TINGEY v. PENNSYLVANIA STATE PROBATION AND PAROLE BOARD et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/9/17. 11/13/17 ENTERED AND COPIES EMAILED TO COUNSEL.(jaa, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PROBATION OFFICER DAGE
SUPERVISING PROBATION OFFICER
EDWARD L. BURKE, Member Board of
Probation and Parole,
LESLIE M. GREY, Member Board of
Probation and Parole,
GRAIG R. McKAY, Member Board of
Probation and Parole,
MICHAEL L. GREEN, Member Board of
Probation and Parole,
JEFFREY R. IMBODEN, Member Board of
Probation and Parole,, and
MICHAEL C. POTTEIGER, Member
Board of Probation and Parole,
November 9, 2017
In this suit arising under 42 U.S.C. § 1983, plaintiff Mark Tingey asserts claims against
defendants for false arrest and false imprisonment, violations of “substantive due process,” and
supervisory liability. The defendants are Dage Gardner, a probation officer alleged to have
personally harmed plaintiff; Caitlin McLaughlin, his supervising officer; and six individual
members of the Pennsylvania Board of Probation and Parole (“Parole Board”). Presently before
the Court are two identical Motions to Dismiss filed by the individual members of the Parole
Board: one filed by defendants Edward Burke, Leslie Grey, and Michael Potteiger, and the other
filed by defendants Craig 1 McKay, Jeffrey Imboden, and Michael Green (collectively, “Parole
Board defendants”). Because plaintiff has provided only conclusory allegations against Parole
Board defendants, their Motions to Dismiss are granted.
The facts below are drawn from plaintiff’s Amended Complaint. The Court construes
that complaint in the light most favorable to the plaintiff, as it must in a motion to dismiss. The
facts set forth in the Amended Complaint may be summarized as follows:
Plaintiff started probation in Utah on January 1, 2015. Am. Compl. ¶ 9. Plaintiff
transferred his probation to Pennsylvania on January 27, 2015, and met with defendant Probation
Officer Dage Gardner on January 28, 2015. Am. Compl. ¶¶ 10-11. On August 11, 2015,
Gardner visited and illegally searched plaintiff’s home. Am. Compl. ¶¶ 13-15, 19. During the
search, Gardner discovered “a pornographic email in plaintiff’s spam folder,” which plaintiff
says he did not solicit. Am Compl. ¶ 18. The terms of plaintiff’s probation prohibited him from
visiting pornographic websites on his computer. Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at
4. Based on the email, Gardner threatened to have plaintiff incarcerated. Am. Compl. ¶¶ 13-15,
On August 13, 2015, defendant Supervisory Probation Officer McLaughlin improperly
issued a Warrant to Commit and Detain plaintiff based on the email discovered by Gardner. Am.
Compl. ¶¶ 22-23. Gardner subsequently arrested plaintiff for violation of probation and detained
him in a halfway house for “approximately 7 days.” Am. Compl. ¶ 24. On August 20, 2015,
Gardner, “at the direction and/or with the consent of Defendant McLaughlin,” told plaintiff that
The Court notes that although defendant McKay is identified by the given name “Graig” in the
case caption and the Amended Complaint, defendants have identified him as “Craig” in their
briefing, and that is evidently his correct name. The case caption and the Amended Complaint
are amended to correctly refer to defendant Craig McKay.
unless he signed a waiver of his right to a preliminary hearing and a violation hearing, he would
serve the remainder of his term in state prison. Am. Compl. ¶25. Under coercion, plaintiff
signed the waiver, and was detained in the halfway house for an additional 72 days. Am. Compl.
¶¶ 26, 28. During this time, plaintiff was “threatened and robbed several times.” Am. Compl.
Plaintiff’s allegations in the Amended Complaint against Parole Board defendants
contrast with the detailed allegations against defendant Gardner. With respect to the Parole
Board defendants, plaintiff alleges only that Gardner’s illegal detention of plaintiff was pursuant
to the “policies/practices/procedures” of the Parole Board, that the individual Parole Board
defendants “were personally involved in the violation of Plaintiff’s constitutional rights by
acquiescing in a policy, practice or custom” of arresting probationers without probable cause,
and that Parole Board defendants “took affirmative steps to violate Plaintiff’s constitutional
rights by failing to exercise control over the probation officers under their supervision.” Am.
Compl. ¶¶ 29, 50, 51. Parole Board defendants had “final decision making authority over all
policies, practices and procedures regarding Probation and Parole, and, pursuant to their final
decision making authority” allowed Gardner to detain plaintiff. Am. Compl. ¶ 5. Plaintiff sued
Parole Board defendants in their individual capacities. Am. Compl. ¶ 6.
Plaintiff filed his first Complaint, Doc No. 1, on February 22, 2017, naming only Gardner
and the Parole Board itself as defendants. Plaintiff filed an Amended Complaint, Doc. No. 4, on
March 31, 2017, dropping the Parole Board as a defendant and adding McLaughlin and the
individual Parole Board members as defendants. Plaintiff’s Amended Complaint contains three
counts. Count I sets forth claims for false arrest and false imprisonment, against all defendants,
under state law. Count II sets forth claims for violation of plaintiff’s substantive due process
rights under the Fourteenth Amendment for false arrest and false imprisonment against all
defendants. Count III sets for claims for “supervisory liability” in violation of the Due Process
Clause of the Fourteenth Amendment against McLaughlin and each of the individual Parole
Board defendants for acquiescing in a policy, practice, or custom of detaining probationers
without probable cause and for failing to control probation officers under their supervision.
Defendants Burke, Grey, and Potteiger, filed a Motion to Dismiss the Amended
Complaint for failure to state a claim on June 26, 2017. Doc. No. 13. Defendants Green,
Imboden, and McKay filed an identical Motion to Dismiss on September 12, 2017. Doc. No. 22.
Plaintiff filed identical Responses to the Motions on July 10, 2017, Doc. No. 16, and October 11,
2017, Doc. No. 23. In his Responses plaintiff does not oppose dismissal of Counts I and II
against the Parole Board defendants. Consequently, this Court dismisses Counts I and II and
addresses only Count III in this Memorandum.
“The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of a complaint.”
Nelson v. Temple Univ., 920 F. Supp. 633, 674 n.2 (E.D. Pa. 1996). To survive a motion to
dismiss, plaintiff must allege “sufficient factual matter, accepted as true, to state a claim for relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A claim has facial
plausibility when the pleaded factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 663. In assessing the plausibility
of the plaintiff’s claims, a district court first identifies those allegations that constitute nothing
more than “legal conclusions” or “naked assertions.” Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555, 557 (2007). Such allegations are “not entitled to the assumption of truth” and must be
disregarded. Iqbal, 556 U.S. at 679. The court then assesses “the ‘nub’ of the plaintiff[’s]
complaint—the well-pleaded, nonconclusory factual allegation[s]”—to determine whether it
states a plausible claim for relief. Id.
A claim for violation of rights established in the Constitution or federal laws is brought
under 42 U.S.C. § 1983. 2 Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To
state a claim under § 1983, a plaintiff must allege that the defendant, acting under color of state
law, deprived him of a right secured by the United States Constitution or federal law. Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “It is well-recognized that government
officials may not be held liable for the unconstitutional conduct of their subordinates under a
theory of respondeat superior.” Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316
(3d Cir. 2014), cert. granted, rev’d on other grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042
(2015); accord Iqbal, 556 U.S. at 677. Two theories, however, allow a supervisory official to be
held liable for his or her own conduct. A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,
372 F.3d 572, 586 (3rd Cir. 2004)
First, a supervisory official may be liable where he, “with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which directly caused
[the] constitutional harm.” A.M., 372 F.3d at 586 (alteration in original) (quoting Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). In seeking to impose liability on a
Plaintiff does not state in the Amended Complaint under which statutory provisions or common
law he seeks to bring his claims. The facts alleged in support of Count III of the Amended
Complaint—the only count whose dismissal plaintiff opposes—turn largely on the violation of
plaintiff’s constitutional rights by state actors and the parties have addressed only § 1983 in their
Motions to Dismiss and corresponding Responses. Thus, this Court reads Count III as
purporting to state claims under § 1983.
policymaker, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused the
plaintiff’s injury.” Bd. of the Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).
Second, an official may be held liable for “supervisory liability” where “he or she
participated in violating the plaintiff’s rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinates’ violations.” A.M., 372 F.3d at 586
(quoting Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Where the alleged
wrong is not affirmative conduct by the supervisor, but failure to institute adequate supervisory
procedures, a plaintiff must identify a “specific supervisory practice or procedure that [the
supervisor] failed to employ” and show that “(1) the existing custom and practice without that
specific practice or procedure created an unreasonable risk of [constitutional harm], (2) [the
supervisor] was aware that this unreasonable risk existed, (3) [the supervisor] was indifferent to
that risk, and (4) [the constitutional harm] resulted from [the supervisor’s] failure to employ that
supervisory practice or procedure.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989);
accord Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001).
Plaintiff asserts claims against Parole Board defendants in Counts I and II for plaintiff’s
false arrest and false imprisonment and due process deprivations and in Count III under a theory
of supervisory liability for (1) constitutional harm caused by the Parole Board’s policies and (2)
failure to exercise control over probation officers under the Parole Board’s supervision.
Counts I and II: False Imprisonment and Substantive Due Process
Plaintiff does not opposed dismissal of Counts I and II for false arrest and false
imprisonment under state law and deprivation of substantive due process under the Fourteenth
Amendment against Parole Board defendants. Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at 3.
Accordingly, Parole Board defendants’ Motions are granted as to Counts I and II.
Count III: Supervisory Liability
Plaintiff’s claims under Count III of the Amended Complaint for (1) constitutional harm
caused by the Parole Board’s policies and (2) failure to control probation officers under the
Parole Board’s supervision are supported by only conclusory allegations and consequently must
1. Constitutional Harm Caused by Parole Board Policy
In his remaining claim, plaintiff argues that that Gardner acted pursuant to the
“policies/practices/procedures” of the Parole Board and that the individual Parole Board
defendants are consequently liable for “acquiescing in a policy, practice or custom” of arresting
probationers without probable cause. Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at 9. A
supervisory official may be liable where he, “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused [the] constitutional
harm.” A.M., 372 F.3d at 586. Plaintiff’s broad, generalized allegations, however, constitute
nothing more than “legal conclusions” or “naked assertions” and must be disregarded. Stripped
of its conclusory allegations, the Amended Complaint does not point to any specific policy,
practice, or custom enacted by Parole Board defendants that caused plaintiff’s constitutional
harm. Further, plaintiff does not set forth any facts beyond the above conclusory allegations
giving rise to a reasonable inference that defendants acted with a “deliberate indifference” to the
risk of any constitutional harm posed by their policies.
Plaintiff’s argument that a policymaker or municipality may be held liable where the risk
posed by a policy is “obvious” is to no avail. Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at 10
(citing City of Canton, 489 U.S. 378, 390 (1989)). The Amended Complaint simply does not
contain any allegations supporting an inference that the need for different policies was obvious.
In its totality, the Amended Complaint alleges only that Parole Board defendants had control
over policy related to parole and probation and that Gardner acted pursuant to that policy. Am.
Compl. ¶¶ 6, 29, 50, 51. This does not establish a reasonable inference that the need for an
additional policy was “obvious.”
Further, the need for an additional policy is not made “obvious” by the misconduct of a
single officer, as plaintiff in this case argues. In City of Canton, the Supreme Court held that a
municipality could be held liable “if the employee has not been adequately trained[,] the
constitutional wrong has been caused by that failure to train,” and the “shortcoming [can] be
properly thought of as a city ‘policy or custom.’” 489 U.S. at 387, 388. Failure to train,
however, can only be said to constitute a municipality’s policy or practice under § 1983 if
policymakers acted with a “deliberate indifference” to the risk of constitutional harm posed by its
training policies. 3 Id. at 389. Deliberate indifference can plausibly be shown where “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. Nonetheless, the fact that “a particular officer
may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the
officer’s shortcomings may have resulted from factors other than a faulty training program.” Id.
at 391. Similarly, “[n]either will it suffice to prove that an injury or accident could have been
Although City of Canton addressed municipal liability for facially constitutional policies, the
same standard is applied to policymakers, sued in their individual capacities. A.M., 372 F.3d at
586; Sample, 885 F.2d at 1118 (liability may be imposed under § 1983 only if a “‘person’—
whether a natural one or a municipality—has exhibited deliberate indifference to the plight of the
person deprived”); Stoneking, 882 F.2d at 725 (“Nothing in DeShaney suggests that state
officials may escape liability arising from their policies maintained in deliberate indifference to
actions taken by their subordinates.”).
avoided if an officer had had better or more training, sufficient to equip him to avoid the
particular injury-causing conduct.”
Plaintiff in this case has premised his claim on the exact showing—the conduct of a
single officer—rejected by the Supreme Court in City of Canton. He has failed to plead facts
which give rise to a reasonable inference that the need for additional policies was obvious and
that Parole Board defendants acted with deliberate indifference in their role as policymakers.
Count III must be dismissed to the extent it alleges claims against Parole Board defendants in
their policymaking roles.
2. Failure to Control Probation Officers Under Parole Board Supervision
Plaintiff also argues that Parole Board defendants failed to adequately control probation
officers under their supervision. Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at 10. Plaintiff’s
claim for supervisory liability under § 1983 must be dismissed because plaintiff has failed to
allege facts supporting an inference that Parole Board defendants (1) had actual knowledge of
and acquiesced in actions of the probation officers under their supervision or (2) failed to
implement a “specific supervisory practice or procedure,” Muhlenberg Twp., 269 F.3d at 216.
Each of these issues is discussed in turn.
First, plaintiff’s generalized allegations are insufficient to support an inference that Parole
Board defendants directed or “had knowledge of and acquiesced in” their subordinates’ actions.
A.M., 372 F.3d at 586. As stated above, plaintiff has only generally averred that Parole Board
defendants were responsible for (or acquiesced in) Parole Board policy and that Gardner acted
pursuant to that policy. These allegations cannot support an inference that Parole Board
defendants had knowledge of or acquiesced in Gardner’s conduct. The Court of Appeals for the
Third Circuit affirmed the dismissal of a claim of supervisory liability on similar facts in Wood v.
Williams, 568 Fed. Appx. 100, 106-07 (3d Cir. 2014). In Wood, the complaint alleged only that
the defendants “acted in a supervisory capacity” and that the defendants “either directed the
conduct which resulted in the violation of the Plaintiffs’ federal rights as alleged; or, had actual
knowledge of the subordinates violation of Plaintiffs’ rights and acquiesced in said violations; or,
with deliberate indifference to the consequences, established and maintained a policy, practice or
custom which directly caused the violation or, had a policy of maintaining no policy, where one
or more policies or regulations were clearly needed.” Id. In affirming the district court’s
dismissal, the Third Circuit stated that the complaint provided no factual allegations supporting
supervisory liability and that “[s]imply paraphras[ing] § 1983” was insufficient. Id. at 107, 104.
Plaintiff in this case, like the plaintiff in Wood, has not provided any factual allegations beyond
mere legal conclusions, and as in Wood, his complaint must be dismissed as to Parole Board
Second, plaintiff has not alleged that the Parole Board defendants failed to take a specific,
protective supervisory measure in order to control the conduct of the probation officers under
their supervision. As stated in Sample, in addition to identifying a “specific supervisory practice
or procedure that [defendants] failed to employ,” a plaintiff must show that (1) the existing
custom and practice posed an unreasonable risk of constitutional harm without the specified
supervisory practice, (2) the defendants were aware of the unreasonable risk, (3) the defendants
were indifferent to that risk, and (4) the constitutional harm resulted from the defendants’ failure
to employ that specified practice or procedure. Sample, 885 F.2d at 1118.
This standard applies to plaintiff’s claims. The Third Circuit has stated that this standard
covers a “rubric” of supervisory roles, including, “among other things, training, defining
expected performance by promulgating rules or otherwise, monitoring adherence to performance
standards, and responding to unacceptable performance whether through individualized
discipline or further rulemaking.” Sample, 884 F.2d at 1116. In Sample, the Third Circuit
applied this standard to claims that a prison supervisor “failed to enforce the written procedures
and that his failure resulted in” a prisoner’s prolonged imprisonment. 884 F.2d at 1116.
Likewise, in Brown v. Muhlenberg Township, the Third Circuit applied the standard to claims
that a police chief failed to provide adequate training on police department policy. 269 F.3d at
Plaintiff’s claims that Parole Board defendants failed to “control” probation officers or
provide them proper training, Pl.’s Resp. Mot. Dismiss, Doc. Nos. 16, 23, at 10-11, fall squarely
within this “rubric” of supervision. Plaintiff, however, has failed to satisfy the requirements of
the standard articulated in Sample. Plaintiff has not identified a specific supervisory practice the
defendants failed to implement and the allegations in the Amended Complaint do not support an
inference that Parole Board defendants were aware of or indifferent to the risk posed by any
failure to adopt additional policies to control probation officers under their supervision.
Consequently, Count III must be dismissed to the extent it alleges claims against Parole Board
defendants for supervisory liability.
For the foregoing reasons, defendants Burke, Grey, and Potteiger’s Motion to Dismiss
and defendants Green, Imboden, and McKay’s Motion to Dismiss are granted without prejudice
to plaintiff’s right to file a second amended complaint with respect to the claims in Count III of
the Amended Complaint. “[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or futile.”
Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). The Court may dismiss a
claim with prejudice based on “bad faith or dilatory motives, truly undue or unexplained delay,
repeated failures to cure the deficiency by amendments previously allowed, or futility of
amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993).
Plaintiff’s claims against Parole Board defendants asserted in Counts I and II of the
Amended Complaint are dismissed without prejudice by agreement. The Court does not find
that amendment of plaintiff’s claims against Parole Board defendants asserted in Count III of the
Amended Complaint would be futile or inequitable. Thus, those claims are dismissed without
prejudice. Plaintiff is granted leave to file a second amended complaint with respect to the
claims asserted in Count III of the Amended Complaint within twenty (20) days if warranted by
the facts and applicable law as stated in this Memorandum. An appropriate order follows.
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