JACOBS et al v. PALMER et al

Filing 16

MEMORANDUM AND ORDER THAT COUNTS TWO AND FIVE OF PLAINTIFF'S COMPLAINT WILL BE DISMISSED WITHOUT PREJUDICE AND LEAVE TO AMEND. THE CITY OF CHESTER WILL BE DISMISSED AS A PARTY; ETC.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/10/15. 3/10/15 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KEN JACOBS and TIMOTHY
WILLIAMS,

CIVIL ACTION

Plaintiffs,
v.

NO. 14-5797

DELAWARE COUNTY DETECTIVE M.
PALMER, DETECTIVE WORRILOW,
UNKNOWN DELAWARE COUNTY
POLICE OFFICERS, THE COUNTY OF
DELAWARE, POLICE
COMMISSIONER JOSEPH BAIL,
CAPTAIN C. FELL, UNKNOWN CITY
OF CHESTER POLICE OFFICERS, and
THE CITY OF CHESTER,
Defendants.

MEMORANDUM RE: DEFENDANTS’ MOTIONS TO DISMISS
Baylson, J.
I.

March 10, 2015

Introduction
This federal civil rights action arises from an encounter between Plaintiffs, Ken Jacobs

and Timothy Williams, and two Defendants, Delaware County Detective M. Palmer and his
unidentified partner. Plaintiffs allege that during this encounter Palmer and his partner violated
their federal civil rights by using excessive force and falsely detaining them, and committed the
state law torts of assault, battery, and intentional infliction of emotional distress. They further
allege that Defendant the County of Delaware caused the violations of their civil rights by failing
to properly train, supervise, and discipline Palmer and his partner. Finally, in the aftermath of
this encounter, Plaintiffs allege that Palmer, his partner, Delaware County Detective Worrilow,

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Chester Police Commissioner Joseph Bail, Chester Police Captain C. Fell, and unknown City of
Chester police officers conspired to obstruct the investigation and prosecution of Palmer’s and
his partner’s actions.
Defendants have filed two overlapping partial motions to dismiss. One motion, filed by
the County of Delaware, Palmer, and Worrilow, seeks to dismiss the conspiracy claim and the
Monell claim alleging that the County is responsible for Palmer’s and his partner’s alleged
conduct. The second motion, filed by the City of Chester, Bail, and Fell, seeks to dismiss the
conspiracy claim and any claims against the City, which is not named in any of the five counts of
the complaint. For the reasons set out below, both motions will be granted and Counts Two and
Five of Plaintiffs’ complaint will be dismissed without prejudice and with leave to amend.
II.

Factual Allegations
Plaintiffs allege that on October 13, 2012, between 3:00 and 4:00 pm, they were watching

people ride motorcycles at Crozer Park in Chester, Pennsylvania. Compl. ¶ 11 (ECF 1). A fastmoving pick-up truck drove toward them and, as it entered the parking lot, Defendant Palmer
discharged a firearm repeatedly from a window of the truck. Id. ¶¶ 12-13. Palmer and an
unidentified Delaware County officer then exited the truck and ordered Plaintiffs to get down on
the ground while repeatedly shouting racial epithets. Id. ¶ 14. Palmer and the unidentified officer
smelled of alcohol and one of them discharged two more shots from a firearm. Id. ¶ 14.
Palmer and the unidentified officer then questioned Plaintiffs about “stolen four
wheelers,” while continuing to use racial epithets and profanity and while pointing firearms at
Plaintiffs. Id. ¶¶ 14-15. Plaintiffs told Palmer and the other officer that they did not own dirt
bikes or four wheelers and asked Palmer to call Jacobs’ aunt, who was a corporal in the Chester
Police Department. Id. ¶ 15-16. Palmer responded with threats, profanity, and racial epithets. Id.
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Fearing for his life, Jacobs got up and told Palmer he was going to call his aunt. Id. ¶ 17. Palmer
told Plaintiffs to “get the f--- out of here” and threatened them again. Id. ¶ 18. Palmer refused to
give Plaintiffs his name and then he and the unidentified officer got back in the truck and began
to drive away. Id. ¶ 19.
At that point, Chester police officers arrived and chased the pick-up truck. Id. Jacobs also
called his aunt, who dispatched Chester police officers to the scene. Id. One of the responding
Chester officers was Captain Fell, who arrived at the scene and interviewed Palmer. Id. ¶ 20.
Approximately two days later, Delaware County Detective Worrilow interviewed Plaintiff
Jacobs at his home. Id. ¶ 21. Shortly thereafter, Chester Police Commissioner Bail was informed
of the incident by Captain Fell and Detective Worrilow. Id. ¶ 22.
III.

Procedural History
Plaintiffs filed a five-count complaint on October 10, 2014. Compl. (ECF 1). The first

count alleges that Palmer and his unidentified partner violated 42 U.S.C. § 1983 by using
excessive force and falsely detaining Plaintiffs. Id. ¶¶ 23-27. The second count is a Monell claim
against the County of Delaware, alleging that the County violated section 1983 and caused
Plaintiffs’ civil rights to be violated by failing to properly train, discipline, and supervise Palmer
and his unidentified partner. Id. ¶¶ 28-31. The third count alleges that Palmer and his
unidentified partner committed assault and battery. Id. ¶¶ 32-33. The fourth count alleges that
Palmer and his unidentified partner intentionally inflicted emotional distress. Id. ¶¶ 34-32 [sic]. 1
Finally, the fifth count alleges that Palmer, his unidentified partner, Worrilow, Fell, and Bail

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The paragraphs in Count Four are misnumbered as paragraphs 34 and 32, such that the
complaint has two paragraphs labeled “32” (in Counts Three and Four), two paragraphs labeled
“33” (in Counts Three and Five) and two paragraphs labeled “34” (in Counts Four and Five).
Assuming Plaintiffs file an Amended Complaint, these errors should be corrected.
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conspired to obstruct the investigation and prosecution of Palmer and his unidentified partner, in
violation of section 1983 and unspecified Pennsylvania state law. Id. ¶¶ 33-35.
Chester Police Commissioner Bail, Chester Police Captain Fell, and the City of Chester
(collectively “Chester Defendants”) moved to dismiss all claims against them on November 10,
2014 (ECF 9). Plaintiffs filed their opposition on December 9, 2014 (ECF 14). Delaware County
Detectives Palmer and Worrilow and the County of Delaware (collectively “Delaware County
Defendants”) moved to dismiss Counts Two and Five on November 18, 2014 (ECF 12).
Plaintiffs filed their opposition on December 5, 2014 (ECF 13).
IV.

The Parties’ Contentions
The Chester Defendants contend that Plaintiffs do not have a constitutional right to the

investigation or prosecution of another, nor to an accurate police report. Chester Defs.’ Br. at 5-9
(ECF 9). As a result, the Chester Defendants argue that Plaintiffs did not suffer any
constitutional violation as a result of Fell’s or Bail’s alleged actions and therefore, Plaintiffs have
no remedy against Bail or Fell under section 1983. Id. Alternatively and additionally, the Chester
Defendants argue that Plaintiffs have failed to plead the existence of a section 1983 conspiracy to
cover up Detective Palmer’s alleged actions because they have not alleged any facts allowing an
inference of combination, agreement or understanding. Id. at 9-11. Finally, the Chester
Defendants argue that Plaintiffs’ complaint does not name the City of Chester in any of its counts
and, even if the complaint is intended to allege a Monell claim against the City, there are no
allegations that the Plaintiffs suffered any constitutional violations as a result of a policy or
custom of the City of Chester. Id. at 11-12.

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In response, Plaintiffs offer little more than a restatement of the allegations in the
complaint. Plfs.’ Opp. to Chester Defs. (ECF 14). 2 They make no rebuttal to the Chester
Defendants’ argument that Plaintiffs did not suffer any constitutional violation as a result of the
actions of Fell or Bail, and do not address the City of Chester’s arguments at all. Id. Without
citing any case law, Plaintiffs argue that they have adequately alleged that Fell and Bail
conspired to obstruct the investigation and prosecution of Palmer’s and his partner’s actions. Id.
at 8. Plaintiffs’ opposition relies on an outdated standard of review that ignores the past seven
years of case law interpreting federal pleading requirements following the United States Supreme
Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal,
556 U.S. 662 (2009). Id. at 7.
The Delaware County Defendants contend that Count Two fails to state a Monell claim
against the County because Plaintiffs have not adequately identified the County’s custom or
policy that caused Palmer’s and his partner’s alleged actions. Del. Cnty. Defs.’ Br. at 5-10.
Furthermore, the Delaware County Defendants argue that Plaintiffs have not identified the
decision maker responsible for any such custom or policy and do not allege any other specific
instances of similar constitutional violations that would show the County’s deliberate
indifference to the officers’ inadequate training. Id. Similar to the Chester Defendants, the
Delaware County Defendants also argue that Count Five fails to state a claim because Plaintiffs
have no constitutional right to have criminal charges filed against Palmer and the factual
allegations are insufficient to show a conspiracy to violate Plaintiffs’ civil rights. Id. at 11-13.
In response, Plaintiffs again rely primarily on factual allegations from their complaint and
a pre-Twombly standard of review. Pls.’ Opp. to Del. Cnty. Defs. (ECF 13). They contend that
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Plaintiffs’ filings are all unpaginated. The page numbers cited throughout this memorandum for
Plaintiffs’ filings refer to the page numbers assigned by the ECF system.
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the Monell claim against the County of Delaware should not be dismissed because they
adequately alleged that Palmer’s and his partner’s conduct resulted from a policy or custom of
the County. Id. at 8-11. Plaintiffs also argue, without legal citation, that the facts in their
complaint adequately allege a conspiracy to deprive them of their civil rights. Id. at 11-12.
V.

Standard of Review
The Court has jurisdiction over Plaintiff's federal claims pursuant to 28 U.S.C. § 1331,

and the civil rights claims pursuant to 28 U.S.C. § 1343(a)(3). The Court also has supplemental
jurisdiction over Plaintiff’s state-law claims pursuant to 28 U.S.C. § 1367(a). Venue is proper in
this district pursuant to 28 U.S.C. § 1391(b)(2).
When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox,
Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as
true all well-pleaded allegations in the complaint and view them in the light most favorable to the
plaintiff. Angelastro v. Prudential–Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985).
A valid complaint requires only “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Iqbal clarified that the
Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) “expounded the
pleading standard for ‘all civil actions.’” 556 U.S. at 684.
The Court in Iqbal explained that, although a court must accept as true all of the factual
allegations contained in a complaint, that requirement does not apply to legal conclusions;
therefore, pleadings must include factual allegations to support the legal claims asserted. Id. at
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678, 684. “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555); see also
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (“We caution that without
some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she
provide not only ‘fair notice,’ but also the ‘grounds’ on which the claim rests.” (citing Twombly,
550 U .S. at 556 n. 3)). Accordingly, to survive a motion to dismiss, a plaintiff must plead
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
VI.

Analysis
A.

There Are No Claims Against the City of Chester

Plaintiffs have not disputed the fact that their complaint does not assert any claims
against the City of Chester. The complaint is also devoid of any factual allegations that a policy
or custom of the City of Chester affected the actions of any of the individual defendants.
Therefore, the City of Chester will be dismissed as a party, with prejudice.
B.

Count Two Alleging Monell Liability Against the County of Delaware Will Be
Dismissed, Without Prejudice

Count Two of Plaintiffs’ complaint attempts to allege that the County of Delaware
violated section 1983 through a policy or custom of failing to properly train, supervise, and
discipline Palmer and his unidentified partner. Compl. ¶¶ 28-31. As with all of Plaintiffs’ claims,
this claim “requires a showing, rather than a blanket assertion, of entitlement to relief that rises
above the speculative level.” McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009)
(internal quotation marks omitted). To evaluate whether Plaintiffs have met this standard the
Third Circuit has instructed that

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First, the court must take note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth. Finally, where there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citations, alteration, footnote,
and internal quotation marks omitted). The court must “also disregard ‘naked assertions devoid
of further factual enhancement’ and ‘threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.’” Id. at 131 (quoting Iqbal, 556 U.S. at 678). 3
A municipality may not be held liable under section 1983 based solely on the conduct of
its employees. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 (1978). Instead,
“[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,
564 F.3d at 657 (alteration in original) (internal quotation marks omitted). “To satisfy the
pleading standard, [a plaintiff] must identify a custom or policy, and specify what exactly that
custom or policy was.” Id. at 658. If a plaintiff alleges that he or she was harmed by a custom, as
opposed to a formally enacted policy, “[c]ustom requires proof of knowledge and acquiescence
by the decisionmaker.” Id. Failure “to allege conduct by a municipal decisionmaker” is “fatal” to
a Monell claim. Id.; Santiago, 629 F.3d at 135 & n.11 (noting that a plaintiff has “the obligation
to plead in some fashion that [the decision maker] had final policy making authority, as that is a
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In their argument that Count Two should not be dismissed and in their statements of the
standard of review, Plaintiffs unhelpfully cite only to cases that pre-date the Supreme Court’s
decisions in Twombly and Iqbal. Pls.’ Opp. to Del. Cnty. Defs. at 7-11 (ECF 13); Pls’ Opp. to
Chester Defs. at 7 (ECF 14). This inadequate and incorrect briefing must not be repeated in this
court. Pursuant to Fed. R. Civ. P. Rule 11(b)(2) & (c)(3), Plaintiffs’ counsel will be ordered to
show cause within 14 days why sanctions in the form of attorney’s fees and costs should not be
awarded to Defendants due to Plaintiffs’ failure to cite to any current, post-Twombly
precedential case law.
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key element of a Monell claim”). In addition, a plaintiff must establish causation by properly
pleading that the municipality’s policy or custom “was the source of [his or] her injury.”
Santiago, 629 F.3d at 135.
If the policy at issue “concerns a failure to train or supervise municipal employees,
liability under section 1983 requires a showing that the failure amounts to deliberate indifference
to the rights of persons with whom those employees will come into contact.” Thomas v.
Cumberland Cnty., 749 F.3d 217, 222 (3d Cir.2014) (internal quotation marks omitted).
“Ordinarily, ‘[a] pattern of similar constitutional violations by untrained employees’ is necessary
‘to demonstrate deliberate indifference for purposes of failure to train,’” although liability may
be based on a single incident if the need for training is sufficiently obvious. Id. at 223 (alteration
in original) (quoting Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011)).
Plaintiffs’ only allegations regarding the County of Delaware are set out in paragraphs 29
to 31 of their complaint:
29. Defendant, County of Delaware and its police department, as a matter of
policy and practice failed to discipline, train, supervise or otherwise sanction
police officers M. Palmer and Unknown CID Officer who have violated the
rights of citizens, including the plaintiffs’, thus encouraging defendants
Officer Palmer and Unknown CID officer in this case to engage in the
unlawful and actionable conduct described above.
30. Defendants, County of Delaware, and its police department as a further matter
of policy and practice failed to train properly its police officers Palmer and
Unknown CID Officer, with respect to the constitutional, statutory and
departmental limits of their authority.
31. The defendant, County of Delaware and its Police Department were on actual
notice of a need to train, supervise, discipline or terminate defendant officers
Palmer and other unknown CID officer, prior to the incident in question, as
other similar incidents have occurred in the past involving defendant Officer
Palmer and Unknown CID officer.
Compl. ¶¶ 29-31.
These allegations are insufficient to state a claim under Monell because they consist of
nothing more than legal conclusions, “naked assertions devoid of factual enhancement,” and
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“threadbare recitals of the elements of a cause of action.” Santiago, 629 F.3d at 130-31 (internal
quotation marks omitted). Plaintiffs have not specified “what exactly that custom or policy was”
that allegedly caused their injuries nor have they identified the relevant municipal decision
maker responsible for that policy. McTernan, 564 F.3d at 658. To the extent Plaintiffs rely on a
failure to train theory, they have not alleged facts that show a “pattern of similar constitutional
violations by untrained employees.” 4 Thomas, 749 F.3d at 223.
The Third Circuit recently considered a complaint with similarly conclusory allegations
and affirmed dismissal of a Monell claim because the claim merely “stated the elements of the
cause of action,” which did not meet the pleading requirements of Rule 8 of the Federal Rules of
Civil Procedure. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014). 5 In Wood, as here,

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In their brief, Plaintiffs argue that they have alleged “prior civil lawsuits, internal affairs
complaints, and complaints from the general community.” Pls.’ Opp. to Del. Cnty. Defs. at 9
(ECF 13). However, their complaint does not contain any such factual allegations. The closest it
comes is the allegation that “other similar incidents have occurred in the past involving
defendant Officer Palmer and Unknown CID officer.” Compl. ¶ 31. This allegation is patently
speculative with respect to the unknown officer. It is also a conclusory statement of one of the
elements of the cause of action that is devoid of factual enhancements that would move it past
“the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557
(internal quotation marks and alteration omitted). Furthermore, it does not establish that any such
prior incidents were sufficiently similar to put the County on notice that specific training was
needed to avoid the constitutional violations at issue here. See Connick v. Thompson, 131 S.Ct.
1350, 1360 (2011) (noting that prior dissimilar Brady violations did not put a county prosecutor
on notice of a need for training with respect to the particular Brady violation at issue).
5

For example, the allegations in Wood stated that the defendant, a public school, had “developed
and maintained policies or customs exhibiting deliberate indifference to the Constitutional rights
of [its] employees, which caused the violation of [plaintiff’s] constitutional rights,” “had a policy
and/or custom . . . to inadequately screen during the hiring process and to inadequately train,
retrain and/or supervise [its] employees . . . thereby failing to adequately discourage
Constitutional violations on the part of [its] employees,” and “[a]s a result of the above described
policies and customs and/or failure to adopt necessary and appropriate policies, some [of its]
employees ... believed that their actions would not be properly monitored by supervisory
officials, and the Constitutional violations of the rights of individuals such as . . . [the plaintiff]
would not be investigated or sanctioned, but, rather, would be tolerated.” 568 F. App’x at 103-04
(internal quotation marks omitted).
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the complaint was also deficient in alleging a claim for failure to train or supervise because it
“did not allege facts showing any particular or specific policy or custom, or how it allowed the
claimed constitutional violation to occur, identifying the policymaker or decisionmaker, or
showing prior notice through a pattern of similar constitutional violations.” Id. at 105.
For all of these reasons, the allegations in Count Two are inadequate to state a claim
against the County of Delaware. However, because Plaintiffs may be able to add sufficient facts
to state a claim, Count Two will be dismissed without prejudice and with leave to amend.
C.

Count Five Alleging Conspiracy to Violate Plaintiffs’ Civil Rights Will Be
Dismissed, Without Prejudice

Count Five alleges that, in violation of section 1983, Defendants Palmer, Worrilow, Fell,
Bail, and other unknown officers “conspired to obstruct the investigation and ultimate
prosecution” of Palmer’s and his partner’s actions, and “deliberately ignored or falsified the
numerous witness statements made on the day of the incident.” Compl. ¶¶ 34-35. This Count will
be dismissed because Plaintiffs have not identified any federally protected right that was
infringed by the alleged conspiracy.
As the Court has previously articulated in another case, “[t]o state a conspiracy claim
under section 1983, a plaintiff must show that ‘persons acting under color of state law conspired
to deprive him of a federally protected right.’” Cooper v. City of Chester, 11-cv-5381, 2011 WL
6046934, at *7 (E.D. Pa. Dec. 5, 2011) (quoting Perano v. Twp. of Tilden, 423 Fed App’x 234,
239 (3d Cir. 2011)). However, the Third Circuit has repeatedly concluded that “there is no
constitutional right to the investigation or prosecution of another.” Sanders v. Downs, 420 F.
App’x 175, 180 (3d Cir. 2011); Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180,
184 (3d Cir. 2009) (“[I]ndividual citizens do not have a constitutional right to the prosecution of
alleged criminals.”); Graw v. Fantasky, 68 F. App’x 378, 383 (3d Cir. 2003) (“[A]n allegation of
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a failure to investigate, without another recognizable constitutional right, is not sufficient to
sustain a section 1983 claim.” (internal quotation marks omitted)). Similarly, “the mere existence
of an allegedly incorrect police report fails to implicate constitutional rights.” 6 Jarrett v. Twp. Of
Bensalem, 312 F. App’x 505, 507 (3d Cir. 2009). Plaintiffs have not pointed to any case law to
the contrary and, in fact, did not dispute Defendants’ arguments on this issue at all. Thus, Count
Five will be dismissed for failure to identify any deprivation of a federally protected right.
Defendants also argue that Plaintiffs have failed to meet their burden to allege a section
1983 conspiracy. Chester Defs.’ Br. at 9-11; Del. Cnty. Defs.’ Br. at 12-13. In particular,
Defendants argue that Plaintiffs have failed to meet the pleading requirements discussed in
various cases including this Court’s decision in Cooper, 2011 WL 6046934 at *7. Having already
concluded that Count Five must be dismissed, the Court need not reach that argument at this
time.
Lastly, Plaintiffs’ Complaint and their Opposition to the Chester Defendants’ motion both
suggest that Count Five is meant to allege a claim under Pennsylvania state law. Compl. ¶¶ 3335; Pls.’ Opp. to Chester Defs. at 8 (ECF 14). However, Plaintiffs have not identified any state
law that establishes a right that was infringed by the alleged conspiracy or any state law that
establishes a remedy for the infringement of that state-protected right. Section 1983 provides a
remedy only for violations of federally protected rights, not for violations of state law rights.
Cooper, 2011 WL 6046934 at *7. To the extent it was intended to assert a claim under state law,
Count Five does not.
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“[A] bad police investigation is actionable under section 1983 only if it results in a deprivation
of some right.” Martin v. City of Reading, No. 12-cv-03665, 2013 WL 5429358, at *8-9 (E.D.
Pa. Sept. 30, 2013) (holding that the plaintiff stated a claim because an allegedly false police
report caused the plaintiff’s arrest and prosecution). Here, Plaintiffs have not alleged that they
suffered any harm, such as arrest or prosecution, as a result of the alleged conspiracy to falsify
police reports and witness statements.
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For all of these reasons, Count Five fails to state a claim. In fact, Plaintiffs’ complaint
and memoranda of law have not yet identified any legal authority to support their contention that
Count Five states a viable claim under federal or state law. Nevertheless, it is possible that
Plaintiffs can state a claim by identifying a federally protected right that was infringed by the
alleged conspiracy or by identifying a viable legal theory based on state law. Count Five will
therefore be dismissed without prejudice and with leave to amend. However, if Plaintiffs file an
amended complaint that includes the claims in Count Five, Plaintiffs must plead that these claims
“are warranted by existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law.” Fed. R. Civ. P. 11(b)(2).
VII.

Conclusion
For the foregoing reasons, Counts Two and Five of Plaintiff’s Complaint (ECF 1) will be

dismissed without prejudice and with leave to amend. The City of Chester will be dismissed as a
party. An appropriate order follows.

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