United States District Court, D. Delaware
PABLO A. DAMIANI, Plaintiff,
DETECTIVE DUFFY, et al., Defendants.
Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for Defendants Detective Duffy, Gary Potts, Daniel Grassi, Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk, Ronald Kline, Corey Godek, Detective Tsai, Detective Rhoades, and Detective Glenn.
Charles M. Oberly United States Attorney, and Jennifer Lynne Hall and Lauren Mary Paxton, Assistant United States Attorneys, Wilmington, Delaware. Counsel for Defendants Casey Bouldin, Detective Morrissey, Ronald Kline, and the United States of America.
Rosamaria Tassone, Esquire, City of Wilmington Law Department, Wilmington, Delaware. Counsel for Defendants Wilmington Police Department and Detective Morrissey.
RICHARD G. ANDREWS, District Judge.
Plaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears pro se and has been granted leave to proceed in forma pauperis (DA. 7). The case proceeds on the second amended complaint (D.I. 29) that raised excessive force claims against Defendants Detective Casey Bouldin, Detective Gary Potts, Corporal Lana, Detective Duffy, Detective Daniel Grassi, Corporal Eric Daniels, Corporal John Dudzinski, Sargent Mark Hawk, Detective Ronald Kline, Detective Corey Godek, Detective Cliff Vikara,  Detective Morrissey, Detective Giofre, Detective Tsai, Detective Rhoades, Detective Glenn, Unknown State Police Officers, Unknown New Castle County Police Officers, Unknown Wilmington Police Officers, and the United States of America.
The second amended complaint alleges that on December 6, 2010, Plaintiff's vehicle was stopped by members of a joint ATE task force composed of several plainclothes officers. Plaintiff was handcuffed by Defendant Detective Bouldin who held onto Plaintiff as he was being removed from the vehicle. Plaintiff alleges that he was "violently remove[d] from the vehicle through the driver's side door and thrown face first onto the pavement, " was "briefly beaten about the head, upper body and face, and kicked by the unknown officers." Plaintiff stood, and was escorted to the side of the road. Plaintiff alleges that he was "beaten, this time for a significantly longer period of time with his hands cuffed behind his back." Plaintiff alleges that he was punched, kicked, slapped, spat upon, and hit with a hard object. Plaintiff alleges that next, the plain clothes officers sat upon him with their knees on his neck and back and waited for a marked police car to transport him to the police headquarters. Plaintiff asked for medical attention, and he was taken to the Newark Emergency Center approximately two and one-half hours later. He alleges that the acts of Defendants violated his rights under the Eighth Amendment to the United States Constitution and also constitute the tort of assault and battery under Delaware law. Plaintiff seeks compensatory and punitive damages.
On May 15, 2014, the United States filed a notice of substitution pursuant to 28 U.S.C. § 2679(d)(1) for Defendants Bouldin, Morrissey, and Kline as set forth in the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq., with respect to the state law claims of assault and battery raised against them as they were acting within the scope of their federal office or employment during the relevant time-frame. (D.I. 70). The United States moves for dismissal of the claims against it for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) (D.I. 71), Bouldin moves for dismissal of the Bivens claims raised against him pursuant to Fed. R. Civ, P. 12(b)(6) (D.I. 72), and the City of Wilmington and Defendant Wilmington Police Department move to dismiss the claims raised against them in the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 100). In addition, Plaintiff requests counsel. (D.I. 105, 113).
MOTIONS TO DISMISS
Standards of Review
Fed. R. Civ. P. 12(b)(1). Rule 12(b)(1) of the Federal Rules of Civil Procedure permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. See Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357-58 (3d Cir. 2014). "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.'" Id. at 358 (quoting In re Schering Plough Corp. v. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In reviewing a factual attack, the court may consider evidence outside the pleadings. Mortensen v. First Fed. Say. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
The United States' motion presents a factual attack upon subject matter jurisdiction, arguing that this Court lacks jurisdiction over the claims due to the plaintiffs failure to exhaust his administrative remedies. In reviewing a factual challenge, the court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case, " even where disputed material facts exist. Id. at 891. In a factual challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Id.
Fed. R. Civ. P. 12(b)(6). Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). In deciding motions to dismiss pursuant to Rule 12(b)(6) courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). "Though detailed factual allegations' are not required, a complaint must do more than simply provide labels and conclusions' or a formulaic recitation of the elements of a cause of action.'" Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). To survive a ...