Opinion
Civil Action No. 2:19-cv-934
04-15-2020
DAVID DALE McCUE, Plaintiff, v. TOWNSHIP OF HANOVER, HANOVER TOWNSHIP POLICE DEPARTMENT, LIVE NATION WORLDWIDE, INC., MICHAEL DHANSE, STAN HENRY, JOHN DOES 1-3, JOCELYN RUSE, And TINA BLACK, Defendants.
District Judge Robert J. Colville ECF Nos. 63 & 65 REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss Count XX of Plaintiff's Second Amended Complaint filed by Live Nation Worldwide, Inc. (ECF No. 63) be denied without prejudice to raising the issue of state action on summary judgment. It is further recommended that the Motion to Dismiss Counts IV and V against Defendant Michael Dhanse and Count IX against Defendant Stan Henry (ECF No. 65) be granted.
II. REPORT
A. RELEVANT ALLEGATIONS
On August 6, 2017, Plaintiff David Dale McCue ("Plaintiff or "McCue") was a business invitee at Key Bank Pavilion ("KBP") in Hanover Township, Pennsylvania. Second Amended Complaint, ECF No. 57 ¶ 2. Defendant Live Nation Worldwide, Inc. ("Live Nation") owns and operates KBP. ECF No. 57 ¶ 22. At approximately 7:50 p.m., Plaintiff was assaulted by two highly intoxicated concert goes, Defendants Jocelyn Ruse and Tina Black. Ms. Ruse punched Plaintiff in the face and Ms. Black threw a full beer can at him, which struck Plaintiff in the face. ECF No. 57 ¶ 3. As Plaintiff peacefully attempted to avoid this assault and was holding his hands up in the air in a defensive position while asking for police help, he was attacked by three (3) off duty police officers (John Does 1, 2, and 3), who after tackling him to the ground, proceeded to punch and kick his arms and ribs while rubbing his face and body into the gravel. Plaintiff's face was twisted into the gravel to the point where pieces of rock needed to be plucked from his face. ECF No. 57 ¶ 4. The assault by John Does 1, 2, and 3 was witnessed by Defendant Officer Michael Dhanse ("Dhanse") of Defendant Hanover Township Police Department, who upon information and belief, knowing that John Does 1, 2, and 3 were off duty police officers, intentionally failed to intervene to stop the beating. ECF No. 57 ¶ 5. According to Plaintiff, Dhanse and his colleagues working at KBP that day were part of an abusive, improperly trained and supervised "summer police force" paid by and working for Defendant Live Nation, but also working for Defendant Hanover Township to purportedly protect and serve concert goers to KBP. Plaintiff continues that the instant civil action is one of a large line of cases wherein the "summer police force" employed by Live Nation and Hanover Township has violated the Constitutional rights of concert goers at KBP, who are business invitees of Live Nation. ECF No. 57 ¶ 6.
Plaintiff further alleges a conspiracy to falsely prosecute Plaintiff in order to protect John Does 1, 2 and 3 and/or Officer Dhanse, in an effort to hide the fact that Plaintiff had been violently assaulted by John Does 1, 2, and 3 and that Officer Dhanse had failed to intervene to stop that assault. ECF No. 57 ¶ 7. In furtherance of the conspiracy to falsely prosecute Plaintiff in order to protect John Does 1, 2, and 3 and/or Officer Dhanse, Officer Dhanse, among other things, intentionally withheld exculpatory evidence, including a video, from Plaintiff and his counsel. The allegedly exculpatory video was not disclosed until August 6, 2018, a full year after the incident. ECF No. 57 ¶ 10. Nearly 21 months after the false charges had been filed and after the exculpatory evidence had been produced, and exonerating witnesses interviewed (which had been available but ignored in August 2017), all charges against Plaintiff were voluntarily dismissed by the Commonwealth. ECF No. 57 ¶ 12.
Plaintiff states that in addition to his physical injuries, he has incurred substantial legal fees in defending against the false criminal charges, lost his job as a police officer, lost substantial business opportunities to serve as a law enforcement technical consultant and/or actor for television shows and movies, suffered emotional and mental anguish and harm, and suffered tremendous reputational damage. These economic damages exceed $2,500,000. ECF No. 57 ¶ 14.
Plaintiff further alleges that upon information and belief, the Hanover Township Police Department typically has only 2 to 3 officers. In the summer months, however, when Live Nation holds concerts at KBP, that number swells to as many as 60 officers. While, in name, these officers are employed by Hanover Township, in reality they function only as the summer security force for Live Nation at KBP. This "summer police force" often includes officers from other local departments who "moonlight" at KBP as part of the "summer police force." ECF No. 57 ¶ 27. Plaintiff further alleges that upon information and belief, Live Nation pays the compensation of the "summer police force" and controls its scheduling and assignments. ECF No. 57 ¶¶ 29-30. Pursuant to a contract with Live Nation, Hanover Township is paid substantial sums of money for, among other things, hiring and providing the "summer police force" to provide services for Live Nation, including large donations to assist the Township financially. ECF No. 57 ¶ 31. Plaintiff avers that upon information and belief, in the form of fines, court costs and other penalties, Hanover Township makes significant income from false arrests and malicious prosecutions initiated by the "summer police force." ECF No. 57 ¶ 32. Plaintiff further states that because of the interim nature of the "summer police force," it is severely flawed in that it is receives limited, if any training. ECF No. 57 ¶ 33.
Plaintiff continues that Live Nation and Hanover Township failed to adequately train, supervise and control the "summer police force" to ensure that KBP was a safe venue for patrons and to ensure that the "summer police force" did not improperly use their public authority and State endowed police powers in enforcing Live Nation's rules and regulations and providing general security at KBP. ECF No. 57 ¶ 34. Plaintiff concludes that Live Nation and Hanover Township, based on a long history of complaints, abuses and improper conduct by the "summer police force" had actual and/or constructive notice that the "summer police force" routinely carried out false arrests, used excessive force, and/or filed false and malicious criminal charges against patrons at KBP. Despite this history, Plaintiff alleges that Live Nation and Hanover Township took no action to prevent such abuses from occurring in the future. ECF No. 57 ¶¶ 35-36.
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).
C. ANALYSIS
1. Motion to Dismiss filed by Live Nation (ECF No. 28)
Live Nation argues that Count XX of the Amended Complaint must be dismissed because Plaintiff has failed to plead facts to show that it is a state actor in that it neither acted jointly with police, conspired with police, nor is liable to Plaintiff under Monell. Plaintiff responds that the issue of state action cannot be resolved at the Rule 12 stage; and rather than relying on the joint action test in determining state action, Plaintiff relies on the public function test, the nexus test, conspiracy and Monell liability.
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).
Here, Live Nation is a corporate private entity and can be liable pursuant to § 1983 only if it is "fairly said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Courts have determined that a private party is in fact a state actor under a variety of tests, but that not one method of analysis determines the presence of state action in § 1983 cases. Krynicky v. University of Pittsburgh, 742 F.2d 94, 98 (3d Cir. 1984). Instead, "more than one test may be relevant . . . the tests may overlap, and one or more prongs of one test may be irreconcilably inconsistent with the prong of another." Onoufrious Spyros v. Kimball, 813 F Supp. 352, 357 (E.D. Pa. 1993). The analysis is highly fact specific, must include the totality of facts and circumstances, and is determined on a case by case basis. See Crissman v. Dover Downs Entm't, Inc., 289 F.3d 231, 234 (3d Cir. 2002) (quoting Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961) ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.")).
Here, the parties place various tests in issue: 1) the public function test; 2) the nexus test; 3) joint action test, 4) conspiracy, and 5) Monell liability. Plaintiff has set forth numerous allegations that must be explored in discovery before the Court may properly engage in an analysis as to whether Live Nation is "fairly said to be a state actor." Lugar, 457 U.S. at 937. The facts that must be examined include, but are not limited to the contract between Live Nation and Hanover Township; the degree of control, if any, that Live Nation exerted over the summer police force; the degree of control, if any, that Live Nation exerted over Hanover Township; the degree of financial benefit to Hanover Township, if any, derived from the alleged false arrests and prosecutions initiated by the "summer police force"; the training and supervision of the "summer police force"; the history of alleged abuses by the "summer police force"; if in fact the "summer police force" received inadequate training, and the knowledge of that fact by Hanover Township and/or Live Nation;
Here, Plaintiff's allegations will survive Live Nation's Motion to Dismiss, but Defendant may raise this issue again after the close of discovery on summary judgment. Therefore, it is recommended that the Motion to Dismiss filed by Live Nation be denied without prejudice to raising the issue of state action on a motion for summary judgment.
On summary judgment, this Court will focus on the trends established in the Third Circuit concerning the various tests used to determine whether a private entity has acted under color of state law.
2. Motion to Dismiss filed by Defendants Michael Dhanse, Hanover Township Police
Department, Police Chief Stan Henry and Township of Hanover
COUNT IV against Defendant Dhanse and COUNT IX against Defendant Henry pursuant to §
1983 for Failure to Timely Disclose Exculpatory Evidence
In support of their Motion to Dismiss, Defendants argue that Plaintiff's Brady claims against Defendants Dhanse and Henry in Counts IV and IX, respectively, should be dismissed where the allegedly exculpatory video, which had been withheld for over a year, was produced before trial on charges that were ultimately dropped. Plaintiff responds that the withholding of the video caused damages to Plaintiff in the form of not only increased legal fees, but also increased reputational and emotion harm incurred as a result of facing and defeating the false criminal charges. Plaintiff further urges this Court to deviate from the law in the Third Circuit because "'[w]rongful suppression of exculpatory evidence is injurious to the defendant's right to fair process, even if it does not render an injury in outcome[,]'" quoting Mosely v. City of Chicago, No. 06 C 6314, 2007 WL 2608517, at *2 (N.D. Ill. 2007) (refusing to dismiss § 1983 Brady claim despite acquittal) (emphasis in original).
In Brady v. Maryland, the United States Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). In the context of civil liability pursuant to 42 U.S.C. § 1983, the United States Court of Appeals for the Third Circuit has held that "police officers and other state actors may be liable under § 1983 for failing to disclose exculpatory information to the prosecutor." Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety—Div. of State Police, 411 F.3d 427, 443 (3d Cir. 2005), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010). There are three elements to a Brady violation: 1) the evidence must be favorable to the accused either because it is exculpatory or impeaching; 2) the evidence must have been suppressed by the State, either willfully or inadvertently; and 3) prejudice must have ensued—that is, "the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281-82 (1999), quoted in Smith v. Holtz, 210 F.3d 186, 196 (3d Cir. 2000). Of particular guidance here is the Third Circuit's discussion in Holtz concerning the third element of a Brady violation:
Thereafter, in United States v. Agurs, 427 U.S. 97, 107 (1976), the United States Supreme Court held that the duty to disclose favorable evidence is not dependent upon a request from the accused.
Even though this duty of disclosure is tightly tethered to constitutional guarantees of due process, "the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense." [Kyles v. Whitley, 514 U.S. 419,] 436-37 [1995] (citation omitted). Rather, the prosecution's failure to disclose evidence rises to the level of a due process violation "only if the government's evidentiary suppression undermines confidence in the outcome of the trial." Id. at 434. Thus, "[t]he question is not whether the defendant would more likely than not have received a different verdict with the [concealed] evidence, but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence." Id.Holtz, 210 F.3d at 196 (quoting Kyles, 514 U.S. at 434-37) (parallel citations omitted) (emphasis added). Most recently, the Third Circuit held that Brady is not implicated where a § 1983 plaintiff was acquitted of the charges against him because no conduct of the State has undermined the confidence in the outcome of the trial. Telzer v. Borough of Englewood Cliffs, 783 F. App'x 253, 258 (3d Cir. 2019) (citing Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998)). See also Frameli v. Singer, 2:19-CV-00331, 2020 WL 475750, at *3 (W.D. Pa. Jan. 29, 2020) (Horan, J.) (no § 1983 Brady violation for withholding/destruction of allegedly exculpatory evidence where § 1983 plaintiff had been acquitted on all criminal charges).
Here, all charges against Plaintiff were voluntarily dismissed by the Commonwealth before trial. As a result, McCue cannot recover pursuant to § 1983 for a due process Brady violation because there was no criminal trial. That is, there can necessarily be no undermining of the confidence in the outcome of a trial that never occurred. See Holtz, 210 F.3d at 196. As a matter of law, the § 1983 Brady claims against Defendants Dhanse and Henry should be dismissed with prejudice as any attempt to amend would be futile. Therefore, the Court respectfully recommends that the Motion to Dismiss Counts IV and IX of the Second Amended Complaint be granted.
The Court of Appeals in Phillips v. County of Allegheny has 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).
COUNT V: AIDING AND ABETTING/CONCERT OF ACTION AGAINST DHANSE
In Skipworth by Williams v. Lead Industries Ass'n, Pennsylvania adopted the Restatement (Second) of Torts § 876. 690 A.2d 169, (Pa. 1997), cited in, Koken v. Steinberg, 825 A.2d 723, 731 (Pa. Cmwlth. 2003). Section 876, Persons Acting in Concert, provides as follows:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
Restatement (Second) of Torts § 876 (1979). Defendants argue that because the Plaintiff alleges only that Defendant Dhanse "failed to intervene" while John Does 1-3 attacked Plaintiff, Plaintiff's common law claim for aiding and abetting must fail because the tort requires "substantial assistance or encouragement" by Dhanse; merely standing by and failing to intervene will not create liability pursuant to the common law tort. Defendants' Brief in Support of Motion to Dismiss, ECF No. 66 at 10. Plaintiff alleges that Dhanse witnessed the John Does "beat up" Plaintiff and failed to intervene because he believed they were off duty police officers. ECF No. 57 ¶¶ 48, 51. Plaintiff argues that as a police officer, Defendant Dhanse had a duty to intervene and therefore, Plaintiff's aiding and abetting claim should not be dismissed.(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
Here, Plaintiff's common law tort claim of aiding and abetting against Defendant Dhanse in Count V of the Second Amended Complaint must be dismissed. Dhanse's failure to intervene as a police officer is not actionable pursuant to this common law tort because the Restatement and cases applying the Restatement in Pennsylvania require some type of affirmative conduct by Dhanse. Plaintiff's argument focuses on subsection (c) of § 876. The first phrase of subsection (c) unequivocally states that alleged tortfeasors such as Dhanse give "substantial assistance to the other [here Does 1-3] in accomplishing a tortious result . . . ." Restatement (Second) of Torts § 876 (c). Although Plaintiff is correct that police officers have a duty to intervene where there is a realistic and reasonable opportunity to do so, that duty arises under the Eighth and Fourth Amendments to the United States Constitution as incorporated to the states through the Fourteenth Amendment. See Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002) (corrections officers' failure to intervene in beating can give rise to liability for an Eighth Amendment violation pursuant to § 1983); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) (potential liability of police officer pursuant to § 1983 and the Fourth Amendment for failure to intervene in unprovoked beating by fellow police officer), cited with approval in Mensinger, 293 F.3d at 650-51. A plaintiff may bring a § 1983 cause of action for failure to intervene under these circumstances, but a claim for common law Aiding and Abetting/Concert of Action pursuant to Restatement (Second) of Torts § 876 as adopted in Pennsylvania must be dismissed under these facts. Any attempt to amend would be futile.
Count I of the Second Amended Complaint is a claim against Defendant Dhanse pursuant to 42 U.S.C. § 1983 for Failure to Intervene. --------
Therefore, it is respectfully recommended that Defendants' Motion to Dismiss Count V of the Second Amended Complaint against Defendant Dhanse for Aiding and Abetting/Concert of Action be granted.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Motion to Dismiss Count XX of Plaintiff's Amended Complaint filed by Live Nation Entertainment, Inc. (ECF No. 63) be denied without prejudice to raising the issue of state action on summary judgment. It is further recommended that the Motion to Dismiss Counts IV and V against Defendant Michael Dhanse and Count IX against Defendant Stan Henry (ECF No. 65) be granted. Dated: April 15, 2020
BY THE COURT
/s/_________
Lisa Pupo Lenihan
UNITED STATES MAGISTRATE JUDGE