WILLIAMS v. VELEZ et al

Filing 28

MEMORANDUM AND/OR OPINION SETTING FORTH THE REASONS WHY THE COURT IS GRANTING DEFENDANT, CITY OF PHILADELPHIA'S, SECOND MOTION TO DISMISS (DOCKET NO. 17). AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE GENE E.K. PRATTER ON 5/10/17. 5/12/17 ENTERED AND COPIES E-MAILED.(rab, )

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

PHILBERT WILLIAMS,
Plaintiff,
v.
OFFICER MOISES J. VELEZ, et al.,
Defendants.

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CIVIL ACTION

No. 16-1593

MEMORANDUM
PRATTER, J.

MAY 10, 2017

This action arises out of an incident between Philbert Williams and Officers of the
Philadelphia Police Department (“PPD”), during which Officer Velez allegedly broke Mr.
Williams’s left thumb. Mr. Williams brings various federal and state law claims against Officer
Velez and Officer Santiago, who witnessed the incident. Additionally, Mr. Williams brings a
Monell claim against the City of Philadelphia, alleging that the incident was part of widespread
unlawful policies or customs within the PPD. The City’s Motion to Dismiss the Monell claim is
before the Court, and for the following reasons, the Court will grant the City’s motion.
BACKGROUND
Mr. Williams’s thumb injury occurred during arrest for alleged criminal trespass and
attempted burglary in June 2015. On June 11, 2015, Officers Velez and Santiago, along with
Officer McDevitt, approached Mr. Williams at the rear of a residential property in North
Philadelphia and demanded that Mr. Williams get on the ground. He complied, and the officers
handcuffed him and placed him in the back of a patrol car. Throughout the encounter, Mr.
Williams pleaded with the officers to knock on the door of the residence to determine if he was a

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lawful visitor to the property. Mr. Williams alleges that the officers never sought information on
whether he was a lawful visitor.
Officers Velez and Santiago took Mr. Williams to the Ninth District police headquarters.
When they were standing on the sidewalk near the entrance, Mr. Williams again asked the
officers to inquire about whether he was a visitor to the property. According to Mr. Williams,
Officer Velez responded by yanking Mr. Williams’s left thumb and yelling, “Didn’t I tell you to
shut the f*** up.” Am. Compl. ¶ 22. Officer Santiago supposedly observed the incident and
laughed. Mr. Williams alleges that another unidentified officer witnessed the incident and
ordered Mr. Williams be taken to a hospital for treatment. Mr. Williams told Officer Velez that
he would sue the officers and the City, and Officer Velez laughed and replied that Mr. Williams
would only get $5000 to $6000 in compensation for the injury. Officers Velez and Santiago took
Mr. Williams to St. Joseph’s Hospital where his left hand was x-rayed, and he received a soft
cast for his left thumb and prescription pain medication.
Upon returning to police headquarters after treatment, Mr. Williams attempted to report
the incident. He asked for the name of the unidentified officer who witnessed the incident with
Officer Velez, but was turned away and told that revealing such information would run counter
to the “buddy system.” Mr. Williams also alleges that his requests to speak to Internal Affairs
were rejected, and it is his understanding that the incident with Officer Velez was never reported
to the PPD. Mr. Williams alleges that following the incident, he was held in a Ninth District
holding cell for several days, was denied pain medication, and now continues to suffer from
emotional and mental anguish as a result of the injury to his thumb.
Separate from his particular encounter with Officer Velez, Mr. Williams alleges that the
City of Philadelphia had a policy or custom of failing to adequately train and/or supervise police

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officers, including the officer defendants in this case. Mr. Williams appends an array of
evidence to the Amended Complaint to support that such a policy or custom exists, including
news articles purporting to summarize statistics about complaints filed against the City, a Report
from the Department of Justice’s Office of Community Oriented Policing Services entitled
“Collaborative Reform Initiative: An Assessment of Deadly Force in the Philadelphia Police
Department” (“DOJ Report”), and the six-month follow up assessment to the DOJ’s initial
report. In the DOJ Report, the DOJ and the PPD collaborated to “examine and reform deadly
force policies, practices, and related processes in the PPD.” Ex. D at 12. Their objectives were
to “[e]nhance training as it relates to officer and public safety in deadly force situations[;]
[i]mprove the quality and transparency of deadly force investigations from both a criminal and
administrative standpoint[;] [s]trengthen the use of force review process[;] [and] [i]nstitutionalize
organizational learning processes and practices related to deadly force incidents.” Id. The DOJ
Report “reviewed all PPD policies as they relate to deadly force” and various training programs
and approaches. Id. at 14-17. The Report also assessed investigations of officer-involved
shootings and other instances of deadly force. The bulk of the DOJ Reports’ conclusions
pertained to use of deadly force.
Mr. Williams’s Amended Complaint includes five counts: violation of 42 U.S.C. § 1983
for Excessive Use of Force against Defendant Velez (Count I); violation of 42 U.S.C. § 1983 for
Failure to Train and/or Otherwise Supervise against the City of Philadelphia (Count II); violation
of 42 U.S.C. § 1983 for Failure of Bystander Officer to Intervene against Defendant Santiago
(Count III); a state law claim for Intentional Infliction of Emotional Distress against Defendants
Velez and Santiago (Count IV); and a state law claim for Assault and Battery against Defendant
Velez (Count V). The City has moved to dismiss Count II.

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LEGAL STANDARD
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of a complaint. Federal Rule of Civil Procedure 8 requires only “a short and plain
statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in
order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, the plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id.
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Specifically, “[f]actual allegations must be enough
to raise a right to relief above the speculative level. . . .” Twombly, 550 U.S. at 555 (citations
omitted). The question is not whether the claimant will ultimately prevail, but whether the
complaint is “sufficient to cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521,
530 (2011). An assessment of the sufficiency of a complaint is thus “a context-dependent
exercise” because “[s]ome claims require more factual explication than others to state a plausible
claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 617 F.3d 85, 98 (3d Cir. 2010)
(citations omitted).
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the Court may look only to the facts alleged in the complaint and its appropriate attachments.
See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The
Court must accept as true all well-pleaded allegations in the complaint and view them in the light
most favorable to the plaintiff. Angelastro v. Prudential–Bache Sec., Inc., 764 F.2d 939, 944 (3d

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Cir. 1985). The Court must also accept as true all reasonable inferences that may be drawn from
the allegations, and view those facts and inferences in the light most favorable to the non-moving
party, here, Mr. Williams. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989).
Nonetheless, the Court need not accept as true “unsupported conclusions and unwarranted
inferences,” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183–84 (3d Cir. 2000)
(internal quotation marks omitted), nor Mr. Williams’s “bald assertions” or “legal conclusions,”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court must also
disregard “naked assertions devoid of further factual enhancement” and “threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at
678 (internal alterations omitted).
DISCUSSION
The City moves to dismiss the one count Mr. Williams raises against it—the Monell
failure to train and/or supervise claim. Mr. Williams invokes 42 U.S.C. § 1983, which creates a
cause of action for persons who are deprived of their constitutional rights by any person acting
under the color of state law or custom. In addition to creating a cause of action against the actor
who caused the constitutional deprivation, § 1983 also permits an injured party to sue a
municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978). However, a
municipality will only be liable under § 1983 in limited circumstances. A municipality cannot be
held liable for the unconstitutional acts of its employees on a theory of respondeat superior. Id.
at 691. Instead, to state a § 1983 claim against a municipality, a plaintiff must allege that (1) the
municipality had a policy or custom that deprived him of his constitutional rights; (2) the
municipality acted deliberately and was the moving force behind the deprivation; and (3) his
injury was caused by the identified policy or custom. See Stewart v. Moll, 717 F. Supp. 2d 454,

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464–65 (E.D. Pa. 2010). The City takes the position that the Amended Complaint fails to allege
facts supporting the existence of a policy or custom and that Mr. Williams has not properly
pleaded that his injuries were actually caused by the City’s supposed policy or custom.
Accordingly, it urges that Mr. Williams has not met the burden imposed by Monell.
The City argues that Mr. Williams has failed to properly plead a policy or custom under
Monell. 1 The Amended Complaint raises two theories of unlawful policy or custom: (1) failing
to conduct “proper and balanced investigations of complaints of unreasonable use of force . . .
against civilians by police officers, thereby causing and encouraging police officers . . . to
engage in unlawful conduct,” Am. Compl. at ¶ 52; and (2) failure to discipline or otherwise
ensure compliance with procedures necessary to prevent the excessive use of force, Am. Compl.
at ¶¶ 50-53. Both of the avenues to policy or custom are premised on the City’s “failure to” take
a given action, resulting in constitutional violations.
The Third Circuit Court of Appeals has held that a municipality may be liable when a
“policymaker has failed to act affirmatively at all, [though] the need to take some action to
control the agents of the government is so obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional rights, that the policymaker can reasonably be
said to have been deliberately indifferent to the need.” Natale v. Camden Cty. Corr. Facility,
318 F.3d 575, 584 (3d Cir. 2003) (internal quotations omitted). A subset of this type of claim

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A policy exists “when a decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action issues an official proclamation, policy, or edict.” Official policy under Monell “often refers to
formal rules or understandings—often but not always committed to writing—that are intended to, and do, establish
fixed plans of action to be followed under similar circumstances.” Pembauer v. City of Cincinatti, 475 U.S. 469, 48
–81 (1986). Customs “that ha[ve] not been formally approved by an appropriate decisionmaker may fairly subject a
municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Bd. of
Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997). “In other words, custom may be established
by proving knowledge of, and acquiescence to, a practice.” Watson v. Abington Twp., 478 F.3d 144, 156 (3d Cir.
2007). There is no allegation here that the City has a formal policy or edict condoning excessive force by PPD
Officers. Instead, the Court is called upon to determine whether Mr. Williams has sufficiently pleaded a custom of
doing so.

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involves a failure to train employees under circumstances in which “(1) municipal policymakers
know that employees will confront a particular situation; (2) the situation involves a difficult
choice or a history of employees mishandling; and (3) the wrong choice by an employee will
frequently cause deprivation of constitutional rights.” Wood v. Williams, 568 Fed. App’x. 100,
105 (3d Cir. 2014) (citing Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)).
To properly plead the “failure to” claims, a plaintiff must show a pattern of
unconstitutional behavior, and without doing so, he cannot adequately state that an
unconstitutional policy or custom exists to which the municipality was deliberately indifferent.
Connick v. Thompson, 563 U.S. 51, 62 (2011) (“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.”); Owens v. Coleman, 629
Fed. App’x. 163, 167 (3d Cir. 2015) (“A pattern of similar constitutional violations is typically
necessary to demonstrate deliberate indifference for purposes of failure to train.”); Anderson v.
City of Philadelphia, No. CV 16-5717, 2017 WL 550587, at *5 (E.D. Pa. Feb. 10, 2017)
(dismissing Monell failure to train, supervise, investigate, and discipline claim with respect to the
use of force when the complaint did not allege a pattern of prior incidents).
The City argues that the Amended Complaint merely sets forth vague and conclusory
allegations and parrots Monell’s elements. It also argues that a Monell failure to train/supervise
claim cannot simply be predicated on isolated incidents, 2 and the documents appended to the

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The City is incorrect that Monell claims cannot be predicated on single incidents. In a rare and narrow
category of circumstances, a “failure to train” or “lack of policy” claim may be established on the basis of a single
constitutional violation. See Connick, 563 U.S. at 63–64. In order for a single incident to give rise to a § 1983 cause
of action against a municipality, the constitutional injury at issue must be a “highly predictable consequence” of the
municipality's lack of established policy or failure to train its officers to avoid such injurious conduct. Thomas v.
Cumberland Cty., 749 F.3d 217, 225 (3d Cir. 2014) (quoting Connick, 563 U.S. at 63-64); Washington v. City of
Philadelphia, No. CIV.A. 11-3275, 2012 WL 85480, at *8 (E.D. Pa. Jan. 11, 2012) (“To establish deliberate
indifference from a single incident, a plaintiff must show that the municipality’s failure to train was obviously going
to lead to the constitutional violations alleged.”); See Doneker v. Cty. of Bucks, No. 13-1534, 2013 WL 4511630, at

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Amended Complaint are largely unrelated to conduct at issue in this action. In particular, the
City observes that the DOJ Report focused on the use of deadly force and officer-involved
shootings. 3
Mr. Williams contends that, read together, his personal experience and the appended
documents properly poses a Monell claim that the PPD pursued unlawful policies, practices, or
customs to which the City was deliberately indifferent. Mr. Williams relies upon documents
appended to the Amended Complaint to establish the pattern of conduct Monell requires.
Specifically, he notes that the initial DOJ Report found, inter alia, that the City needed more
explicit policies on use of force, training on use of force concepts was too infrequent, the City
lacked a field training program, and training problems persisted in the six-month assessment.
Am. Compl. ¶¶ 44–48; Pl. Br. at 5. Mr. Williams also relies upon news articles compiling
statistics about police misconduct lawsuits. Am. Compl. ¶ 42; Pl. Br. at 4. Through both publicly
available news and the DOJ Report, Mr. Williams contends that former City of Philadelphia
Mayor Michael Nutter and former Philadelphia Police Commissioner Charles H. Ramsey were
aware of, acquiesced in, or were deliberately indifferent to excessive use of force. Am. Compl. ¶
49.

*6 n.4 (E.D. Pa. Aug. 26, 2013) (finding that the plaintiff failed to allege a failure to train claim based on a single
incident of excessive force because he did not allege how incident was “obviously” the result of a failure to train).
Here, Mr. Williams has pursued a pattern theory and has not supplied any facts that support the Court viewing this
case as falling into the very narrow category of single-incident liability.
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The City also contends that the DOJ Report should be barred under Federal Rule of Evidence 407, which
makes subsequent remedial measures inadmissible to show culpability. Mr. Williams argues that considering
admissibility is inappropriate at the pleadings stage and moreover, at least one judge in this District has rejected that
exact argument with respect to the DOJ Report at issue here. See Valdez v. City of Philadelphia, No. 2:12-CV-7168CDJ, 2016 WL 2646667, at *4 (E.D. Pa. May 10, 2016) (“[T]he Report is more appropriately viewed as a sort of
‘step zero’— providing facts, data, and conclusions that would guide future policy decisions, but not the policy
decisions themselves. Accordingly, the Court finds that the Report does not consist of any subsequent remedial
measures that would prohibit their introduction into evidence under Rule 407.”). Because this Court ultimately
concludes that the Monell claim is insufficiently pleaded, it need not reach the question of whether the Report should
be barred under Rule 407.

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The City challenges the DOJ Report and the six-month assessment because they were
both focused on the use of deadly force, which was not present here. Indeed, the DOJ Report
was issued in response to concerns over officer-involved shootings. Ex. C. Mr. Williams urges
the Court to read the DOJ Reports broadly and interpret them as showing the City’s
acknowledgement of serious deficiencies in the PPD. In support, Mr. Williams cites cases in this
District where courts have allowed Monell claims supported by the DOJ Report to proceed. See
Simpson v. Ferry, 202 F. Supp. 3d 444, 449–53 (E.D. Pa. 2016) (concluding that the plaintiff had
sufficiently pleaded facts to raise the reasonable expectation that further discovery would reveal
proof of his Monell claim). In Simpson, the Court reviewed cases that had relied upon the DOJ
Report—the same DOJ Report attached to the Amended Complaint in this case—and concluded
that “certain findings and conclusions within the Report appear to contemplate all use of force
concepts and training initiatives within the PPD, not just lethal force.” Id. at 451. Applying a
broad view, the court read the Report to support the Monell claim. However, the plaintiff in
Simpson was allegedly beaten by city police officers following a foot chase—conduct that more
closely resembles the type of “deadly force” that motivated the DOJ Report. Likewise, the
plaintiffs in the cases upon which the Simpson Court relied brought allegations of particularly
brutal police conduct. See, e.g., Valdez v. City of Philadelphia, No. 2:12-CV-7168-CDJ, 2016
WL 2646667, at *1–2 (E.D. Pa. May 10, 2016) (plaintiff was allegedly beaten and tased); Harris
v. City of Philadelphia, 171 F. Supp. 3d 395, 398 (E.D. Pa. 2016) (plaintiff was allegedly struck
with a baton and tased, resulting in injuries requiring surgical intervention). The Court
recognizes that the DOJ Report may contemplate uses of force that fall below a lethal level and
may make some generally-applicable conclusions, but the type of the conduct alleged here—
while by no means admirable, assuming it occurred—does not resemble either the conduct

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directly addressed in the Report or the conduct suffered by plaintiffs in the cases upon which Mr.
Williams relies. Accordingly, the Court concludes that Mr. Williams has not sufficiently pleaded
a Monell claim.
The City’s Motion is entirely focused on the City’s disciplinary, supervisory, or training
customs, not the PPD’s alleged investigatory deficiencies. In their briefing and at oral argument,
the parties focus on the DOJ Report and expend minimal breath on the other documents
appended to the Amended Complaint, including news articles concerning lawsuits brought
against the City for police misconduct. The articles explain that approximately 1,223 lawsuits
were brought against the City for police misconduct between 2009 and 2014, and during that
time, the City paid out more than $40 million in settlements. See Exs. A & B. Mr. Williams
highlights that in 2015, 180 lawsuits alleging police misconduct had been filed against the City
by July—one month after the incident with Officer Velez. These facts appear to be alleged in
support of Mr. Williams’s allegation that the City had a policy or custom of allowing officers to
use excessive force, as demonstrated by its alleged reluctance to pursue investigations. Because
the Court concludes that, as pleaded here, the failure to investigate claim largely mirrors the
failure to train claim, dismissal is proper.
Courts in this Circuit have found an analytical distinction between a Monell policy or
custom rooted in failure to investigate and one rooted in training, supervision, or discipline. See,
e.g., Simpson, 202 F. Supp. 3d at 452 –456 (permitting a failure to investigate claim to proceed
on the basis of statistics pertaining to police misconduct lawsuits and settlements); Noble v. City
of Camden, 112 F. Supp. 3d 208, 224 (D.N.J. 2015) (concluding that a reasonable jury could find
that the City of Camden had a custom of performing inadequate investigations of citizen
complaints of police brutality, which reflected an indifference to the allegedly excessive use of

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force by its officers). At summary judgment, the Noble court was presented with evidence
showing an escalating number of excessive force complaints against police officers over the
years, and evidence that few of these complaints ever resulted in a finding of misconduct.
Plaintiff in Noble also pointed to a sample of 40 reports from the Camden Police Department
Internal Affairs Unit and argued that civilian complaints of excessive force were often
inadequately investigated, and there was a consistent backlog of complaints that the Police
Department was aware of, but did nothing to remedy. 112 F. Supp. 3d at 223–24. While
admittedly in a different procedural posture, the allegations in Amended Complaint here do not
remotely resemble the type of theory put forth in Noble.
Here, aside from Mr. Williams’s personal difficulty reporting the incident with Officer
Velez to Internal Affairs, he pleads no facts supporting a pattern of investigatory failures. While
Mr. Williams’s recounts that his request to report the incident was rejected, the Amended
Complaint does not contain any factual allegations that the PPD rejected similar requests or that
investigations that did occur were somehow lacking. To the extent that Mr. Williams alleges a
“buddy system” existed among officers to insulate them from complaints, statistics regarding the
overall volume of complaints against the City and accompanying settlement figures simply do
not provide the type of factual allegations necessary to support a theory rooted in investigatory
process failures.
When Judge Goldberg relied upon these same statistics to permit allowing a pattern of
investigatory failure theory to proceed in Simpson, he recognized that “mere allegations, and
even settlements, do not establish liability or the existence of an unlawful custom” and he viewed
the statistics in light of the plaintiff’s personal history of being targeted by the police. Id. at 453.
There is no similar allegation of personal targeting here, and the statistics instead simply serve to

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illustrate that civilians have lodged misconduct complaints against the City. That numerous
lawsuits have been brought against the City or that the City doled out significant funds to rid
themselves of such suits does not illuminate with requisite specificity a policy of investigatory
failures. Absent such specificity, the allegations of investigatory failures hold little weight
because the focus is instead on the training, supervision, or discipline resulting from the
investigation itself. Regardless of the manner in which investigations are (or are not) pursued,
the outcome of those investigations ultimately becomes duplicative of the theory that the City
failed to train, supervise, or discipline officers. Accordingly, the Court finds that Mr. Williams
has not properly pleaded a Monell policy or custom and will dismiss Count II. 4 Should
discovery reveal information that enables Mr. Williams to properly plead a Monell claim at a
later date, he seek leave to amend his complaint.
CONCLUSION
For the foregoing reasons, the Court will grant the City’s Motion to Dismiss Mr.
Williams’s Monell claim (Count II). An appropriate order follows.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge

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Likewise, the Amended Complaint does not properly plead that the failure to investigate or train
proximately caused Mr. Williams’s injury. Monell requires that a plaintiff allege facts demonstrating that the
municipality’s practice proximately caused the injuries he suffered. “A sufficiently close causal link between a
known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation
was made reasonably probable by permitted continuation of the custom.” Bielevicz v. Dubinon, 915 F.2d 845, 851
(3d Cir. 1990) (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir.1987) (alterations omitted). This causal
link cannot be “too tenuous.” 915 F.2d at 851. The causal link in this case is “too tenuous” in large part because the
type of incident here—a broken thumb during arrest—differs significantly from the type of conduct addressed by the
appended documents supporting an alleged custom. Thus, for similar reasons the Amended Complaint fails to plead
a policy or custom under Monell, Mr. Williams has not satisfied the causation element.

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