HAMMON et al v. KENNETT TOWNSHIP et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 12/6/2017. 12/6/2017 ENTERED AND COPIES E-MAILED.(sme, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL S. HAMMON et al.,
KENNETT TOWNSHIP et al.,
DECEMBER 6, 2017
The facts of this case are quite unique, but the law is well-trodden. The plaintiffs,
Michael and Amy Hammon, seek recovery for injuries stemming from a car accident in which
Officer Albert McCarthy, in the throes of a seizure, struck Mr. Hammon’s vehicle. Mr. Hammon
claims that this amounts to a § 1983 violation, alleging state-created danger and Monell claims
against the township employing the officer. Mr. Hammon argues that Officer McCarthy’s past
seizures give rise to supervisory liability. The defendants filed a motion to dismiss Mr.
Hammon’s complaint for failure to state a claim, arguing that the single act of allowing Officer
McCarthy to stay on as police chief does not give rise to § 1983 liability. For the reasons stated
below, the federal law claims are dismissed for failure to satisfy the requirements of § 1983.
Given that the federal anchor claims are dismissed, the state law claims are dismissed for lack of
Officer McCarthy is the sole police officer (and therefore the chief of police) of Kennett
Township, a small town of around 7,500 people southwest of Philadelphia. In August of 2008,
Officer McCarthy hit his head on a steel beam, causing him to have a seizure a little more than
24 hours later. He notified the township and eventually returned to work.
Three years later, in October 2011, Officer McCarthy suffered an absent seizure 1 while
driving on duty and rear-ended another car. He again notified the township of the incident.
Although Officer McCarthy’s doctor told him that he probably would not suffer another absent
seizure, the township still placed Officer McCarthy on medical leave and suspended his drivers
license. 2 Eventually, the township allowed Officer McCarthy to resume driving while on duty.
Over three years later, in April 2015, Officer McCarthy had another absent seizure while
driving on duty. This time, he hit the plaintiff, Mr. Hammon, and that accident is the subject of
this lawsuit. Mr. Hammon sued Officer McCarthy, the township, and the members of the
township’s board of supervisors for violating § 1983 and various state laws.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Although Rule 8
of the Federal Rules of Civil Procedure 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), “to ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests,’” the plaintiff must provide
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration
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
An absent seizure is characterized by a momentary loss of consciousness that begins and ends abruptly,
lasting only a few seconds. In contrast to traditional seizures, which cause the body to violently shake,
absent seizures have no outside indications and often go unnoticed.
Pennsylvania code requires suspension of a driver’s license unless a licensed physician can report that
“the person has been free from seizure for at least 6 months immediately preceding with or without
medication.” 67 Pa. Code § 83.4(a).
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The question is
not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to
cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and
internal quotation marks omitted). Thus, assessment of the sufficiency of a complaint is “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, 627 F.3d 85,
98 (3d Cir. 2010).
In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized
parameters. For one, the Court “must consider only those facts alleged in the complaint and
accept all of the allegations as true.” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994);
see also Twombly, 550 U.S. at 555 (stating that courts must “assum[e] that all the allegations in
the complaint are true (even if doubtful in fact)”); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.
2010) (“[A] court must consider only the complaint, exhibits attached to the complaint, matters
of public record, as well as undisputedly authentic documents if the complainant’s claims are
based upon these documents”). Also, the Court must accept as true all reasonable inferences
emanating from the allegations, and view those facts and inferences in the light most favorable to
the nonmoving party. See Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); see
also Revell v. Port Auth., 598 F.3d 128, 134 (3d Cir. 2010).
That admonition does not demand that the Court ignore or discount reality. 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) (citations and internal
quotation marks omitted), and “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, supported by mere conclusory statements, do not suffice.” Ashcroft, 556
U.S. at 678; see also Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)
(explaining that a court need not accept a plaintiff’s “bald assertions” or “legal conclusions”
(citations omitted)). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a
curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of
Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
To state a claim against an individual under § 1983, a plaintiff must show that the
defendant (1) was a person who (2) under the color of state law (3) caused a (4) deprivation of
constitutional rights. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Here, Mr.
Hammon alleges both supervisory liability for the township and its board of directors, and
liability for Officer McCarthy himself. The parties agree that these distinctions are largely
irrelevant, given that the claims are the same for both groups of defendants. Mr. Hammon casts
Officer McCarthy, as chief of police, as a supervisor for the purposes of § 1983. This agreement
between the parties means that the arguments fall into two claims: Monell liability and statecreated danger liability.
A. Legal Background
The Supreme Court has only addressed the question of supervisory liability twice in the
last half century. First, in Rizzo v. Goode, the Court found that a theory a “pattern of frequent
police violations” was insufficient to hold a police department liable under § 1983. 423 U.S. 362,
374 (1976). The Court held that there must be an “adoption and enforcement of deliberate
policies” by defendants to give rise to liability. Id. The Court refined this standard two years later
in Monell. There, a group of women challenged an official policy requiring pregnant employees
to take unpaid leaves of absence. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978).
The Court held the challenge to the official policy was permissible, but such liability is limited.
Id. at 659. Although local governments were “persons” under § 1983, they could not be held
liable under a theory of respondeat superior. Id. at 691. To be liable, the government must
perform an official act. The “touchstone of the § 1983 action against a government body is an
allegation that official policy is responsible for a deprivation of rights protected by the
constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom
has not received formal approval through the body’s official decisionmaking channels.” Id.
In other words, for a township to be held liable under § 1983, there must be either an
official act or custom that caused the deprivation of civil rights. The Monell Court rejected, as a
categorical matter, the concept of respondeat superior liability in § 1983. 3 Rather, there must be
a “decision officially adopted or promulgated by those whose edicts or acts may fairly be said to
represent official policy.” Id. at 659. As the Third Circuit Court of Appeals explained,
“[i]ndividual defendants who are policymakers may be liable under § 1983 if it is shown that
such defendants, ‘with deliberate indifference to the consequences, established and maintained a
policy, practice or custom which directly caused [the] constitutional harm.’” A.M. ex rel. J.M.K.
v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v.
Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Although there had been some dispute about whether this categorical rejection was dicta or precedential,
the dispute is largely academic. The categorical reasoning behind rejection of respondeat superior applies
equally to municipal liability addressed in Monell, and supervisory liability addressed in Rizzo. PostMonell courts have taken the statement to apply equally to supervisory liability and municipal liability.
As lower courts analyzed the Rizzo and Monell cases, two salient features emerged. First,
courts interpret “supervisory liability” differently than “municipal liability” under § 1983. For
supervisory liability to attach, a plaintiff must either (1) “plead that [defendants] ‘directed others
to violate her rights’” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting
A.M., 372 F.3d at 586) or (2) that “with deliberate indifference to the consequences, established
and maintained a policy, practice or custom which directly caused [the] constitutional
harm.” Stoneking, 882 F.2d at 725. Municipal liability on the other hand, only attaches when an
injury is “inflicted by ‘execution of a government’s policy or custom.’” Santiago, 629 F.3d at
135 (quoting Monell, 436 U.S. at 694).
Second, both standards focus on causation. For supervisors or policymakers to be liable,
their actions must cause the deprivation of civil rights. In a straightforward application, a
supervisor would be liable under § 1983 for an unconstitutionally race-based arrest if that arrest
was made pursuant to an unconstitutional policy to arrest people based on race. But such a
requirement need not be an affirmative step. It can also be “deliberate indifference to the plight
of the person deprived.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). To meet the
deliberate indifference standard, a plaintiff must plead that (1) there is an unreasonable risk of a
deprivation of rights (2) that the supervisor or municipality was aware of that risk (3) that they
were indifferent to that risk and (4) the failure to enact policies regulating that risk caused the
deprivation of rights in this instance. Id. Only then can a policy-maker’s inaction fairly be
deemed as causing a plaintiff’s deprivation of rights under § 1983.
Mr. Hammon alleges that the city had a policy or custom to allow such deprivations of
citizens’ civil liberties, but points to no evidence of such a policy or custom. Mr. Hammon tries
to argue that (1) the decision to allow Officer McCarthy to drive a car constitutes a custom or
policy or (2) that the lack of a custom or policy preventing Officer McCarthy from driving a car
constitutes a policy or custom.
As to the first argument, that a discrete act gives rise to Monell liability, Mr. Hammon
points to a sole unpublished opinion by this Court. See Hunter v. City of Phila., No. 15-cv-2737,
2015 WL 7734158 (E.D. Pa. Dec. 1, 2015). This Court cited to Connick v. Thompson for the
proposition that a single act could give rise to liability for a city under § 1983. 563 U.S. 51, 63
(2011). But the Connick formulation of an act that can give rise to such liability encompasses a
“narrow range” of actions. Id. at 64. The example the Connick Court gave was a “city that arms
its police force with firearms and deploys the armed officers into the public to capture fleeing
felons without training the officers in the constitutional limitation on the deadly use of force.” Id.
at 63 (citing City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)). Although that type of
situation would be a discrete act, such an act is a de facto policy. In other words, the discrete acts
in the Connick and Canton formulations were acts to create a policy or custom. The act the Court
discussed there was so egregious and sweeping that the decisionmakers must have known that it
would result in a deprivation of constitutional rights.
The parties have pointed to no case where a court has held that a simple decision, like
the one at issue here, can give rise to liability. This is likely because such a holding would mean
every action taken by a supervisor that resulted in injury would give rise to § 1983 liability. Mr.
Hammon’s reading of § 1983 would transform it from a statute that requires an intentional
deprivation of rights to a strict liability statute. Cf. Daniels v. Williams, 474 U.S. 327, 330–32
(1986) (negligence cannot trigger liability under § 1983). Such an action would also fly in the
face of the Supreme Court’s rejection of respondeat superior liability in the § 1983 context. See
Monell, 436 U.S. at 691.
As to the second argument, that a lack of a policy constitutes a policy itself, Mr. Hammon
again points to no case law on point. Although Mr. Hammon equivocates on his theory here, this
argument is properly analyzed under the deliberate indifference standard. However, as the name
implies, deliberate indifference requires that the policymakers were deliberately indifferent to the
risk of harm. That is not the case here. The complaint alleges that the township had meetings and
took action to regulate Officer McCarthy’s access to a vehicle until he was deemed medically fit.
Further, Mr. Hammon must also show that there was an unreasonable risk of the deprivation of
civil rights. Here, multiple years passed between the traumatic brain injury and the present case.
The complaint does not allege that Officer McCarthy was medically denied a return to duty, and
nothing in the complaint shows that any medical personnel thought that a seizure would happen
again. Because two of the four requirements for deliberate indifference are not, Mr. Hammon’s
claim under Monell is dismissed.
A. Legal Background
Mr. Hammon next argues that the defendants are liable for creating the danger that led to
the car accident. To establish a state-created danger claim under § 1983, a plaintiff must plead
(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 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 public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to
the citizen or that rendered the citizen more vulnerable to danger than had the state not
acted at all.
Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013). See also Morrow v. Balaski, 719 F.3d
160, 177 (3d Cir. 2013).
The Third Circuit Court of Appeals has noted that “the line between action and inaction
is not always easily drawn.” Morrow, 719 F.3d at 177. The plaintiffs in Morrow argued that the
affirmative act sufficient to meet this test was allowing a bully to return to school after a
suspension. The Morrow court rejected such an argument. To convert such passive inaction to an
“affirmative act” would convert any decision into an affirmative act that gives rise to liability. In
the Morrow case, it would convert action aimed at protecting the children (suspending the bully)
into an act that gives rise to liability. Such a conclusion is untenable.
The fact pattern here is remarkably akin to that in Morrow. Here, Officer McCarthy was
suspended from driving activities after his first car accident, just as the bully in Morrow was
suspended. The plaintiff here argues that allowing Officer McCarthy to return from his
suspension constitutes an affirmative act, just like the plaintiffs in Morrow argued that allowing
the bully to return to school was an affirmative act. The Third Circuit Court of Appeals rejected
that claim, and the parallel fact pattern here means that this Court is bound to do the same.
Not only does Mr. Hammon’s claim fail for failure to plead an affirmative act, but it also
fails on the third requirement. For there to be recovery as a state-created danger, the actions
taken must be targeted at a discrete individual or group, not the public in general. Here, the risk
of harm was not targeted at Mr. Hammon or anyone in particular. 4 Rather, the risk that Officer
McCarthy’s seizure would cause an accident was a risk directed toward the public in general.
Finally, the actions taken by the defendants here do not shock the conscience. The
complaint does not plead that Officer McCarthy was barred from driving his vehicle when the
crash occurred. In fact, it pleads that Officer McCarthy voluntarily submitted to neurological
consults every three months after the initial accident, and stopped driving immediately. Given
the length of time without a seizure (over three years) after the first car accident, it was
reasonable to believe Officer McCarthy could safely operate a motor vehicle, and allowing
Officer McCarthy to drive certainly does not shock the conscience. Given that three of the four
requirements for a state-created danger are not met, this claim similarly must be dismissed.
State Law Claims
The dismissal of the § 1983 claims means that the only remaining claims are state law
claims. If the federal anchor claim is dismissed, “the state claims should be dismissed as well.”
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). The Court therefore dismisses the
remaining state law claims for lack of subject matter jurisdiction.
For the foregoing reasons, the Court dismisses the complaint for failure to state a claim
and lack of subject matter jurisdiction. An appropriate order follows.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE
This requirement was not at issue in Morrow because the actions taken were in relation to a bully. The
bully was victimizing a specific person (the plaintiff) so this requirement was easily satisfied.
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