Photo credit: Bigstock

While dismissing the bulk of a civil rights lawsuit against Reading police officers stemming from their response to a noise complaint, a federal judge has allowed an assault and battery claim to move forward against the defendants.

U.S. District Judge Joseph F. Leeson of the Eastern District of Pennsylvania granted in part and denied in part the Reading Police Department’s motion to dismiss eight counts of the 10-count complaint filed by plaintiffs Julian Parrilla Perez, Carla Rivera Cruz and Ady Rashid Rodriguez Perez.

The counts against the defendant officers included a Fourth Amendment claim for use of excessive force; a Fourth Amendment claim for unlawful seizure; a First Amendment claim for retaliation; a Fifth Amendment claim; an Eighth Amendment claim; a claim for conspiracy to violate civil rights; trespassing; a claim for false imprisonment; assault and battery; and negligent infliction of emotional distress. The defendants were identified only by last name, and included police officers Vega, Gingrasso and several John Does.

The lawsuit stems from the officers’ response to a noise complaint at the plaintiffs’ Reading home. According to Leeson’s opinion, Vega did not accept the state IDs produced by the plaintiffs as valid. Rodriguez Perez told Vega he was acting improperly, allegedly angering him and prompting him to enter the house.

Another officer, Gingrasso, entered the home and attempted to arrest Rivera Cruz. He grabbed her by the arm and pointed a taser at her. He did the same thing with Rodriguez Perez, who protested, causing the officer to allegedly drag her from the house into the patrol car.

The officers also allegedly did not issue a Miranda warning to the plaintiffs before arresting them, according to Leeson.

The vast majority of the plaintiffs’ claims were dismissed by Leeson for lack of factual basis, failure to state a claim, or immunity under Pennsylvania’s Political Subdivision Tort Claims Act, with the exception of the assault and battery claim surrounding Gingrasso’s actions.

Leeson noted that, under the Pennsylvania Supreme Court’s 1994 ruling in Renk v. City of Pittsburgh, “an assault is an intentional attempt by force to do an injury to the person of another, and a battery is committed whenever the violence menaced in an assault is actually done, though in ever so small a degree, upon the person.”

“Plaintiffs have alleged sufficient facts here to state a claim to relief that is plausible on its face,” Leeson said. “Although the bar will be high for plaintiffs to show that Gingrasso’s use of force was unnecessary or excessive, they have at least alleged sufficient facts which, if proven, would support a claim for assault and battery. Therefore, the court will deny the motion to dismiss this Count of the amended complaint.”

Leeson also granted the plaintiffs leave to file an amended complaint with regard to their claim that the defendants conspired to present the plaintiffs’ conduct in a false and incriminating light in order to violate their civil rights under 42 U.S.C. Section 1985(3), as well as their claim for Section 1983 selective enforcement.

“While plaintiffs are correct that an agreement is part and parcel with a conspiracy, simply stating that defendants conspired to violate their civil rights is not enough to satisfy the requirement for specific allegations of an agreement to carry out the alleged constitutional violation,” Leeson said. ”The amended complaint must include specific allegations that defendants formally agreed to violate plaintiffs’ constitutional rights in the way that the rights were actually violated.”

Howard Rose, who represents the plaintiffs, said he does not comment on active litigation.

David MacMain represented the Reading police and said, “I think it was the right decision. Some of the claims were simply not viable since the plaintiffs did not contest the criminal charges.”