PITTSBURGH – A federal judge has issued split decisions with respect to a trio of motions to dismiss, in litigation brought by a man who claimed he was assaulted during his arrest and detention by New Castle police officers in September 2021.
In a Sept. 23 memorandum opinion, U.S. District Court for the Western District of Pennsylvania Judge Christy Criswell Wiegand partially granted and partially rejected dismissal motions from Officers Anthony Mangino Jr. and Joshua Covert, plus Corrections Officers Timothy Pitzer and Mark Brader, in plaintiff Marquent A. Whetzel’s lawsuit.
“Around 11:45 p.m. on Sept. 5, 2021, defendant Anthony Mangino, a City of New Castle Police Officer, arrested Mr. Whetzel in the vicinity of Cascade Park, New Castle in connection with an alleged domestic dispute. During his arrest, Mr. Whetzel and Officer Mangino engaged in a verbal altercation, after which Officer Mangino struck Mr. Whetzel multiple times in the face. Early in the morning of Sept. 6, 2021, Officer Mangino transported Mr. Whetzel to the Lawrence County Correctional Center, where he met another City of New Castle Police Officer, defendant Joshua Covert, as well as several LCCC correctional officers, including defendants Timothy Pitzer, Mark Brader and an unnamed individual. Inside LCCC, the officers began to search Mr. Whetzel. During the search, Mr. Whetzel argued with Officer Mangino, which caused Officer Pitzer to become frustrated. Officer Pitzer then grabbed Mr. Whetzel from behind, placed him in a chokehold and slammed him to the ground, knocking Mr. Whetzel unconscious,” Wiegand said.
“While Mr. Whetzel was unconscious and handcuffed, Officer Brader pepper sprayed him in the face, and Officer Pitzer continued to ‘lay on and roll about’ Mr. Whetzel’s body. Afterwards, Officer Brader and John Doe lifted Mr. Whetzel and placed him in a chair. When Mr. Whetzel awoke, Officer Brader and John Doe slammed him back onto the ground, and Officer Pitzer then placed his foot on Mr. Whetzel’s neck, impairing his ability to breathe. Then, Officers Pitzer, Brader and John Doe forcibly transported Mr. Whetzel into an adjacent backroom during which they rammed Mr. Whetzel’s head into a steel door, threw him on the ground and stated, ‘We don’t have no f—ing rules, we are the police.’ During this interaction, Officers Mangino and Covert were laughing and giggling uncontrollably. After putting Mr. Whetzel in the backroom, Officers Brader, Mangino and Covert did a military salute. As a result of this assault, Mr. Whetzel has experienced psychological trauma and physical pain.”
Whetzel then filed the instant suit on Sept. 5, 2023 against Officers Mangino, Covert, Pitzer, Brader and John Doe, alleging civil rights violations under 42 U.S.C. Section 1983, as well as state-law claims.
In response, Officers Mangino, Pitzer and Brader each filed motions to dismiss.
Wiegand first determined that excessive force claims against defendants Pitzer and Brader would be dismissed with prejudice.
“In Count I, Mr. Whetzel brings an excessive use of force claim under the Fourth and Fourteenth Amendments, alleging that Officers Mangino, Pitzer and Brader used excessive and unreasonable force against him while arresting him and placing him in Lawrence County Correctional Center. While Officers Brader and Pitzer do not contest this count as to the Fourteenth Amendment claim, they do challenge the Fourth Amendment claims against them, asserting that the Fourth Amendment does not apply to pre-trial detainees. Mr. Whetzel contends that the Fourth Amendment does apply here because Mr. Whetzel was ‘merely placed under arrest and transported to LCCC. There had not been an arrest warrant issued,” Wiegand said.
“The U.S. Court of Appeals for the Third Circuit has held that ‘it is the Due Process Clause of the Fourteenth Amendment that protects pre-trial detainees.’ And because Mr. Whetzel was a pre-trial detainee at the time of the alleged assault by Officers Pitzer and Brader, Fourth Amendment protections did not extend to him. Further, Mr. Whetzel’s argument in opposition is based on out-of-circuit cases that are not binding on this Court. Therefore, the excessive use of force claims under the Fourth Amendment against Officers Brader and Pitzer will be dismissed. And because amendment would be futile, the Court will dismiss these claims with prejudice.”
Likewise, Wiegand determined that First Amendment retaliation claims against Officers Pitzer and Brader would also be dismissed – only this time without prejudice.
“Officers Brader and Pitzer seek to dismiss this count, arguing that the First Amendment does not protect Mr. Whetzel’s speech, because it was disrespectful and amounted to fighting words. Mr. Whetzel counters that his speech is protected because it does not fall within the narrow exception for fighting words. The Court agrees that Mr. Whetzel has failed to state a First Amendment retaliation claim. First, in his complaint, Mr. Whetzel fails to allege that he engaged in protected conduct as he does not clearly define what exactly he said to Officers Pitzer and Brader,” Wiegand stated.
“And while the Court does not know the exact contents of his speech, Mr. Whetzel himself characterizes his speech as ‘argumentative,’ ‘disrespectful,’ and ‘a verbal altercation.’ As pled, such speech, in the prison context, is unprotected under the First Amendment, because it appears that Mr. Whetzel’s speech involved debating or disregarding staff orders and led to a disturbance. Therefore, Mr. Whetzel has failed to allege that he engaged in protected speech under the First Amendment. Accordingly, the Court will dismiss the First Amendment retaliation claims against Officers Pitzer and Brader, but will grant Mr. Whetzel leave to amend.”
However, Wiegand retained 42 U.S.C. Section 1983 civil rights conspiracy claims against Officers Pitzer and Brader – finding Whetzel “has sufficiently pled a civil rights conspiracy claim so as to survive a motion to dismiss.”
“First, Mr. Whetzel adequately alleges conduct that violated his rights, including being physically assaulted by police and correctional officers. Next, Mr. Whetzel has sufficiently identified the time and place of this conduct: namely, that it occurred during his arrest near Cascade Park, New Castle on Sept. 5, 2021 and continued during his booking in LCCC on Sept. 6, 2021. Further, he has sufficiently identified the officials involved: Officers Mangino, Pitzer and Brader,” Wiegand said.
“Finally, at this stage of the case, Mr. Whetzel has alleged sufficient facts tending to show that there was a meeting of the minds between the defendants: namely, that some of the officers assaulted Mr. Whetzel only after he argued with the other officers; that some watched and laughed while the remaining officers assaulted Mr. Whetzel; and that some of the officers did a military salute after the assault. Therefore, the Court finds that at this stage, Mr. Whetzel has pleaded facts sufficient to state a claim for civil rights conspiracy. Accordingly, the motions to dismiss by Officers Brader and Pitzer will be denied with respect to the civil rights conspiracy claim.”
Similarly, Wiegand also preserved the intentional infliction of emotional distress claim against Officer Mangino.
“Here, Officer Mangino seeks to dismiss the intentional infliction of emotional distress claim against him, arguing that it is duplicative of the excessive force and battery claims. In support of his argument, Officer Mangino relies on two out-of-circuit district court decisions: Taylor v. City of Rochester and Woosley v. City of Paris,” Wiegand stated.
“Officer Mangino, however, does not point to any in-circuit precedent – nor has this Court found any – that supports his argument for dismissal. Further, Officer Mangino does not challenge the intentional infliction of emotional distress claim on any of the four prongs under Pennsylvania law. Therefore, because Officer Mangino cannot point to binding precedent supporting his argument nor does he contest the sufficiency of the complaint regarding the intentional infliction of emotional distress elements, the motion to dismiss will be denied with respect to the intentional infliction of emotional distress claim.”
Wiegand also denied a separate motion from defendant Officer Brader, which sought to require Whetzel to file an amended complaint outlining why he was sued in his individual capacity, rather than an official capacity.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01595
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com