Kirksey v. Ross

372 F. Supp. 3d 256
CourtDistrict Court, E.D. Pennsylvania
DecidedApril 12, 2019
DocketCIVIL ACTION NO. 18-03673
StatusPublished
Cited by6 cases

This text of 372 F. Supp. 3d 256 (Kirksey v. Ross) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kirksey v. Ross, 372 F. Supp. 3d 256 (E.D. Pa. 2019).

Opinion

EDUARDO C. ROBRENO, District Judge.

This case concerns allegations of multiple acts of sexual assault and related misconduct committed by a former police officer, and allegations that the officer's employer, a local municipality, had policies or practices that enabled the officer to inflict the harm over a period of two years.

The plaintiffs in this case, Carla Kirksey, Joanna Williams, Saabirah Ferguson, Jacquelyn Witherspoon, and Deborah Montgomery, allege that Albert Ross sexually assaulted them at different times between 2015 and 2017. During this period, Ross was employed as a police officer by the City of Chester. In each alleged instance of sexual assault, Ross was in uniform, and in some cases he and the victim were at the police station.

The City moved dismiss the Second Amended Complaint. The Court finds that Plaintiffs have made sufficient pleadings to state legally cognizable claims, and therefore the Court will deny the motion to dismiss.

*259Contents

I. BACKGROUND...259

A. Procedural History...259

B. Factual Allegations...259

C. Pending Claims...260

II. LEGAL STANDARDS FOR A MOTION TO DISMISS...261

III. DISCUSSION...261

A. Statute of Limitations (Witherspoon and Kirksey)...261

B. Color of Law (Witherspoon, Kirksey, Montgomery)...263

C. Municipal Liability (All Plaintiffs)...264

IV. CONCLUSION...266

I. BACKGROUND

A. Procedural History

Plaintiffs filed a Complaint on August 27, 2018, ECF No. 1, and then a First Amended Complaint on September 10, 2018. ECF No. 6. The City of Chester and Ross filed separate motions to dismiss, ECF Nos. 9 and 18, which the Court granted with leave to amend. ECF No. 22. In its ruling, the Court barred certain claims from being repleaded due to the statute of limitations having run on those claims. Id. Plaintiffs then moved for expedited discovery in regard to other claims, but were denied. ECF Nos. 23 and 25.

Plaintiffs filed a Second Amended Complaint on February 6, 2019. ECF No. 29. The City of Chester filed a motion to dismiss on February 19, 2019. ECF No. 30. Ross filed an Answer on February 26, 2019. ECF No. 31. Plaintiffs responded to the motion to dismiss. ECF Nos. 36 and 37. The City has moved for leave to file a reply brief. ECF No. 39. Pending before the Court are the City's Motion to Dismiss the Second Amended Complaint, and the Motion for Leave to File a Reply Brief.

B. Factual Allegations

This brief overview is based on the averments in the Second Amended Complaint, viewing the allegations in the light most favorable to Plaintiffs. Ross was a police officer for the City of Chester, Pennsylvania, between 2013 and 2017. ECF No. 29 ¶ 3. Four of the plaintiffs reside in Chester (Kirksey, Williams, Ferguson, and Montgomery); one plaintiff resides in Marion, South Carolina (Witherspoon). Id. ¶¶ 10-14. At all times discussed below, Ross was on duty and in uniform.

1. Witherspoon

Witherspoon was an anger management instructor. In April 2015, she went to the Chester City Police Department to inquire whether Officer Anita Amaro had any potential clients. After concluding the meeting, she went to the elevator and Ross followed her in. Witherspoon did not know Ross.

While in the elevator, Witherspoon was embraced by Ross without her permission. Ross prevented her from exiting and when the doors closed, he grabbed her and forcibly kissed her, "leaving his saliva dripping from her face." Id. ¶¶ 87-91.

2. Kirksey

Kirksey went to the Chester City Police Department to pay a traffic fine in August 2015. Kirksey entered an elevator in which Ross was already present. Kirksey did not know Ross.

When Kirksey tried to leave the elevator, Ross pulled her back in. After the doors closed, Ross lifted her shirt, grabbed her breast and sucked on it, and then put his tongue in her mouth. Kirksey reported the incident, but no charges were filed. Id. ¶¶ 119-129.

3. Ferguson

In May 2017, Ross was investigating a disturbance at Ferguson's residence. Ferguson did not know Ross.

*260While in the kitchen, Ross placed the butt of his flashlight down Ferguson's shirt and shoved the flashlight between her breasts then pulled the flashlight toward him exposing her breasts, stating "let me see." She reported the incident, but no action was taken. Id. ¶¶ 156-167.

4. Williams

In August 2017, Ross was sent to investigate the activation of a home alarm at Williams's residence. Williams did not know Ross.

Williams met Ross at the door and explained the alarm had gone off by accident. Ross attempted to the enter the residence, but Williams stopped him. The two had a brief conversation before Ross grasped Williams's left breast. Id. ¶¶ 210-17.

5. Montgomery

In August 2017, Ross was driving by Montgomery's residence because he was on patrol in that area. Montgomery and Ross were acquaintances from a previous workplace. ECF No. 10 at 5.

Ross stopped his car at Montgomery's residence and spoke with her. He then asked for a hug. As she raised her arms, Ross "grabbed her breasts and squeezed and fondled them." Montgomery reported the incident. Ross was investigated and charged with stalking, indecent assault, and official oppression and harassment. ECF No. 29 ¶¶ 262-69.

6. Ross's employment

In 2013, Ross applied to be a City of Chester police officer. During Officer Ross's application and interview to be a police officer in the City of Chester Police Department, the City learned that Ross had been previously accused of sexual harassment while working at three different law enforcement employers (Chester Housing Authority, George Hill Correctional Facility, and Darby Borough Police Department). Id. ¶¶ 27-28, 33. Both the Mayor and the Police Commissioner warned against hiring Ross because of his history, and they refused to sign paperwork for his application because Ross had omitted documentation from his employment at Darby. Id. ¶¶ 28-35.

After he was hired by the City, Ross was cited for insubordination on two occasions, and his employment was terminated in 2013. Id. ¶ 44. Both instances related to misconduct in which women were involved or appear to have been involved: Ross stopped a female motorist by using illegal police lights installed on Ross's civilian vehicle; Ross returned to his home following a domestic incident, despite being told not to do so. Id. ¶¶ 45-47.

Nevertheless, Ross was re-hired in November 2013. Id. ¶ 44. Plaintiffs allege that the City Council, in particular Portia West, insisted Ross was rehired.

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Bluebook (online)
372 F. Supp. 3d 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirksey-v-ross-paed-2019.