LEWIS et al v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE BERLE M. SCHILLER ON 3/3/17. 3/3/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TANYA LEWIS &
CITY OF PHILADELPHIA, et al.,
March 3, 2017
While looking for a burglary suspect, officers of the Philadelphia Police Department
allegedly barged illegally into the home of Tanya Lewis, and battered and detained her son
Timothy Mayhew. When Lewis protested, Officer Alexander Branch arrested her for disorderly
conduct. After a witness cleared Mayhew of any connection with the burglary, Mayhew also
protested his treatment and Sergeant Aaron Farmbry arrested him for disorderly conduct. At trial,
both Lewis and Mayhew were acquitted.
Lewis and Mayhew (together, “Plaintiffs”) sued Officer Branch, Sergeant Farmbry,
twelve unnamed police officers, and the City of Philadelphia for violating their First and Fourth
Amendment rights and for committing various state torts. The City now moves to dismiss
Plaintiffs’ claims against it for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Because Plaintiffs’ Complaint does not satisfy the basic requirements of municipal
liability established in Monell v. Dep’t of Soc. Servs. of N.Y. City, 436 U.S. 658 (1978) and its
progeny, the Court will grant the motion.
In December 2014, Lewis was living in her Philadelphia home with her son Mayhew.
(Compl. ¶ 18.) Plaintiffs allege that on December 9, officers of the Philadelphia Police
Department arrived outside Lewis’s home while investigating a burglary that had taken place
several blocks away. (Id. ¶ 19.) Lewis opened her front door to discover numerous police officers
on her street. (Id. ¶¶ 20–22.) An officer stated that they were looking for a black man in a hoodie
who they believed had entered her home. (Id. ¶ 23.) Lewis told the officers that her daughter’s
boyfriend had just returned from getting pizza. (Id. ¶ 24.) Lewis’s daughter and her daughter’s
boyfriend then went outside to speak with the officers, apparently without incident. (Id. ¶ 25.)
Plaintiffs allege that suddenly and without justification, several police officers ran into
Lewis’s home and pointed their guns at Mayhew, who was standing in the living room. (Id.
¶¶ 27–29.) Fearing for his life, Mayhew ran into the cinder-block fenced backyard, where
Plaintiffs allege that several police officers battered him. (Id. ¶¶ 30–33.) The officers then carried
Mayhew to the street, placed him in a police car, and drove him to an in-person identification
related to the burglary. (Id. ¶¶ 35, 41.) After the eyewitness cleared Mayhew of any connection
to the burglary, Mayhew told Sergeant Farmbry that he was upset about his detention and
treatment by the police. (Id. ¶¶ 42–43.) Sergeant Farmbry told Mayhew to stop speaking. (Id.
¶ 44.) When he refused, Sergeant Farmbry arrested Mayhew. (Id. ¶ 45.)
Meanwhile, Lewis had become upset about the officers’ behavior and, after briefly
fainting, questioned the officers about what they were doing to Mayhew. (Id. ¶¶ 34, 36–37.)
Officer Branch told Lewis that she would be arrested if she did not stop speaking. (Id. ¶ 38.)
When she continued to speak, he arrested her. (Id. ¶¶ 39–40.)
Lewis and Mayhew were separately taken to the seventeenth district police station, where
they were both charged with disorderly conduct and issued citations. (Id. ¶¶ 40, 45–47.) Lewis
and Mayhew then allegedly went to a hospital emergency room, where Mayhew was treated for
his injuries. (Id. ¶¶ 48–49.) Soon after, Lewis filed a complaint about the incident with the
Philadelphia Police Department’s Internal Affairs Bureau. (Id. ¶ 50.) At trial two months later,
Judge T. Francis Shields granted a motion for judgment of acquittal for both Lewis and Mayhew.
(Id. ¶¶ 51–56.)
Two years later, Lewis and Mayhew sued Officer Branch, Sergeant Farmbry, twelve
unnamed police officers, and the City of Philadelphia. They allege that the defendant police
officers violated Plaintiffs’ First and Fourth Amendment rights to be free from unlawful search,
unlawful arrest, retaliatory arrest, malicious prosecution, assault, and the use of excessive force.
(Id. ¶¶ 66–70.) They also assert that the officers committed the state law torts of false arrest,
false imprisonment, malicious prosecution, trespass, conversion, assault, and battery. (Id. ¶¶ 72–
73.) In addition, Plaintiffs allege that the City of Philadelphia proximately caused Plaintiffs’
injuries through customs that encouraged Philadelphia Police Department officers to engage in
unconstitutional conduct. (Id. ¶ 71; Pls.’ Resp. Mot. Dismiss 7–9.) The City of Philadelphia now
moves to dismiss the claims against it for failure to state a claim under Federal Rule of Civil
STANDARD OF REVIEW
In reviewing a motion to dismiss for failure to state a claim, a district court must accept
as true all well-pleaded allegations and draw all reasonable inferences in favor of the nonmoving
party. See Powell v. Weiss, 757 F.3d 338, 341 (3d Cir. 2014). A court need not, however, credit
“bald assertions” or “legal conclusions” when deciding a motion to dismiss. Anspach ex rel.
Anspach v. City of Phila., Dep’t of Pub. Health, 503 F.3d 256, 260 (3d Cir. 2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The “[f]actual allegations [in a complaint] must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a
motion to dismiss, a complaint must include “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. Although the Federal Rules of Civil Procedure impose no
probability requirement at the pleading stage, a plaintiff must present “enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary element[s]” of a
cause of action. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal
quotation marks omitted). “A claim has facial plausibility 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. Simply reciting the elements will not suffice. Id.
(holding that pleading labels and conclusions without further factual enhancement will not
survive motion to dismiss); see also Phillips, 515 F.3d at 233. In deciding a motion to dismiss,
the court may consider “allegations contained in the complaint, exhibits attached to the
complaint and matters of public record.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)
(internal quotation marks omitted).
The Third Circuit has established a two-part analysis for a motion to dismiss for failure to
state a claim. First, the legal conclusions and factual allegations of the claim should be separated,
with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v.
UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). Second, the court must make a common
sense determination of whether the facts alleged in the complaint are sufficient to show a
plausible claim for relief. Id. at 211. If the court can only infer the possibility of misconduct, the
complaint must be dismissed because it has alleged—but failed to show—that the pleader is
entitled to relief. Id.
The City argues that Plaintiffs’ Complaint fails to include any factual allegations against
the City specifically. Plaintiffs counter that the Court can infer from the behavior of police
officers at the scene that the City had a custom of encouraging its police officers to engage in
unconstitutional behavior. Because Plaintiffs’ assertion does not meet the requirements of Monell
v. Dep’t of Soc. Servs. of N.Y. City, 436 U.S. 658 (1978), the Court will grant the City’s motion.
Municipal Liability Under 42 U.S.C. § 1983 and Monell
To state a claim for municipal liability under 42 U.S.C. § 1983 and Monell, a plaintiff
must show that the municipality had a policy or custom that deprived the plaintiff of her
constitutional rights, and that the policy or custom was the proximate cause of her injuries.
Watson v. Abington Twp., 478 F.3d 144, 155–56 (3d Cir. 2007). Municipal liability “may not be
proven under the respondeat superior doctrine, but must be founded upon evidence that the
government unit itself supported a violation of constitutional rights.” Bielevicz v. Dubinon, 915
F.2d 845, 850 (3d Cir. 1990) (citing Monell, 436 U.S. at 691–95). In other words, a municipality
may be sued directly for constitutional violations only “when 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.” Monell, 436 U.S. at 694.
First, a plaintiff must demonstrate a municipal policy or custom. 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.” Andrews v. City of Phila., 895 F.2d
1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). A
custom is an action that, “although not specifically endorsed or authorized by law, is so wellsettled and permanent as virtually to constitute law.” Bielevicz, 915 F.2d at 850. Municipal
liability may be based on the actions of a single official policymaker if that person holds “final
authority” to establish such policy. Pembaur, 475 U.S. at 480–83.
Under either the policy or the custom route, “a plaintiff must show 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.” Watson, 478 F.3d at 156 (internal quotation marks
omitted); accord McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009) (“Custom
requires proof of knowledge and acquiescence by the decisionmaker.”). But a plaintiff need not
identify the specific responsible decisionmaker; instead, “[p]ractices so permanent and well
settled as to have the force of law are ascribable to municipal decisionmakers.” Bielevicz, 915
F.2d at 850 (internal quotation marks and modification omitted). A plaintiff need only establish,
for example, that “policymakers were aware of similar unlawful conduct in the past, but failed to
take precautions against future violations.” Id. at 851; see also Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 584 (3d Cir. 2003) (recognizing that municipal liability can attach when a
policymaker fails to act affirmatively at all, even though “the inadequacy of existing practice [is]
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”).
Second, a plaintiff must prove “that the municipal practice was the proximate cause of
the injuries suffered.” Bielevicz, 915 F.2d at 850. This requires “a ‘plausible nexus’ or
‘affirmative link’ between the municipality’s custom and the specific deprivation of
constitutional rights at issue.” Id. But a plaintiff “need not demonstrate that their injuries were
the direct result of formal departmental procedures or encouragement.” Id. at 851. Instead, a
plaintiff can satisfy the requirements of § 1983 and Monell by demonstrating that municipal
failure “to take precautions against future violations” led, at least in part, to the plaintiff’s
Plaintiff’s Complaint Does Not Allege Deliberate Action by a Municipal
Plaintiffs concede that the only mention of the City in their Complaint—Paragraph 71—
constitutes a legal conclusion that the Court must disregard. (Pls.’ Resp. Mot. Dismiss 7); see
Fowler, 578 F.3d at 210–11. Instead, Plaintiffs encourage the Court to infer municipal custom
from the alleged behavior of numerous Philadelphia police officers, (Pls.’ Resp. Mot. Dismiss 7–
9), which the Court assumes to be true for the purpose of this motion, see Fowler, 578 F.3d at
210–11. They argue that absent a custom, police officers would not have entered Plaintiffs’ home
illegally or stood by while other officers engaged in an illegal search and seizure. (Pls.’ Resp.
Mot. Dismiss 8.) Without municipal blessing, Plaintiffs contend, their complaint to the Internal
Affairs Bureau would not have gone unanswered. (Id. 8–9.)
The Court cannot infer custom from the facts alleged in the Complaint. Plaintiffs have
not presented any factual allegations that “an official who has the power to make policy is
responsible for . . . acquiescence in a well-settled custom.” Bielevicz, 915 F.2d at 850. As the
Third Circuit has explained, Plaintiffs can satisfy this requirement simply by showing “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.” Id. at 851. But
in the absence of any allegation of municipal acquiescence or deliberate indifference, Plaintiffs
are asking the Court to invoke the very respondeat superior theory barred by Monell. 436 U.S. at
691. This, the Court cannot do. However, the Court will afford Plaintiffs an opportunity to
amend their Complaint.
Because Plaintiffs have not provided factual allegations sufficient to satisfy the basic
requirements of § 1983 and Monell, the City’s motion is granted. An Order consistent with this
Memorandum will be docketed separately.
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