WASHINGTON v. CITY OF PHILADELPHIA et al

Filing 12

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 1/11/12. 1/11/12 ENTERED AND COPIES E-MAILED AND MAILED TO UNREPRESENTED PARTY.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KENNETH WASHINGTON
v.
CITY OF PHILADELPHIA, et al.

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CIVIL ACTION

NO. 11-3275

MEMORANDUM
Dalzell, J.

January 11, 2011

Plaintiff Kenneth Washington’s complaint1 alleges
Fourth Amendment and substantive due process violations under 28
U.S.C. § 1983 against: (1) the City of Philadelphia (the “City”),
(2) Warrant Unit Officer Brent Donahue, Badge # 332, (3) John
Does I-III (Warrant Unit Officers), John Doe IV (a Warrant Unit
Sergeant), John Doe V (a Warrant Unit Lieutenant), and (4) John
Doe VI (a City Police Sergeant), and John Doe VII (a City Police
Captain), and (5) John Does VIII-X (an array of City Police
Officers of the Seventeenth Police District).

John Does I-III

and VIII-X will be referred to collectively as the “defendant
officers.”

Plaintiff also alleges state law claims of assault

1

Several anomalies in plaintiff’s complaint lead us to
wonder whether it was written for this case or was the product of
a key punched from counsel's word processing form. See, e.g.,
Pl.’s Compl. ¶ 55 (“Plaintiff’s substantive due process rights
protected under the Fourteenth Amendment were violated and she
suffered grievous bodily injury”) (emphasis added); Count V
heading (naming “Reyes” as a defendant, though no Reyes is
mentioned elsewhere in the complaint) id..

and battery and false imprisonment against a group we will
construe to include the defendant officers.
The City, the only defendant timely served in this
action,2 has filed this motion to dismiss the claims plaintiff has
asserted against it.

These claims are limited to Count I’s

excessive force and unlawful seizure claim, Count II’s
substantive due process claim, and Count III’s municipal
liability claims.

For the reasons set forth below, we will grant

the City’s motion to dismiss the municipal liability claims in
Count III.

Thus, in the absence of any basis for municipal

liability, we will dismiss Count I against the City.
Nevertheless, we are obliged to grant plaintiff leave to amend
his complaint on Counts I and III only.

2

Lastly, we will dismiss

Officer Donahue, the only other specifically
identified defendant, was not served until early December of
2011. We do not reach plaintiff’s claims against him here. We
also do not reach the claims asserted against the John Doe
officer defendants. However, since more than 120 days have
elapsed since plaintiff filed his complaint, we will order
plaintiff to show good cause for his failure to substitute the
John Doe defendants’ true identities. His failure to show good
cause would oblige us to dismiss without prejudice his claims
against these defendant officers pursuant to Fed. R. Civ. P. 4(m)
(“If a defendant is not served within 120 days after the
complaint is filed, the court -- on motion or on its own after
notice to the plaintiff -- must dismiss the action without
prejudice against the defendant or order that service be made
within a specified time.”).
2

Count II of the complaint in its entirety under the Supreme
Court's “more-specific-provision” rule.

I.

Factual Background
When we consider a motion to dismiss under Rule

12(b)(6), we must “‘accept all factual allegations in the
complaint as true and give the pleader the benefit of all
reasonable inferences that can be fairly drawn therefrom.’”
Ordonez v. Yost, 289 F. App’x 553, 554 (3d Cir. 2008) (quoting
Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)).

In the

course of our inquiry, we may “‘consider only allegations in the
complaint, exhibits attached to the complaint, matters of public
record, and documents that form the basis of a claim,’” Brown v.
Daniels, 128 F. App’x 910, 913 (3d Cir. 2005) (quoting Lum v.
Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)).

A

document forms the basis of a claim if it is “integral to or
explicitly relied upon in the complaint.”

In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997))
(emphasis and internal quotation marks omitted).
Plaintiff claims that on May 28, 2009 he received a
court paper directed to one of his neighbors.

Pl.’s Compl. ¶ 16.

When plaintiff contacted the Warrant Unit, he was directed to

3

write “Person Doesn’t Live Here” on the envelope.

Id. ¶ 17.

Early in the morning on June 5, 2009, plaintiff was in his home
when “[s]uddenly, and without warning” the defendant officers
came to his residence looking for that neighbor.

When plaintiff

advised the defendant officers that the subject of their search
did not live at his home, they became “verbally abusive, cursing,
and hostile[.]”

Id. ¶¶ 19-21.

They advised plaintiff that they

were “‘taking him in[,]’” allegedly without giving any reason.
Id. ¶ 22.

The defendant officers allegedly “threw Plaintiff onto

the floor of his home, kicked him, and stepped on his back while
he was handcuffed mocking him the entire time with comments such
as ‘now look at you’”.

Id. ¶ 24.

The officers then removed the

handcuffs and told plaintiff to sit down.

Id. ¶ 25.

Following

the incident, plaintiff claims to have called 911 twice and also
visited the emergency room.

Id. ¶ 26.

Plaintiff was not

arrested or cited for any crimes on June 5, 2009.

Id. ¶ 31.

Count III of plaintiff’s complaint invokes three
different municipal liability theories.

First, plaintiff alleges

the City endorsed “policies, procedures, customs, and practices
of allowing its officers to use unreasonable and excessive force
thereby violating the civil rights of those with whom they come
into contact.”

Id. ¶¶ 41, 63.

Second, plaintiff avers that “the
4

City and supervisory Defendants have, with deliberate
indifference, failed to adequately train and supervise their
officers concerning the proper provision of medical care to
injured suspects, and the injuries to Plaintiff were caused by,
and were a foreseeable consequence of, such failures.”

Id. ¶ 43.

Plaintiff amplifies this by contending that the City failed to
train its officers in the “proper methods for issuing a warrant,
executing a warrant, investigating a warrant, and handling a
warrant while preserving the constitutionally protected rights of
individuals with whom they come into contact regardless of
whether they are the subject of the warrant or not.”

Id. ¶ 44.

Third, plaintiff alleges that the “City has maintained an
inadequate system of review of instances of misconduct, abuse of
police powers or violation of citizens’ rights by police officer
[sic], which system has failed to identify instances of abuse of
police powers or violations of citizens’ rights by police
officers, or to discipline, more closely supervise, or retrain
officers who abuse their police powers or violate citizens’
rights, including the police officers named as parties herein.”
Id. ¶ 42.
Plaintiff asserts that these “acts, omissions, systemic
deficiencies, practices, customs an [sic] deliberate indifferent
5

[sic] constitute the policies, practices and customs of the City
and have caused officers of the City . . . to violate the
constitutional rights of citizens, including Plaintiff.”
46.

Id. ¶

Paragraphs sixty through sixty-six rehearse these same

allegations, incorporating by reference the “policies . . . more
particularly set forth in the preceding paragraphs” and “more
specifically described above[.]”

II.

Id. ¶¶ 63-64.

Analysis
A.

The City’s Argument
As an initial matter, the City’s motion to dismiss does

not challenge plaintiff’s Fourth Amendment claim in Count I of
the complaint.

The City nevertheless argues that plaintiff’s

Fourteenth Amendment substantive due process claim (Count II)
should be dismissed against all defendants because the argument
is more properly analyzed under the Fourth Amendment.

Def.’s

Mot. Dismiss 7 (citing Albright v. Oliver, 510 U.S. 266, 273
(1994) and DiBella v. Borough of Beachwood, 407 F.3d 599, 602 (3d
Cir. 2005)).
The City’s motion at bottom asserts that plaintiff’s
municipal liability claims must fail under Rule 12(b)(6).

6

As to

plaintiff’s policy or custom argument, the City first contends
that the complaint contains
nothing more than the most cursory assertions
of any specific policies, customs, or
instances of deliberate indifference of the
Philadelphia Police Department, none of which
are supported by any of Plaintiff’s factual
allegations, which consist only of a single
and isolated incident of alleged police
misconduct. Indeed, Plaintiff takes a
scattershot approach and appears to be
launching a barrage of legal conclusions at
the wall to see which ones will stick.
Def.’s Mot. Dismiss 5.
Second, the City focuses its attention on plaintiff’s
failure to train claim.

The City cites the Supreme Court’s

recent decision in Connick v. Thompson, 131 S.Ct. 1350, 1359-61
(2011), and asserts that plaintiff has failed to plead any facts
that (1) allege a “pattern of similar violations” or (2) place
plaintiff’s claim within the “narrow range of circumstances” that
allow a single violation to satisfy the deliberate indifference
standard.

Finally, the City attacks plaintiff’s allegation that

“‘the City has maintained an inadequate system of review[,]”
Def.’s Mot. Dismiss 5 (quoting Pl.’s Compl. ¶ 42), by labelling
it a “most cursory accusation[] of . . . [an] instance[] of
deliberate indifference[.]”

Id.

7

Overall, the City contends that plaintiff’s “shotgun
approach” is the “very epitome of ‘[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements” that fail Rule 8's ordinary pleading requirement
under Iqbal and Twombly.

B.

Id. 6.

Plaintiff’s Argument
Naturally, plaintiff opposes the City’s arguments.3

He

cites Daniels v. Williams, 474 U.S. 327, 331 (1986) and Fagan v.
City of Vineland, 22 F.3d 1283, 1292 (3d Cir. 1994), in support
of his substantive due process claim’s viability.

Plaintiff

claims that the City “in citing a number of cases, argue[s] that
no constitutional violation exists,” Pl.’s Resp. 6-7, and
contends that the City's argument is “simply not true.”

Id. 6.

Plaintiff’s response chiefly addresses the City’s
municipal liability arguments.

Plaintiff reprints verbatim

paragraphs forty-two and sixty-two through sixty-four of his
complaint, and incorporates by reference “the remainder of
Plaintiff’s Complaint, [and he asserts that] it is clear that

3

The last paragraph on page four of plaintiff’s
response to the City’s motion to dismiss cites a string of cases
from the Supreme Court and Second Circuit that pre-date Twombly
and Iqbal -- some by as much as forty years. Plaintiff fails to
cite Iqbal even once.
8

[he] alleges that Defendant, City unconstitutionally implemented
and enforced a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by the officers of
the [City].”

Id. 4-5 (citing Monell, not the complaint).

In

sum, plaintiff asserts that:
[b]y alleging that Defendant City implemented
a policy of excessive force and having their
officers carry out that policy, Plaintiff has
met the minimum pleading requirements
pursuant to Rule 8 of the Federal Rules of
Civil Procedure. Clearly, Defendant, City
has sufficient information to answer
Plaintiff’s Complaint based on the above
mentioned [sic] averments.
Id. 5.

C.

The Substantive Due Process Claim
The Supreme Court teaches that under the “more-

specific-provision” rule of Graham v. Connor, 490 U.S. 386
(1989), “‘[w]here a particular Amendment provides an explicit
textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not the more
generalized notion of substantive due process, must be the guide
for analyzing these claims.’”

County of Sacramento v. Lewis, 523

U.S. 833, 842 (1998) (quoting Albright, 510 U.S. at 273 (in turn
quoting Graham, 490 U.S. at 395)).

9

To begin, plaintiff mistakenly asserts that the City
“argue[s] that no constitutional violation exists.”
6.

Pl.’s Resp.

To the contrary, the City does not question the existence (or

absence) of a Fourth Amendment violation.

Thus, we assume the

existence of a Fourth Amendment violation for purposes of
entertaining the municipal liability claims against the City.
Second, plaintiff misapprehends the issue raised here.
The Supreme Court’s jurisprudence teaches that where the “morespecific-provision” of the Constitution serves as the basis for a
claim, courts must rely on that provision rather than on
substantive due process.

Plaintiff here asserts a Fourth

Amendment violation in Count I of his complaint, alleging
excessive force and unlawful seizure of his person.
¶¶ 24, 34, 48-53.

Pl.’s Compl.

Thus, we will analyze his claim under the

Fourth Amendment.
As Justice Souter explained in Lewis, “[s]ubstantive
due process analysis is therefore inappropriate in this case only
if respondents’ claim is ‘covered by’ the Fourth Amendment.”

523

U.S. at 843-44 (holding that substantive due process analysis
could proceed because no “search or seizure” occurred).

By

plaintiff’s own pleading, an allegedly unlawful search and
seizure happened here.

The City does not at this juncture refute
10

this contention and so plaintiff's substantive due process claim
must fail.4
For these same reasons, and in the interest of judicial
economy, we will dismiss Count II’s substantive due process claim
against all defendants.

As plaintiff has had an opportunity to

respond to the City’s motion to dismiss that put plaintiff on
notice of this argument, it would thus be futile to give
plaintiff another opportunity to provide additional argument on
this well-settled principle of law.

D.

The Municipal Liability Claim
1.

The Standard

4

Plaintiff’s reliance on Fagan misses a key point
found within its own text:
Since the Supreme Court’s opinion
in Graham v. Connor . . .,
excessive force claims against the
police are actionable under the
Fourth Amendment rather than the
substantive component of the Due
Process Clause. However, where the
excessive force does not involve a
“seizure” by law enforcement
officials, courts have held that a
“shocks the conscience” substantive
due process claim survives Graham.
22 F.3d at 1305 n.5.

11

Though Leatherman v. Tarrant County, 507 U.S. 163
(1993), makes plain that § 1983 claims are not subject to a
heightened pleading standard, Iqbal’s unambiguous extension of
Twombly to “all civil actions” leaves the ordinary notice
pleading requirement intact for those claims.

Thus, “only a

complaint that states a plausible claim for relief survives a
motion to dismiss” pursuant to Rule 12(b)(6), leading a reviewing
court to engage in a “context-specific” inquiry that “requires
[it] to draw on its judicial experience and common sense[,]”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
Under this standard, a pleading may not simply offer
“labels and conclusions,”

Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007), and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do
not suffice.”

Iqbal, 129 S. Ct. at 1949.

Rather, “[f]actual

allegations must be enough to raise a right to relief above the
speculative level,” Twombly, 550 U.S. at 555.

Ultimately, there

must be “more than a sheer possibility that a defendant has acted
unlawfully.”

Iqbal, 129 S. Ct. at 1949.

Essentially, a plaintiff must provide “enough facts to
raise a reasonable expectation that discovery will reveal
evidence of the necessary element.”
12

Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quotation marks
omitted).

But “the question presented by a motion to dismiss a

complaint for insufficient pleadings does not turn on the
[court’s ability to] control[] . . . the discovery process.”
Iqbal, 129 S.Ct. at 1953 (citing Twombly, 550 U.S. at 559).

And

“the defendant bears the burden of showing that no claim has been
presented.”

Hedges v. United States, 404 F.3d 744, 750 (3d Cir.

2005).
Our Court of Appeals has often had occasion to explain
the contours of the Supreme Court’s decision in Monell v. Dep’t
of Social Servs., 436 U.S. 658 (1978), which rejected municipal
respondeat superior liability under § 1983.

As that Court

recently rehearsed,
[W]hen a suit against a municipality is based
on § 1983, the municipality can only be
liable when the alleged constitutional
transgression implements or executes a
policy, regulation, or decision officially
adopted by the governing body or informally
adopted by custom.
McTernan v. City of York, Pa., 564 F.3d 636, 657 (3d Cir. 2009)
(internal citations omitted) (quoting Beck v. City of Pittsburgh,
89 F.3d 966, 971 (3d Cir. 1996) (citing Monell)).

A “policy”

exists when a “decisionmaker possess[ing] final authority to
establish a municipal policy with respect to the action issues an
13

official proclamation, policy, or edict.”

Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alterations in
original) (internal quotation marks omitted).

Alternatively, a

‘custom’ arises when, “though not authorized by law, such
practices of state officials [are] so permanent and well settled
as to virtually constitute law.”

Id. (alterations in original)

(internal quotation marks omitted).
Once a municipal policy or custom has been
established, plaintiff must then “‘demonstrate that, through its
deliberate conduct, the municipality was the ‘moving force’
behind the injury alleged.’”

Bd. of Cnty. Comm’rs of Bryan Cnty.

v. Brown, 520 U.S. 397, 404 (1997) (citations omitted) (emphasis
in original).

And “[i]f . . . the policy or custom does not

facially violate federal law, causation can be established only
by ‘demonstrat[ing] that the municipal action was taken with
‘deliberate indifference’ as to its known or obvious
consequences.

A showing of simple or even heightened negligence

will not suffice’”, Berg v. Cnty. of Allegheny, 219 F.3d 261, 276
(3d Cir. 2000).
Municipalities are only subject to § 1983 liability for
three sorts of practices.

First, “‘the appropriate officer or

entity promulgates a generally applicable statement of policy and
14

the subsequent act complained of is simply an implementation of
that policy.’”

Natale v. Camden Cnty. Corr. Facility, 318 F.3d

575, 584 (3d Cir. 2003) (quoting Brown, 520 U.S. at 417-18 & n.10
(Souter, J., dissenting)).

Second, “‘no rule has been announced

as policy but federal law has been violated by an act of the
policymaker itself.”

Id. (quoting Brown).

And third, “the

policymaker has failed to act affirmatively at all, [though] the
need to take some action to control the agents of the government
is so obvious, and the inadequacy of existing practice so likely
to result in the violation of constitutional rights, that the
policymaker can reasonably be said to have been deliberately
indifferent to the need.”

Id. (internal quotation marks omitted)

(quoting Brown and also quoting City of Canton, Ohio v. Harris,
489 U.S. 379, 390 (1989)); see also Berg, 219 F.3d at 276.
To state a claim under the first or second “policy” or
“custom” claim categories, a plaintiff must “identify a custom or
policy, and specify what exactly that custom or policy was.”
McTernan, 564 F.3d at 658.

Furthermore, a “[c]ustom requires

proof of knowledge and acquiescence by the decisionmaker.”

Id.

Stated another way, a claim will survive a motion to dismiss only
if it “allege[s] conduct by a municipal decisionmaker.”

Id.

Our

Court of Appeals has explained that a plaintiff is thus obliged
15

to “plead knowledge of such directives by a municipal
decisionmaker, such as the Mayor or Police Chief.”

Id. at 658-

59.
Alternatively, § 1983 jurisprudence fleshes out the
third municipal "inaction" claim category.

The Supreme Court

recently reaffirmed that a failure to train constitutes a “policy
or custom” of inaction under § 1983 only when it “amount[s] to
deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact[,]” Connick v. Thompson,
131 S.Ct. 1350, 1359-60 (2011) (internal quotation marks,
citations, and alterations omitted).

The Court in Connick

expressed skepticism about this type of municipal liability,
noting that “[a] municipality’s culpability for a deprivation of
rights is at its most tenuous where a claim turns on a failure to
train.”

Id. at 1360.
Justice Thomas’s majority opinion rehearsed the

familiar deliberate indifference standard, explaining that it is:
a stringent standard of fault, requiring
proof that a municipal actor disregarded a
known or obvious consequence of his action.
Thus, when city policymakers are on actual or
constructive notice that a particular
omission in their training program causes
city employees to violate citizens’
constitutional rights, the city may be deemed
deliberately indifferent if the policymakers
16

choose to retain that program. The city’s
“policy of inaction” in light of notice that
its program will cause constitutional
violations is the functional equivalent of a
decision by the city itself to violate the
Constitution.
id. (emphasis added) (quotation marks omitted) (citing City of
Canton, 489 U.S. at 395).
The Court further explained that “[a] pattern of
similar constitutional violations by untrained employees is
ordinarily necessary to demonstrate deliberate indifference for
purposes of failure to train[,]” id. (quotation marks omitted),
except for the “narrow range of Canton’s hypothesized singleincident liability,” id. at 1361.

To succeed on an allegation of

“single-incident” liability, “the unconstitutional consequences
of failing to train [must] be so patently obvious that a city
could be liable under § 1983 without proof of a pre-existing
pattern of violations[.]”

Id.

It would be hard to overstate the

narrowness of this “rare” liability category.

The Supreme Court

in Connick pointed to the limited scope of its single-incident
liability hypothetical:
[A] city . . . arms its police force with
firearms and deploys the armed officers into
the public to capture fleeing felons without
training the officers in the constitutional
limitation on the use of deadly force. Given
the known frequency with which police attempt
17

to arrest fleeing felons and the
predictability that an officer lacking
specific tools to handle that situation will
violate citizens’ rights, the Court theorized
that a city’s decision not to train the
officers about constitutional limits on the
use of deadly force could reflect the city’s
deliberate indifference to the highly
predictable consequence, namely, violations
of constitutional rights.
Id.
Beyond failure to train claims, our Court of Appeals
has also embraced a more general municipal inactivity liability
theory.

See Berg, 219 F.3d at 276; Natale, 318 F.3d at 584-85;

A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 583-85
(3d Cir. 2004).

Natale explains that:

a policy or custom may also exist where the
policymaker has failed to act affirmatively
at all, [though] the need to take some action
to control the agents of the government is so
obvious, and the inadequacy of existing
practice so likely to result in the violation
of constitutional rights, that the
policymaker can reasonably be said to have
been deliberately indifferent to the need.
318 F.3d at 584 (internal quotation marks omitted) (alterations
in original).
In Berg, our Court of Appeals expressly recognized an
“inadequate systemic design” claim, and acknowledged a “pattern
of violations” and a single-incident basis for establishing

18

deliberate indifference.

Berg’s single-incident inadequate

system design claim prompted the Court to compare “[t]he
[municipality’s] failure to provide [any] protective measures and
fail safes against [the officer’s] mistake" to "a failure to
equip law enforcement officers with specific tools to handle
recurring situations.”

Berg, 219 F.3d at 277 (internal quotation

marks omitted).

2.

Application

Plaintiff’s municipal liability claims fail Rule 8's notice
pleading requirement under Iqbal and Twombly.

Plaintiff’s

allegations are conclusory for they “express[] . . . factual
inference[s] without stating the underlying facts on which the
inference[s] [are] based.”
2009).

Black’s Law Dictionary 329 (9th ed.

Aside from the single incident of alleged police

misconduct, the complaint pleads no other facts necessary to
establish a municipal liability claim.

a.

Policy or Custom Argument

For a “policy” or “custom” claim to survive a motion to
dismiss, McTernan teaches that in post-Twombly § 1983 pleadings
plaintiffs “must identify a custom or policy, and specify what
exactly that custom or policy was.”

19

564 F.3d at 658 (affirming

district court’s dismissal of complaint because it “g[ave] no
notice as to the Defendant[]’s improper conduct, simply
alleg[ing] that [plaintiff’s] rights were violated due to the
City’s policy of ignoring First Amendment right[s.]”).

In

addition, a § 1983 municipal liability claim further requires
“plead[ing of] knowledge of . . . [constitutionally violative]
directives by a municipal decisionmaker, such as the Mayor or
Police Chief.”

Id.

Plaintiff’s complaint here fails to include

any fact satisfying these criteria.
Plaintiff’s summary of his complaint’s substance
unwittingly betrays these shortcomings: “Defendant City
implemented a policy of excessive force and ha[d] their officers
carry out that policy.”

Pl.’s Resp. 5; Pl.’s Compl. ¶ 62.

As an

initial matter, "excessive force" is a legal conclusion plaintiff
slaps across an element of his claim.

His description of the

policy or custom falls far short of a “specif[ication of] what
exactly that custom or policy was,” as our Court of Appeals
requires.

On this ground alone, plaintiff’s policy or custom

argument must fail.
In addition, plaintiff's repeated personification of
the City’s actions is equally fatal to this claim.

He fails to

allege any fact to suggest a municipal decisionmaker’s personal

20

knowledge of the constitutionally violative conduct alleged here.
See, e.g., Pl.’s Compl. ¶¶ 41, 61-65; Pl.’s Resp. 5.

McTernan,

which both parties overlook, obliges us to reject these claims on
this ground as well.

Thus, plaintiff’s claim that the City's

policies are “more specifically described” elsewhere in his
complaint collides with the reality of his pleading.

b.

Failure to Train

Plaintiff’s failure to train claim also must fail
because he alleges no facts to show deliberate indifference.

He

does not plead any fact to suggest a “pattern of similar
constitutional violations by untrained employees.”

Plaintiff

merely refers to “other” aggrieved parties in the most abstract,
conclusory terms.

He notes that the City failed to train

officers in the proper “provision of medical care to injured
suspects,” Pl.’s Compl. ¶ 43 (emphasis added), and handling of
warrants so as to “preserv[e] the constitutionally protected
rights of individuals with whom they come into contact[.]”

Id. ¶

44 (emphasis added); see also id. ¶ 63 (“persons within the
City”).

Plaintiff omits any reference from which we could

reasonably conclude that others have suffered from a "pattern of
similar constitutional violations."

21

Plaintiff also fails to supply any facts to shoehorn
his claim into the “rare” and “narrow” category of singleincident liability reserved in City of Canton.

To establish

deliberate indifference from a single incident, a plaintiff must
show that the municipality’s failure to train was obviously going
to lead to the constitutional violations alleged.

In foreclosing

plaintiff’s municipal liability claim in Connick, the Supreme
Court found it “significant” that the “Canton hypothetical
assumes that the armed police officers have no knowledge at all
of the constitutional limits on the use of deadly force.”
Connick, 131 S.Ct. at 1363 (emphasis added).

This “significant”

fact is similarly absent from plaintiff’s complaint here.

No

facts have been pled showing that the police had any such
knowledge of the line between constitutionally permissible and
impermissible force.

Indeed, plaintiff’s complaint lacks even a

threadbare recital of this element.

His failure to train claim

must also fail.

c.

Municipal Inaction

Plaintiff’s municipal inaction claim fails for the same
reasons just discussed.

The same general, conclusory allegations

of “similar violations” populate the inaction claim, see Pl.’s
Compl. ¶ 42, and preclude a finding of deliberate indifference on
22

this ground.5

In short, Twombly and Iqbal require that a

complaint must do more than call an extant review system
“inadequate” without also supplying specific instances where the
system similarly failed others.
Furthermore, plaintiff has not alleged any facts about
the current review system to satisfy the single-incident
deliberate indifference standard Berg obliges us to apply.
Though Berg arose in the context of a motion for summary
judgment, its reasoning is helpful to us here.

The Court

explained that “[t]he [municipality’s] failure to provide [any]
protective measures and fail safes against [the county warrant
clerk’s] mistake seems comparable to a failure to equip law
enforcement officers with specific tools to handle recurring
situations.”
omitted).

Berg, 219 F.3d at 277 (internal quotation marks

Plaintiff’s complaint notably fails to allege any

facts showing that the City’s system has no protective measures
in place.

E.

His claim flounders on this basis, as well.

Next Steps
In view of these shortcomings, we will afford plaintiff

the opportunity to satisfy Twombly and Iqbal in light of our

5

In fact, Count III omits reference to the inadequate
review system claim.
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canvass here of the pertinent jurisprudence.

See, e.g., Phillips

v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008); Grayson
v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

We

will grant plaintiff leave to file a curative amendment by
January 25, 2012 or we will dismiss with prejudice Counts I and
III against the City for failure to state a claim.

BY THE COURT:
__\s\Stewart Dalzell

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