UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HUBERT FONT, :

:

Plaintiff : No. 4:CV-05-0277

:

vs. : (Complaint Filed 02/08/04)

:

: (Judge Muir)

PENNSYLVANIA STATE POLICE, :

et al., :

:

Defendants :

ORDER #2 of

January 13, 2006

BACKGROUND

Plaintiff, an inmate presently confined in the State

Correctional Institution, Albion, Pennsylvania, filed this pro

se civil rights action pursuant to 42 U.S.C. § 1983. He

complains of incidents which occurred during his arrest on June

20, 2003. The plaintiff names as defendants the Commonwealth of

Pennsylvania, the Pennsylvania State Police, State Trooper Corey

Wetzel and four John Doe Troopers. 

Plaintiff alleges that on June 20, 2003, he was arrested by

an unidentified Pennsylvania State Police Trooper, who was “not

in uniform and failed to identify himself as a police officer.”

(Doc. No. 1, complaint). Plaintiff claims that this officer

“entered [his] house asked [him] who [he] was and put his hand

on [plaintiff] in an aggressive and threatening manner.” Id.

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Because plaintiff did not know he was a police officer and was

“in fear for [his] safety [he] began to fight with him” and a

“brief struggle ensued during which a second man put his hands

on [plaintiff] and a third came in the back door.” Id.

Plaintiff claims that “when [he] saw the other two had uniforms

on and that they were the police, [he] immediately stopped

fighting and did not resist arrest.” Id. The police allegedly

“drug [plaintiff] outside and threw [him] face down into an

asphalt driveway, then turned [him] over and sprayed [him] with

pepper spray”, even though he “was not resisting or fighting

with them when they sprayed [him] and it was not necessary.”

Id. 

Plaintiff was then taken to the State Police barracks where

a plaint clothes officer “came in and made a remark about

[plaintiff] fighting with the Trooper who arrested [him] and

began to kick [plaintiff] in the head and beat [him] severely”

while still handcuffed and shackled. Id. Font states that

“there were three other troopers present who watched the assault

and did nothing to stop it.” Id. 

Font claims that “after the assault, Trooper Corey Wetzel,

took [him] to the Luzerne County Prison to be committed.” He

states that “upon arriving there the medical staff noticed that

[plaintiff] had severe injuries and asked Trooper Wetzel if [he]

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had been taken to the hospital” and Trooper Wetzel responded

that “yes, he had personally taken [plaintiff] to a hospital.”

However, when asked if he had the paperwork from the hospital,

the Trooper responded that he did not have any paperwork.

Plaintiff claims that this is because Trooper Wetzel “never took

[plaintiff] to the a hospital and the medical staff at the

prison realized this immediately, so they took several

photographs of [plaintiff's] injuries to document that they had

occurred before [he] reached the prison.” Id. 

As a result of the alleged assault, plaintiff claims to have

“spent the several days following with blurred vision and months

with bad tremors and headaches” and has since been “diagnosed

with severe and permanent nerve damage.” Id. He also

“continues to have pain, numbness and weakness in [his]

extremities, blurred vision and headaches” and is still be

treated for “effects of the assault”. Id. 

The plaintiff filed the instant action in which he seeks

compensatory and punitive damages for the excessive use of force

by the law enforcement officials effectuating his arrest. Id.

Presently before the Court is a motion to dismiss filed by

defendants, the Pennsylvania State Police and Trooper Corey

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1. The four John Doe defendants are not included in the

pending motion to dismiss. Under separate motion, defendants'

counsel has moved to withdraw as counsel for the four John Doe

defendants, having mistakenly entered a waiver of service on

behalf of these defendants. (See Doc. No. 20). The motion

will be granted. Additionally, plaintiff's motion for entry of

default against the four John Doe defendants will be denied.

See 42 U.S.C. § 1997e(g)(1); Gaines vs. Gaston, 1998 WL

574380. 

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Wetzel.1 (Doc. No. 12). On May 23, 2005, plaintiff filed a

brief in opposition to the defendants' motion (Doc. No. 18) and

on September 20, 2005, plaintiff filed a motion to withdraw

defendants the Commonwealth of Pennsylvania and the Pennsylvania

State Police. (Doc. 30). Plaintiff's motion will be granted.

For the reasons set forth below, the motion to dismiss defendant

Wetzel will be denied. 

Additionally, with respect to the named four John Doe

defendants, such defendants may only be allowed "to stand in for

the alleged real parties until discovery permits the intended

defendants to be installed." Johnson vs. City of Erie, 834 F.

Supp. 873, 878 (W.D. Pa. 1993) (citations omitted). Absent

compelling reasons, a district court may dismiss such defendants

if a plaintiff, after being granted a reasonable period of

discovery, fails to identify them. Scheetz vs. Morning Call,

Inc., 130 F.R.D. 34, 37 (E.D. Pa. 1990) ("Fictitious parties

must eventually be dismissed, if discovery yields no

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identities."). Based on this Court's review of the record,

although this action was filed approximately some eleven months

ago, plaintiff has not yet provided this Court with the

identities of the John Doe defendants. Thus, the plaintiff will

be granted thirty (30) days from the date of this order in which

to properly provide the names of the John Doe defendants. If

Font fails to timely identify those defendants, they shall be

dismissed from this action. 

Discussion

Federal Rule of Civil Procedure 12(b)(6) provides for the

dismissal of claims that fail to assert a basis upon which

relief can be granted. See FED. R. CIV. P. 12(b)(6). When

deciding a motion to dismiss for failure to state a claim, the

court is required to accept as true all of the factual

allegations in the complaint and all reasonable inferences that

can be drawn therefrom. Langford vs. City of Atlantic City, 235

F.3d 845, 847 (3d Cir. 2000) (citing Nami vs. Fauver, 82 F.3d

63, 65 (3d Cir. 1996)). “The complaint will be deemed to have

alleged sufficient facts if it adequately put[s] the defendant

on notice of the essential elements of the plaintiff’s cause of

action.” Id. The court will not dismiss a complaint for

failure to state a claim unless it appears beyond a doubt that

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2. This is so in that the Fourth Amendment provides an

explicit textual source of constitutional protection against

such intrusive governmental conduct and thus should be the

guide for analyzing such claims as opposed to the generalized

idea of substantive due process. Graham vs. Connor, 490 U.S.

386, 394 (1989). A claim of excessive force to subdue a

convicted person, however, is analyzed under a less protective

Eighth Amendment standard which applies only after the State

has complied with the constitutional guarantees associated

with criminal prosecutions. If, at the time, plaintiff was not

an incarcerated person, his complaint of excessive force would

not arise under the Eighth Amendment. 

6

“no relief could be granted under any set of facts that could be

proved consistent with the allegations.” Swierkiewicz vs.

Sorema N.A., 534 U.S. 506, 514 (2002). Consistent with these

principles, the court must grant leave to amend before

dismissing a claim that is merely deficient. See Shane vs.

Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). 

Plaintiff alleges that he was subjected to excessive force

by defendants during the course of his arrest. This claim is

grounded in the Fourth Amendment's prohibition against

unreasonable seizures of the person. A claim of excessive force

used to effect an arrest is to be analyzed under a Fourth

Amendment standard. Tennessee vs. Garner, 471 U.S. 1 (1985).2

In particular, in Graham vs. Connor, 490 U.S. 386 (1989), the

Supreme Court held that all claims asserting that law

enforcement officers have used excessive force, either deadly or

non-deadly, in the course of an arrest, investigatory stop, or

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the seizure of a free citizen should be analyzed under the

Fourth Amendment's objective reasonableness standard rather than

under a substantive due process analysis. Graham, 490 U.S. at

394; see also In re: City of Philadelphia Litigation, 49 F.3d

945 (3d Cir.), cert. denied, 116 S.Ct. 176 (1995). 

The reasonableness of a particular use of force under this

test must be judged from the perspective of a reasonable officer

on the scene and must take into consideration the fact that

police officers are often times forced to make on-the-spot

decisions with respect to the amount of force required in

circumstances that are both tense and quickly changing. The

officer's intent or motivation is not a factor under this test.

In determining whether the force used is reasonable under the

Fourth Amendment, the test incorporates a balancing of the

intrusion on the individual's Fourth Amendment interests against

the countervailing governmental interests. Graham, 490 U.S. at

396. In gauging the reasonableness of an officer's actions, the

Court identified certain factors to be considered: 1) the

severity of the crime; 2) whether the suspect poses any

immediate threat to the safety of the officers or others and 3)

whether the suspect is resisting arrest or is attempting to

flee. Id.

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Defendant Wetzel moves to dismiss plaintiff's complaint on

the basis that he was not present during plaintiff's arrest and

alleged assault and, therefore was not in a position to protect

plaintiff from being harmed. (See Doc. No. 13, p. 5). While

the Court agrees that plaintiff's complaint does not implicate

defendant Wetzel, until after the assault, plaintiff states in

his brief in opposition that defendant Wetzel was “present in

the barracks area when plaintiff was assaulted and was aware of

the assault during its occurrence and after” and “personally

observed the serious nature of plaintiff's injuries and failed

to report the assault by other Troopers to his superiors in an

attempt to cover up the incident.” (Doc. No. 18). Thus, the

allegations viewed in the light most favorable to plaintiff,

provide adequate notice of a valid claim under 42 U.S.C. § 1983

for violations of the Fourth Amendment. Sharrar vs. Felsing,

128 F.3d 810, 818 (3d Cir. 1997). 

Relief is also potentially available under 42 U.S.C. § 1983

for Fourteenth Amendment violations related to the defendant's

alleged failure to treat plaintiff for his injuries following

the arrest. The Due Process Clause imposes upon officials an

obligation to provide medical care for those in their custody.

Natale vs. Camden County Corr. Facility, 318 F.3d 575, 581-83

(3d Cir. 2003); see also Kneipp v. Tedder, 95 F.3d 1199, 1204

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(3d Cir. 1996). The plaintiff alleges that he suffered serious

injuries from the officers' assault and was not treated for

these injuries. Having taken plaintiff into custody, the

officers arguably had a duty to secure medical care for him, or

at least to avoid exposing him to greater harm. See id. Thus,

any claim under 42 U.S.C. § 1983 for violation of the Fourteenth

Amendment may proceed. 

IT IS HEREBY ORDERED THAT:

1. The motion to dismiss defendant Wetzel (Doc. No.

12) is DENIED. 

2. Defendant Wetzel is directed to file an

answer to the complaint or other responsive

pleading within twenty (20) days of the date

of this order

3. The concurred in motion to dismiss the

Pennsylvania State Police (Doc. No. 12) is

GRANTED. 

4. The plaintiff's motion to withdraw the

Commonwealth of Pennsylvania as a named

defendant (Doc. No. 30) is GRANTED. 

5. The motion to withdraw the appearance of

Deputy Attorney General Timothy P. Keating,

on behalf of the four John Doe Defendants, in

the above captioned action (Doc. No. 20) is

GRANTED. The Clerk of Courts is directed to

withdraw Deputy Attorney General Timothy P.

Keating, as counsel of record for the four

John Doe defendants. 

6. Plaintiff's motion for the entry of default

against the four John Doe defendants (Doc.

No. 17) is DENIED.

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7. The plaintiff has thirty (30) days from the

date of this order in which to properly

provide the names of the John Doe defendants.

Failure to timely identify those defendants

will result in them being dismissed from this

action.

8. Plaintiff's motion to amend his complaint to

add the claim of “unnecessary use of a

dangerously large amount of pepper spray on

plaintiff” and to properly name the

defendants, (Doc. No. 29) is DISMISSED as

moot, as the claim plaintiff attempts to add

is already contained in his original

complaint, and by virtue of No. 7 of this

Order, the plaintiff has been given the

opportunity to properly name the John Doe

defendants. 

 s/Malcolm Muir 

MUIR

United States District Judge

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