ROBINSON v. CITY OF PHILADELPHIA, PHILADELPHIA POLICE DEPARTMENT et al

Filing 10

MEMORANDUM AND/OR OPINION, SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 10/7/15. 10/14/15 ENTERED AND COPIES MAILED TO UNREP AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FREDDIE ROBINSON,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

CIVIL ACTION

NO. 15-1574

MEMORANDUM
BUCKWALTER, S. J.

October 13, 2015

Currently pending before the Court is the Motion to Dismiss by Defendant City of
Philadelphia (“Defendant”) pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, the Motion to Dismiss is granted.
I.

FACTUAL BACKGROUND
Plaintiff Freddie Robinson (“Plaintiff”) is an adult male who lives in Philadelphia,

Pennsylvania. (Am. Compl. ¶ 1.) The Philadelphia Police Department is a municipal entity with
a business address at 1515 Arch Street, 15th Floor, Philadelphia, Pennsylvania 19102. (Id. ¶ 2.)
Defendant Detective Piers 1 is an adult male and a detective with the Philadelphia Police
1

Defendant maintains that “[n]o one named ‘Piers’ works for the Philadelphia Police
Department” and that “the City [of Philadelphia] has not accepted service for this purported
individual.” (Def.’s Mem. Supp. Mot. Dismiss 1 (Defendant did not number the pages of its
Memorandum of Law, so the Court has supplied the numbering).)
Plaintiff asserts that he “was not able to obtain the full name and get assurance that he
knew the correct last name of Detective Piers, as Detective Piers’ violent and unconstitutional
conduct put Plaintiff Robinson in fear of future attacks and retaliation on not just Plaintiff
Robinson, but his family. Because of this, Plaintiff has been unable to identify the exact
Detective Division where Defendant Detective Piers is located.” (Compl. ¶ 4.) Plaintiff alleges,
upon information and belief, that the Defendant Detective’s last name is Piers “or a name quite
similar in form and/or pronunciation” and that Detective Piers is an African-American male,

Department with a business address of 750 Race Street, Philadelphia, Pennsylvania 19106. (Id. ¶
3.)
On or about March 29, 2013, Plaintiff’s nephew Derek Robinson was shot and killed in
Philadelphia. (Id. ¶¶ 9–10.) On or around April 1, 2013, at approximately 3:00 p.m., Plaintiff,
along with his nephew, Leon Robinson, and Leon’s wife, went to the Philadelphia Police
Department Headquarters to pick up the keys to Derek Robinson’s car. (Id. ¶ 11.) They went
into the building, walked up to the desk, presented identification, and explained that they were
there to pick up the car keys. (Id. ¶ 12.) The officer at the desk told them they would need to
speak with Detective Piers. (Id. ¶ 13.) Detective Piers arrived and shouted out, “Who’s the
uncle?” to which Plaintiff responded, “Me.” (Id. ¶ 14.) Detective Piers responded, “OK. I’ll see
you, y’all can leave,” which Plaintiff interpreted as meaning he should stay and that Leon and
Leon’s wife should leave. (Id. ¶ 15.) As Detective Piers was “scuttling” Leon Robinson and his
wife out the door, Plaintiff “could not hear Detective Piers’ violent language which was, ‘You
don’t want what I’m gonna give you if you come back to this building.’” (Id. ¶ 16.)
Detective Piers then approached Plaintiff and said repeatedly “Get on the f[***]ing
elevator before I throw you in here!” (Id. ¶ 17.) After Plaintiff said “I don’t think you want to
do that,” Detective Piers grabbed Plaintiff and threw him in the elevator. (Id. ¶¶ 20–21.)
“Knowing that it would not be wise to try to resist a belligerent, violent and crazy Police
Detective, Plaintiff Robinson voluntarily spread his legs and put his arms against the elevator
wall.” (Id. ¶ 22.) Then, “Detective Piers violently and cheaply rocketed his elbow into the side
of Plaintiff’s head,” which was in the “Red Zone,” “an area of the body that prohibits such
strikes to be used on civilians.” (Id. ¶¶ 23–24.) Then, in the presence of two other detectives,
heavy set, between approximately five feet eleven inches and six feet tall, “and has, or at least
had at the time of the incident in question, a large and unique bubble on the back of his head.”
(Id. ¶ 5.)
2

Detective Piers threw Plaintiff in an interrogation room with two people who were being
detained. (Id. ¶ 25.) “Detective Piers then put on his gloves and violently patted down Plaintiff
Robinson, getting in cheap shots in the process.” (Id. ¶ 26.) Plaintiff believes that the pat down
was used as a means to hurt him, because none of his possessions were taken. (Id. ¶ 28.)
Plaintiff, who was not charged with any crime, was detained in the interrogation room for
approximately sixteen hours. (Id. ¶ 27.) He was not allowed to go to the bathroom despite his
pleas to go, and was not provided any food or drink. (Id.) Plaintiff called his daughter on his
cell phone to try and get help. (Id. ¶ 29.) The phone call “must have tipped off Detective Piers
that the outside world may be trying to thwart his unconstitutional detainment of Plaintiff
Robinson, thus, Detective Piers came in the interrogation room and took Plaintiff Robinson’s
phone.” (Id. ¶ 30.) By using a threatening tone, Detective Piers obtained the passcode for
Plaintiff’s phone, “from which, Detective Piers then invaded Plaintiff Robinson’s privacy rights
by searching his phone with no legitimate purpose.” (Id. ¶ 31.)
At 7:30 a.m. the next day, Plaintiff was released and he signed papers to get his phone
back. (Id. ¶ 32.) An officer informed him that he had been detained because he hit Detective
Piers, but no charges were ever brought against Plaintiff. (Id. ¶ 33.) When Plaintiff was
released, Detective Piers was gone because “his shift ended earlier and he had no regard or
compassion to release the grieving uncle, Plaintiff Robinson, who was unconstitutionally beaten,
seized and imprisoned, among other things.” (Id. ¶ 34.) Plaintiff asserts that such treatment
“wasn’t even an afterthought for Detective Piers.” (Id. ¶ 35.)
As a result of Detective Piers’s assault, Plaintiff suffered a closed head injury, back pain,
neck pain, and headaches, which required treatment at a hospital about a week after the incident

3

because the pain did not subside. (Id. ¶ 36.) Plaintiff continues to suffer mental and physical
effects from the incident. (Id. ¶ 37.)
In early 2015, the Collaborative Reform Initiative (“CRI”) released a document entitled
“An Assessment of Deadly Force in the Philadelphia Police Department,” “which was awarded
by the Department of Justice in 2013 and also extensively reviewed and made recommendations
to the Philadelphia Police Department (“PPD”) and the use of force outside shootings.” (Id. ¶
38.) The assessors considered hundreds of departmental policies, manuals, training lesson plans,
and strategic plans, and conducted site visits, data collection reviews, and interviews. (Id. ¶ 39.)
Plaintiff asserts that “[t]he evidence used for the Collaborative Reform Initiative (“CRI”) was
well in existence and known at the time of Mr. Robinson’s violations of constitutional rights (and
included all data in the PPD Use of Force database from 2007-2013).” (Id. ¶ 40.) The CRI made
forty-eight findings and ninety-one recommendations and “uncovered policy, training, and
operational deficiencies[.]” (Id. ¶ 41.) The CRI made numerous findings regarding the general
use of force policy, the need for more frequent training, revisions to the use of force policies, and
the inclusion of a “duty to report” aspect in the “duty to intervene” clause that requires officers to
stop another officer from using force when it is no longer required. (Id. ¶¶ 42–45, 47.) The CRI
also recommended that the “duty to intervene” clause should be revised to account for officers
who witness the inappropriate initiation of force, rather than just those who witness a failure to
stop using force when it is no longer needed. (Id. ¶¶ 45–46.) In addition, the CRI made
recommendations regarding academy instruction, additional training, and additional programs.
(Id. ¶¶ 49–56.)
Plaintiff initiated the present litigation by filing a Complaint on March 27, 2015, which
Defendants moved to dismiss on June 17, 2015. Plaintiff filed his Amended Complaint on June

4

29, 2015. Defendants moved to dismiss the Amended Complaint on July 8, 2015. Plaintiff filed
a Response in Opposition to the Motion to Dismiss on July 22, 2015. The Motion to Dismiss is
now ripe for judicial consideration.
II.

STANDARD OF REVIEW
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has

not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), the United States Supreme Court recognized that “a plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Following
these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), subsequently
defined a two-pronged approach to a court’s review of a motion to dismiss. “First, the tenet that
a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. at 678. Thus, although “Rule 8 marks a notable and
generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not
unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at
678–79.
Second, the Supreme Court emphasized that “only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint
states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific
task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the

5

court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 232–34 (3d Cir. 2008) (holding that: (1) factual allegations of
complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the
proscribed conduct; and (3) the complaint’s “‘factual allegations must be enough to raise a right
to relief above the speculative level.’” (quoting Twombly, 550 U.S. at 555)).
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of
review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008
WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a
short and plain statement of the claim showing that the pleader is entitled to relief and need not
contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all
factual allegations in the complaint as true and view them in the light most favorable to the
plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the
court must “determine whether, under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
III.

DISCUSSION
Defendant City of Philadelphia moves to dismiss Plaintiff’s Amended Complaint in its

entirety for failure to state a claim under Rule 12(b)(6). Having considered the Amended
Complaint and the parties’ briefs, the Court finds that Plaintiff’s claims against the City of
Philadelphia fail as a matter of law and grants Defendant’s Motion to Dismiss.
A. Count One: Violation of Civil Rights
In Count One of the Amended Complaint, Plaintiff incorporates numerous and varied
allegations against both Defendant Piers and Defendant City of Philadelphia. Plaintiff did not
divide these allegations into separate claims, but it appears to the Court that logically—and

6

legally—they fall into four broad categories as follows: (1) claims regarding Plaintiff’s treatment
at the Philadelphia Police Department Headquarters, for which Plaintiff believes both Defendant
Piers and the City of Philadelphia are liable; 2 (2) a municipal liability claim against the City of
Philadelphia based on a pattern, practice, or custom which led to the deprivation of Plaintiff’s
constitutional rights; (3) a municipal liability claim against the City of Philadelphia based on
deliberate indifference and/or a failure to train, supervise, investigate, and discipline; and (4) a
municipal liability claim against the City of Philadelphia based on the existence of a custom on
excessive force which led to the deprivation of Plaintiff’s constitutional rights. Plaintiff asserts
that all allegations in Count One are against both Defendants, but it appears to the Court that
only the first category of claims could be construed as against both Defendants, while the
remaining three categories are more appropriately stated against a municipal defendant only—in
this case, the City of Philadelphia. The Court will therefore discuss the allegations in Count One
using a framework that comports with those categories of claims. 3
1. Allegations Against All Defendants
Plaintiff alleges that Defendants’ conduct “was intended to harm Plaintiff, Freddie
Robinson, and/or was recklessly and deliberately indifferent to the safety, bodily integrity, wellbeing, privacy and liberty of Plaintiff, and was committed in conscious disregard of the
substantial and/or unjustifiable risk of causing harm to members of the public and to Plaintiff,
and was so egregious as to shock the conscience.” (Am. Compl. ¶ 58.) Plaintiff further alleges
2

The Court notes that, as the instant Motion to Dismiss is only on behalf of Defendant
City of Philadelphia, Count One is being discussed only with respect to that defendant. The
Court makes no ruling as to the claims against Defendant Piers.
3

The claims in Count One are being dismissed without prejudice. Should Plaintiff
choose to file a Second Amended Complaint including the dismissed claims, the Court urges
Plaintiff to consider a reformulation of Count One that would make clear which claims are
against which Defendant and also whether and how the factual allegations support Plaintiff’s
various theories of municipal liability.
7

that Defendants’ conduct violated Plaintiff’s constitutional rights to (1) be free from
unreasonable searches and seizures; (2) be free from arrest without probable cause; (3) be free
from stops absent a reasonable suspicion that he has committed a crime; (4) bodily integrity; (5)
care in custody; (6) be free from excessive force; (7) be free from cruel and unusual punishment;
(8) privacy; and (9) substantive and procedural due process. (Id. ¶ 59.) In addition, Plaintiff
alleges that “Defendants’ conduct of engaging in a cover up of their illegal detainment and
illegal use of force [. . .] violated Plaintiff’s constitutional right of access to courts” pursuant to
“the privileges and immunities clause of Article 4 and the Fourteenth Amendment of the
Constitution, the right to petition for redress of grievances found in the First Amendment, and
the Due Process Clause.” (Id. ¶ 60.) Plaintiff also asserts that he suffered intentionally and
negligently inflicted emotional distress as a result of Defendants’ conduct. 4 (Id. ¶ 68.)
Specifically, Plaintiff alleges that his rights were violated because Defendants:
a) physically assaulted, mercilessly beat and detained Plaintiff
when it was clear to any reasonable detective that there was no
probable cause or reasonable suspicion for detainment and
seizure;
b) assaulted Plaintiff and took him into custody when there was
absolutely no trustworthy or fair probability that he had
committed a crime;
c) conspired in callous disregard for the safety of the Plaintiff to
cover up the assault by fabricating a story that Plaintiff
assaulted Detective Piers and having no documentation of Mr.
Robinson’s presence and/or detainment, and thereby deprived
Plaintiff of his constitutional rights, including access to the
courts;
4

As discussed below, Plaintiff may not assert municipal liability claims against the City
of Philadelphia on a respondeat superior basis, in this instance for Defendant Piers’s allegedly
intentional and negligent infliction of emotional distress. In addition, for the reasons discussed
below in connection with Count Two of the Amended Complaint, Plaintiff may not assert a
negligent infliction of emotional distress claim against the City of Philadelphia because such a
claim is not within one of the eight enumerated exceptions in Pennsylvania’s Political
Subdivision Tort Claims Act. Accordingly, to the extent Plaintiff attempts to state claims of
intentional and negligent infliction of emotional distress against Defendant City of Philadelphia
in Count One, such claims are dismissed.
8

d) violated Plaintiffs [sic] substantive due process and other
constitutional rights;
e) intentionally veil[ed] and fail[ed] to report the incident
altogether completely and/or in its entirety;
f) intentionally and recklessly expos[ed] Plaintiff to a state
created danger;
g) intentionally and recklessly fail[ed] to memorialize and/or to
provide truthful and accurate information on incident reports in
accordance with the State laws and administrative regulations;
h) stopp[ed] and/or assault[ed] Plaintiff without a reasonable
suspicion that he ha[d] or was about to commit a crime;
i) exhibit[ed] a willful disregard for the safety of Plaintiff by use
of excessive force;
j) us[ed] potentially deadly force of [sic] Plaintiff in the nature of
a blow to his head;
k) participated in the violent beating of an innocent bystander;
l) conspired to conceal the happening of the assault from Plaintiff
and from the proper authorities;
m) used excessive and unnecessary force to apprehend Plaintiff;
n) failed to complete and/or provide truthful and accurate
information on use of force forms or an arrest report;
o) failed to notify Internal Affairs of the assault and unlawful
detention;
p) destroyed and/or failed to preserve evidence; and
q) lied about how Plaintiff sustained his injuries.
(Id. ¶ 61.) Plaintiff asserts that “at no time did [he] commit any offense against the laws of the
Commonwealth of Pennsylvania for which an arrest may lawfully be made,” and that he did not
“strike, attempt or intend to strike any police officers,” nor did he “harass, threaten, resist in any
way, commit any illegal act or engage in any conduct which could justify the actions by
Defendants.” (Id. ¶ 69.)
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(internal citations omitted); see also Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (“To
establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right

9

protected by the Constitution or laws of the United States that was committed by a person acting
under the color of state law.”) (internal citations omitted).
The United States Supreme Court has “recognized that a municipality may not be held
liable under § 1983 solely because it employs a tortfeasor.” Board of Cnty. Comm’rs of Bryan
Cnty., Okla. v. Brown, 520 U.S. 397, 403 (1997). Municipalities or other local government
entities are not liable under § 1983 through respondeat superior. Id. (“We have consistently
refused to hold municipalities liable under a theory of respondeat superior.”). Rather, the Court
“required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a
municipal “policy” or “custom” that caused the plaintiff’s injury.” Id. (citing Monell v. New
York City Dep’t of Soc. Servs., 436 U.S. 658, 689 (1978); Pembaur v. Cincinnati, 475 U.S. 469,
480–81 (1986); City of Canton v. Harris, 489 U.S. 378, 389 (1989)). “[I]t is not enough for a §
1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff
must also demonstrate that, through its deliberate conduct, the municipality was the ‘moving
force’ behind the injury alleged. That is, a plaintiff must show that the municipal action was
taken with the requisite degree of culpability and must demonstrate a direct causal link between
the municipal action and the deprivation of federal rights.” Brown, 520 U.S. at 404 (emphasis in
original).
The first category of Plaintiff’s allegations in Count One appears to be based entirely on
the conduct of Defendant Piers, as well as that of unnamed police officers who were on duty at
the time of the events described in Plaintiff’s Amended Complaint. As indicated above,
Defendant City of Philadelphia cannot be held liable for Philadelphia Police Department
employees’ conduct on a respondeat superior theory of liability. Moreover, Plaintiff has not
identified a policy or custom in connection with the first category of allegations described in

10

Paragraphs Fifty-Nine, Sixty, Sixty-one, or Sixty-Eight of the Amended Complaint. Nor has
Plaintiff alleged facts which could show that anyone other than Defendant Piers, and possibly
other officers present at the time, was the moving force behind his injuries, or which establish a
causal link between the actions of Defendant Piers and the Philadelphia Police Department
constituting deliberate conduct on the part of the municipality. To permit that claim to go
forward as pled would allow Plaintiff to attempt to impermissibly assign liability to the City of
Philadelphia based solely on its employment of Defendant Piers and other officers discussed in
the above-quoted paragraphs from the Amended Complaint. For those reasons, the claims in
Paragraphs Fifty-Nine, Sixty, Sixty-One, and Sixty-Eight of Count One are dismissed as against
Defendant City of Philadelphia. 5

5

Defendant City of Philadelphia argues that several of Plaintiff’s federal law claims in
Paragraphs Fifty-Nine and Sixty fail for additional reasons. Specifically, Defendant City of
Philadelphia argues that Plaintiff did not plead facts to support his claims that he was denied his
right to: (1) procedural or substantive due process; (2) petition for redress of grievances; (3)
privacy; and (4) access to courts provided by the privileges and immunities clauses. (Def.’s
Mem. Supp. Mot. Dismiss 7 (citing Am. Compl. ¶¶ 59–60).) Defendant also argues that
Plaintiff’s “bodily integrity” claim should be dismissed, as “Defendant is aware of no case law
establishing that Plaintiff has some sort of right to ‘bodily integrity’ that is independent of his
Fourth Amendment right to be free from excessive force.” (Id. at 8 (citing Am. Compl. ¶ 59).)
Defendant next argues that Plaintiff cannot bring an Eighth Amendment claim because he was
not incarcerated as a convicted felon. (Id. (citing Worthington v. Cnty. of Northampton, No. 136292, 2015 WL 1312644, at *7 n.10 (E.D. Pa. Mar. 24, 2015)).) Finally, Defendant argues that,
“to the extent that Plaintiff is alleging a denial of medical care claim by stating that the
Defendants violated his ‘rights to care in custody’ . . . the complaint pleads no facts to support
such a claim.” (Id. (citing Am. Compl. ¶ 59).)
Plaintiff’s only response appears in a footnote to the argument section regarding his
separate failure to train claim, and states that “Plaintiff’s Medical Care claim is proper because
[he] was injured, required hospitalization, and had to eat and use the restroom—all of which was
denied while he was detained.” (Pl.’s Resp. Opp’n Mot. Dismiss 11 n.8.)
For the reasons described above, the allegations against Defendant City of Philadelphia in
Paragraphs Fifty-Nine and Sixty of the Amended Complaint are subject to dismissal because
they fail to state a municipal liability claim in accordance with United States Supreme Court and
Third Circuit precedent. Accordingly, the Court does not address Defendant’s arguments
regarding those allegations. If, however, Plaintiff chooses to file a second amended complaint
and re-plead the claims against Defendant City of Philadelphia contained in Paragraphs Fifty11

2. Municipal Liability Claims Against the City of Philadelphia
As stated above, Plaintiff appears to allege three categories of municipal liability claims
against Defendant City of Philadelphia: (1) a pattern, practice, and custom regarding various
aspects of policing, which led to the deprivation of Plaintiff’s constitutional rights; (2) deliberate
indifference/failure to train, supervise, investigate, and discipline, which led to the deprivation of
Plaintiff’s constitutional rights; and (3) the existence of a custom of excessive force which led to
the deprivation of Plaintiff’s constitutional rights.
Defendant City of Philadelphia argues that Plaintiff’s claims against the City should be
dismissed because he has sued “without alleging facts which plausibly suggest that a municipal
policy or custom caused him to suffer an injury” and because he “fails to allege facts that link a
municipal policymaker to a particular policy or custom.” (Def.’s Mem. Supp. Mot. Dismiss 1.)
Defendant argues further that, “while the amended complaint includes three paragraphs of
conclusory allegations regarding Commissioner Ramsey,” “Plaintiff completely fails to include
any factual allegations in his amended complaint regarding the conduct of Commissioner
Ramsey or any other municipal policymaker.” (Id. at 1–2.) Plaintiff asserts that he has
“demonstrated” Monell claims, “because Defendant’s policies, customs, and failure to train
caused [his] injuries” and because “knowledge by Commissioner Ramsey was sufficiently pled.”
(Pl.’s Mem. Supp. Mot. Dismiss 5.) 6 The Court will separately address each of the three
categories of municipal liability claims.

Nine and Sixty, he may wish to take Defendant’s arguments into account when deciding whether
to include any or all of those claims.
6

Plaintiff did not number the pages of his Response in Opposition, so the Court has
supplied the numbering.
12

i. Allegations of a Pattern, Practice, and Custom
Plaintiff alleges that the Philadelphia Police Department “permitted, encouraged,
tolerated, ratified and was deliberately indifferent to a pattern, practice and custom of:”
a) Unjustified, unreasonable and illegal use of process by police
officer(s);
b) Abuse of police powers, including excessive use of force,
retaliating against individuals for exercising their constitutional
rights; harassment and improper searches;
c) Misrepresenting facts in order to establish probable cause
where none would[]otherwise exist;
d) Arresting and detaining citizens without probable cause;
e) Psychologically or emotionally unfit persons serving as police
officers; and
f) Failure of police officers to prevent, deter, report or take action
against the unlawful conduct of police officers under such
circumstances as presented herein.
(Id. ¶ 70.)
Defendant City of Philadelphia argues that these claims must be dismissed “because
Plaintiff’s Monell allegations are either conclusory or fail to plausibly suggest that a municipal
policy or custom somehow caused Plaintiff’s injury.” (Def.’s Mem. Supp. Mot. Dismiss 2–3.)
In addition, Defendant asserts that the brief and conclusory allegations in the Amended
Complaint regarding Commissioner Ramsey do not include factual allegations regarding the
conduct of a specific municipal policymaker and do not link any conduct by Commissioner
Ramsey to a policy, which requires dismissal of Plaintiff’s claims. (Def.’s Mem. Supp. Mot.
Dismiss 5–6.) Plaintiff does not actually address the allegations in Paragraph Seventy in his
Response in Opposition, focusing instead on his separate excessive force and failure to train
claims.
“[Third Circuit] jurisprudence is clear that when a suit against a municipality is based on
§ 1983, the municipality can only be liable when the alleged constitutional transgression

13

implements or executes a policy, regulation, or decision officially adopted by the governing body
or informally adopted by custom.” McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009)
(internal citations and quotations omitted). “A government policy or custom can be established
in two ways. Policy is made when a ‘decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or edict.”
Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) superseded in part by statute,
Civil Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1072 (1991) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 481 (1986)). “A course of conduct is considered to be a ‘custom’
when, though not authorized by law, ‘such practices of state officials [are] so permanent and well
settled’ as to virtually constitute law.” Id. (quoting Monell, 436 U.S. at 690) (additional citations
omitted). “Custom requires proof of knowledge and acquiescence by the decisionmaker.”
McTernan, 564 F.3d at 658 (citing Watson v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007);
Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
Plaintiff describes the constitutional violations set forth in Paragraph Seventy as abuse of
police power, including the use of excessive force, failure to establish probable cause based on
fact, illegal arrests, employment of psychologically or emotionally unfit officers, and a
department-wide failure by officers who did not prevent, deter, or report incidents such as the
one Plaintiff alleges. Plaintiff does not allege that there is an official policy authorizing the types
of behavior described in Paragraph Seventy of the Amended Complaint. The alleged “pattern,
practice, or custom” that Plaintiff identifies in the Amended Complaint and in his Response in
Opposition is concerned with the use of force and officers’ responsibilities relating to the use of

14

force and intervening to stop the use of excessive force by others. 7 Plaintiff does not, however,
identify any practices related to his allegations that are permanent or so well-settled so as to
constitute law such that Defendant Piers’s actions could be considered to have been pursuant to a
“custom.”
In addition, in Paragraph Seventy, Plaintiff does not adequately plead Commissioner
Ramsey’s knowledge or acquiescence regarding a custom, 8 nor has Plaintiff identified any actual
conduct by decisionmakers in the Philadelphia Police Department that could be considered
“permitting, encouraging, or ratifying,” a policy, pattern, or custom. The absence of factual
allegations regarding the official adoption of a policy or knowledge and acquiescence of a
custom by a decisionmaker in the Philadelphia Police Department also requires dismissal of the
municipal liability claim set forth in Paragraph Seventy of the Amended Complaint.
Equally problematic for the municipal liability claim asserted in Paragraph Seventy is
Plaintiff’s failure to allege the required elements of a deliberate indifference claim. Plaintiff
states only that the Philadelphia Police Department “was deliberately indifferent to a pattern,
practice and custom” without providing any further factual details. 9 (See Am. Compl. ¶ 70.)
Such a conclusory allegation is wholly insufficient to state a claim of deliberate indifference.
7

Plaintiff briefly mentions excessive force in Paragraph Seventy, but as it is duplicative
of Plaintiff’s other allegations regarding excessive force, the Court does not address it in this
section.
8

As discussed below, Plaintiff included allegations regarding Commissioner Ramsey in
connection with his claim that there was a custom regarding the use of excessive force that led to
Plaintiff’s injuries. Plaintiff did not, however, allege knowledge by Commissioner Ramsey in
connection with the violations described in Paragraph Seventy of the Amended Complaint.
9

The requirements of a deliberate indifference claim are discussed more fully below, but
at a minimum, such a claim requires a non-conclusory allegation that “‘a municipal actor
disregarded a known or obvious consequence of his action.’” Connick v. Thompson, 563 U.S.
51, 131 S. Ct. 1350, 1360 (2011) (quoting Brown, 520 U.S. at 410). Plaintiff does not include
such allegations in the portion of the Amended Complaint at issue here.
15

For all of the above reasons, the allegations in Paragraph Seventy of the Amended
Complaint are insufficient to state a Monell claim. Thus, Plaintiff’s municipal liability claim
against the City of Philadelphia based on a “pattern, practice and custom” must be dismissed.
ii. Deliberate Indifference to Training, Supervision, Investigation, or
Discipline
Plaintiff alleges that the Philadelphia Police Department was “deliberately indifferent to
the need to:”
a) Test its officers for emotional and psychological fitness to
serve as police officers;
b) Monitor officers whom it knew or should have known were
suffering from emotional and/or psychological problems that
impair their ability to function as police officers;
c) Train its police officers in the appropriate exercise of police
powers;
d) Train its police officers in the appropriate use of force;
e) Facilitated, encouraged, tolerated, ratified, and/or was
deliberately indifferent to officers using their status as police
officers to have persons falsely arrested, retaliated against,
assaulted and/or to achieve ends not reasonably related to their
police duties; and
f) [] properly train, supervise, and discipline officers with regard
to such police practices.
(Id. ¶ 71.)
Plaintiff further alleges that the Philadelphia Police Department “was deliberately
indifferent to the need for more or different training, supervision, investigation or discipline in
the areas of:”
a)
b)
c)
d)

Use of information in obtaining probable cause;
Exercise of police powers;
Police officers with emotional or psychological problems;
Police officers [sic] use of their status as police officers to have
persons falsely arrested, assaulted, and unlawfully searched or
to achieve ends not reasonably related to their police duties;
and
e) False arrest, the planting and the destruction and fabrication of
evidence.
16

(Id. ¶ 72.)
Plaintiff also alleges that the Philadelphia Police Department “failed to properly sanction
or discipline officers, who are aware of and conceal and/or aid and abet violations of
constitutional rights of citizens by other police officers, thereby causing and encouraging police
officers, including the Defendants [sic] police officers in this case, to violate the rights of citizens
such as Plaintiff.” (Id. ¶ 73.) Plaintiff further alleges that the circumstances he describes in his
Amended Complaint “have caused police officers, including Defendant Piers and other officers
present in this case, to believe that they can violate the rights of citizens, with impunity,
including the use of fraud and falsehood, all with the foreseeable result that officers are more
likely to violate the constitutional rights of citizens.” (Id. ¶ 74.) Finally, Plaintiff reasserts a
previous allegation that all Defendants deprived Plaintiff of his rights “to be secure in one’s
person and property, to be free from unlawful searches, from false arrest, retaliation and to due
process of law.” (Id. ¶ 75.)
As stated above, “it is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also demonstrate that, through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged. That is, a
plaintiff must show that the municipal action was taken with the requisite degree of culpability
and must demonstrate a direct causal link between the municipal action and the deprivation of
federal rights.” Brown, 520 U.S. at 404 (emphasis in original).
“In limited circumstances, a local government’s decision not to train certain employees
about their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy for purposes of § 1983.” Connick v. Thompson, 563 U.S. 51, 131 S. Ct.
1350, 1359 (2011). “To satisfy the statute, a municipality’s failure to train its employees in a
17

relevant respect must amount to ‘deliberate indifference to the rights of persons with whom the
[untrained employees] come into contact.’” Id. (quoting Canton, 489 U.S. 378, 388, (1989).
“Only then ‘can such a shortcoming be properly thought of as a city ‘policy or custom’ that is
actionable under § 1983.’” Id. at 1359–60 (quoting Canton, 489 U.S. at 389).
“‘[D]eliberate indifference’ is a stringent standard of fault, requiring proof that a
municipal actor disregarded a known or obvious consequence of his action.’” Id. at 1360
(quoting Brown, 520 U.S. at 410). “[D]eliberate indifference must be a deliberate choice, rather
than negligence or bureaucratic inaction.” S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729
F.3d 248, 263 (3d Cir. 2013) (internal citations and quotations omitted). It also requires a
showing of “actual knowledge; allegations that one would have or ‘should have known’ will not
satisfy the knowledge prong of deliberate indifference.” Id. at 266 (citing Bistrian v. Levi, 696
F.3d 352, 367 (3d Cir. 2012) (holding that, under the deliberate indifference standard, “[i]t is not
sufficient that the official should have known of the risk”)). “To satisfy the deliberate
indifference standard, [plaintiffs] must present evidence that shows both: (1) knowledge that a
federally protected right is substantially likely to be violated . . . , and (2) failure to act despite
that knowledge.” Id. at 265 (internal citation omitted). “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 choose to retain that program.” Connick, 131 S. Ct. at 1360
(citing Brown, 520 U.S. at 407).
“A pattern of similar constitutional violations by untrained employees is ‘ordinarily
necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Id. (citing
Brown, 520 U.S. at 409). “Policymakers ‘continued adherence to an approach that they know or

18

should know has failed to prevent tortious conduct by employees may establish the conscious
disregard for the consequences of their action—the ‘deliberate indifference’—necessary to
trigger municipal liability.’” Id. (quoting Brown, 520 U.S. at 407). “Without notice that a
course of training is deficient in a particular respect, decisionmakers can hardly be said to have
deliberately chosen a training program that will cause violations of constitutional rights.” Id.
Defendant City of Philadelphia argues that Plaintiff’s failure to train claim must be
dismissed because he “does not identify prior instances of police misconduct caused by allegedly
inadequate training.” (Def.’s Mem. Supp. Mot. Dismiss 6.) Plaintiff responds by arguing that
his allegations are “supported by the gross misconduct of Detective Piers and his
contemporaries’ failure to intervene” and that “the pleadings show several ways in which
Defendant’s failure to train brought about Plaintiff’s constitutional violations.” (Pl.’s Mem.
Supp. Mot. Dismiss 11 (citing Am. Compl. ¶¶ 43, 49–55).) In a footnote, Plaintiff also cites the
quoted passages from the CRI report which appear in the Amended Complaint, and concludes by
stating that “[t]hus, the complaint is not stating a single mere assertion, but plausibly pleads a
failure to train claim.” (See id. at 11 n.6 (citing Am. Compl. ¶¶ 43, 49–55).)
The conclusory allegations in Paragraphs Seventy-One and Seventy-Two of the Amended
Complaint neither identify how officer training in those areas was inadequate, nor demonstrate a
causal link between any alleged failures and the actual deprivation of rights that Plaintiff
describes. Moreover, Plaintiff alleges no facts to show that (1) city officials were aware of a
failure to train officers which was resulting in the violation of constitutional rights of citizens
who voluntarily came to police headquarters, in a manner similar to that which Plaintiff
described; (2) despite any such awareness, decisionmakers in the Philadelphia Police Department
nonetheless chose to retain inadequate training programs; or (3) there was a pattern of incidents

19

involving citizens voluntarily entering police headquarters and experiencing treatment like that
which Plaintiff describes.
Furthermore, Plaintiff incorrectly relies on the CRI report, the release of which post-dates
the events described in the Amended Complaint by approximately two years, in order to show
actual knowledge or actual or constructive notice of training inadequacies on the part of the
Philadelphia Police Department. In addition, Plaintiff is mistaken that the pleadings—
specifically, his quotations from the CRI report—show several ways in which the failure to train
brought about the alleged violations of Plaintiff’s constitutional rights. The CRI identified areas
in which the third-party reviewers believed additional guidance on deadly force and use of force
was needed, and made recommendations for policy language on the basis of that belief. The
portions of the CRI report that Plaintiff cites, however, do not “show” the ways in which any
absence of such guidance caused the violation of Plaintiff’s rights under the specific
circumstances alleged. Ultimately, Plaintiff has not set forth sufficient facts to support his claims
that the Philadelphia Police Department failed to train its officers in this area and that
Philadelphia Police Department officials were deliberately indifferent to inadequacies in training,
supervision, investigation, or discipline. Accordingly, Plaintiff’s failure to train claim against
Defendant City of Philadelphia must be dismissed.
iii. Allegations of a Municipal Custom of Unnecessary Force
Plaintiff next claims that the Philadelphia Police Department “has a long-standing custom
of employing unnecessary force upon the constituents it serves and of failing to train and/or
discipline officers as to professionalism and the proportionate use of force.” (Am. Compl. ¶ 77.)
Plaintiff asserts that the custom “has been approved by Defendant, Police Department’s, final
decision-makers, including, Commissioner Charles Ramsey” and that the “policy deficiencies

20

implemented by the Defendant, Police Department’s, final decision-makers, including,
Commissioner Ramsey, constitutes a proclamation of policy by Commissioner Ramsey and other
final decision-makers, acting with deliberate indifference to the rights of Mr. Robinson.” (Id. ¶¶
78–79.) According to Plaintiff, there is a “direct causal link” “between the aforementioned
policy(s), custom(s) and failure to train by Defendant, Police Department, and Mr. Robinson’s
constitutional violations” and that the “aforementioned policymakers/decision-makers, including
Commissioner Ramsey, were aware of prior police misconduct similar to that which was
inflicted on Mr. Robinson, but failed to take proper precautions, which in turn, led to Mr.
Robinson’s injury.” (Id. ¶¶ 80–81.) Plaintiff further asserts that what happened to him “is a
common situation that police officers face, and are all situations in which violations of citizens’
constitutional rights are likely to occur” and that, prior to the events described in the Amended
Complaint, many citizens had complained to the City of Philadelphia and the Philadelphia Police
Department “about the conduct of police officers in these situations.” (Id. ¶¶ 82–83.) According
to Plaintiff, the Philadelphia Police Department’s “decision to ignore complaints about their
practices[] amounts to deliberate indifference.” (Id. ¶ 84.) Plaintiff also asserts that, among
other injuries, he suffered intentionally and negligently inflicted emotional distress. 10 (Id. ¶ 93.)
Defendant asserts that Plaintiff’s brief and conclusory allegations regarding
Commissioner Ramsey do not include factual allegations about his conduct and do not link him
to a particular policy, which requires dismissal of Plaintiff’s claim. (Def.’s Mem. Supp. Mot.
10

As discussed above, Plaintiff may not assert municipal liability claims against the City
of Philadelphia on a respondeat superior basis, in this instance for Defendant Piers’s allegedly
intentional and negligent infliction of emotional distress. In addition, for the reasons discussed
below, Plaintiff may not assert a negligent infliction of emotional distress claim against the City
of Philadelphia because such a claim is not within one of the eight enumerated exceptions in
Pennsylvania’s Political Subdivision Tort Claims Act. Accordingly, to the extent Plaintiff
attempts to state claims of intentional and negligent infliction of emotional distress against
Defendant City of Philadelphia as part of a municipal liability claim based on custom, such
claims are dismissed.
21

Dismiss 5–6.) Plaintiff responds by arguing that “[t]he pleadings plausibly demonstrate that
Commissioner Ramsey was aware that the Philadelphia Police Department’s (“PPD”) policy on
excessive force created the likelihood that officers like Detective Piers would violate citizens’
constitutional rights in the same manner that [Plaintiff’s] rights were violated.” (Pl.’s Resp.
Opp’n Mot. Dismiss 5.)
As previously explained, “it is not enough for a § 1983 plaintiff merely to identify
conduct properly attributable to the municipality. The plaintiff must also demonstrate that,
through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.
That is, a plaintiff must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Brown, 520 U.S. at 404 (emphasis in original). “[A] 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 (internal citations and quotations omitted). “A course of
conduct is considered to be a ‘custom’ when, though not authorized by law, ‘such practices of
state officials [are] so permanent and well settled’ as to virtually constitute law.” Andrews, 895
F.2d at 1480 (quoting Monell, 436 U.S. at 690) (additional citations omitted). “Custom requires
proof of knowledge and acquiescence by the decisionmaker.” McTernan, 564 F.3d at 658 (citing
Watson v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007); Beck, 89 F.3d at 971.
Relying on recommendations for policy additions that were made in the CRI report,
Plaintiff argues that the “policy deficiencies” which were “implemented” by Commissioner
Ramsey “constitute[] a proclamation of policy” that led police officers like Detective Piers to
“believe that they can violate the rights of citizens, with impunity.” (Pl.’s Resp. Opp’n Mot.

22

Dismiss 7 (citing Am. Compl. ¶¶ 57, 74, 75).) The recommendations in the CRI report do not,
however, equate to a finding that Commissioner Ramsey proclaimed a policy that would lead
officers to believe that they could behave in the manner in which Detective Piers is alleged to
have done. As Plaintiff himself points out, PPD Directive 22 states that “[o]nly the minimal
amount of force necessary to protect life or effect arrest should be used by an officer. Excessive
force will not be tolerated . . . .” (Pl.’s Resp. Opp’n Mot. Dismiss 6.) Directive 22’s plain
language undermines Plaintiff’s argument that Commissioner Ramsey was “aware” that the
excessive force policy “created the likelihood that officers like Detective Piers would violate
citizens’ constitutional rights in the same manner that [Plaintiff’s] rights were violated.” (See
Pl.’s Resp. Opp’n Mot. Dismiss 5.) A policy which states that only the minimal amount of force
needed should be used, and that excessive force will not be tolerated, does not create a
“likelihood” that a police officer would physically assault and detain a citizen inside of police
headquarters. Plaintiff’s allegations simply do not show that a policy which states that excessive
force will not be tolerated was the “moving force” behind his alleged constitutional injuries.
Plaintiff also asserts that Commissioner Ramsey “approved” a “long-standing custom” of
using excessive force, but does not include any factual support for his conclusory allegation.
Nor does Plaintiff provide any factual support for his allegation that Commissioner Ramsey and
other decision-makers were aware of prior incidents similar to what allegedly happened to
Plaintiff, or that many citizens had complained about the “common situation” in which Plaintiff
found himself. (See Pl.’s Resp. Opp’n Mot. Dismiss 8.) In the Amended Complaint, Plaintiff
asserts that there is a direct causal link between PPD policy and custom and the violations of
Plaintiff’s constitutional rights, but in no way elaborates on that allegation. Plaintiff argues that
“[t]he Complaint alleges as clear as day ‘policymakers/decision-makers, including

23

Commissioner Ramsey, were aware of prior police misconduct similar to that which was
inflicted on Mr. Robinson, but failed to take proper precautions, which in turn, led to Mr.
Robinson’s injury.” (Id. (quoting Am. Compl. ¶ 81).) Plaintiff, however, does not support his
allegation with facts sufficient to survive a motion to dismiss. Plaintiff next argues that “the
pleadings directly state actual knowledge” and that “the inference of actual knowledge is also
satisfied” “because Commissioner Ramsey was the head policy maker and was aware of prior
complaints made.” (Id. at 10.) Merely including the words “actual knowledge” in a complaint in
the absence of any factual support is not enough to state a legally sufficient Monell claim.
Similarly, the fact that Commissioner Ramsey is the top official in the Philadelphia Police
Department does not equate to factual support for Plaintiff’s assertion that prior complaints about
situations similar to that described by Plaintiff had been made and that Commissioner Ramsey
was aware of them.
Plaintiff also argues that the Philadelphia Police Department’s “decision to ignore
complaints about their practices, amounts to deliberate indifference which caused [Plaintiff’s]
injuries.” (Id.) As discussed above, Plaintiff’s Amended Complaint does not include any factual
examples to support his allegations that there were complaints about situations similar to
Plaintiff’s, that they were ignored, or that “city policymakers are on actual or constructive notice
that a particular omission in their training program cause[d] city employees to violate citizens’
constitutional rights.” Connick, 131 S. Ct. at 1360 (citing Brown, 520 U.S. at 407). Plaintiff’s
failure to include such factual allegations renders the deliberate indifference aspect of this claim
insufficient and subject to dismissal.

24

In sum, Plaintiff’s conclusory assertions are insufficient to state a municipal liability
claim against Defendant City of Philadelphia on the basis of a “custom” of unnecessary force.
Accordingly, that claim must be dismissed.
B. Count Two: Negligence
In Count Two, Plaintiff asserts a claim of negligence against the Philadelphia Police
Department, alleging that Defendant Piers “engaged in willful misconduct in that he desired to
bring about the result that followed or at least were [sic] aware that it was substantially certain to
follow, so that such desire can be implied,” and that such willful misconduct “serves to waive
any immunity or limitation on damages that the municipal defendants would have otherwise
enjoyed” pursuant to the Political Subdivision Tort Claims Act. (Am. Compl. ¶¶ 95–96.)
Plaintiff claims that examples of the Philadelphia Police Department’s negligence, carelessness,
and recklessness include the following:
a) failing to properly train its detectives on the appropriate use of
force;
b) failure to properly train its detectives on the need to establish
probable cause prior to arrest and reasonable suspicion for
detainment;
c) failure to properly supervise the detective that assaulted and
detained Plaintiff;
d) failure to draft, implement and enforce policies that would
serve to eliminate the use of excessive force, unlawful seizures
and false imprisonment;
e) failure to draft, implement and enforce policies that would
serve to prevent the falsification of reports by its detectives;
f) failure to comply with police standards;
g) failure to adequately train its workforce; and
h) is otherwise negligent in law and in fact.
(Id. ¶ 97.) Plaintiff also asserts that, among other negative effects, he has suffered “intentionally
and negligently inflicted emotional distress” as a result of Defendants’ actions and/or failure to
act. (Id. ¶ 104.)

25

Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. C.S. § 8541, et seq., states
that “[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any
damages on account of any injury to a person or property caused by any act of the local agency
or an employee thereof or any other person.” 42 Pa. Cons. Stat. § 8541. “[T]he City of
Philadelphia is a ‘local agency’ and therefore covered by the Act’s immunity provisions.” Panas
v. City of Phila., 871 F. Supp. 2d 370, 376 (E.D. Pa. 2012) (citations omitted). “Section 8542
provides that an injured party may recover in tort from a local governmental agency if: (1)
damages would be otherwise recoverable under common law or statute; (2) the injury was caused
by the negligent act of the local agency or an employee acting within the scope of his official
duties; and (3) the negligent act of the local agency falls within one of eight enumerated
categories.” Wells v. Harrisburg Area Sch. Dist., 884 A.2d 946, 948 (Pa. Commw. Ct. 2005)
(citing Cureton v. Phila. Sch. Dist., 798 A.2d 279, 283 (Pa. Commw. Ct. 2002) (citing 42 Pa.
Cons. Stat. § 8542), appeal denied, 820 A.2d 704 (Pa. 2003)). The eight enumerated categories
are: 1) operation of motor vehicles; 2) care, custody or control of personal property; 3) care,
custody or control of real property; 4) trees, traffic controls and street lighting; 5) utility service
facilities; 6) streets; 7) sidewalks; and 8) care, custody or control of animals. See 42 Pa. Cons.
Stat. § 8542. “Since ‘negligent acts’ do ‘not include acts or conduct which constitutes a crime,
actual fraud, actual malice or willful misconduct,’ . . . the Tort Claims Act shields local
government entities from liability for the intentional torts of their employees.” Panas, 871 F.
Supp. 2d at 375–76 (citing Thomas v. Cianfrani, No. 01–3096, 2009 WL 1704471, at *4–5 (E.D.
Pa. June 17, 2009); Heckensweiler v. McLaughlin, 517 F. Supp. 2d 707, 719 (E.D. Pa. 2007);
Holmes v. City of Phila., No. 05–2909, 2005 WL 1875524, at *3 (E.D. Pa. Aug. 4, 2005)).

26

According to Defendant, Plaintiff’s claim must be dismissed because the exceptions “do
not even arguably apply” to Plaintiff’s negligence claim, “which is based on ‘Detective Piers’s
alleged actions in beating and imprisoning Plaintiff.” (Def.’s Mem. Supp. Mot. Dismiss 7.)
Plaintiff’s only argument in response appears in a footnote to the section of his brief dedicated to
a separate § 1983 failure to train claim. (See Pl.’s Mem. Supp. Mot. Dismiss 11 n.7.) Plaintiff
states that he is “aware” of case law stating that the Tort Claims Act bars liability for “willful
misconduct,” but respectfully urges the Court to “amend” that interpretation. (Id.) Specifically,
Plaintiff argues that “Part (a)(2) of section 8542 should be meant [sic] that only negligent actions
by agents involve the listed categories for applicability, and municipalities should be liable for
all intentional torts by one of its agents that occurred as a result of the municipality’s
negligence.” (Id.) Contrary to Plaintiff’s argument, however, the Court may not “amend”
Pennsylvania courts’ interpretation of a Pennsylvania statute, which, as written, only waives
immunity for specific categories of negligent acts. Because Plaintiff’s negligence claim against
Defendant City of Philadelphia does not fall within one of the eight enumerated exceptions of the
Tort Claims Act, the claim fails as a matter of law. 11 Accordingly, Defendant City of
Philadelphia’s Motion to Dismiss Count Two is granted with prejudice.
C. Count Three: Assault, Battery, and False Imprisonment
In Count Three, Plaintiff asserts that the actions of Defendant Piers, as described above,
constituted the torts of assault and battery, false imprisonment, and intentional and negligent
infliction of emotional distress. (Am. Compl. ¶¶ 108–09, 116.) Defendant City of Philadelphia
states that “[n]o one named ‘Piers’ works for the Philadelphia Police Department, and the City
has not accepted service for this purported individual.” (Def.’s Mem. Supp. Mot. Dismiss 1 n.1.)
11

Plaintiff’s claims of intentional and negligent infliction of emotional distress are also
dismissed for the same reasons described above in connection with the rest of the claims in
Count Two.
27

Whoever “Detective Piers” is, he has not moved this Court to dismiss the individual claims
against him, nor has Defendant City of Philadelphia. Accordingly, the Court will not address
Plaintiff’s claims in Count Three.
D. Leave to Amend
The United States Court of Appeals for the Third Circuit has made clear that if a
complaint is subject to Rule 12(b)(6) dismissal, a district court must ordinarily permit a curative
amendment unless such an amendment would be inequitable or futile. Alston v. Parker, 363
F.3d 229, 235 (3d Cir. 2004). Dismissal without leave to amend is justified only on grounds of
bad faith, undue delay, prejudice, and futility. Id. at 236. This opportunity to amend must be
offered, even if the plaintiff does not specifically make such a request. Id. at 235.
Although Plaintiff does not expressly request leave to file a second amended complaint,
the Court finds that such leave is warranted in this case with respect to the claims in Count One.
Defendant has not set forth any contentions of bad faith, undue delay, or prejudice, nor can the
Court find that any of these grounds for denying leave exist. Defendant does argue futility,
asserting that “Plaintiff’s repeated pleading failures demonstrate the futility of allowing him to
further amend his complaint, and the Court should thus dismiss the claims with prejudice.”
(Def.’s Mem. Supp. Mot. Dismiss 8 (citing Maxberry v. Sallie Mae Educ. Loans, 532 F. App’x
73, 75 (3d Cir. 2013)).) While it would be futile for Plaintiff to attempt to amend the complaint
with respect to Count Two, the Court finds that it is not necessarily futile for Plaintiff to attempt
to re-structure the claims in Count One into legally cognizable municipal liability claims that are
supported by sufficient factual allegations. Accordingly, the Court will grant Plaintiff twenty
days in which to file a second amended complaint properly setting forth a factual basis for the

28

municipal liability claims against Defendant. Plaintiff’s failure or inability to do so will, upon
proper motion by Defendant, result in dismissal of any deficient claims with prejudice.
E. Plaintiff’s Request for Oral Argument
Plaintiff requested, via a letter to the Court dated July 30, 2015, that the Court hear oral
argument regarding Defendant City of Philadelphia’s Motion to Dismiss. Plaintiff’s request is
denied.
IV.

CONCLUSION
In light of the foregoing, Defendant’s Motion to Dismiss is granted and the claims against

Defendant City of Philadelphia contained within Counts One and Two are dismissed.
Specifically, the claims in Count One are dismissed without prejudice and the claims in Count
Two are dismissed with prejudice. The Court makes no ruling as to the claims against Defendant
Piers contained in Counts One and Three. Plaintiff’s request for oral argument is denied.
An appropriate Order follows.

29