.jpg)
PITTSBURGH – City of Pittsburgh defendants have succeeded in having the municipal liability claims removed from the case, in a lawsuit brought by a woman who alleged she was unlawfully arrested because she doesn’t support President Donald Trump.
Plaintiff Darian Balcom initially filed a complaint on May 2, 2019 in the U.S. District Court for the Western District of Pennsylvania against the City of Pittsburgh, Officers Gabe Figueroa and John Doe, under the First and Fourteenth Amendments to the U.S Constitution.
An amended version of the complaint filed on Aug. 28 added Officers Leo, Donnolley, Smith and Zarate as defendants.
According to the complaint, the plaintiff owns and manages rental properties in Pittsburgh, and was asked in writing by the owner of a neighboring building to feed dogs believed to be abandoned, on Dec. 18, 2017.
The plaintiff alleged when she entered the apartment, she found two cats inside that were not properly cared for – and then took the cats to an empty unit in her apartment building to care for them.
The suit stated five police officers entered the plaintiff’s apartment building without her consent and without a warrant, and accused the plaintiff of illegally entering the apartment and stealing the cats.
Balcom alleged that when Figueroa, a Pittsburgh police officer, asked her if she was a supporter of President Donald Trump and she responded that she was not, that Figueroua said he was glad Trump had won. When Figueroa spoke to Balcom's friend Matthew, out of earshot from the plaintiff, he allegedly told Matthew that while the plaintiff had not done anything wrong, she had "sassed" the police and that when a person does that, they get arrested. Figueroa also reportedly referred to the plaintiff as a "bleeding heart liberal." Matthew was not arrested or charged in the incident.
The suit stated Balcom was taken to the Allegheny County Jail, held overnight and was charged with felony trespassing, theft and burglary, though the charges were later withdrawn.
On Oct. 1, counsel for the defendants filed a motion to dismiss Balcom’s lawsuit, arguing she has no valid Section 1983 civil rights violation claims.
“Any claims against the City of Pittsburgh should be dismissed with prejudice for failure to properly allege a widespread municipal policy or custom that was the moving force behind the alleged Constitutional injuries. Plaintiff failed to state a claim for municipal liability under a failure to train, control or supervise theory. Further, the actions of one officer, claimed by the plaintiff to be evidence of a failure to train, control, or supervise, does not amount to a widespread policy or custom,” the dismissal motion read, in part.
The magistrate judge opted to throw out Balcom’s municipal liability claim under Monell on April 28, but denied the defendants’ motion in all other respects.
Both plaintiff attorneys and defense counsel for Officers Leo, Donnelly and Smith filed a mutual stipulation on May 29 that dismissed the trio of officers from the suit without prejudice. The City of Pittsburgh, Figueroa and Zarate all remain as defendants.
UPDATE
On Sept. 3, U.S. District Court for the Western District of Pennsylvania Judge David S. Cercone granted the motion to dismiss in part and denied it in part.
“This 3rd day of September 2020, upon due consideration of defendants’ motion to dismiss and the Report and Recommendation of the Magistrate Judge addressing the same, and the stipulation of the parties indicating, among other things, that ‘defendants’ objections to the Magistrate Judge’s Report and Recommendation are [to be treated as] moot,’ and after de novo review of the record, it is ordered that defendants’ motion to dismiss be, and the same hereby is, granted in part and denied in part,” Cercone said.
“The motion is granted as to plaintiff’s municipal liability claim. This ruling is without prejudice to plaintiff filing an amended complaint on or before Sept. 21, 2020, setting forth a plausible showing of entitlement to relief on such a claim. The motion is denied in all other aspects. The Magistrate Judge’s Report and Recommendation of April 28, 2020, is adopted as the opinion of the court.”
The plaintiff is seeking all reasonable sums due, attorney’s fees and court costs.
The plaintiff is represented by Margaret S. Coleman and Timothy P. O’Brien of the Law Offices of Timothy P. O’Brien, in Pittsburgh.
The defendants are represented by Emily McNally, Julie E. Koren, Michael E. Kennedy and Yvonne Schlosberg Hilton of the City of Pittsburgh’s Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00506
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com