KINGSMILL v. SZEWCZAK et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE STEWART DALZELL ON 7/30/15. 7/31/15 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
POLICE OFFICER CHRISTOPHER
CITY OF PHILADELPHIA
July 30, 2015
We consider here defendants’ motion to dismiss plaintiff Eric Kingsmill’s amended
complaint. Kingsmill brings this action pursuant to 42 U.S.C. § 1983 against the defendants,
Police Officer Christopher Szewczak and the City of Philadelphia. We have jurisdiction under 28
U.S.C. § 1331.
As will be seen by our analysis below, Kingsmill has pled sufficient facts, accepted as
true, to demonstrate that Officer Szewczak violated his Fourteenth Amendment substantive Due
Process rights on a state-created danger theory of liability. Officer Szewczak is not entitled to
qualified immunity because a reasonable officer at the time of the incident would have known
that the alleged conduct was unlawful. But Kingsmill’s Monell claim against the City of
Philadelphia fails as a matter of law. We will therefore deny defendants’ motion to dismiss
Count I of the amended complaint against Officer Szewczak, but grant their motion to dismiss
Count II against the City of Philadelphia.1
Oddly, on page 11 of their Memorandum in support of their motion, defendants at this juncture
only seek to "dismiss Plaintiff's federal-law claims without prejudice," apparently implicitly
inviting a motion for leave to file a second amended complaint conformably with Fed. R. Civ. P.
Standard of Review
A defendant moving to dismiss under Fed R. Civ. P. 12(b)(6) bears the burden of proving
that the plaintiff has failed to state a claim for relief. See Fed. R. Civ. P. 12(b)(6); see also, e.g.,
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). To survive a Rule 12(b)(6) motion,
the complaint must contain sufficient factual matter, accepted as true, to state a facially plausible
claim to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads 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.
As the Supreme Court stresses, “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…do not suffice.” Id. Courts “are not bound to accept as true a
legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555.
In the wake of Twombly and Iqbal, our Court of Appeals laid out a two-part test to apply
when considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6):
First, the factual and legal elements of a claim should be separated.
The District Court must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions. Second, a
District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a ‘plausible
claim for relief.’
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations omitted). In
deciding a motion to dismiss, we may consider “the allegations contained in the complaint,
exhibits attached to the complaint and matters of public record,” and any “undisputedly authentic
document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims
are based on the document.” Pension Benefits Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993).
We recite the facts as they appear in the amended complaint.
At about 3:00 P.M. on February 9, 2014, plaintiff Eric Kingsmill was walking on the
sidewalk near the intersection of Norris and Thompson Streets in Philadelphia, Pennsylvania,
when he was approached by Joseph Brown. Am. Compl. at ¶¶ 7-8. Brown -- not a party in this
case -- demanded money, and, when Kingsmill refused, Brown pushed him against a parked car
and withdrew a length of pipe from his jacket sleeve. Id. at ¶¶ 8-9. Kingsmill, defending himself,
punched Brown in the torso. Id. at ¶ 10.
Defendant Police Officer Christopher Szewczak watched this altercation from his patrol
car, less than twenty feet away. Id. at ¶ 11. As Kingsmill defended himself, Officer Szewczak
“commanded” him to “get over here.” Id. at ¶ 12. Kingsmill immediately complied, disengaged
from Brown, and walked to within three feet of Officer Szewczak. Id. at ¶ 13. Officer Szewczak
stated, “I seen you hit that dude,” to which Kingsmill replied, “Did you see him hit me.” Id. at ¶
15. Kingsmill stood facing Officer Szewczak with his back to Brown. Id. at ¶¶ 13, 16. Officer
Szewczak, looking in Kingsmill’s direction, “watched as [Brown] approached with a steel pipe
and/or extendable metal baton in his raised right arm.” Id. at ¶ 16. Officer Szewczak “watched as
[Brown] struck [Kingsmill] in the face” with the pipe. Id. at ¶ 17. Officer Szewczak “had the
opportunity to warn” Kingsmill, but neither warned him nor intervened to stop the attack. Id. at
¶¶ 18-19. Officer Szewczak never ordered Brown to stop or halt. Id. at ¶ 20.
After Brown attacked Kingsmill, Officer Szewczak told Kingsmill, “I am not calling an
ambulance. I am not taking this report.” Id. at ¶ 23. Officer Szewczak ordered Brown to “Get
your shit and get out of here.” Id. Officer Szewczak did not call an ambulance to assist
Kingsmill, did not arrest Brown, and did not make a police report concerning the attack. Id. at ¶¶
That day, and on each of the next four days, Kingsmill’s mother, Victoria Kingsmill,
reported the attack to the 26th District Headquarters of the Philadelphia Police Department. Id. at
¶ 27. Each time, the police refused to make a written report. Id. On February 14, 2014, at the
direction of the 26th District’s Captain, Police Officer Maritza Mendez made a report of the
attack. Id. at ¶ 28. On March 5, 2014 Brown was arrested and charged in connection with the
February 9, 2014 attack. Id. at ¶ 29. On November 14, 2014, after a trial before the Hon. Abbe
Fletman in the Philadelphia Court of Common Pleas, Brown was convicted of aggravated
assault, simple assault, recklessly endangering another person, and possession of an instrument
of a crime. Id. at ¶ 30.
Kingsmill alleges that Officer Szewczak’s actions created a danger whereby he would
suffer serious injury, substantially increased the risk that he would suffer serious injury, placed
him in danger of direct and foreseeable harm, and created an opportunity for harm that would not
have existed otherwise. Id. at ¶¶ 31-34. Kingsmill alleges that Officer Szewczak’s order to "get
over here" created a “special relationship” between them. Id. at ¶ 36. He also claims that the City
of Philadelphia “developed and maintained [policies] or customs exhibiting deliberate
indifference to the constitutional rights of persons in the City of Philadelphia which caused the
violation of” his rights. Id. at ¶ 42. Kingsmill alleges a policy or custom of inadequate
supervision and discipline of Officer Szewczak “whose prior constitutional violations and acts of
misconduct were tolerated by the City of Philadelphia.” Id. at ¶ 44.
A cause of action under Section 1983 requires only two allegations: a person has
deprived the plaintiff of a federal right, and that person acted under color of state or territorial
law. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Shuman ex rel. Shertzer v. Penn
Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005).
Moving to dismiss Count I of the amended complaint, defendants argue that Kingsmill
fails to state a substantive Due Process claim under the Fourteenth Amendment because he does
not adequately plead either that he enjoyed a “special relationship” with the defendants or the
elements of a state-created danger claim. MTD at 6, 8-9. Defendants also claim that Officer
Szewczak is entitled to qualified immunity. Id. at 10. Defendants, moving to dismiss Count II of
the amended complaint, contend that Kingsmill’s allegations regarding a municipal policy or
custom are insufficient to state a viable Monell claim. Id. at 11.
We consider these arguments in turn.
Count I: Kingsmill v. Officer Szewczak
Section 1983 provides remedies for deprivation of rights established in the Constitution
or federal laws, but does not by its own terms create substantive rights. Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). The Due Process Clause of the Fourteenth Amendment provides
that a state shall not “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. The substantive component of Due Process “protects individual
liberty against certain government actions regardless of the fairness of the procedures used to
implement them.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal
quotations omitted). But substantive due process does not generally confer upon one a right to
governmental aid “even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.” DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196-97 (1989) (concluding that generally
“a State’s failure to protect an individual against private violence simply does not constitute a
violation of the Due Process Clause.”). But if the state affirmatively acts to restrain an
individual’s freedom to act on his own behalf “through incarceration, institutionalization, or
other similar restraint of personal liberty,” then that deprivation of liberty triggers the Due
Process Clause’s protections. Id. at 200. It is the state-imposed limit on an individual’s freedom
to act on his own behalf -- not its knowledge of the individual’s predicament or its expression of
intent to help -- that creates the affirmative duty to protect. Id. Because the state is not
constitutionally required to provide protection, it cannot be liable for failing to render it, even
when such service would have prevented the private injury. Brown v. Commonwealth of Pa.,
Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 477 (3d Cir. 2003).
But there are two exceptions to this general rule of non-liability: the special relationship
and state-created danger. Id. at 478. First, the state has an affirmative duty to protect when there
is a “special relationship” with the injured party because the state “by the affirmative exercise of
its power so restrains an individual’s liberty that it renders him unable to care for himself, and at
the same time fails to provide for his basic human needs.” Id. Second, the state “may be liable
for constitutionally protected rights, even in the absence of a special relationship with an
individual, when the state, through its affirmative conduct, creates or enhances a danger for the
individual.” Id. This state-created danger exception applies “when the state, through some
affirmative conduct, places the individual in a position of danger.” Id.
We consider whether Kingsmill states a plausible claim for relief under either exception.
Officer Szewczak argues that Kingsmill cannot prevail on a special relationship theory of
liability because Officer Szewczak did not restrain him from protecting himself and “calling
[Kingsmill] over to a patrol car is a far cry from subjecting” him to incarceration,
institutionalization, or another similar restraint of liberty. MTD at 7. Kingsmill argues that
Officer Szewczak “seized” him by calling him over to the patrol car, limiting his ability to
protect himself thereby creating a duty to protect him. Pl. Resp. at unnumbered p. 11.
An affirmative duty to protect may arise out of certain special relationships between the
state and particular individuals. Morrow v. Balaski, 719 F.3d 160, 167 (3d Cir. 2013). When a
state holds an individual in custody against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for one's safety and general well-being. Id.
(citing Estelle v. Gamble, 429 U.S. 97, 103 (1976) (state required to provide adequate medical
care to prisoners), and Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (state required to ensure
the reasonable safety of involuntarily committed mental patients)). This duty to protect does not
arise from the state’s knowledge of the individual’s predicament or its expression of intent to
help, but rather from the limits the state imposes on an individual’s ability to act on his own
behalf. Id. at 168.
The hallmark of a special relationship is custody: “full time severe and continuous state
restriction of liberty.” D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d
1364, 1371 (3d Cir. 1992) (characterizing those so restrained as unable to provide for
themselves, to seek outside help to meet their basic needs, or to leave). Such custody is both
involuntary and comprehensive. Torisky v. Schweiker, 446 F.3d 438, 445 (3d Cir. 2006)
(explaining these concepts in the context of foster care placement).
Because Kingsmill was not placed in such an involuntary and comprehensive form of
custody, he had no special relationship with Officer Szewczak that gave rise to an affirmative
duty to protect. Custody in the special relationship context means incarceration,
institutionalization, or other similar restraint of personal liberty. Morrow, 719 F.3d at 167.
Kingsmill alleges that when Officer Szewczak summoned him to his patrol car in the middle of
his altercation with Brown, he “respond[ed] immediately to [Officer] Szewczak’s assertion of
police authority.” Am. Compl. at ¶ 13. Kingsmill “walked to within three feet of Officer
Szewczak” and stood facing him throughout the incident. Id. at ¶¶ 13-17. Kingsmill complied
with Officer Szewczak’s order, thereby belying the involuntary nature of his alleged custody.
More salient, however, is that Kingsmill’s alleged custody was not of the comprehensive EstelleYoungberg type. He was merely standing on the street outside Officer Szewczak’s patrol car as
the result of the officer's hail -- not incarcerated, involuntarily committed, or similarly precluded
from leaving or fending for himself.
Thus, Kingsmill cannot prevail on his Section 1983 claim against Officer Szewczak on
the theory that they enjoyed a special relationship that gave rise to an affirmative duty on Officer
Szewczak’s part to protect him. We next consider whether Kingsmill might nonetheless prevail
on a state-created danger theory of liability.
Officer Szewczak contends that Kingsmill cannot prevail on a state-created danger theory
of liability because he has failed to adequately plead that Officer Szewczak carried out an
affirmative act or that his conduct shocked the conscience. MTD at 8-10. Kingsmill counters that
Officer Szewczak’s command to approach the patrol car was both an assertion of police authority
and an affirmative act. Pl. Resp. at unnumbered p. 10. Kingsmill also argues that Officer
Szewczak’s conduct shocks the conscience because the officer had time to make an unhurried
judgment, appreciated the danger Kingsmill was in, and “watched in silence as the pipe-wielding
Brown walked up behind” him. Id. at unnumbered p. 6.
A plaintiff may use the state-created danger exception to establish a constitutional
violation of his rights in suits brought under Section 1983 when the state acts to create or
enhance a danger that deprives the plaintiff of his Fourteenth Amendment right to substantive
Due Process. Morrow, 719 F.3d at 177. The state-created danger theory operates outside of the
strictly custodial context required to prevail under the special relationship exception. See, e.g.,
D.R. by L.R., 972 F.2d at 1373 (distinguishing the state-created danger theory from the special
relationship theory based on whether the individual is in Estelle-Youngberg-type custody).
To prevail on this theory, a plaintiff must show: (1) the harm ultimately caused was
foreseeable and fairly direct, (2) a state actor acted with a degree of culpability that shocks the
conscience, (3) a relationship between the state and the plaintiff existed such that the plaintiff
was either a foreseeable victim of the defendant’s acts or a member of a discrete class of persons
subjected to the potential harm brought about by the state’s actions, as opposed to a member of
the general public, and (4) a state actor affirmatively used his authority in a way that created a
danger to the individual or that rendered the individual more vulnerable to danger than had the
state not acted at all. Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006); see also,
e.g., Kneipp, 95 F.3d at 1208 (articulating these four elements as our Court of Appeals initially
As the parties confine their arguments to the second and fourth elements of the test set
forth in Bright, we first consider those two factors.
Whether Officer Szewczak Acted With
A Degree Of Culpability That Shocks The Conscience
With respect to the second factor, the level of culpability required to shock the
conscience depends upon the extent to which a state actor is required to act under pressure.
Sanford v. Stiles, 456 F.3d 298, 301 (3d Cir. 2006) (explaining why the shocks the conscience
standard has such “an elusive quality to it.”). The level of culpability required to shock the
conscience increases as the duration the state actor has to deliberate decreases. Id. at 310. There
are three possible standards to determine whether a state actor’s behavior shocks the conscience:
(1) deliberate indifference, (2) gross negligence or arbitrariness, or (3) intent to cause harm. Id. at
306. When there is sufficient time to deliberate and make an unhurried judgment, deliberate
indifference is sufficient. Id. at 310. In a hyper-pressurized environment, such as a high-speed
chase, an intent to cause harm is usually required. Id. In the middle -- when there is some
urgency precluding an unhurried judgment, but the state actor does not have to make a splitsecond decision -- we ask whether the state actor “consciously disregarded a great risk of harm.”
Id. (clarifying that actual knowledge of the risk may not be necessary if the risk is obvious).
Officer Szewczak argues that Kingsmill “merely alleges that Officer Szewczak should
have warned [Kingsmill] of an impending attack,” and this failure to warn “is not conscience
shocking in light of cases like Sanford.” MTD at 10. Kingsmill asserts that “the facts, as alleged,
suggest that when Officer Szewczak used his authority to immobilize only Eric Kingsmill,
leaving Joseph Brown unchecked, the unhurried officer appreciated the danger to which he was
exposing” him, demonstrating “malevolence more than deliberate indifference to [his] wellbeing.” Pl. Resp. at unnumbered p. 6 (emphasis in original). While Kingsmill contends that he
should not be required to demonstrate that Officer Szewczak had an actual intent to cause harm,
he alleges he can meet that burden because Officer Szewczak’s order to Brown to flee the scene
and his refusal to render or summon assistance are probative of such intent. Id. at unnumbered p.
Kingsmill’s well-pled facts, accepted as true, suffice to demonstrate that Officer
Szewczak acted with a degree of culpability that shocks the conscience. Kingsmill pleads that
Officer Szewczak commanded him, while he was defending himself from Brown, to leave the
altercation and approach the patrol car, “less than 20 feet” away. Am. Compl. at ¶¶ 10-12. While
Officer Szewczak and Kingsmill spoke, with Kingsmill “within three feet of Officer Szewczak,”
Officer Szewczak watched as Brown approached from behind Kingsmill and struck him with a
steel pipe. Id. at ¶¶ 13, 15-17. After the attack, Officer Szewczak told Kingsmill he would neither
call an ambulance nor take a report and ordered Brown to leave. Id. at ¶ 23. Accepting the facts
as pled, Officer Szewczak did not have the benefit of time to make an unhurried judgment, but
he was not forced to make a split-second decision as to what to do: Kingsmill had time to walk to
within three feet of the patrol car and exchange words with the officer before Brown attacked.
Kingsmill has pled sufficient facts, accepted as true, to demonstrate that Officer Szewczak
consciously disregarded a great risk of harm of which the officer either actually knew -- because
he saw Brown approach with the pipe -- or which was obvious based on the circumstances of the
encounter he witnessed. Kingsmill also pleads sufficient facts, accepted as true, to demonstrate
that under the higher standard required when a state actor must make a split-second decision -intent to harm -- he has still pled a plausible claim for relief, as Officer Szewczak’s post-attack
comments and refusal to render aid are probative of such intent.
Kingsmill therefore pleads sufficient facts, accepted as true, to demonstrate that Officer
Szewczak acted with a degree of culpability that shocks the conscience under either the
conscious disregard or intent to harm standard. We next consider the parties’ arguments
regarding the fourth factor of the state-created danger test.
Whether Officer Szewczak Affirmatively
Acted To Render Kingsmill More Vulnerable To Danger
With respect to the fourth factor, we ask whether the state actor affirmatively acted to
create the danger or render the plaintiff more vulnerable to it. D.R. by L.R., 972 F.2d at 1373.
There must be some “level of intermingling of state conduct with private violence” to support
liability. Id. at 1375. Though the line between action and inaction may sometimes be unclear, it
is “misuse of state authority, rather than a failure to use it, that can violate the Due Process
Clause.” Bright, 443 F.3d at 282. To satisfy the fourth element, a plaintiff must show: (1) a state
actor exercised his authority, (2) the state actor took affirmative action, and (3) that affirmative
act created a danger to the plaintiff or rendered the plaintiff more vulnerable to the danger than if
the state actor had not acted at all. Ye v. United States, 484 F.3d 634, 639 (3d Cir. 2007) (citing
Bright, 443 F.3d at 281-82).
Officer Szewczak contends that his failure to warn Kingsmill of Brown’s approach is
inaction, not an affirmative act, and to the extent his summoning of Kingsmill to his patrol car
was an affirmative act, his “mere words did not prevent Plaintiff from defending himself, and his
words certainly did not restrict Plaintiff’s personal liberty to the same degree as incarceration or
institutionalization.” MTD at 9. Kingsmill counters that (1) Officer Szewczak exercised his
authority by summoning Kingsmill to the patrol car, (2) Officer Szewczak’s assertion of police
authority to summon Kingsmill was an affirmative act, and (3) this summons, which Kingsmill
believes to be a seizure, increased Kingsmill’s exposure to harm because it “rendered Kingsmill
more vulnerable to danger than if the officer had not acted at all.” Pl. Resp. at unnumbered pp. 911.
Kingsmill’s amended complaint satisfies all three elements of the fourth prong of the
state-created danger test. Kingsmill’s well-pled factual allegations suffice to demonstrate that
Officer Szewczak affirmatively used his authority in a way that rendered him more vulnerable to
danger than if the officer had not acted at all. First, Officer Szewczak exercised his authority
when he commanded Kingsmill, by name, to approach the patrol car. Regardless of whether
Kingsmill was “seized,” a police command to an individual to stop what he is doing and
approach constitutes an exercise of authority. Second, Officer Szewczak took an affirmative act:
he verbally ordered to Kingsmill to stop and come forward.2 Third, Officer Szewczak’s
affirmative act -- calling Kingsmill over to the car -- rendered him more vulnerable to the danger
posed by Brown than if Officer Szewczak had not acted at all. Before Officer Szewczak
summoned Kingsmill, he was in the middle of a physical altercation with Brown, who was
armed with a length of pipe. Am. Compl. at ¶¶ 9-11. Had Officer Szewczak not acted, Kingsmill
could have continued to defend himself, uninterrupted. After Officer Szewczak ordered
Kingsmill to come forward, Kingsmill turned his back to Brown, walked toward Officer
Szewczak, and began exchanging words with him. Id. at ¶¶ 13, 15-16. So engaged, with his back
turned, Kingsmill was more vulnerable to Brown’s attack from behind.
Kingsmill pleads sufficient facts, accepted as true, to demonstrate that Officer Szewczak
affirmatively used his authority in a way that rendered Kingsmill more vulnerable to danger than
had he not acted at all.
Although “assurances of well-being” are not affirmative acts within the meaning of
state-created danger claims, “DeShaney and Bright do not totally foreclose the possibility that
words could constitute an affirmative act and a deprivation of liberty.” Ye, 484 F.3d at 642.
Characterizing Officer Szewczak’s order as “mere words” belies the authority with which a
uniformed police officer, seated in his patrol car, addresses a member of the public.
Though the parties did not brief the first and third factors of the state-created danger test,
we briefly note that Kingsmill’s well-pled factual allegations, accepted as true, satisfy those two
additional elements. With respect to the first factor, the harm ultimately caused was foreseeable
and fairly direct: Kingsmill was injured by a pipe-wielding assailant after Officer Szewczak
summoned him away from defending himself from that same pipe-wielding assailant. With
respect to the third factor, a relationship3 between Officer Szewczak and Kingsmill existed such
that Kingsmill was a foreseeable victim of Officer Szewczak’s acts: Officer Szewczak
summoned Kingsmill while he was fighting Brown, and after Kingsmill responded to the
officer’s hail, Brown attacked him from behind. Kingsmill’s well-pled factual allegations,
accepted as true, demonstrate a plausible claim to relief on a state-created danger theory of
liability under Section 1983 for a violation of his Fourteenth Amendment substantive due
We next consider whether Officer Szewczak is entitled to qualified immunity.
Officer Szewczak argues that he is entitled to qualified immunity because “it was
not clearly established on February 9, 2014, that calling a person over to a patrol car and failing
to warn that person of an attack could somehow violate the Due Process Clause.” MTD at 11.
The “relationship” described in the third factor of this test is different from the special
relationship required to impose liability under Section 1983:
The relationship requirement under the state-created danger theory
contemplates some contact such that the plaintiff was a foreseeable
victim of a defendant’s acts in a tort sense. The special relationship
in DeShaney, on the other hand, has a custodial element to it -- the
state must affirmatively act to restrain an individual’s freedom to
act on his or her own behalf either through incarceration,
institutionalization, or some other comparable limit of personal
Kneipp, 95 F.3d at 1209 n.22.
Kingsmill argues that Officer Szewczak “acted out of malice, not out of ignorance or confusion
concerning the state of the law,” and that “[a]t the time of the incident, every reasonable officer
in the United States knew that their duty required them to try to protect seized citizens from
harm.” Pl. Resp. at unnumbered pp. 14-15.
Qualified immunity shields government officials from liability for civil damages to the
extent that their conduct did not violate clearly-established constitutional rights of which a
reasonable officer would have known. Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal alterations omitted)). Our Court of
Appeals cautions that “it is generally unwise to venture into a qualified immunity analysis at the
pleading stage as it is necessary to develop the factual record in the vast majority of cases.”
Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (non-precedential); see also, e.g.,
Mitchell v. Township of Willingboro, 913 F. Supp. 2d 62, 67 (D.N.J. 2012) (quoting Newland
for this proposition and rejecting a qualified immunity defense at the Rule 12(b)(6) stage). But
as qualified immunity is “an immunity from suit rather than a mere defense to liability,” the
Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at
the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 231-32 (2009)
(quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) and Hunter v. Bryant, 502 U.S. 224, 227
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step process
for addressing claims of qualified immunity:
A court required to rule upon the qualified immunity issue must
consider . . . this threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right? This
must be the initial inquiry. . . . if a violation could be made out on a
favorable view of the parties’ submissions, the next, sequential
step is to ask whether the right was clearly established.
Id. at 201. Subsequently, the Supreme Court held the sequence of this two-step process to be
optional -- not mandatory -- but frequently beneficial. Pearson, 555 U.S. at 227, 236.
As explained in Part IV.A.2, taken in the light most favorable to Kingsmill as the nonmoving party, the facts alleged in the amended complaint show that Officer Szewczak’s conduct
violated a constitutional right. When a favorable view of the parties’ submissions reveals an
alleged constitutional violation, we next inquire whether that constitutional right was clearly
established. Saucier, 533 U.S. at 201.
A defendant asserting qualified immunity bears the burden of demonstrating his
entitlement to that affirmative defense. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014). To
be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). “This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful; but it is to say
that in the light of pre-existing law the unlawfulness must be apparent.” Id. (internal citations
omitted). When we ask whether an allegedly violated right was so clearly established that any
reasonable officer would have known of it, we do so “in light of the specific context of the case,
not as a broad general proposition.” George v. Rehiel, 738 F.3d 562, 572 (3d Cir. 2013) (quoting
Brosseau v. Haugen, 543 U.S. 194, 198 (2004)). To lose the protections of qualified immunity,
“existing precedent must have placed the statutory or constitutional question beyond debate.” Id.
(quoting Ashcroft v. al-Kidd, -- U.S. --, 131 S.Ct. 2074, 2083 (2011)).
While it has been clear since November of 1998 -- when our Court of Appeals decided
Kneipp -- that there is a right to be free from a state-created danger, our inquiry does not end
there. See Rivas v. City of Passaic, 365 F.3d 181, 200 (3d Cir. 2004) (observing the state of the
law in the Third Circuit since November of 1998 and continuing the qualified immunity
analysis). The absence of a precedential decision on the constitutionality of the conduct precisely
at issue is not dispositive on the question of whether a right was clearly established, but there
must be some, even if not precise, factual congruence between the relevant precedents and the
conduct at issue. Pro v. Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996). The ultimate question is
whether an officer had “fair warning” that his conduct deprived the plaintiff of a constitutional
right. Schneyder v. Smith, 653 F.3d 313, 329 (3d Cir. 2011).
But when considering whether the law was clearly established or whether an officer had
fair warning that certain conduct was unlawful, “there is no need that the very action in question
[had] previously been held unlawful.” Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S.
364, 377 (2009) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)) (internal quotations
omitted). “The unconstitutionality of outrageous conduct obviously will be unconstitutional, this
being the reason, as Judge Posner said, that ‘[t]he easiest cases don’t even arise.’” Id. (quoting
K.H. v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990)). But even when an officer’s conduct is “less
than an outrage,” an officer can still be on notice that his conduct violates established law. Id. at
377-78 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
Although the parties did not identify, and we were unable to locate, a case with a cognate
claim and a constellation of factual averments, this is the type of case where the alleged conduct
is outrageous enough, and the broad contours of the constitutional right sufficiently well-known,
that Officer Szewczak was on notice that his conduct violated Kingsmill’s constitutional rights.
Officer Szewczak lured Kingsmill away from a physical altercation, engaged him in
conversation, and then watched as Brown hit Kingsmill in the face with a steel pipe. Officer
Szewczak reacted by telling Brown to flee the scene, declining to make a police report, and
refusing to render assistance to the injured Kingsmill.4
Qualified immunity protects “all but the plainly incompetent or those who knowingly
violate the law.” George, 738 F.3d at 572 (quoting al-Kidd, -- U.S. --, 131 S.Ct at 2085). This
“mitigate[s] the social costs of exposing government officials to personal liability” by giving
them “breathing room to make reasonable but mistaken judgments about open legal questions.”
Id. Although this particular scenario does not appear to have been considered by our Court of
Appeals, the conduct alleged is not the type qualified immunity protects. Any reasonable officer
at the time of this incident -- February 9, 2014 – would have known that he had a duty not to
place an individual at greater risk of injury from a physical assault by hailing him away from the
altercation and then declining to intervene. A reasonable officer would have known that he had a
duty not to command such an individual to comply with a directive, so that compliance would
increase the risk of harm to him.
This is not a case where the “most that can be said of the state functionaries in this case is
that they stood by and did nothing when…circumstances dictated a more active role for them.”
Bright, 443 F.3d at 285 (quoting DeShaney, 489 U.S. at 203). More can be said: Officer
Szewczak did not just stand by and do nothing while Kingsmill was assaulted. Officer Szewczak
exercised his authority to command Kingsmill to disengage from a physical altercation, and, as a
result of Kingsmill’s compliance, Brown was able to attack him from behind. Officer
Szewczak’s failure to warn Kingsmill that Brown was approaching from behind might appear
Sometimes the assertion of qualified immunity, in light of the alleged facts in a
complaint, “brings into sharp focus the question of whether the doctrine of qualified immunity is
being invoked more than is warranted.” Gaymon v. Borough of Collingdale, 2015 WL 4389585,
*1 (E.D. Pa. July 17, 2015) (McHugh, J.). While the alleged facts of this case may not be as
extreme as those alleged in Gaymon, see id. at *1-2, and may, after discovery, turn out to be
otherwise, we nonetheless find Judge McHugh's observation apt.
more akin to the inaction that prior courts have found insufficient to ground liability under a
state-created danger theory. But Officer Szewczak did not just fail to warn: his initial hail and
interference with the assault in this circumstance placed Kingsmill at risk of additional serious
injury. After placing Kingsmill in greater danger than he had been before the officer's
intervention -- indeed, the officer did not bother to warn him of Brown’s oncoming assault.
Nor is this a case where the exercise of a state actor’s discretion did not increase the
danger. See, e.g., Morrow, 719 F.3d at 178 (explaining that the temporary suspension of a
student did not make the children she had bullied more vulnerable to danger and that the school
permitting the student to return after serving the suspension was not an affirmative act). To be
sure, Officer Szewczak was not obligated to protect either Kingsmill or Brown, and his
knowledge of their altercation was not sufficient to create an affirmative duty to act. But once
Officer Szewczak chose to call Kingsmill to his patrol car, and chose to continue their
conversation despite Brown’s approach, pipe in hand, he put Kingsmill in greater danger of the
assault from Brown.
As pled, this case is more than a failure to warn or adequately protect. “If the state puts a
man in a position of danger from private persons and then fails to protect him, it will not be
heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown
him into a snake pit.” Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.). Officer
Szewczak may not have placed Kingsmill in the physical confrontation with Brown, but
observing Kingsmill in such a snake pit, he made it worse by hailing him and commanding him
to disengage, leaving him vulnerable to Brown's attack from behind. Such conduct is sufficiently
outrageous that a reasonable officer would have known that doing so could violate Kingsmill’s
We find that Kingsmill’s right to be free from state-created danger in this particular
factual circumstance was clearly established when this incident took place in February of 2014,
when this incident took place. Officer Szewczak is therefore not entitled to qualified immunity.
We next consider Kingsmill’s Monell claim against the City of Philadelphia.
Count II: Kingsmill v. City of Philadelphia
A municipality is not liable for its employees’ constitutional torts under a theory of
respondeat superior -- that is, a municipality cannot be held liable for its employees’ torts solely
by virtue of an employment relationship. Monell v. Department of Soc. Servs., 436 U.S. 658,
691 (1978). A municipality is liable for its employees’ violations of Section 1983 only if
“execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694.
A plaintiff can demonstrate the existence of a governmental policy by showing “that a
decisionmaker possessing final authority to establish municipal policy with respect to the action
issued an official statement of policy.” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247,
250 (3d Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)) (internal
quotations and alterations omitted). To show a custom, a plaintiff must establish that state
officials engaged in a course of conduct so permanent and well-settled that it operated as law. Id.
(citing Monell, 436 U.S. at 690).
In either case, a plaintiff bears the burden of showing a governmental policymaker’s
responsibility for, or acquiescence to, the official's actions. Id. (citing Andrews v. City of Phila.,
895 F.2d 1496, 1480 (3d Cir. 1990)). A plaintiff may not need to specifically identify the
responsible decisionmaker, since practices that are considered customs under Monell are
ascribable to the municipal decisionmakers. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
1990). Thus, even if a custom “has not been formally approved by an appropriate
decisionmaker” it “may fairly subject a municipality to liability on the theory that the relevant
practice is so widespread as to have the force of law.” Board of Cnty. Comm’rs v. Brown, 520
U.S. 397, 404 (1997).
To be liable under Section 1983, “the government must act with deliberate indifference to
the purported constitutional deprivation.” Jiminez, 503 F.3d at 250. As a result, a failure to train
may constitute a policy or custom giving rise to Section 1983 liability for a municipality only if
that failure demonstrates deliberate indifference to residents’ constitutional rights. See City of
Canton v. Harris, 489 U.S. 378, 389 (1989). A failure to train evinces deliberate indifference if
in light of the duties assigned to specific officers or employees the
need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to
have been deliberately indifferent to the need.
Id. at 390.
There must also be “a direct causal link between a municipal policy or custom and the
alleged constitutional deprivation to ground municipal liability.” Jiminez, 503 F.3d at 249-50
(quoting City of Canton, 489 U.S. at 385) (internal quotations omitted). It is not enough to claim
that an injury could have been avoided by more or better training -- the deficiency identified by a
plaintiff must be closely related to the ultimate injury. Grazier ex rel. White v. City of Phila., 328
F.3d 120, 125 (3d Cir. 2003) (citing City of Canton, 489 U.S. at 390-91). As our Court of
Appeals has explained, such causation is often a question for the jury:
[T]o sustain a § 1983 action against the City, plaintiffs must simply
establish a municipal custom coupled with causation – i.e., that
policymakers were aware of similar unlawful conduct in the past,
but failed to take precautions against future violations, and that this
failure, at least in part, led to their injury. If the City is shown to
have tolerated known misconduct by police officers, the issue
whether the City’s inaction contributed to the individual officers’
decision to arrest the plaintiffs unlawfully in [a given] instance is a
question of fact for the jury.
Bielevicz, 915 F.2d at 851.
The City of Philadelphia contends that we should dismiss Kingsmill’s claims against it
because Kingsmill “simply parrots the legal standard for municipal liability under § 1983
without pleading any supporting facts.” MTD at 11. Kingsmill argues that since he (1)
specifically alleges that the City tolerated Officer Szewczak’s history of misconduct, including
prior constitutional violations, and (2) alleges that the City failed to investigate post-incident
allegations that Kingsmill had been a victim of a serious crime and mistreated by Officer
Szewczak, he has alleged sufficient facts to survive the City’s motion to dismiss. Pl. Resp. at
unnumbered pp. 16-17.
While a municipality’s tolerance for known misconduct by police officers may ground a
Section 1983 claim, Kingsmill’s only allegation in this regard is that “Defendant City of
Philadelphia maintained a policy or custom of inadequate supervision and discipline of Police
Officer Szewczak whose prior constitutional violations and acts of misconduct were tolerated by
the City of Philadelphia.” Am. Compl. at ¶ 44. Even though we must draw all reasonable
inferences in Kingsmill’s favor and accept his well-pled factual allegations as true, we “are not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.
at 555. This bare allegation of Officer Szewczak’s alleged prior misconduct, and the City of
Philadelphia’s knowledge of it, constitutes is a legal conclusion styled as a factual allegation.
Similarly, Kingsmill’s allegation that the City of Philadelphia failed to investigate his postincident allegations does not suffice to show or plead a custom or policy of failing to investigate
or follow established policies, procedures, or directives: a practice must be “so permanent and
well settled as to have the force of law” to reach that threshold. Bielevicz, 915 F.2d at 850. Nor
may we ordinarily infer a policy from a single instance of supposed illegality. Losch v. Borough
of Parkesburg, Pa., 736 F.2d 903, 911 (3d Cir. 1984).
As Kingsmill fails to allege well-pled facts in support of his Monell claim with respect to
either a policy or custom and proximate cause, this claim fails. We will therefore dismiss Count
II of the amended complaint against the City of Philadelphia.
Kingsmill’s amended complaint pleads sufficient facts, accepted as true, to demonstrate
that Officer Szewczak violated his Fourteenth Amendment substantive due process rights under a
state-created danger theory of liability. Officer Szewczak is not entitled to qualified immunity
because a reasonable officer at the time of the incident would have known that such conduct was
unlawful. But Kingsmill fails to state a Monell claim against the City of Philadelphia. We will
therefore deny defendants’ motion to dismiss with respect to Count I and grant defendants’
motion to dismiss Count II of the amended complaint. An appropriate Order follows.
BY THE COURT:
_/s/ Stewart Dalzell, J.
Stewart Dalzell, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?