WYCHE v. THE CITY OF PHILADELPHIA et al

Filing 28

MEMORANDUM AND OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 4/10/17. 4/11/17 ENTERED & E-MAILED. COPIES MAILED TO PRO SE, UNREP. COPY TO LEGAL.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTWANETTE T. WYCHE,
Plaintiff,
v.
THE CITY OF PHILADELPHIA, et
al.,

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CIVIL ACTION

NO. 15-3900

Defendants.
MEMORANDUM
STENGEL, J.

April 10, 2017

Pro se plaintiff, Antwanette Wyche, brings this action against the City of
Philadelphia and a “Police Officer Moore,” under 42 U.S.C. § 1983, based on an incident
that occurred when she was filming Philadelphia police officers making an arrest.
I previously granted the defendants’ motion to dismiss plaintiff’s original
complaint on March 10, 2016 because the plaintiff failed to sufficiently plead municipal
liability. (Doc. No. 12). I allowed the plaintiff leave to amend her complaint, which she
did. Thereafter, the City filed a motion to dismiss the plaintiff’s amended complaint. I
granted that motion to dismiss because, again, the plaintiff failed to state a claim against
the City. (Doc. No. 24). I again allowed plaintiff leave to amend her complaint, which she
did. The City filed a motion to dismiss plaintiff’s second amended complaint on
December 14, 2016. The plaintiff has not filed a response. I will grant the motion to
dismiss.

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I.

FACTUAL BACKGROUND
On July 12, 2013, the plaintiff was recording police officers making an arrest on

the 2200 block of Woodstock Street in Philadelphia, Pennsylvania. (Compl., Doc. No. 3
¶ 4). According to the plaintiff, the arresting officer, Officer Moore, did not want the
arrest being recorded by the plaintiff so he assaulted and arrested the plaintiff and
charged her with disorderly conduct. (Id.) After being released from the police precinct,
the plaintiff went to Temple University Hospital where she was treated for injuries that
she received during her arrest, including an ankle sprain, wrist pain, and back pain. (Id.)
The plaintiff claims that she also suffered humiliation and embarrassment while being
arrested in front of her children and neighbors. (Id.) Ultimately, the plaintiff’s disorderly
conduct charges were dismissed by court order on October 17, 2013. (Id.) The plaintiff
now requests $25,000 in compensatory damages, $25,000 in punitive damages, and an
injunction removing the arrest charges from her record. (Id. at ¶ 6(a)-(c)).
II.

PROCEDURAL BACKGROUND
The plaintiff has sued the City of Philadelphia and an unidentified “Police Officer

Moore, Badge No. 4728.”
Plaintiff first attempted to serve “Officer Moore” nearly two years ago on July 23,
2015. That summons was returned unexecuted. (Doc. No. 7). The summons indicated that
there was no Officer Moore “employed as per city roster.” (Id.). On March 3, 2016, I
ordered the plaintiff to properly serve “Police Officer Moore” by March 23, 2016. (Doc.
No. 11). After March 23, 2016 had passed, plaintiff filed a motion for an extension of
time to serve Police Officer Moore. (Doc. No. 14). I granted that motion and allowed
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plaintiff thirty more days with which to serve “Police Officer Moore.” (Doc. No. 15). On
May 9, 2016, plaintiff filed an affidavit of service indicating she served a complaint on a
person at the Philadelphia Police Department, but no summons has ever been returned
executed as to Police Officer Moore. To date, no defendant other than the City of
Philadelphia has been properly served. 1
III.

LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

for failure to state a claim upon which relief can be granted examines the legal
sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Following
the Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), pleading standards in federal
actions have shifted from simple notice pleading to a more heightened form of pleading,
requiring a plaintiff to allege facts 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). A
facially plausible claim may not be supported by conclusory allegations, but must allow
the court “to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a short
and plain statement of the claim showing that the plaintiff is entitled to relief.” Id. at 677–
78. A pro se complaint must be liberally construed and held to a less stringent standard
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Federal Rule of Civil Procedure 4(m) requires that a defendant be served with the
summons and complaint within 90 days after the complaint is filed.

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than formal pleadings. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976). A pro se action “can only be dismissed for failure to state a claim if it appears
‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Jubilee v. Horn, 959 F. Supp. 276, 279 (E.D. Pa. 1997)
(quoting Estelle, 97 S.Ct. at 292).
IV.

DISCUSSION
The City moves to dismiss on two grounds. First, it argues plaintiff’s second

amended complaint pleads no facts regarding a municipal policy or custom. Second, it
maintains that plaintiff’s claim fails because none of the facts alleged relate to conduct by
a municipal policymaker.
A.

Municipal Policy or Custom

In Monell v. Department of Social Services, the U.S. Supreme Court announced
that municipal liability arises under 42 U.S.C. § 1983 where the municipality implements
or enforces “a policy statement, ordinance, regulation, or decision officially adopted and
promulgated by” an authorized decisionmaker of that municipality. 436 U.S. 658, 690
(1978). A plaintiff asserting that a municipality violated their constitutional rights under
Monell may proceed along a “two-path track . . . depending on whether the allegation is
based on municipal policy or custom.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d
Cir. 1996). A “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.” Cummings v. City of Chester, Arthur Grenier, Civ. A. No. 15-4504,
2016 WL 304790, *3 (E.D. Pa. Jan. 26, 2016) (citing Mulholland v. County of Berks,
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706 F.3d 227, 237 (3d Cir. 2013)). A municipal custom, on the other hand, “lacks the
formal approval of a municipal policy,” but consists of “such practices of state officials. .
. .[as are] so permanent and well settled as to constitute a ‘custom or usage’ with the
force of law.” Glass v. City of Phila., 455 F. Supp. 2d 302, 341 (E.D. Pa. 2006) (citing
Monell, 436 U.S. at 691).
Under either track to municipal liability, by custom or policy, the plaintiff has the
burden of showing that “an official who has the power to make policy is responsible for
either the affirmative proclamation of a policy or acquiescence in a well-settled custom.”
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations omitted). Ultimately, a
plaintiff seeking to plead a Monell claim must: “(1) identify a policy or custom that
deprived him of a federally protected right; (2) demonstrate that the municipality, by its
deliberate conduct, acted as the ‘moving force’ behind the alleged deprivation; and (3)
establish a direct causal link between the policy or custom and the plaintiff’s injury.”
Blasi v. Borough of Pen Argyl, Civ. A. No. 14-1354, 2015 WL 4486717, at *5 (E.D. Pa.
July 23, 2015) (citing Bd. of the County Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
Plaintiff’s second amended complaint fails to cure the deficiencies present in her
original and amended complaints. See Wyche v. City of Phila., Civ. A. No. 15–3900,
2016 WL 6442004 (E.D. Pa. Oct. 31, 2016) (dismissing plaintiff’s amended complaint).
The second amended complaint does not add any factual allegations regarding a custom
or policy. (Doc. No. 26). Instead, the second amended complaint personally accuses me
of: (i) “replacing the jury’s exclusive province of fact finding”; (ii) improperly weighing
the credibility of witnesses; (iii) testifying on behalf of the City of Philadelphia; (iv)
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“subversion” “against pro se litigation”; (v) personally testifying; and (vi) participating in
a Ponzi scheme with the U.S. Court of Appeals for the Third Circuit to deprive African
Americans of their right to jury trials. (Id. at 2–3 n.1). None of the above allegations are
even remotely relevant to a custom or policy of the City of Philadelphia. Nor are they a
true description of my reasoning in Wyche v. City of Philadelphia, Civ. A. No. 15–3900,
2016 WL 6442004 (E.D. Pa. Oct. 31, 2016) (Stengel, J.). The City is correct that
plaintiff’s second amended complaint is bereft of any facts regarding a policy or custom.
B.

Conduct by a Municipal Policymaker

The City argues that plaintiff’s second amended complaint must be dismissed also
because it does not plead facts as to the conduct of any policymaker involved in the
formation of a custom or policy.
For a complaint to survive a motion to dismiss in this context, it must identify
“conduct by a municipal decisonmaker.” McTernan v. City of York, 564 F.3d 636, 658–
59 (3d Cir. 2009). Allegations that do not connect a municipal policymaker or
decisionmaker “to the custom at issue” do not meet the pleading standards set forth in
Federal Rule of Civil Procedure 8(a)(2). Davis v. City of Phila., Civ. Action No. 05–
4571, 2009 WL 2461777, at *4 (E.D. Pa. Aug. 11, 2009) (citing Twombly, 550 U.S. at
555). Plaintiff’s allegations in the second amended complaint do not sufficiently identify
any decisionmaker or policymaker who implemented an allegedly unconstitutional
custom or policy. Plaintiff’s second amended complaint also fails to plead facts regarding

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conduct by a City policymaker or decisionmaker. Instead, plaintiff’s second amended
complaint is made up exclusively of attacks on this Court and the Third Circuit. 2
For all the above reasons, I will grant the motion to dismiss plaintiff’s claims
against the City of Philadelphia.
C.

Service of Process

I will dismiss “Officer Moore” from this action because it has been nearly two
years since this action was filed and no “Officer Moore” has been served. Dismissal is
proper since plaintiff has been given notice and multiple opportunities to effect service.
“Federal Rule of Civil Procedure 4(m) directs district courts to dismiss an action
upon a plaintiff’s failure to effect timely service.” Liu v. Oriental Buffet, 124 F. App’x
544, 546 (3d Cir. 2005). Rule 4(m) specifically states: “If a defendant is not served within
90 days after the complaint is filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” Fed. R. Civ. P. 4(m).
Plaintiff filed her complaint on July 23, 2015. (Doc. No. 3). Since that date, the
Court has notified plaintiff multiple times of her failure to effect service and the attendant
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Plaintiff attaches a number of documents to her second amended complaint: (1)
Philadelphia Daily News articles on criminal charges brought against a former Philadelphia
Police Officer, Jeffrey Walker, in 2013; (2) an illegible newspaper article titled “Ex-D.A. says
she kept some police off the stand”; (3) a 2011 Philadelphia Daily News article on a Philadelphia
Police Officer named Anthony Magsam; (4) an article generally discussing lawsuits against the
City of Philadelphia; (5) the cover of the Philadelphia Daily News; (6) this Court’s October 31,
2016 Memorandum and Order granting the City’s motion to dismiss the plaintiff’s amended
complaint; and (7) a transcript from a status hearing in a random criminal case in the Court of
Common Pleas of Philadelphia County. None of these documents appear to have any connection
to this case. Nor do any of the documents mention an “Officer Moore.” At best, these documents
merely establish that the City of Philadelphia has been sued before and that some police officers
have been charged with crimes. Such facts, even if true, do nothing to further plaintiff’s claim.

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consequences. On March 3, 2016, as required by Rule 4(m), the Court notified plaintiff
that failure to serve “Officer Moore” could result in dismissal. (Doc. No. 11). In that
same Order, the Court provided plaintiff with extra time to do so. (Id.). Plaintiff was
unable to effect service within this allotted time. Nonetheless, thereafter, the Court
granted plaintiff’s motion for an extension of time with which to serve “Officer Moore.”
(Doc. No. 15). The Court again provided plaintiff with extra time with which to serve the
proper officer. (Id.). Yet to this day, there has been no officer served with the complaint,
which was filed nearly two years ago.
Given the length of time since the complaint was filed, and the opportunities the
Court has provided to the plaintiff to effect service, the lack of service here warrants
dismissal. The entire purpose of service of process, under the Federal Rules of Civil
Procedure, is to ensure that those who have legal claims brought against them are
provided actual notice of those claims. Hanna v. Plumer, 380 U.S. 460 (1965). We are
years into litigating this case and that end has still not been accomplished here.
Accordingly, I will dismiss the claims brought against “Officer Moore.”
D.

Leave to Amend

Because plaintiff is proceeding pro se, I will consider whether leave to amend is
proper. I conclude it is not.
District judges must not dismiss a complaint without offering the plaintiff an
opportunity to amend her complaint. Phillips v. County of Allegheny, 515 F.3d 224, 236
(3d Cir. 2008). Generally, allowing amendment is proper when “justice so requires.” Fed.
R. Civ. P. 15(a)(2). In determining whether “justice so requires,” courts consider a
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number of factors including undue delay, bad faith, prejudice to the opposing party, and
futility. Foman v. Davis, 371 U.S. 178, 182 (1962). A proposed amendment is futile “if
the amendment will not cure the deficiency in the original complaint or if the amended
complaint cannot withstand a renewed motion to dismiss.” Jablonski v. Pan Am. World
Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988).
I have allowed plaintiff multiple opportunities to amend her complaint. I have
considered plaintiff’s original complaint, amended complaint, and second amended
complaint. While I am certainly cognizant of plaintiff’s pro se status, allowing plaintiff a
fourth bite at the apple would be futile in these circumstances. See Krantz v. Prudential
Invest. Fund Mgmt., LLC, 305 F.3d 140, 144 (3d Cir. 2002) (denying leave to amend
because plaintiff was provided notice of the deficiencies of plaintiff’s claims through the
district court’s previous opinion); Hughes v. United Parcel Serv., Inc., Civ. A. No. 14–
3822, 2015 WL 1021312, at *6 (E.D. Pa. Mar. 6, 2015) (denying leave to amend where
the “[p]laintiffs . . . had a number of opportunities to advise the Court” to state a claim for
relief but failed to do so). Accordingly, I will not allow leave to amend.
V.

CONCLUSION
For all the foregoing reasons, I will grant the motion to dismiss.
An appropriate Order follows.

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