Brown v. Monroy

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EVAN BROWN, : CIVIL NO. 1:22-CV-1401

:

Plaintiff, : (Chief Judge Brann)

:

v. :

: (Magistrate Judge Carlson)

ADRIENNE MONROY, et al., :

:

Defendants. :

REPORT AND RECOMMENDATION

I. Factual Background

The factual background of this case relates to the arrest of the plaintiff, Evan

Brown, on DUI and child endangerment charges of which he was subsequently

convicted. His complaint alleges constitutional violations against police officers from

two departments – Lower Swatara Police Department and Steelton Police – under 42

U.S.C. § 1983 for false arrest, false imprisonment, failure to intervene, and excessive

force as well as state law tort claims of assault and battery. The factual background,

as explained by Brown in his complaint, can be simply stated: On January 5th, 2022,

Lower Swatara Police Department requested Steelton Police to detain Brown for a

possible domestic violence incident. (Doc. 1, at 3). Officers Monroy and Smith of the

Steelton Police encountered Brown asleep in the passenger seat of a vehicle. (Id.)

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asked him to turn around to place handcuffs on him. (Id.) Brown then alleges that

Officers Monroy, Smith, and Etnoyer wrestled him into handcuffs, violently twisted

his arms behind his back, and dropped him on his tailbone, causing him to be unable

to sit on his backside for three weeks, before placing him in the back of the police

car. (Id., at 3, 4). He alleges that the officers did not have probable cause to arrest him

because he was not seen driving and Officer Monroy testified that she did not smell

alcohol on the plaintiff and that they used excessive force in effectuating the arrest.

(Id.)

Brown was arrested, charged, and subsequently convicted of child

endangerment, DUI, reckless endangerment, and vandalism. See Commonwealth v.

Brown, No. MJ-12201-CR-0000022-2022; Commonwealth v. Brown, No. CP-22-

CR-0000356-2022.1 Brown commenced this action by filing a complaint on

September 8, 2022, while he was still a pretrial detainee housed at the Dauphin

County Prison. (Doc. 1). On September 5th, 2023, the Court dismissed the complaint

against the Lower Swatara Police Department defendants without prejudice to the

1 The Court previously took judicial notice of the state court dockets related to

Brown’s criminal case at MJ-12201-CR-0000022-2022 (Magisterial District Judge

docket) and CP-22-CR0000356-2022 (Court of Common Pleas for Dauphin County

docket), which are available to the public online at

https://ujsportal.pacourts.us/CaseSearch.

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complaint, despite the Court’s best efforts to ensure the plaintiff had notice of the

dismissal and the opportunity to do so. (Docs. 23, 25). Thus, following a second

motion from the Lower Swatara Police Department defendants, the Court dismissed

the complaint with respect to Defendants Thomas and Tingle and terminated them

from this case. (Docs. 29, 32).

On July 29, 2024, the remaining defendants in this case, Steelton police

officers Monroy, Smith, and Etnoyer, filed a motion to dismiss the complaint with

respect to the false arrest, false imprisonment, failure to intervene, excessive force,

and assault and battery claims against them. (Doc. 41). They argue that Brown is

collaterally estopped from asserting his claims of false arrest, false imprisonment,

and failure to intervene against them where the Court has already dismissed these

claims as to the Lower Swatara defendants and that he his claims of excessive force

and assault and battery fail on the merits. (Doc. 42). For the reasons set forth below,

we recommend the defendants’ motion to dismiss be granted in part and denied in

part as follows: we recommend the Court grant the motion to dismiss with regard to

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motion with regard to the plaintiff’s excessive force and assault and battery claims.2

II. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules

of Civil Procedure only if the complaint fails to state a claim upon which relief can

be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for the

legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

2 The plaintiff references “Article 1, Section 8 – Assault and Battery” in his

complaint. The defendants construe this as an improper claim for monetary damages

under the Pennsylvania Constitution. See Jones v. City of Philadelphia, 890 A.2d

1188, 1208 (Pa. Commw. Ct. 2006) (“To date, neither Pennsylvania statutory

authority, nor appellate case law has authorized the award of monetary damages for

a violation of the Pennsylvania Constitution.”) On this score the defendants are

correct that we may not construe a monetary damages claim under the state

constitution. However, we are reminded that “a document filed pro se is to be

liberally construed, . . . and a pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by lawyers.” Erickson

v. Pardus, 551 U.S. 89, 94 (2007). Accordingly, we construe this complaint as

asserting a Pennsylvania common law tort claim for assault and battery. We will leave

for another day the question of whether such claims are barred by the doctrine of

sovereign immunity.

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recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than the

possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may

be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of actions

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above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon which

relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556

U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss,

a court should “begin by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the

Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a

review of the adequacy of a complaint, the Supreme Court has advised trial courts

that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

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[A]fter Iqbal, when presented with a motion to dismiss for failure to state

a claim, district courts should conduct a two-part analysis. First, the

factual and legal elements of a claim should be separated. The District

Court must accept all of the complaint’s well-pleaded facts as true, but

may disregard any legal conclusions. Second, a District Court must then

determine whether the facts alleged in the complaint are sufficient to

show that the plaintiff has a “plausible claim for relief.” In other words,

a complaint must do more than allege the plaintiff’s entitlement to relief.

A complaint has to “show” such an entitlement with its facts.

Fowler, 578 F.3d at 210-11.

As the court of appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a three-

step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

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identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. 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.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal,

129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s]

that a defendant attached as an exhibit to a motion to dismiss if the plaintiff’s claims

are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White

Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose

contents are alleged in the complaint and whose authenticity no party questions, but

which are not physically attached to the pleading, may be considered.” Pryor v. Nat’l

Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express

Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a

district court may not consider matters extraneous to the pleadings, a document

integral to or explicitly relied upon in the complaint may be considered without

converting the motion to dismiss in one for summary judgment”). However, the court

may not rely on other parts of the record in determining a motion to dismiss, or when

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a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O’Brien &

Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

B. Brown’s False Arrest, False Imprisonment, and Failure to

Intervene Claims Should Be Dismissed.

Brown asserts that Officers Monroy, Smith, and Etnoyer violated his Fourth

Amendment right to be free from unreasonable searches and seizures by executing

his arrest. Broadly construed, he asserts claims of false arrest and false imprisonment

alleging that the officers did not have probable cause to arrest him, despite his

subsequent conviction. This federal constitutional claim implicates Brown’s rights

under the Fourth Amendment to the United States Constitution, which provides:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and now Warrants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.

U.S. Const., amend. IV. Under the Fourth Amendment, an arrest without probable

cause is a constitutional violation that may be redressed under 42 U.S.C. § 1983. See

Walmsley v. Philadelphia, 872 F.2d 546, 551 (3d Cir. 1989) (citing Patzig v. O'Neill,

577 F.2d 841, 848 (3d Cir. 1978)).

However, in order to make out a false arrest claim, a plaintiff must demonstrate

that police lacked probable cause to arrest. Groman v. Twp. of Manalapan, 47 F.3d

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any § 1983 claim arising out of the arrest or detention of an individual. For purposes

of the Fourth Amendment, probable cause to arrest exists “whenever reasonably

trustworthy information or circumstances within a police officer's knowledge are

sufficient to warrant a person of reasonable caution to conclude that an offense has

been committed by the person being arrested.” U.S. v. Myers, 308 F.3d 251, 255 (3d

Cir. 2002) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). An arrest by a police officer

without a warrant “is reasonable under the Fourth Amendment where there is

probable cause to believe that a criminal offense has been or is being committed.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). In conducting an inquiry into

whether probable cause to arrest existed, a court should consider the totality of the

circumstances presented, and “must assess the knowledge and information which the

officers possessed at the time of arrest, coupled with the factual occurrences

immediately precipitating the arrest.” United States v. Stubbs, 281 F.3d 109, 122 (3d

Cir. 2002).

Although “[t]he probable-cause standard is incapable of precise definition or

quantification,” Maryland v. Pringle, 540 U.S. 366, 371 (2003), all interpretations of

probable cause require “a belief of guilt that is reasonable as opposed to certain.”

Wright v. City of Philadelphia, 409 F.3d 595, 602 (3d Cir. 2005) (citing Hill v.

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type of specific evidence of each element of the offense as would be needed to support

a conviction.” Wright, 409 F.3d at 602 (quoting Adams v. Williams, 407 U.S. 143,

149 (1972) ). Accordingly, the evidentiary standard for probable cause is significantly

lower than that required for conviction. Id. (citing Michigan v. DeFillippo, 443 U.S.

31, 36 (1979)); see also Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000) (holding

that probable cause requires only a “fair probability” that a person committed the

relevant crime). Because an arrest is made with probable cause if at the moment it

was made the facts and circumstances within the officer's knowledge “were sufficient

to warrant a prudent man in believing that [the suspect] had committed or was

committing an offense,” Beck v. Ohio, 379 U.S. 89, 91 (1964), the constitutional

validity of an arrest does not turn on whether the suspect actually committed any

crime, Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003).

Thus, “[t]he determination that probable cause exists is fundamentally a factual

analysis that must be performed by officers at the scene. It is the function of the court

to determine whether the objective facts available to the officers at the time of arrest

were sufficient to justify a reasonable belief that an offense was being committed.”

United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984). Although officers on

the scene may draw inferences and make deductions that might elude an untrained

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and deductions can only justify a warrantless arrest if the government satisfies its

burden of establishing the probable cause necessary to support the arrest,” Myers,

308 F.3d at 255.

In this case, Brown’s Fourth Amendment allegations of false arrest and false

imprisonment are fatally flawed in a fundamental way: the responding officers

plainly had probable cause to arrest him and he was ultimately convicted of the crimes

for which he was arrested. Indeed, this Court has already found that, with regard to

this arrest:

Here, Brown’s complaint does not allege sufficient facts to state a

plausible claim that he was searched or seized without probable cause.

Brown broadly alleges that “Officer Thomas did not have probable

cause to validate Officer Monroy’s arrest,” where Officer Thomas did

not see Brown driving and was not present at the time Brown was

arrested to observe any recent physical injury to the victim, Brown’s

girlfriend. (Doc. 1, at 3). Brown’s claims directly undermine his state

conviction for endangering the welfare of children, institutional

vandalism of an educational facility, a DUI, and recklessly endangering

another person, in which the state court found Brown guilty of all five

charges. Further, the undersigned finds that the complaint does not

identify any independent or exculpatory evidence of the victim’s

credibly such that probable cause would not exist. See Wilson v. Russo,

212 F.3d 781, 790 (3d Cir. 2000) (“[While] a positive identification by

a victim witness, without more, would usually be sufficient to establish

probable cause, . . . [i]ndependent exculpatory evidence or substantial

evidence of the witness’s own unreliability that is known by the

arresting officers could outweigh the identification such that probable

cause would not exist.”). Thus, the undersigned finds that Defendants

had sufficient probable cause to believe that the underlying crimes

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investigation before making an arrest. “Statements made to a police

officer from a source whom he finds credible can be sufficient to

provide probable cause.” Nwani v. Greene, No. CV 17-3017, 2018 WL

2426145, at *6 (E.D. Pa. May 30, 2018). The officer is not required to

conduct an extensive investigation and identify other witnesses. See

Merkle, 211 F.3d at 790 n.8 (finding that a detective “was not required

to undertake an exhaustive investigation in order to validate the

probable cause that, in his mind, already existed.”). Since Brown has

failed to show his arrest was made without probable cause, he cannot

proceed on his false arrest and false imprisonment claims. See Orsatti,

71 F.3d at 482.

(Doc. 19 at 11-12).

Despite Brown’s argument that the Court’s analysis of whether probable cause

existed with regard to the Lower Swatara defendants is in some way distinct from

that of the Steelton defendants this cannot be true where the same facts of the arrest

apply equally to all defendants. Indeed, even a renewed review of the factual

allegations with respect to the Steelton defendants, including a review of the affidavit

of probable cause presented as an exhibit by Brown, reinforces the Court’s prior

determination that probable cause existed as a matter of law. The affidavit of probable

cause, signed by both the affiant officer and a Magisterial District Judge, explains

that a third party notified the police of a domestic violence incident between the

plaintiff, who the third-party caller identified by name, and his girlfriend, and located

the plaintiff in a car outside the residence. (Doc. 1-1, at 2; Doc. 44-1). Indeed, the

Court found this to be enough where “[s]tatements made to a police officer from a

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v. Greene, No. CV 17-3017, 2018 WL 2426145, at *6 (E.D. Pa. May 30, 2018).

Moreover, the police then interviewed the plaintiff’s girlfriend, who was inside the

residence, who confirmed that Brown was intoxicated and cursing at her, forcibly

drove her and her children to her mother’s home while intoxicated and punched her

in the arm numerous times.3 (Doc. 1-1, at 2; Doc. 44-1). The narrative describing the

3 The Court also previously analyzed these claims under Heck v. Humphrey, 512

U.S. 477 (1994), which requires dismissal of certain claims under § 1983 where there

has been a conviction of the underlying crime for which the plaintiff was arrested,

also called the favorable termination rule. As to the Lower Swatara defendants, the

Court declined to dismiss these claims under Heck, citing the court of appeals’ view

that “claims for false arrest and false imprisonment are not the type of claims

contemplated by the Court in Heck which necessarily implicate the validity of a

conviction or sentence.” Montgomery v. DeSimone, 159 F.3d 120, 126 n.5 (3d Cir.

1998). To be sure, the Third Circuit has not automatically applied Heck’s favorable

termination rule to all § 1983 claims where there is a conviction on the charges but

has instructed that “[a] district court must make a fact-based inquiry to determine

whether a successful § 1983 action would undermine the validity of a conviction or

sentence.” Shelley v. Wilson, 152 F.App’x 126, 129 (3d Cir. 2005); see also Olick v.

Pennsylvania, 739 F. App'x 722, 726 (3d Cir. 2018) (“Heck does not automatically

bar [ ] claims of false arrest and false imprisonment . . . [h]owever there are

circumstances in which Heck may bar such claims.”).Thus, the Third Circuit has

affirmed dismissal of false arrest and false imprisonment claims under Heck where

success on those claims would conflict with the prior judicial resolution of the

criminal proceedings. See Bressi v. Brennen, 823 F. App'x 116, 119 (3d Cir. 2020)

(“[B]ecause [the plaintiff’s] claims amount to challenges to the validity of his

convictions, and because those convictions do not appear to have been invalidated,

the claims are barred by Heck); Wells v. King, 232 F. App’x 148, 149 (3d Cir. 2007)

(affirming dismissal of false arrest and false imprisonment claims where the actual

claim underlying his assertions was the challenge to his conviction). In our view,

Brown’s argument that the officers did not have probable cause to arrest him for DUI

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legal court document attached to the plaintiff’s brief, clearly demonstrate that

probable cause existed for the officers to arrest Brown.

Moreover, given the Court’s prior determination, on the same facts, that

probable cause existed, and our independent assessment confirming the same, it

appears the officers are also entitled to qualified immunity on these claims.

“Qualified immunity shields government officials from civil damages liability unless

the official violated a statutory or constitutional right that was clearly established at

the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012).

A qualified immunity analysis involves two questions: whether the official violated

a statutory or constitutional right, and whether that right was clearly established at

the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

Lower courts have the discretion to decide which question to analyze first. Pearson

v. Callahan, 555 U.S. 223, 236 (2009). The Supreme Court has cautioned courts to

“think carefully before expending scarce judicial resources to resolve difficult and

novel questions of constitutional or statutory interpretation that will have no effect

because “Officer Monroy testified that she did not smell alcohol on the plaintiff”

necessarily challenges the validity of his conviction for DUI. Nonetheless, having

made the independent assessment that probable cause existed; we need not dismiss

based on Heck’s favorable termination rule alone.

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U.S. at 735.

An official’s conduct violates clearly established law when, “at the time of the

challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every

‘reasonable official would [have understood] that what he is doing violates that

right.’” al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). The Supreme Court has stated that this standard does not require a case

directly on point, but requires that “existing precedent must have placed the statutory

or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. “When properly

applied, [qualified immunity] protects all but the plainly incompetent or those who

knowingly violate the law.” Id. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)); see also Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).

The dispositive question that the court must ask is “whether the violative nature

of particular conduct is clearly established.” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (quoting al-Kidd, 563 U.S. at 742). The inquiry “must be undertaken in light

of the specific context of the case, not as a broad general proposition.” Id.; see also

Davenport v. Borough of Homestead, 870 F.3d 273, 281 (3d Cir. 2017). This “clearly

established” standard ensures that an official can reasonably anticipate when his or

her conduct may give rise to liability, and “protects the balance between vindication

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duties.” Reichle, 566 U.S. at 664.

For claims of false arrest, “the defendants are entitled to qualified immunity .

. . if a reasonable officer could have believed that probable cause existed to arrest [the

plaintiff] in light of clearly established law and the information the [arresting] officers

possessed.” Blaylock v. City of Philadelphia, 504 F.3d 405, 411 (3d Cir. 2007)

(quoting Hunter v. Bryan, 502 U.S. 224, 228-29 (1991) (internal quotations omitted).

Where, as here, a verified court record, which the plaintiff has attached to his brief,

explains the circumstances surrounding the arrest and plainly recites that probable

cause existed, it cannot be said that the arresting officers would have been on notice

that their conduct was unlawful. In light of the Court’s prior determination, and our

independent assessment that probable cause existed, along with the verified court

records showing that the officers had reason to believe probable cause existed in light

of the clearly established law and information they possessed, we recommend his

false arrest and false imprisonment claims be dismissed.4

4 To the extent that Brown alleges a Fourth Amendment failure to intervene claim

against Officer Smith for failing to stop Brown from being arrested without probable

cause, this claim also fails, having found that probable cause existed.

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Relating to his Arrest.

At this stage it is axiomatic that our review is limited to the well-pleaded facts

set forth in the plaintiff’s complaint. Viewed through this analytical lens, although

Brown has not cleared the procedural hurdles necessary to prevail on his claims of

false imprisonment and false arrest in light of the indisputable evidence of probable

cause, the circumstances surrounding the force used to effectuate his arrest are less

clear. On this score, an arrestee's excessive force claim, like the claims made here,

are judged against the Fourth Amendment's reasonableness standard, a constitutional

benchmark which applies to local police through the Fourteenth Amendment. Thus:

“[A] free citizen's claim that law enforcement officials used excessive

force in the course of making an arrest, investigatory stop, or other

‘seizure’ of his person ... [is] properly analyzed under the Fourth

Amendment's ‘objective reasonableness’ standard.” Graham v. Connor,

490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1986).

Determining whether the force used to effect a seizure was reasonable

under the Fourth Amendment requires a careful balancing of “the

nature and quality of the intrusion of the individual's Fourth

Amendment interests” against the government's interests in effecting

the seizure. Id. at 396, 109 S.Ct. 1865. The test is one of reasonableness,

and thus a “court must determine the objective ‘reasonableness’ of the

challenged conduct, considering the severity of the crime at issue,

whether the suspect poses an immediate threat to the safety of the

officer or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Couden v. Duffy, 446 F.3d 483,

497 (3d Cir. 2006) (citation omitted); see also Sharrar v. Felsing, 128

F.3d 810, 822 (3d Cir. 1997). Included among the factors that may be

relevant to this determination, courts may consider “the duration of the

[officer's] action, whether the action takes place in the context of

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the number of persons with whom the police officers must contend at

one time.” Id. (internal quotations omitted). Courts are instructed that

the surrounding events must be considered from “the perspective of a

reasonable officer on the scene.” Id.

Samuels v. Pocono Mountain Reg'l Police Dep't, No. 3:13-CV-2922, 2015 WL

10567834, at *3 (M.D. Pa. Dec. 17, 2015), report and recommendation adopted in

part, No. 3:13-CV-02922, 2016 WL 1221831 (M.D. Pa. Mar. 29, 2016).

Analyzing this particular excessive force claim in light of the multi-facetted,

and fact-specific, constitutional standard of reasonableness prescribed by the courts

and the Fourth Amendment, we conclude that the plaintiff has sufficiently pleaded a

Fourth Amendment excessive force claim to proceed past the pleading stage. Fairly

construed, the complaint alleges that Officers Monroy, Smith, and Etnoyer wrestled

him into handcuffs, violently twisted his arms behind his back, and dropped him on

his tailbone, causing him to be unable to sit on his backside for three weeks. At this

early stage of the proceedings, where we are limited to a consideration of the

pleadings alone, we believe that the plaintiff has adequately pleaded an excessive

force claim. Instead, the ultimate question of the reasonableness of the use of force

in this case turns on factual matters outside the pleadings. As such, this issue is not

amenable to resolution through a motion to dismiss, where our judgment is cabined

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these claims should also be denied.

Similarly, any determination regarding whether the officers are entitled to

qualified immunity on the Fourth Amendment excessive force charges will require

factual development beyond the face of the pleadings. As to the first prong of the

standard articulated above, we recommend the Court defer any determination

regarding the constitutionality of the force used in the arrest. Nor, at this juncture,

can the defendants prove as a matter of law that any constitutional violation was not

clearly established where the Third Circuit has held in certain circumstances that “the

right of an arrestee to be free from the use of excessive force in the course of his

handcuffing clearly was established . . . [and] a reasonable officer would have known

that employing excessive force in the course of handcuffing would violate the Fourth

Amendment.” Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004).

Finally, it would be premature to dismiss the state law analogue claims of

assault and battery. As previously noted, the defendants have not addressed these

claims on the merits, but instead simply ask the Court to dismiss them based upon

the plaintiff’s improper reliance on the Pennsylvania Constitution in supporting his

claims. Nonetheless, the torts of assault and battery are proper causes of action under

Pennsylvania law, including in the context of an arrest. On this score:

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the plaintiff in apprehension of imminent harmful or offensive bodily

contact and that the plaintiff actually experience such apprehension.

See Heverly v. Simcox, No. 4:05–1370, 2006 WL 2927262, at *9

(M.D.Pa. Oct. 11, 2006); D'Errico v. DeFazio, 763 A.2d 424, 431 n. 2

(Pa. Super Ct.2000). Battery requires proof that the defendant acted

with the intent to cause harmful or offensive bodily contact with the

person of the plaintiff and that such contact actually followed. See

Fulks ex rel. Daniel v. Gasper, 439 F.Supp.2d 372, 379 (M.D.Pa.2006);

Montgomery v. Bazaz–Sehgal, 742 A.2d 1125, 1130

(Pa.Super.Ct.1999). Police officers are privileged to commit these torts

using a reasonable amount of force when effectuating an arrest. See

Groman, 47 F.3d at 633–34; RESTATEMENT (SECOND) OF TORTS

§ 118, 132 (1965) [hereinafter “RESTATEMENT 2D TORTS”]. Use

of unreasonable or excessive force dissolves the privilege. Groman, 47

F.3d at 634; RESTATEMENT 2D TORTS § 133.

Dull v. W. Manchester Twp. Police Dep't, 604 F. Supp. 2d 739, 754 (M.D. Pa. 2009).

Whereas here, the plaintiff has stated facts alleging that the arresting officers

effectuated his arrest using an excessive degree of force, Brown has met the standard

of pleading to demonstrate that the defendants committed an assault and battery in an

unprivileged manner and his claims should move forward for further factual

development. While we acknowledge that the defendants may assert a sovereign

immunity defense to these state torts, Rosembert v. Borough of E. Lansdowne, 14 F.

Supp. 3d 631, 644 (E.D. Pa. 2014), they have not yet done so. Moreover, sovereign

immunity determinations entail an inquiry into whether the acts alleged fell within

the scope of the police officers’ employment, an issue which has not yet been

presented and briefed by the parties. Kintzel v. Kleeman, 965 F. Supp. 2d 601, 607

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await another day, and another motion.

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the

Defendants’ motion to dismiss, (Doc. 41), be GRANTED with regard to the

plaintiff’s false arrest, false imprisonment, and failure to intervene claims. IT IS

FURTHER RECOMMENDED that the defendants’ motion to dismiss be DENIED

with respect to the plaintiff’s excessive force claim so that the record may be more

fully developed.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within fourteen

(14) days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the portions of the

proposed findings, recommendations or report to which objection is

made and the basis for such objections. The briefing requirements set

forth in Local Rule 72.2 shall apply. A judge shall make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made and may

accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where

required by law, and may consider the record developed before the

magistrate judge, making his or her own determination on the basis of

that record. The judge may also receive further evidence, recall

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instructions.

Submitted this 30th day of September 2023.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

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