just happened to pass by Plaintiff on the street.” (Id. ¶ 14.) At this

point, “Defendants seemed to form an alliance and discuss the incident[.]” (Id. ¶

16.) Defendants began “openly mock[ing] Plaintiff’s perceived sexual orientation

by, among other things, overly emphasizing and repeating how Plaintiff enunciated

certain words in an exaggerated and stereotypically ‘gay’ manner[.]” (Id.).

Defendants also “made much of referring to Plaintiff’s carry case as a female type

of ‘purse,’ and they made a point acting sarcastically amongst each other about

whether Plaintiff was a ‘he’ and ‘she.’” (Id.)

Cody then “stated he was blameless and insisted the police take his

complaint.” (Id. ¶ 17.) Defendant Howell then lost “his composure and shouted

for the other officers to arrest the Plaintiff.” (Id.) Cody’s “arrest was

ordered . . . and agreed to by the other officers as part of a conspiracy to stifle

Plaintiff’s complaint about Defendant Howell’s driving and conceal that he was a

complainant since a police supervisor was en route to investigate the incident.”

(Id. ¶ 18.) Then, “[i]n furtherance of this conspiracy, [Defendants] essentially pile

on piled-on [sic] the Plaintiff with great physical force and controlled violence[,]”

including striking, kneeing, elbowing and slamming Cody into a rock wall, and

“inflict[ing] pain by forcing his hands/arms (which were already handcuffed

behind his back) to be pushed far past the normal range of motion towards his head

so that it caused excruciating pain and made it impossible to walk normally.” (Id.

¶¶ 19, 20.) Cody’s “feet were shackled with steel leg irons and he was practically

dragged to a police car and placed in the back of it.” (Id. ¶ 20.)

Once in the police car, “Defendants cooperated with one another to

deliberately aim and spray a chemical agent/irritant directly into the Plaintiff’s

eyes, from too close of a distance, so that Plaintiff would be too incapacitated to

continue complaining about Defendant Howell’s driving into the cross-walk, etc,

once a supervisor arrived on scene.” (Id. ¶ 22.) Another officer arrived on the

scene and attempted to administer first aid “because Plaintiff was begging for help

with his eyes. However, the said officer was prevented by the named Defendants

from reaching the Plaintiff and/or administering first aid.” (Id. ¶ 23.)

Cody was then “unlawfully transported against his will and confined in a jail

cell until the following morning despite his repeated requests for first aid and

medical care.” (Id. ¶ 24.) The next day, Cody was taken out of jail in a wheelchair

and “abandoned.” (Id. ¶¶ 25, 26.) After leaving the jail, Cody called an

ambulance and was “transported to a hospital where he received treatment for

injuries inflicted by the named Defendants which included but were not limited to

conjunctivitis, corneal abrasion and arthralgia.” (Id. ¶ 27.)

Cody alleges “upon information and belief” that from his arrest until June

25, 2023, when charges against him were dismissed, that Defendants “willfully

combined, conspired and agreed with each other and others to threaten, intimidate

and injure the Plaintiff in order to prevent him from freely exercising and enjoying

his rights and privileges[.]” (Id. ¶ 28.) On a date not mentioned in the complaint,

“Defendant Howell filed various criminal charges against Plaintiff which had no

basis in fact or law under the circumstances and those charges were later dismissed

by the Dauphin County Court of Common Pleas.” (Id. ¶ 29.)

Cody alleges one count of negligent operation of a motor vehicle against

Defendant Howell and the City of Harrisburg. (Id. ¶¶ 33–41.) He alleges one

count of unreasonable and excessive force under 42 U.S.C. § 1983 against the

individual officer Defendants. (Id. ¶¶ 42– 47.) He alleges one count of

conspiracy–unreasonable and excessive force under 42 U.S.C. §§ 1983 and 1985

against the individual officer Defendants. (Id. ¶¶ 48–51.) Finally, Cody alleges

one count of assault and one count of battery under Pennsylvania state law against

the individual officer Defendants. (Id. ¶¶ 52–58.)

Cody commenced this action in the Dauphin County Court of Common

Pleas by filing a praecipe for writ of summons on January 8, 2024. (Doc. 9, p. 3.)3

The writ of summons named Marc Howell and City of Harrisburg Police

Department as Defendants. (Id. at 16.) According to the Dauphin County Court of

Common Pleas docket, the writ of summons was served on Defendant Howell and

the Police Department on January 10, 2024. (Id. at 3, 4.) Defendants attempted to

remove the case to this court on February 21, 2024, however, the court remanded

the case to the Dauphin County Court of Common Pleas as prematurely removed

3 For ease of reference, the court uses the page number contained in the CM/ECF header.

because no complaint had yet been filed. (Id. at 46, 47.) On May 6, 2024, Cody

filed the instant complaint, naming Marc S. Howell, Stephen Marte, Even

McKenna, Austin Snyder, Brandon Braughler, and the City of Harrisburg as

Defendants. (Doc. 1-3.) The complaint was served on all Defendants on May 10,

2024. (Doc. 9, p. 69.) On June 5, 2024, Defendants removed the action to this

court. (Doc. 1.)

On June 12, 2024, Defendants filed the instant motion to dismiss. (Doc. 8.)

Defendants filed a brief in support on June 26, 2024. (Doc. 10.) On July 1, 2024,

Plaintiff filed a response in opposition to the motion to dismiss. (Doc. 13.)4

Defendants filed a reply brief on July 15, 2024. (Doc. 14.) Thus, this motion is

ripe and ready for disposition.

JURISDICTION AND VENUE

This court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 because

Plaintiff brings claims arising under 42 U.S.C. § 1983. This court also has

supplemental jurisdiction over the state law tort claims under 28 U.S.C. § 1367

4 The court notes that this response is not compliant with Local Rule 7.6 which provides that

“[a]ny party opposing any motion, other than a motion for summary judgment, shall file a brief

in opposition within fourteen (14) days after service of the movant’s brief.” Middle District of

Pennsylvania Local Rule 7.6 (emphasis added.) The instant “response” responds paragraph by

paragraph “admitting” or “denying” the statements in Defendants’ motion. (Doc. 8.) Although

not styled as a brief, Defendants do not argue the court should not consider the “response” for

failure to comply with Local Rules. Thus, the court will construe the “response” as a brief in

opposition. The court further notes that the CM/ECF docket lists the response as an “affidavit.”

(Doc. 13.) As there is no indication that Plaintiff’s counsel drafted the “response” under oath or

affirmation, this labelling is inaccurate.

because they are related to the federal claims. Venue is appropriate under 28

U.S.C. § 1381 because all actions or omissions alleged in the complaint occurred

in the Middle District of Pennsylvania.

STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to 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 is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Additionally, under

Third Circuit precedent a complaint will only be dismissed “for failure to state a

claim on statute of limitations grounds…when the statute of limitations defense is

apparent on the face of the complaint.” Wisniewski v. Fisher, 857 F.3d 152, 157

(3d Cir. 2017).

DISCUSSION

Defendants raise three arguments challenging Cody’s complaint. First,

Defendants argue that Cody’s Claims against Defendants Marte, McKenna,

Snyder, Braughler, and the City of Harrisburg are time barred because these

Defendants were “not named or served under the Writ of Summons after Plaintiff’s

statute of limitations ha[d] expired.” (Doc. 10, p. 5.) Second, Defendants argue

the individual officer Defendants are entitled to qualified immunity. (Id. at 7.)

Third and finally, Defendants argue that the complaint fails to state a claim for

negligent operation of a motor vehicle and conspiracy. (Id. at 8–12.) Specifically,

Defendants argue that Cody’s negligent operation of a motor vehicle claim lacks

sufficient pleading regarding the cause element and Cody’s conspiracy claim is

conclusory. (Id.) Defendants ask the court to deny leave to amend. (Id. at 12.)

Cody responds that the statute of limitations period did not begin to run until

June 2023, when the charges against him were dismissed. (Doc. 13, p. 6.) Thus,

the complaint, filed on May 6, 2024, is timely. (Id.) Cody also argues the officers

are not entitled to qualified immunity because the complaint “avers intentional

violations of so called ‘bright lines’ being crossed by the officer[.]” (Id. at 7.)

Finally, Cody argues that the complaint adequately pleads both negligent operation

of a motor vehicle and conspiracy. (Id. at 9–11.) The court will address each

argument in turn.

A. Statute of Limitations

Defendants argue that the claims against Defendants Marte, McKenna,

Snyder, Braughler, and City of Harrisburg should be dismissed as filed outside the

statute of limitations because the writ of summons did not name them as

defendants. (Doc. 10, p. 5.) According to Defendants, the statute of limitations for

this action is two years, and it began to run as of February 7, 2022, at the

conclusion of the underlying incident. (Id. at 5-6.) Therefore, the complaint, filed

on May 6, 2024, was not timely. (Id. at 6.) Defendants also argue that the service

of the writ of summons on the Harrisburg City Police Department cannot be

imputed to the City of Harrisburg because a police department is not a proper party

in a § 1983 action. (Id. at 6.)

Cody’s argument in response is:

[T]he Complaint specifically explains that the conspiracy is alleged to

have lasted until about June 15, 2023, when charges against Plaintiff

were eventually dismissed. As such the Complaint apparently gives

Defendants fair notice of its claim and factual allegations that – when

accepted as true- that the alleged conspiracy continued until about June

15, 2023. [sic] As such, the statute of limitations does not bar such

claims.

The Complaint was timely filed against all Defendants since it was filed

prior to the expiration of two years after the alleged conspiracy ended.

The statute of limitation will not expire on these claims until June 15,

2025.

(Doc. 13, p. 6) (emphasis in original). Defendants respond that Cody has “all but

admitted that his Complaint was filed after the applicable statute of limitations for

alleged excessive use of force and that only his conspiracy claim is not potentially

time barred[.]” (Doc. 14, p. 3) (emphasis in original).

The court agrees that Cody has conceded the statute of limitations argument

regarding the negligent operation of a motor vehicle against the City of Harrisburg

and unreasonable and excessive force against Defendants Marte, McKenna,

Snyder, and Braughler because Cody only makes arguments regarding the statute

of limitations with respect to the conspiracy claim. As noted by both parties, the

statute of limitations for a § 1983 claim is two years. Brougher v. Univ. of

Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989). Additionally, the statute of limitations

applicable to Plaintiff’s state law negligence, assault, and battery claims is also two

years. 42 PA. CON. STAT. ANN. § 5524. The statute of limitations begins to run “as

soon as the right to institute and maintain suit arises.” Haugh v. Allstate Ins. Co.,

322 F.3d 227, 231 (3d Cir. 2003). Thus, the statute of limitations for the § 1983

claim and state law claims began running on February 6, 2022, the date of the

incident, and expired on February 6, 2024. Defendants Marte, McKenna, Snyder,

Braughler, and City of Harrisburg were not named in a complaint until May 6,

2024. Thus, the state law and § 1983 unreasonable and excessive force claim

against Defendants Marte, McKenna, Snyder, Braughler, and City of Harrisburg

will be dismissed with prejudice.

Regarding the conspiracy claim, Cody appears to argue that the statute of

limitations did not begin to run on this claim until the final overt act of the

conspiracy. Cody does not cite any law for this proposition. For a conspiracy

claim under § 1985, the statute of limitations “runs from the date of each overt act

causing damage to Plaintiff.” Bougher, 882 F.2d at 80. Thus, Cody’s argument

that the statute of limitations did not begin to run until June 25, 2023, the date his

charges were dismissed, is incorrect because the charges being dismissed did not

cause him any injury.5 Here, the final overt act alleged which could have caused

Cody any damage was the filing of criminal charges against him. However, there

is no date connected to the filing of criminal charges, although this information is

likely within Cody’s knowledge. Without this date, the court cannot find from the

face of the complaint when the statute of limitations for the conspiracy claim

accrued, and thus, when it expired. Therefore, on the record currently before the

5 The court notes that a public records search of Cody’s criminal docket reveals that the charges

against him were not dismissed, but rather that Cody plead nolo contendere to the summary

offense with which he was charged. The Dauphin County Court of Common Pleas sentenced

him to a sentence of “no further penalty.” A nolo plea is different than the charges being

dismissed. The court also takes note that Attorney Laguna is listed as Cody’s counsel of record

in the criminal proceeding. This information is notable given that Attorney Laguna has accused

Defendants’ counsel of violating their duty of candor toward the tribunal in this case. By making

a “duty of candor to the court” argument after failing to advise the court that his client entered a

nolo plea in the underlying criminal case, it appears that Attorney Laguna is in the proverbial

glass house.

court, the court will not dismiss the conspiracy claim on statute of limitations

grounds.

In conclusion, the motion to dismiss based on the statute of limitations is

granted as to Count 1 against City of Harrisburg, and Counts 2, 4, and 5 against

Defendants Marte, McKenna, Snyder, and Braughler. These counts will be

dismissed with prejudice as to these Defendants because amendment would be

futile. Jablonski v. Pan American World Airways, Inc., 863 F.2d 289, 292 (3d Cir.

1988).

B. Qualified Immunity

Defendants’ argument in support of their entitlement to qualified immunity

is as follows:

There is no doubt that Defendants, except for the City, are government

officials that were performing discretionary functions as police officers.

See generally [Doc. 1-3.] As to Officer Howell, it is not sufficiently

clear that every reasonable official would not have arrested an

individual for striking the police car they were driving. Indeed, Plaintiff

avers that Defendant Officers “piled-on the Plaintiff with great physical

force and controlled violence.” [Doc. 1-3, ¶ 19.] Plaintiff admits that

the force used was controlled, or in other words, reasonable.

(Doc. 10, p. 8) (emphasis in original.) Plaintiff’s opposition argument goes as

follows. First, Plaintiff argues that his complaint “avers intentional violations of so

called ‘bright lines’ being crossed by the officer who’s [sic] motive for doing so

was essentially to stop the Plaintiff from continuing with his complaint about the

officer having driven recklessly and hitting him while he was in a pedestrian

crosswalk.” (Doc. 13, ¶ 19.) Second, Plaintiff presents arguments relating to the

definition of the phrase “controlled violence.” Plaintiff argues:

“Controlled violence is a description which can be used to have the

reader envision a person being deliberately shot in the face. Whether

shooting another in the face is ‘reasonable’ or not, is another issue

entirely. The Complaint obviously speaks for itself, and must be read

as a whole with each paragraph that is incorporated along with the

others.

(Id. ¶ 24.) Plaintiff also contests Defendants’ contention that he “admitted” that

the use of force against him was “reasonable” because:

Nowhere in the Complaint does Plaintiff use the word reasonable to

describe the assault, nor can that reasonably inferred. [sic] “Controlled

violence” is used in one paragraph of the Complaint to summarize other

alleged facts which specifically alleged police intentional [sic] and

deliberately ‘proceeded to strike, knee and slam Plaintiff into a rock

wall; then they inflicted great pain by forcing his hands/arms (which

were already handcuffed behind his back) to be pushed far past the

normal range of motion towards his head so that it caused excruciating

pain…etc.” [(Doc. 1-3, ¶ 20.)] Officers prevented another officer from

administering first aid when the Plaintiff begged for it. [(Id. ¶ 23.)]

Defendants’ averment that Plaintiff admits this conduct was

‘reasonable’ seems to have violated the duty of candor toward the

tribunal with this averment.

(Id. ¶ 25.)

The doctrine of qualified immunity recognizes that despite their participation

in constitutionally impermissible conduct, government officials “may nevertheless

be shielded from liability for civil damages if their actions did not violate ‘clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). 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) (quoting

Harlow, 457 U.S. at 818). The doctrine “protects all but the plainly incompetent or

those who knowingly violate the law.” Kisela v. Hughes, 584 U.S. 100, 104

(2018) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)).

Courts follow a two-pronged test to determine whether qualified immunity

applies. Pearson, 555 U.S. at 232. First, the court must determine whether the

defendants violated the plaintiff’s statutory or constitutional right. District of

Columbia v. Wesby, 583 U.S. 48, 63 (2018) (citing Reichle v. Howards, 566 U.S.

658, 664 (2012)). Second, the court must determine whether the right at issue was

clearly established at the time of the violation. Id. (citing Reichle, 566 U.S. at

664). The court may exercise its discretion in deciding “which of the two prongs

of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.

Defendants asserting that they are entitled to qualified immunity have the burden

to prove that the doctrine applies. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir.

2014). Finally, because “the ‘driving force’ behind the creation of the qualified

immunity doctrine was a desire to ensure that ‘insubstantial claims’ against

government officials [will] be resolved prior to discovery[,]” the Supreme court

has “stressed the importance of resolving immunity questions at the earliest

possible stage in litigation.” Pearson, 555 U.S. at 231–32.

At this juncture, the court cannot determine whether qualified immunity

applies because the parties’ arguments are not helpful to the court in determining

the legal issue before it–whether the officers violated Plaintiff’s constitutional

rights during the February 2022 encounter. For example, “[t]o 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.” Kopec

v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). In determining whether a seizure is

unreasonable, a court must consider “whether under the totality of the

circumstances, ‘the officers’ actions are objectively reasonable in light of the facts

and circumstances confronting them, without regard to their underlying intent or

motivations.” Id. (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)) (internal

quotations omitted). In assessing whether a use of force is reasonable, courts may

consider “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 actively is

resisting arrest or attempting to evade arrest by flight.” Id. at 776–77. Further

considerations include:

the possibility that the persons subject to the police action are violent

or dangerous, 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.

Id. at 777. Neither party provides any discussion of whether the force used against

Plaintiff is reasonable in the Fourth Amendment context or any discussion of any

of the above factors. The court will not engage in this analysis without meaningful

input from the parties to include references to case law and the specific facts of the

complaint. Thus, the court will deny the motion to dismiss on qualified immunity

grounds without prejudice.

C. Failure to State a Claim

Defendants challenge two of Cody’s claims as failing to state a claim upon

which relief can be granted. The court will address each claim.

1. Negligent Operation of a Motor Vehicle

Defendants argue that Cody has failed to state a claim for negligent

operation of a motor vehicle “because any injury that occurred as a result of

Officer Howell’s operation of the police car occurred when Plaintiff struck the

police car.” (Doc. 10, p. 8) (emphasis in original). Further, Defendants argue “[i]t

is not plausible, accepting all of Plaintiff’s allegations as true, that Defendant

Howell’s operation of the motor vehicle caused any injury to Plaintiff.” (Id. at 9.)

Defendants end by noting that “Plaintiff alleges both that Plaintiff ‘struck’ the

police care, and that Defendant Howell was lying when he stated Plaintiff hit his

police car with something–which is it?” (Id.)

Cody responds that “Defendant apparently misrepresents the black and white

text set forth of record in Plaintiff’s Complaint. The Defendant seems to have

violated the duty of candor toward the tribunal with this averment by toying with

semantics which completely ignore the averments contained within the

Complaint.” (Doc. 13, p. 9.) Cody also notes that the answer to Defendants’

question about whether Plaintiff “struck” the car is a question for the jury, and “the

complaint has obviously given Defendants fair notice of its claim and factual

allegations since the Defendants are already framing questions to argue why they

are not responsible for the vehicle collision with a pedestrian who was lawfully

crossing the street in a marked pedestrian crosswalk.” (Id. at 10.) Defendants did

not address this argument in reply.

To state a claim for negligence under Pennsylvania law, a plaintiff must

allege (1) that the defendant owed a duty of care to the plaintiff, (2) that the

defendant breached that duty, (3) that the defendant’s breach proximately caused

the plaintiff’s injuries, and (4) that the plaintiff suffered actual loss or damage as a

result of the defendant’s actions. Brewington ex rel. Brewington v. City of

Philadelphia, 199 A.3d 348, 355 (Pa. 2018).

The complaint fails to state a claim for negligent operation of a motor

vehicle because Cody alleges that he struck the vehicle and does not allege any

injury he suffered as a result of Defendant Howell’s operation of the vehicle.

Specifically, Cody alleges that Defendant Howell’s operation of the police car

caused Cody to strike the car; not that Defendant Howell struck him with the car

and caused injury. (Doc. 1-3, ¶¶ 9, 10.) Further, Cody alleges that “Defendant

Howell almost hit him in the pedestrian crosswalk[.]” (Id. ¶ 15.) These averments

are insufficient to state a claim because they merely allege that Cody struck the

vehicle, not that Defendant’s actions were the direct or proximate cause of his

injuries. Moreover, Cody does not articulate any injury resulting from striking

Defendant Howell’s vehicle other than a conclusory statement that he suffered an

injury. (Id. ¶ 36.) Therefore, the motion to dismiss will be granted with leave to

amend as to Count 1 because amendment is not futile. See Fletcher-Harlee Corp.

v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

2. Section 1983 Conspiracy

Defendants argue that Cody has not stated a claim for conspiracy under

§ 1985 because Cody alleges only conclusory statements that Defendants formed a

conspiracy or alliance. (Doc. 10, p. 9.) Cody responds that “Defendant apparently

misrepresents the black and white text set forth of record in Plaintiff’s complaint

and seeks to have the Court improperly ignore the averments contained within the

Complaint.” (Doc. 13, p. 10.) In reply, Defendants further explain that “Plaintiff

has not averred any overt act to further the conspiracy which would serve as a

foundation for the claim, let alone one so late in time that his claim is not time

barred.” (Doc. 14, p. 4.)

Section 1985(3) provides a cause of action for a person “injured by a

conspiracy formed ‘for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal privileges

and immunities under the laws.’” Farber v. City of Paterson, 440 F.3d 131, 134

(3d Cir. 2006). To state a claim for conspiracy under § 1985(3), a plaintiff must

allege:

(1) a conspiracy; (2) for the purpose of depriving, either directly or

indirectly, any person or class of persons of the equal protection of the

laws, or of equal privileges and immunities under the laws; and (3) an

act in furtherance of the conspiracy; (4) whereby a person is injured in

his person or property or deprived of any right or privilege of a citizen

of the United States.

Id. (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828–29

(1983).) When enacted, § 1985(3) “was not intended to provide a federal remedy

for ‘all tortious, conspiratorial interferences with the rights of others,’ or to be a

‘general federal tort law.’” Id. at 135 (quoting Griffin v. Breckenridge, 403 U.S.

88, 101–02 (1971).) “Thus, a plaintiff must allege both that the conspiracy was

motivated by discriminatory animus against an identifiable class and that the

discrimination against the identifiable class was invidious.” Id.

Further, “[a]fter a plaintiff establishes that the object of the conspiracy was

the deprivation of a federally protected right, ‘the rule is clear that’ the plaintiff

‘must provide some factual basis to support the existence of the elements of a

conspiracy: agreement and concerted action.’” Jutrowski v. Twp. of Riverdale, 904

F.3d 280, 295 (3d Cir. 2018) (quoting Capogrosso v. Supreme Court of N.J., 588

F.3d 180, 184-85 (3d. Cir. 2009).) To do so, a plaintiff “must demonstrate that ‘the

state actors named as defendants in the complaint somehow reached an

understanding to deny [the plaintiff] his rights.” Id. In doing so, a plaintiff must

do more than allege conclusions because the court does not consider “any

conclusory allegations that there was ‘a corrupt conspiracy,’ ‘an agreement,’ or ‘an

understanding in place[.]’” Great W. Mining & Min. Co. v. Fox Rothschild LLP,

615 F.3d 159, 178 (3d Cir. 2010). A plaintiff may plead “circumstantial evidence”

including that “the alleged conspirators ‘did or said something . . . to create an

understanding,’ ‘the approximate time when the agreement was made, the specific

parties to the agreement[,] the period of the conspiracy or the object of the

conspiracy.’” Jutrowski, 904 F.3d at 295 (quoting Great W. Mining, 615 F.3d at

178–79.) In the context of an alleged conspiracy between police officers, this

“may manifest as ‘conversations’ between officers about the incident, ‘allegedly

distorted’ stories that ‘emerged,’ an ‘awareness of conflicting stories’ and

‘irregularities in the series of official investigations’ into the incident.” Id.

Although not argued by Defendants, Cody has failed to allege sufficient

facts to state a claim for conspiracy to deprive him of constitutional rights because

he has failed to allege a discriminatory motive. Cody does not allege that the

object of the conspiracy was motivated by discrimination against an identifiable

class. Cody alleges the object of the conspiracy was “stif[ling] Plaintiff’s

complaint about Defendant Howell’s driving and conceal[ing] that he was a

complainant since a police supervisor was en route to investigate the incident.”

(Id. ¶ 18). Cody also alleges that the officers mocked him for his “perceived

sexual orientation[.]” (Id. ¶ 16.) However, Cody does not allege that this is the

reason why the officers began to conspire against him, but rather, explicitly alleges

that the officers conspired against him to prevent him from lodging a complaint

against them. This is insufficient to state a claim under § 1985(3).

However, Cody has sufficiently pleaded the element of conspiracy or

agreement. Cody states that after the officers began speaking with one another,

Defendant Howell “began falsely claiming that Plaintiff had deliberately hit his

police car with something[.]” (Id. ¶ 14.) He also alleges that his arrest was

ordered and agreed to by the officers. (Id. ¶ 18.)

Additionally, Cody has alleged some overt acts, such as the actions taken by

the officers on February 6, 2022. (Id. ¶ 19.) However, the complaint does not

allege any specific facts extending the conspiracy beyond the incident on February

6, 2022, other than the filing of charges against him. (Id. ¶ 28.) Accordingly, the

motion to dismiss will be granted with leave to amend as to Count 3. See Fletcher-

Harlee Corp., 482 F.3d at 251.

CONCLUSION

For the reasons above, the motion to dismiss will be granted in part and

denied in part. An order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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