The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JAMES KRUG, et al., CIVIL ACTION NO. 3:24-CV-01901
Plaintiffs,
v. (Magistrate Judge Latella)
WILLIAM JENKINS,
Defendant.
MEMORANDUM
This matter comes before the Court on the Motion to Dismiss filed by the
Defendant, William Jenkins. For the reasons that follow, the Motion will be
DENIED.
I. Procedural Background
Plaintiffs James Krug, T.K. and Angela Krug initiated this action by filing a
Complaint pursuant to 42 U.S.C. § 1983 on November 5, 2024. (Doc. 1). The
Complaint alleges that the Defendant, William Jenkins, a Pennsylvania State
Trooper, violated Plaintiffs’ civil rights by, inter alia, falsely arresting Plaintiff
James Krug in the presence of his children, subjecting him to excessive force, and
inflicting emotional distress on Mr. Krug and his children. The Complaint brings
five federal civil rights causes of action and four claims under Pennsylvania state
law. On January 6, 2025, the Defendant filed a Motion to Partially Dismiss the
Complaint, (Doc. 5), and a supporting brief on January 21, 2025. (Doc. 7).
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Plaintiffs filed a brief in opposition to the Motion on January 27, 2025. (Doc. 11).
Defendant filed a reply brief on February 4, 2025. (Doc. 12). The Motion is ripe
for disposition.
II. Background
According to the Complaint, on March 28, 2023, Plaintiff James Krug’s
children, Plaintiffs Angelina Krug and T.K., then students at the Wallenpaupack
High School, were wrongly accused of stealing another student’s sneakers. (Doc.
1, p. 2). The Defendant, Trooper William Jenkins, went to the school to
investigate. (Id.). At the same time, Plaintiff James Krug went to the school to
address the matter with school staff. (Id.). As James Krug was entering the school,
Jenkins was leaving. (Id.). Jenkins proceeded to Krug’s wife’s place of business
who informed him that she was busy and that he needed to go to the school to
speak with James Krug about the matter. (Id. at p. 3). The Complaint alleges that
Jenkins threatened and/or harassed Krug’s wife. (Id.). When Jenkins arrived at the
school, according to the Complaint, Krug had already resolved the matter,
however, he made a complaint about Jenkins’s treatment of Krug’s wife. (Id.).
Plaintiffs allege that: “After a brief conversation in which Defendant Jenkins
continued to harass Plaintiffs, Defendant Jenkins, without any cause whatsoever,
placed Plaintiff James Krug under arrest.” (Doc. 1, p. 3, ¶ 23). Plaintiffs allege
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that despite James Krug informing Jenkins about a preexisting shoulder injury, he
forced Krug’s arms behind his back causing severe injury resulting in loss of work
and the need for surgery. (Doc. 1, p. 3, ¶¶ 25-27). Plaintiffs allege that Jenkins
“perp walked” Krug through the school in front of his sobbing children and their
friends. (Id. at p. 3). They claim that Jenkins caused further injury to James
Krug’s shoulder during his transportation to the State Police Barracks. (Id.). The
Complaint states that Jenkins charged James Krug with Harassment, Disorderly
Conduct and Defiant Trespass, but that all those charges were dismissed for lack of
probable cause. (Id.).
III. 12(b)(6) Standard
Rule 8 of the Federal Rules of Civil Procedure states that a claim must
include “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a). This requires the Plaintiff to put forth
evidence that, “when taken as true, suggest[s] the required elements of a particular
legal theory.” McNeilly v. City of Pittsburgh, 40 F.Supp.3d 643, 650 (W.D. Pa.
2014). The Plaintiff must state “sufficient factual allegations which ‘nudge’ its
claims ‘across the line from conceivable to plausible.’” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 680, 129 S. Ct. 1937, 1951, 173 L. Ed. 2d 868 (2009)). The
purpose is to ensure “fair notice of the factual basis of a claim while raising a
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‘reasonable expectation that discovery will reveal evidence of the necessary
element.’” Id. at 651.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to
move to dismiss a complaint for “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This means that a complaint may be dismissed
if it does not present sufficient facts to support a plausible claim: “Under Rule
12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the light most favorable to
the plaintiff, a court finds that plaintiff’s claims lack facial plausibility.” Warren
Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929
(2007)).
The court must accept both the Plaintiff’s allegations and any reasonable
inferences that can be drawn as true and construe them in the light most favorable
to the non-moving party. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).
However, it need not accept “‘unsupported conclusions and unwarranted
inferences, or a legal conclusion couched as a factual allegation.’” Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d
187, 195 (3d Cir. 2007)). Reciting the elements that make up a cause of action and
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supporting them with “mere conclusory statements” is insufficient to give those
statements the presumption of truth. McNeilly, 40 F.Supp.3d at 650 (citing Iqbal,
556 U.S. at 678, 129 S. Ct. 1937).
When faced with a motion to dismiss pursuant to 12(b)(6), a court should
conduct a two-part analysis: 1) separate the factual and legal elements of a claim;
and 2) “determine whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a plausible claim for relief.” Id. (internal citation removed).
The court may consider facts alleged on the face of the complaint, as well as
“documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007). This analysis requires the court to look at the claims on a
case-by-case basis and rely both “on its judicial experience and common sense.”
McNeilly, 40 F. Supp. 3d at 650. The court will not be reaching legal conclusions,
but instead is merely determining “whether the plaintiff should be permitted to
offer evidence in support of the allegations.” Id. (citing Maio v. Aetna, 221 F.3d
472, 482 (3d Cir. 2000)).
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IV. Discussion
1) The Federal Claims
As noted above, the Complaint raises five federal claims and four based on
Pennsylvania state law. The five federal claims are brought under 42 U.S.C. §
1983 and include: 1) False Arrest in violation of the Fourth and Fourteenth
Amendments, 2) Malicious Prosecution in violation of the Fourth and Fourteenth
Amendments, 3) Unlawful Seizure in violation of the Fourth and Fourteenth
Amendments, 4) Excessive Force in violation of the Fourth and Fourteenth
Amendments, and 5) Retaliation in violation of the First and Fourteenth
Amendments.
Defendant seeks to dismiss Plaintiffs’ Fourteenth Amendment false arrest,
malicious prosecution, unlawful seizure, excessive force, and retaliation claims
pursuant to the explicit source rule. In Graham v. Connor, 490 U.S. 386, 109 S.
Ct. 1865 (1989), the Supreme Court held that:
all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory
stop, or other “seizure” of a free citizen should be analyzed under
the Fourth Amendment and its “reasonableness” standard, rather
than under a “substantive due process” approach. Because the
Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more generalized
notion of “substantive due process,” must be the guide for
analyzing these claims.
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490 U.S. at 395, 109 S.Ct. at 1871 (emphasis in the original). Based on this clear
directive from the Supreme Court, Defendant’s argument is well taken. However,
in their brief in opposition to the Motion to Dismiss, Plaintiffs do not take issue
with this analysis but rather clarify that they “invoke the Fourteenth Amendment
only insomuch as it incorporates the First and Fourth Amendments to the States,
which is permissible.” (Doc. 11, pp. 3–4). Plaintiffs explain that the “Complaint
sets out no substantive claims under the Fourteenth Amendment.” (Id. at p. 4). As
Judge Saporito stated in Merriman v. Oswald, No. 3:20-cv-00617, 2021 WL
1060237, (M.D. Pa. Mar. 18, 2021):
the plaintiff here does not assert either procedural or substantive
due process claims. He has explicitly brought these claims under
the Fourth Amendment, referencing the Fourteenth Amendment
only to recognize that the Fourth Amendment—which applies on
its face to the federal government only—was incorporated against
the states later by operation of the Fourteenth Amendment's due
process clause. See Williams v. Papi, 30 F. Supp. 3d 306, 311–12
(M.D. Pa. 2014). This is the “incorporation doctrine,” and its
invocation is entirely appropriate in this context. See id. Thus, the
defendant's argument is not well taken.
Id. at *3. Because Plaintiffs are not asserting an independent claim under the
Fourteenth Amendment but rather only referencing the fact that the Fourth and
First Amendments are made applicable to the states by operation of the Fourteenth
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Amendment, the Motion to Dismiss as to the Fourteenth Amendment claims will
be denied.
2) Claims Under Pennsylvania State Law
The Complaint also seek to bring four supplemental claims under
Pennsylvania law, viz., claims for malicious prosecution, assault, battery, and
intentional infliction of emotional distress. Defendant seeks to dismiss Plaintiffs’
supplemental state law claims based on sovereign immunity.
The Constitution of the Commonwealth of Pennsylvania provides:
All courts shall be open; and every man for an injury done him in
his lands, goods, person or reputation shall have remedy by due
course of law, and right and justice administered without sale,
denial or delay. Suits may be brought against the Commonwealth
in such manner, in such courts and in such cases as the Legislature
may by law direct.
Pa. Const. art. I, § 1. In accordance with the constitutional provision, the
Pennsylvania legislature has declared:
Pursuant to section 11 of Article 1 of the Constitution of
Pennsylvania, it is hereby declared to be the intent of the General
Assembly that the Commonwealth, and its officials and employees
acting within the scope of their duties, shall continue to enjoy
sovereign immunity and official immunity and remain immune
from suit except as the General Assembly shall specifically waive
the immunity. When the General Assembly specifically waives
sovereign immunity, a claim against the Commonwealth and its
officials and employees shall be brought only in such manner and
in such courts and in such cases as directed by the provisions of
Title 42 (relating to judiciary and judicial procedure) or 62
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(relating to procurement) unless otherwise specifically authorized
by statute.
1 Pa. Stat. and Cons. Stat. Ann. § 2310 (West). The Pennsylvania legislature has
specifically waived sovereign immunity in limited circumstances set forth in 42 Pa.
C.S.A. § 8522 which states:
(a) Liability imposed.--The General Assembly, pursuant to section
11 of Article I of the Constitution of Pennsylvania, does hereby
waive, in the instances set forth in subsection (b) only and only to
the extent set forth in this subchapter and within the limits set forth
in section 8528 (relating to limitations on damages), sovereign
immunity as a bar to an action against Commonwealth parties, for
damages arising out of a negligent act where the damages would
be recoverable under the common law or a statute creating a cause
of action if the injury were caused by a person not having available
the defense of sovereign immunity.
42 Pa. C.S.A. § 8522 (a). Those acts for which a Commonwealth party may be
liable only include claims for damages caused by: (1) Vehicle liability, (2)
Medical-professional liability, (3) Care, custody or control of personal property,
(4) Commonwealth real estate, highways and sidewalks, (5) Potholes and other
dangerous conditions against the dangerous condition, (6) Care, custody or control
of animals, (7) Liquor store sales, (8) National Guard activities, (9) Toxoids and
vaccines, (10) Sexual abuse. 42 Pa. C.S.A. § 8522(b). See Curry v. Poray, No.
3:24-cv-1026, 2025 WL 1680012, at *7 (M.D. Pa. June 13, 2025) (“As for the state
law claims, the Pennsylvania General Assembly has declared that state employees
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acting within the scope of their duties are entitled to sovereign immunity except
where immunity has specifically been waived . . . Generally, sovereign immunity is
only waived for state law negligence claims arising under facts confined to ten
specific, defined categories.”); Boucher v. Lupacchini, No. 3:19-CV-2106, 2021
WL 11096471, at *9 (M.D. Pa. Mar. 1, 2021), report and recommendation
adopted, 2022 WL 19795967 (M.D. Pa. Apr. 14, 2022) (“Under Pennsylvania law,
the Commonwealth, its agencies and employees enjoy broad immunity from most
state-law tort claims.”)
“However, state employees do not lose their immunity for intentional torts,
provided they are acting within the scope of their employment.” Kull v. Guisse, 81
A.3d 148, 157 (Pa. Commw. Ct. 2013). Here, the parties dispute whether the
Complaint sufficiently alleges that Defendant Jenkins was acting within the scope
of his employment as a Pennsylvania State Police Trooper when the events giving
rise to this action occurred. To determine whether Trooper Jenkins was acting
within the scope of his employment when he arrested James Krug, both parties cite
to the Pennsylvania Supreme Court’s decision in Justice v. Lombardo, 652 Pa. 588
(2019). In Justice, the plaintiff, Ms. Justice, was a motorist stopped by the
defendant, a Pennsylvania State Trooper, for a broken taillight and driving with a
suspended license. Id. at 594. Ms. Justice testified that while waiting for a tow
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truck, the Trooper “jumped [her], wrestled [her], twisted [her] arm behind [her]
back, was trying to push [her] down to the ground.” Id. at 596. Ms. Justice alleged
that the Trooper was “forceful” and twisted her arm “way up [her] back.” She was
handcuffed, although never arrested. Id. Ms. Justice later brought suit in
Philadelphia County based on state law claims for assault, battery, invasion of
privacy, intentional infliction of emotional distress and false imprisonment/arrest.
Id. at 593. The issue in Justice was whether the Trooper was acting within the
scope of his employment when the events happened; the jury found that he was not
and therefore not entitled to immunity under Pennsylvania law. 652 Pa. at 601–02.
The Commonwealth Court reversed, finding that the Trooper’s action following a
traffic stop were within the scope of his employment. Id. at 602. The Supreme
Court of Pennsylvania reversed holding that the issue of whether the Trooper acted
within the scope of his employment was a question for the jury.
The Justice Court began its analysis by recognizing that “[i]n the present
case, it is undisputed that Trooper Lombardo, as an employee of the PSP, is entitled
to the protections of sovereign immunity for conduct within the scope of his duties,
subject only to certain exceptions not applicable here. Thus, judgment could only
be entered against Trooper Lombardo in this matter if he was acting outside the
scope of employment on November 27, 2013 when he initiated a physical
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encounter with Ms. Justice and forcibly handcuffed her.” Id. at 604 (cleaned up).
In determining whether a particular action falls within the scope of employment,
the Court looked to Restatement (Second) of Agency § 228.1 Id. at 604. That
analysis, however, is usually one for the jury. The Court explained:
We have long held that whether a particular act of an employee is
within the scope of his employment is ordinarily a question of fact
for the jury. We have explained that the only exception to this well-
established rule is where neither the facts nor the inferences to be
drawn from them are in dispute. In such a case, the court may
decide the scope of employment question as a matter of law.
However, where more than one inference may be drawn from the
facts, the issue of whether an employee was acting within the
scope of employment is for the jury.
Id. at 607 (cleaned up). While the defendant in Justice acted within the scope of
his employment as a State Trooper by pulling over Ms. Justice, issuing tickets and
calling a tow truck, it was for the jury to decide whether the force that he used was
1 Restatement (Second) of Agency § 228 (1958), provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is
not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in
kind from that authorized, far beyond the authorized time or space limits, or too
little actuated by a purpose to serve the master.
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within the scope of his employment. The Court stated that: “it is simply not the
law that an employee’s use of force is within the scope of employment regardless
of whether the force is reasonable or carried out for an improper motive.” 652 Pa.
at 610.
“The inquiry about whether conduct was within the scope of the actor’s
employment is ‘fact-intensive.’” Korman v. Pennsylvania State Police Honsedale
Barracks, No. 3:21-CV-01516, 2023 WL 2224437, at *16 (M.D. Pa. Feb. 24,
2023). “Given the fact-intensive nature of the analysis of whether conduct was
within the scope of the actor’s employment, sovereign immunity is not warranted
in every circumstance for PSP troopers and officers.” Id. That these cases turn on
their facts is highlighted by the parties citing to two cases from this Court that
conducted the analysis mandated in Justice and reached different results.
Defendant points to Brown v. Adams Cnty., No. 1:23-CV-01886, 2025 WL 285329
(M.D. Pa. Jan. 23, 2025) where the Court granted Defendant’s motion to dismiss
because Plaintiff’s “amended complaint explicitly alleges that the Troopers were
acting in the scope of their employment while engaged in tortious conduct . . .
[and] none of the allegations concerning negligent conduct fall within one of the
ten exceptions to statutory sovereign immunity.” Id. at * 9. Plaintiffs, in contrast,
cite to Mazzella v. Patrone, No. 3:22cv1872, 2024 WL 3927258 (M.D. Pa. Aug.
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23, 2024) where the Court denied Defendant’s motion to dismiss stating: “plaintiff
advises that he advances the state law claims for assault and battery in the
alternative based on the critical question of whether Defendant [Trooper] Patrone
acted within the course and scope of his employment. Pursuant to the Federal
Rules of Civil Procedure, such alternative claims are permitted, FED R. CIV. P.
8(d)(2), and thus the motion to dismiss will be denied.” Id. at *6
At this stage of the litigation, it is difficult to say whether the issue of
Jenkins’s scope of employment is ultimately a jury question or not, however, it is
sufficient to say the Plaintiffs should be permitted to engage in discovery on the
matter. Similarly, Defendant will be able to further develop the record to factually
support the arguments in his brief regarding the background of his presence at the
school and the reasons for his actions. Accordingly, at the appropriate time,
Defendant “remain[s] free to move for summary judgment with respect to this
issue if discovery reveals that [he] acted pursuant to [his] employment
responsibilities rather than pursuant to personal motives unrelated to law
enforcement.” Swaney v. Jordan, No. 10-521, 2011 WL 1485969, at *7 (W.D. Pa.
Apr. 19, 2011) (citing Strothers v. Nassan, No. 08-1624, 2009 WL 976604, at *4
(W.D. Pa. Apr. 9, 2009)).
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Accordingly, the Motion to Dismiss will be denied. An Order consistent
with this Memorandum follows.
Dated: September 24, 2025 /s/ Leo A. Latella
Leo A. Latella
United States Magistrate Judge
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