United States District Court, D. Delaware
filed a seven-count complaint against Defendants Officer Sean
Ryan, Officer Cory Best, Officer Lynda Scelsi and New Castle
County. (D.1. 1). In Counts I and VI, Plaintiff claims
excessive force, false arrest, false imprisonment and
malicious prosecution against all three officers under 42
U.S.C. § 1983. (Id. at ¶¶17-19,
33-34). In Count II, Plaintiff claims deprivation of
federally protected rights under the Fourth Amendment against
all three officers. (Id. at ¶¶ 20-22). In
Count VII, Plaintiff claims intentional infliction of
emotional distress against all three officers. (Id.
at ¶¶ 35-36). Plaintiff includes separate counts
against Officer Ryan for assault and battery (Count IV), and
against Officer Best and Officer Scelsi for failure to
intervene (Count V). (Id. at ¶¶ 28-32). In
Count III, Plaintiff claims failure to train, supervise and
discipline against New Castle County under 42 U.S.C. §
1983 as interpreted by Monell v. Department of Social
Services, 436 U.S. 658 (1978). (Id. at
before the Court is Defendants' Motion for partial
dismissal of the Complaint. (D.I. 10). Defendants seek
dismissal of all claims in Count I except excessive force,
all claims in Counts II and III, all claims against Officer
Scelsi, and all claims in Count VII. (D.I. 10-1). The issues
have been fully briefed. (D.I. 11, 14, 15). For the reasons
set forth below, Defendants' Motion is GRANTED. Count III
is DISMISSED WITHOUT PREJUDICE. All other claims addressed in
the Motion are DISMISSED WITH PREJUDICE.
January 17, 2015, Plaintiff Rock Peters was pulled over by
Officer Ryan while driving on Lancaster Pike in Wilmington,
Delaware. (D.I. 1 at ¶¶ 8-9). Peters exited his
vehicle to talk to Officer Ryan because Peters was driving a
Jeep that did not have "pull down windows."
(Id. at ¶ 9). When Officer Ryan asked for
identification, Peters began to retrieve his wallet from his
jacket pocket. (Id. at ¶ 10). Officer Ryan then
struck Peters in the face, causing fractures to his nose and
cheek. (Id. at ¶ 11). Peters fell to the ground
where Officer Ryan choked him and then kneed him in the back,
causing three fractured ribs. (Id. at ¶¶
12-13). Officer Best and Officer Scelsi witnessed the
encounter and did not intervene and stop Officer Ryan.
(Id. at ¶ 14). All three officers then arrested
Peters. (Id. at ¶ 15). Peters was transported
to Christiana Hospital in an ambulance. (Id.). The
officers charged Peters with Reckless Endangerment, Resisting
Arrest, Failure to Obey an Authorized Person Directing
Traffic and Failure to Use a Turn Signal. (D.I. 1 at ¶
16 and D.I. 11 at 11). Peters was convicted in the New Castle
County Court of Common Pleas of all charges except Reckless
Endangerment. (D.I. 11 at 11).
STANDARD OF REVIEW
requires a complainant to provide "a short and plain
statement of the claim showing that the pleader is entitled
to relief" Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows
the accused party to bring a motion to dismiss the claim for
failing to meet this standard. A Rule 12(b)(6) motion 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 complainant, 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).
'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). I am
"not required to credit bald assertions or legal
conclusions improperly alleged in the complaint." In
re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 216 (3d Cir. 2002). A complaint may not be dismissed,
however, "for imperfect statement of the legal theory
supporting the claim asserted." Johnson v. City of
Shelby, 135 S.Ct. 346, 346 (2014).
complainant must plead facts sufficient to show that a claim
has "substantive plausibility." Id. at
347. That plausibility must be found on the face of the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "A claim has facial plausibility when the
[complainant] pleads factual content that allows the court to
draw the reasonable inference that the [accused] is liable
for the misconduct alleged." Id. Deciding
whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at
Counts I, II, V, VI and VII
following claims were implicitly waived by Peters in his
reply brief: (1) all claims in Count I except excessive
force; (2) all claims in Count II; (3) all claims against
Officer Scelsi; and (4) all claims in Count VII. When a party
files an opposition brief and fails to contest an issue
raised in the opening brief, the issue is considered waived
or abandoned by the non- movant. See Market v. PNC Fin.
Servs. Grp., Inc., 828 F.Supp.2d 756, 773 (E.D. Pa.
2011) (citing Lawlor v. ESPN Scouts, LLC, No.
2:10-cv-05886, 2011 WL 675215, at *2 (D.N.J. Feb. 16, 2011)
("Where an issue of fact or law is raised in an opening
brief, but it is uncontested in the opposition brief, the
issue is considered waived or abandoned by the non-movant in
regard to the uncontested issue.")). In this case,
Peters responded to Defendants' Motion only in regards to
Count III. (D.I. 14). Therefore, Peters has abandoned all
other claims challenged by Defendants in their Motion.
Municipal Liability for Failure to Train, Supervise and
Discipline (Count III)
III is dismissed without prejudice because Peters failed to
allege facts sufficient to raise a plausible claim. Municipal
liability under § 1983 may be based on inadequate
training "only where the failure to train amounts to
deliberate indifference to the rights of persons with whom
the police come into contact, " and that deliberate
indifference is the moving force of the violation of the
plaintiffs federally protected right. City of Canton v.
Harris, 489 U.S. 378, 388-89 (1989). "A pattern of
similar constitutional violations by untrained employees is
'ordinarily necessary' to demonstrate deliberate
indifference for purposes of failure to train."
Connick v. Thompson, 563 U.S. 51, 62 (2011) (citing
Bd. of Cty. Comm'rs of Bryan Cty., Okla. v.
Brown, 520 U.S. 397, 409(1997)).
alleges that Defendant "New Castle County and its Police
Department were on actual notice of a need to train,
supervise, discipline or terminate its defendant officers
prior to the incident in question as other similar incidents
of illegal assaults and excessive force have occurred in the
past involving defendants Ryan, Best and Scelsi." (D.I.
1 at ¶ 27). Although Peters alludes to prior incidents
of officer misconduct, this blanket assertion standing alone
is not enough to raise a plausible Monell claim. In
order to survive a motion to dismiss, Peters needs to allege
specific facts identifying and describing these prior
incidents. For example, Peters chould include in his
allegations a description of when the prior incidents
occurred and the method of force used by the actual officers
in question. See Simpson v. Ferry, 202 F.Supp.3d
444, 455 (E.D. Pa. 2016) (denying defendants' motion to
dismiss Monell claim when plaintiff alleged multiple
prior violent encounters in which officer "aggressively
slammed him up against walls .. . and struck him ...