Opinion
Civil Action No. 2:20-cv-965
03-23-2021
NICOLE RULLI, individually and on behalf of her minor son, A.F.; CHARLES BRYANT JR.; SIMON PHILLIPS; DONOVAN HAYDEN; JENNIFER "JAY" YODER; DONOVAN HAYDEN; and CHRISTOPHER WILSON JURING, individually and on behalf of all persons similarly situated, Plaintiffs, v. CITY OF PITTSBURGH; WILLIAM PEDUTO, individually and in his official capacity as Mayor of the City of Pittsburgh; WENDELL HISSRICH, individually and in his official capacity as Director of Public Safety for the City of Pittsburgh; SCOTT SCHUBERT, individually and in his official capacity as Chief of the Pittsburgh Bureau of Police; STEPHEN VINANSKY, Commander of Zone 5 of the Pittsburgh Bureau of Police, in his individual capacity, JASON LANDO, Commander of Narcotics and Vice for the Pittsburgh Bureau of Police, in his individual capacity, JOHN DOE, Tactical Commander, in his individual capacity, Defendants.
District Judge Cathy Bissoon ECF No. 31
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss for Failure to State a Claim filed by Defendant William Peduto (ECF No. 31) be granted in part and denied in part. The Motion should be granted with prejudice as it relates to the official capacity claims against Defendant Peduto and as to any claims brought pursuant to 28 U.S.C. § 1345. The Motion should be granted without prejudice to filing an Amended Complaint as it relates to Plaintiffs' claims against Mayor Peduto for supervisory liability. It is further recommended that the Motion to Dismiss the class action allegations be denied as moot. II. REPORT
A. Relevant Factual Averments
Presently before the Court is a Motion to Dismiss filed by Defendant William Peduto, sued individually and in his official capacity as Mayor of the City of Pittsburgh ("the City"). This civil action concerns the demonstration in the East Liberty neighborhood of the City on June 1, 2020, following the death of George Floyd in Minneapolis on May 25, 2020. Complaint, ECF No. 1 ¶¶ 1-2. Generally, Plaintiffs allege that the Defendants violated their civil rights by interfering with their right to protest, using excessive force in breaking up the protest, and arresting people because of the protest. Specifically, Plaintiffs allege as follows:
The PBP [Pittsburgh Bureau of Police] deployed hundreds of officers to counter approximately 150 protesters. As the assembled protesters held their hands in the air and chanted, "This is not a riot," and "Hands up - Don't shoot," PBP ordered its officers to attack them with explosives, chemical agents and ammunition which is known to seriously wound and sometimes kill its targets. PBP officers drove ambulances past injured protesters without stopping. After ordering peaceful protesters to leave the area, PBP officers blocked their escape with chemical gas, riot police and mounted patrols. PBP then arrested several protesters for failing to disperse, subjecting them to confinement in the midst of a global COVID-19 pandemic. The PBP ordered tactical officers dressed in paramilitary garb to patrol a residential neighborhood in armored vehicles and arbitrarily throw canisters of chemical gas at and/or arrest anyone they encountered.Id. ¶ 2. Attached to their Complaint, Plaintiffs incorporate various videos from the scene on June 1, 2020, a press release and news articles.
Plaintiffs allege that in response to their assembly in East Liberty, City officials, including Mayor Peduto and nonmoving Defendants Public Safety Director Wendell Hissrich ("Hissrich") and Chief of Police Scott Schubert ("Schubert"), disseminated lies to conceal and/or justify the Pittsburgh Bureau of Police's ("PBP") use of force against peaceful protesters. City officials, including the Mayor, allegedly accused protesters of throwing rocks and bricks at PBP officers, and denied using chemical agents. According to Plaintiffs, numerous videos attached to the Complaint demonstrate that these statements were false. Id. ¶ 3.
Plaintiffs further allege that Mayor Peduto was the chief policymaker for the City, and at all relevant times, ordered, authorized and/or acquiesced in the violation of Plaintiffs' rights. Id. ¶ 13. Plaintiffs further allege that Mayor Peduto was on notice that, because of PBP's actions during protests just two days earlier where PBP officers used chemical gas, rubber bullets, pepper spray, flashbang grenades and other riot control agents indiscriminately, PBP officers would use excessive force against peaceful protesters on June 1, 2020. Id. ¶¶ 23-24. Plaintiffs aver that also as a result of the May 30, 2020 actions of PBP, Peduto was on notice that PBP officers would arrest and jail peaceful protesters with little or no evidence to support criminal charges, that he supported the PBP's actions, and made no effort to ensure that indiscriminate use of force did not occur at future protests. Id. ¶¶ 25-27.
Plaintiffs state that Mayor Peduto was either present during the PBP's use of excessive force or was otherwise aware of it as it occurred. He either made the decision along with Hissrich and Schubert to declare the assembly unlawful or approved of that decision and the basis for that decision. Id. ¶ 56. At approximately 7:17 p.m., an unknown PBP officer (possibly Defendant Doe), made the announcement that the assembly was no longer lawful, and ordered that the crowd immediately disperse. The crowd was warned that if they did not disperse, they would be arrested or subjected to police action which could include physical removal and the use of riot control agents. Id. ¶ 57. Video attachments to the Complaint show that the dispersal order was given six (6) times.
Historically, Peduto and others have permitted, approved and/or encouraged similar protests in Pittsburgh streets. Id. ¶ 36.
City Officials falsely accused the Protesters of misconduct and minimized the PBP's use of force
Plaintiffs allege that at 11:00 p.m. on June 1, 2020, Peduto and other named individual Defendants held a press conference. Id. ¶ 182 & attachment. At the press conference, Peduto and other Defendants praised the action of the PBP toward the protesters in East Liberty that evening. Id. ¶ 183. Defendant Peduto stated that people from East Liberty were not harmed and East Liberty was not set on fire. He also indicated that two protesters were taken for evaluation and that they should be fine. Mayor Peduto also stated that nine (9) officers were hurt by protestors. Id. ¶ 186. Plaintiffs stated that in order to justify the PBP's alleged unwarranted violence against peaceful protesters, the individual Defendants, including Peduto, falsely accused the protesters of misconduct and wrongdoing, including vandalizing property, attacking PBP officers and a television news crew. Id. ¶ 187. Following the protests, the individual Defendants, including Peduto, attempted to minimize the level of force PBP used by falsely claiming that PBP did not use chemical gas, crown munitions, or rubber bullets, that only two protesters were injured by PBP's use of force, that none were seriously injured, and that City personnel treated all injured protesters at the scene and transported them to hospitals. Id. ¶ 188.
The complete press release transcript, attached to the Complaint at paragraph 182, also indicates that "right around 7:00, as the peaceful protest was breaking up and people were filtering out of the area" a small group of agitators, or splinter groups, attempted to break the windows out of Dollar Bank and damage the windows to Sneaker Villa. When police attempted to intervene, a group of people attacked a KDKA reporter and camera person. A peaceful protestor actually broke up the melee before police could intervene and directed the agitators away. The agitators regrouped and began marching inbound on Center avenue and tactical support was called to be certain the agitators did not cause any property damage. It was at this point that some people in the group began throwing rocks at police officers, and people in the Essex House apartments began throwing water bottles down onto the officers from the 10th floor. The decision was then made to make dispersal orders over the PA system. The peaceful protest was staged at approximately 2:00 p.m. and grew to around 300 protestors by 3:30 p.m. The protest continued to grow to approximately 1000 protesters. Previous intelligence indicated that businesses, including the Target store in East Liberty were going to be destroyed and looted around 8:00 p.m. Mayor Peduto indicated that he attended the protest from 4:00 to 7:00 p.m. Id. ¶ 182 & attachment.
City Officials were aware of, acquiesced in, and/or failed to intervene to prevent the violation of
the Protester's rights.
Plaintiffs further allege that the individual Defendants, including Peduto, witnessed or were otherwise aware of the events that occurred on June 1, 2020. Specifically, they were aware that the protesters were peaceful, and Peduto had no reason to believe that the protesters presented an imminent threat to public safety. Yet, the individual Defendants, including Peduto, ordered, authorized and/or acquiesced in the orders to declare the assembly unlawful and to use excessive force against the protesters. In addition, these Defendants had the opportunity to intervene in the violation of the protesters' constitutionally protected rights and failed or refused to do so. Id. ¶¶ 195-201.
Plaintiffs do not include a claim for failure to intervene against Peduto.
Finally, as to Defendant Mayor Peduto, Hissrich and Schubert, Plaintiffs alleged that they jointly and/or individually possessed final policymaking authority to make the decision to declare the protesters' assembly unlawful; use force to disperse the protesters; and use noxious gas and rubber bullets, beanbag rounds and/or sponge grenades against protesters and that they individually and/or jointly made, approved and /or acquiesced in these decisions. They conclude that the violation of the protesters' rights was the direct result of the official policy of the City. Id. ¶¶ 203-04.
Counts I through IV of the Complaint are directed to moving Defendant Peduto and others. In Count I, Plaintiffs allege a violation of their First Amendment rights to freedom of speech, freedom to peaceably assemble and freedom to petition the government for redress of grievances. Id. ¶¶ 203-04. In Count II, they allege a violation of their Fourth Amendment protections against excessive force. In Count III, Plaintiffs allege a violation of their Fourth Amendment protection against unlawful arrest; and in Count IV, a violation of their First Amendment protection against retaliation.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing 5A Wright and Miller, Federal Practice and Procedure: Civil 2d, § 1357; Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)). A court may also consider indisputably authentic documents. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004); Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993); Golden v. Cook, 293 F. Supp.2d 546, 551 (W.D. Pa. 2003) ("[C]ourts are permitted to consider matters of which they may take judicial notice, including records and reports of administrative bodies, and publicly available records and transcripts from judicial proceedings 'in related or underlying cases which have a direct relation to the matters at issue.'") (citations omitted).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
In support of his Motion to Dismiss, Mayor Peduto argues the following: 1) the claims against Mayor Peduto in his official capacity are duplicative of those made against the City of Pittsburgh; 2) Plaintiffs' allegations against Mayor Peduto in his individual capacity are so conclusory that they must be dismissed for failure to state a claim; and that the Complaint alleges nothing more than inappropriate conduct on behalf of the PBP and that Mayor Peduto "told them to do it," or had knowledge of their conduct and acquiesced in it; 3) Mayor Peduto is protected by qualified immunity; and 4) Plaintiffs' class action claims are inappropriate given the individual causation and damages issues pertaining to each class member, and that the class actions claims are so intertwined with the remainder of the Complaint so as to render the Complaint defective and ripe for dismissal; and 5) 28 U.S.C. § 1345 is not an appropriate basis for jurisdiction as that statute is reserved for suits brought by the United States government and its officials.
Plaintiffs respond to the arguments as follows: 1) Plaintiffs offer no argument in response to Peduto's assertion that the claims against him in his official capacity are duplicative of those made against the City; 2) that as the chief policymaker for the City, Peduto had final policymaking authority with regard to the decisions to declare the assembly unlawful and use force to disperse the protesters, and that his response to the protest was a deliberate choice to follow a particular course of action from among alternatives; 3) Peduto participated in violating plaintiffs' rights, directed others to violate them or as the person in charge had knowledge of and acquiesced in his subordinates' violations; 4) he is not entitled to qualified immunity; 5) Plaintiffs have properly plead class action allegations and dismissal is premature at this stage; 6) Plaintiffs admit that this Court does not have jurisdiction pursuant to 28 U.S.C. § 1345.
1. Official Capacity Claims
First, Defendant Peduto argues that the claims against him in his official capacity should be dismissed because they are duplicative of the claims against the City. As noted above, Plaintiffs offer no response. Plaintiffs' claims against Peduto in his official capacity must be dismissed because § 1983 actions against government employees in their official capacities "generally represent another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). See also Hafer v. Melo, 502 U.S. 21 (1991) (A suit against a governmental official in his or her official capacity is treated as a suit against the governmental entity itself.). Therefore, Plaintiffs' official capacity claims against Mayor Peduto should be dismissed.
2. Supervisory Liability
Supervisory liability cannot be imposed pursuant to § 1983 on a respondeat superior theory, that is, "solely on the basis of the existence of an employer-employee relationship." See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692, 694 (1978). A governmental official must have personal involvement in the alleged wrongdoing. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In their submissions, the parties direct the Court to two theories of supervisory liability. First, the parties focus on the theory that "[i]ndividual defendants who are policymakers may be liable under § 1983 if it is shown that such defendants, 'with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.'" A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Mayor Peduto contends that this theory fails because Plaintiffs' claims arise from a single event and not the repeated implementation (or non-implementation) of a policy or procedure. ECF No. 34 at 11. Plaintiffs simply respond that because they have alleged that Mayor Peduto is the chief policymaker for the City, he had final policymaking authority with regard to the decision to declare the assembly unlawful and use of force to disperse the protesters, and that this response was a deliberate choice to follow a particular course of action, citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). ECF No. 38 at 4. Pembaur, however, concerns the municipal liability of municipal entities, not the individual liability of supervisors. Id. Cf. Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (affirming district court where it dismissed claim against township where plaintiff failed to allege that police chief was a final policymaker, a necessary element of plaintiff's claim against the township).
Instead, in order to make out a claim for supervisory liability pursuant to the first theory, Plaintiffs must allege facts to show that Peduto had notice that his policy or practice created an unreasonable risk of a constitutional violation by a subordinate and "the supervisor's failure to change the policy or employ corrective practices is a cause of the unconstitutional conduct." See Argueta v. U. S. Immigr. & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011). Typically, that notice would involve a prior incident or incidents of misconduct by those working under the supervisor and notice of that misconduct to the supervisor. See id. at 74.
Here, Plaintiffs have alleged no facts to plausibly suggest that Mayor Peduto knew that the PBP would violate Plaintiffs' First and Fourth Amendment rights on June 1, 2020. Plaintiffs allege that the Mayor should have known that the PBP would commit civil rights violations on June 1, 2020 because such violations allegedly occurred during the protest on May 30, 2020 where charges against 39 of the May 30th protesters were dropped. The Plaintiffs, however, allege no facts as to how the Mayor would have known on June 1, 2020 that the PBP would use excessive force where the charges against the May 30th protesters were reportedly dropped by the District Attorney on June 8, 2020. On June 1, 2020, Mayor Peduto would have been aware only of the pending criminal charges and the violence erupting during the May 30th protest near PPG arena. See ECF No. 1 ¶ 182 & attachment at p.11. Plaintiffs allege no facts to plausibly suggest that Mayor Peduto knew on June 1, 2020, that the force used on May 30, 2020 was unreasonable in the context of the specific facts and circumstances confronting officers that day. Therefore, Plaintiffs fail to state a claim for supervisory liability pursuant to this first theory.
Plaintiffs point to their allegations that even if Peduto was not aware that the May 30, 2020 criminal charges would be dropped, "he was aware of the level of indiscriminate force the PBP used, and should reasonably have known that they would use the same tactics against Plaintiffs[]" on June 1, 2020. Plaintiffs' characterization of the force used by PBP on May 30, 2020 as "indiscriminate" is a legal conclusion that the Court may not consider under Iqbal. See Iqbal, 556 U.S. at 679 (allegations that "are no more than conclusions, are not entitled to the assumption of truth.")
The second theory highlighted by the parties concerns whether a supervisor "participated in violating plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his subordinates' violations." A.M. ex rel. J.M.K., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). In support of his Motion to Dismiss, Mayor Peduto directs the Court to Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010). There, the United States Court of Appeals for the Third Circuit affirmed the district court's dismissal of plaintiff's claims against supervising officers pursuant to Iqbal and Twombly. Santiago, 50 F.3d at 134. The Plaintiff in Santiago alleged that the supervising officers developed and authorized a planned operation designed to apprehend her grandson. Santiago alleged that as a result of what the officers on the ground did to her, she was taken to the hospital for a suspected heart attack. Plaintiff alleged that the plan, developed and authorized by the supervisors, "specifically sought to have all occupants exit the Plaintiff's home, one at a time, with hands raised under threat of fire, patted down for weapons, and then handcuffed until the home had been cleared and searched." Id. at 131. The court of appeals noted that what the plaintiff alleged was nothing more than a recitation of what the officers on the ground did to her, which amounted "to a conclusory assertion that what happened at the scene was ordered by the supervisors." Id. The court of appeals further noted that although the allegations were factual as to the officers on the ground, the allegation of supervisory liability was, in essence, that the supervisors told the officers on the ground "to do what they did" and therefore was a "formulaic recitation of the elements of a [supervisory liability] claim," namely, that the supervisors directed others in the violation of plaintiff's rights. Id. (quoting Iqbal, 129 S. Ct. at 1951). The court concluded that saying that the supervisors "'specifically sought' to have happen what allegedly happened does not alter the fundamentally conclusory character of the allegation." Id. (footnote omitted).
Here, Plaintiffs' allegations similarly set out in detail what the PBP did to the protesters. Like in Santiago, Plaintiffs here argue that Mayor Peduto developed a plan that directed others to violate Plaintiffs' rights using certain munitions and tactics. See ECF No. 38 at 7. The Complaint sets out what the PBP did to the protesters in detail, but only sets out conclusory assertions that these actions were directed by Peduto and other individual Defendants. The Complaint does not set forth facts, however, as to Mayor Peduto's involvement in developing this "planned operation" (if it in fact existed) and whether he had any involvement in establishing the parameters as to how the PBP would handle the protesters. Nor do Plaintiffs allege facts as to how Hissrich, as Director of Public Safety, and Schubert, as Chief of Police, interacted with Peduto and whether they in fact took the lead in the plan's development, considering their leadership roles with law enforcement and public safety. Without factual matter describing the Mayor's role in establishing under what circumstances dispersal orders would be given, and how PBP officers would handle protesters after those orders were issued, Plaintiffs' allegations are merely a formulaic recitation of a supervisory liability claim as evidenced by their repeated incantation that Mayor Peduto "ordered, authorized and/or acquiesced in the violation of Plaintiffs' rights." ECF No. 1 ¶¶ 13, 199, 200, 203. As mere recitals of the elements of a supervisory liability theory, they are not entitled to the assumption of truth. See Santiago, 629 F.3d at 132.
Plaintiffs further argue that Mayor Peduto knew of and acquiesced in the actions of the PBP because of his actual awareness of the violations as they occurred and his failure to prevent them. ECF No. 38 at 8-9 (emphasis added). Yet, Plaintiffs allege no facts as to how Peduto was aware of these events as they occurred. The attachments to the Complaint reflect that Mayor Peduto was at the scene from 4:00 p.m. to 7:00 p.m. (ECF No. 1 ¶ 182 & attachment at 11), and that the orders to disperse, followed by the alleged excessive force by PBP officers, took place at approximately 7:17 p.m. ECF No. 1 ¶ 57. Plaintiffs offer no facts to suggest how Mayor Peduto was aware of the alleged constitutional violations as they occurred.
Therefore, it is recommended that Defendant Peduto's Motion to Dismiss for failure to state a claim be granted without prejudice to Plaintiff filing an amended complaint in this civil rights action. The United States Court of Appeals for the Third Circuit has indicated that if a district court has determined that a civil rights complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), the Court must give the plaintiff an opportunity to amend the complaint, even if not requested, unless such amendment involves bad faith, would cause undue delay or prejudice, or would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (prisoner civil rights case). More recently, the court of appeals reaffirmed this position in Phillips v. County of Allegheny, where it ruled that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir.2008). Therefore, because Plaintiffs have failed to state a claim for supervisory liability against Defendant Mayor Peduto pursuant to Rule 12(b)(6), and the Court does not deem such amendment to be inequitable or futile, the Plaintiffs should be granted leave to amend their Complaint as ordered by the District Judge. If Plaintiffs fail to file an Amended Complaint by the deadline ordered by the District Judge, Defendant Peduto may move for dismissal of the action against him with prejudice. If the Plaintiffs do not desire to amend, they may file an appropriate notice with the Court asserting their intention to stand on the original Complaint. See Alston, 363 F.3d at 235 (quoting Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 n. 1 (3d Cir. 1976))). See generally Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252-53 (3d Cir. 2007) (reaffirming that this "sua sponte amendment rule" does not apply outside the context of civil rights cases).
In Santiago, the Third Circuit noted that the Third Amended Complaint was filed after the close of discovery, and as a consequence, there was no reason to believe that plaintiff's conclusory allegations were simply the result of the relevant evidence being in the hands of the defendants. 629 F.3d at 134 n.10.
3. Qualified Immunity
State officials performing discretionary acts enjoy "qualified immunity" from money damages in § 1983 causes of action when their conduct does not violate "clearly established" statutory or constitutional rights of which a "reasonable person" would have known at the time the incident occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The United States Court of Appeals for the Third Circuit has emphasized that "courts are sensitive to '[t]he broad range of reasonable professional judgment accorded' law enforcement officials in the § 1983 context." Berg v. County of Allegheny, 219 F.3d 261, 272 (3d Cir. 2000) (quoting Greene v. Reeves, 80 F.3d 1101, 1107 (6th Cir. 1996)). The court of appeals has highlighted the United States Supreme Court's statement that "the qualified immunity doctrine 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 345 (1986)).
In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court clarified the two-step qualified immunity inquiry. The Court directed that, in deciding whether a defendant is protected by qualified immunity, a court first must determine whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Id. at 201. If the facts do not establish the violation of a constitutional right, no further inquiry concerning qualified immunity is necessary. Id. If the plaintiff's factual allegations do show a violation of his rights, then the court must proceed to determine whether the right was "clearly established," that is, whether the contours of the right were already delineated with sufficient clarity to make a reasonable officer in the defendant's circumstances aware that what he was doing violated the right. Id. at 201-02. Finally, in Pearson v. Callahan, 555 U.S. 223 (2009), the United States Supreme Court concluded that while the two-step sequence identified in Saucier "is often appropriate, it should no longer be regarded as mandatory." Id. at 236.
Here, the Court has determined that taking all of Plaintiffs' allegations as true, Plaintiffs have failed to state a claim against Mayor Peduto for supervisory liability and that the claims against him should be dismissed. Having concluded that there was no constitutional violation because the Complaint fails to state a claim for supervisory liability, the Court need not assess the other step of the qualified immunity analysis of whether the underlying rights were clearly established. See Saucier, 533 U.S. at 201.
4. Class Action Allegations
Because the Court has determined that Plaintiffs have failed to state a claim for supervisory liability pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Peduto's Motion to Dismiss the class action allegations should be denied as moot.
With regard to Plaintiffs' invocation of federal jurisdiction pursuant to 28 U.S.C. § 1345, Plaintiffs concede that jurisdiction pursuant to this statutory provision is inappropriate. Therefore, Defendant Peduto's Motion to Dismiss on this basis should be granted.
6. Leave to Amend III. CONCLUSION
For the foregoing reasons, it is respectfully recommended the Motion to Dismiss for Failure to State a Claim filed by Defendant William Peduto (ECF No. 31) be granted in part and denied in part. The Motion should be granted with prejudice as it relates to the official capacity claims against Defendant Peduto and as to any claims brought pursuant to 28 U.S.C. § 1345. The Motion should be granted without prejudice to filing an Amended Complaint as it relates to Plaintiffs' claims against Mayor Peduto for supervisory liability. It is further recommended that the Motion to Dismiss the class action allegations be denied as moot.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. March 23, 2021
BY THE COURT
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge