Sauers v. Borough of Nesquehoning et al

Filing 30

MEMORANDUM (Order to follow as separate docket entry) re 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Signed by Honorable James M. Munley on 3/3/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SAUERS, Individually and
as Administrator of the ESTATE OF
CAROLA R. SAUERS, Deceased,
Plaintiff

:
No. 3:16cv811
:
:
(Judge Munley)
:
:
v.
:
:
STEPHEN HOMANKO, BOROUGH OF :
NESQUEHONING, and SEAN SMITH :
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Michael Sauers (hereinafter “plaintiff”) avers that a local
police officer violated his and his late wife’s civil rights under 42 U.S.C.
§ 1983 (hereinafter “section 1983”) when he lost control of his police cruiser
and collided with plaintiff’s automobile. Before the court for disposition is
Defendants Borough of Nesquehoning and police chief Sean Smith’s
(hereinafter “the Borough defendants”) motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. (Doc. 19). For the following reasons, the court
will grant in part and deny in part the motion.
Background
On May 12, 2014, Nesquehoning police officer Stephen Homanko
(hereinafter “Defendant Homanko”), on duty in his 2009 Ford Crown

Victoria police cruiser, was travelling in the southbound lane of Route 209
in Nesquehoning, Pennsylvania. (Doc. 1, Compl. (hereinafter “Compl.”)
¶ 10). At some point, he observed a yellow Dodge Neon commit what he
believed to be a potential summary traffic offense in the northbound lane of
Route 209. (Id. ¶ 11). Based on his observation, Defendant Homanko
turned his police cruiser around and pursued the Neon. (Id. ¶ 12). To
catch up to and apprehend the Neon’s driver, Defendant Homanko at times
reached speeds over 100 miles-per-hour. (Id. ¶ 14). While attempting to
negotiate a curve in the road, Defendant Homanko lost control of his police
cruiser and collided with a 2007 Toyota Yaris traveling southbound on
Route 209 and driven by Plaintiff Michael Sauers. (Id. ¶¶ 15, 9). Plaintiff
endured extensive injuries as a result of the collision, and his wife, who was
travelling in the front passenger seat of the vehicle, died as a result of her
injuries. (Id. ¶¶ 9, 17-18).
On May 6, 2016, plaintiff filed a seven-count complaint against
Defendant Homanko and the Borough defendants. Counts I, II, and III
allege civil rights violations under section 1983 against all defendants.
Counts IV, V, VI, and VII assert respective Pennsylvania state law
negligence, wrongful death, survival, and vicarious liability claims.

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On July 28, 2016, the Borough defendants moved to dismiss
plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted. (Doc. 19). The
parties have briefed their respective positions and the matter is ripe for
disposition.
Jurisdiction
As this case is brought pursuant to section 1983 for a violation of
plaintiff’s constitutional rights, we have jurisdiction under 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”). We have
supplemental jurisdiction over plaintiff’s state law claims pursuant to 28
U.S.C. § 1367.
Standard of Review
The Borough defendants filed a motion to dismiss plaintiff’s complaint
under Federal Rule of Civil Procedure 12(b)(6). The court tests the
sufficiency of the complaint’s allegations when considering a Rule
12(b)(6) motion. All well-pleaded allegations of the complaint must be
viewed as true and in the light most favorable to the non-movant to
determine whether, “‘under any reasonable reading of the pleadings, the
plaintiff may be entitled to relief.’” Colburn v. Upper Darby Twp., 838 F.2d
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663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cty. of
York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe
“‘enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ [each] necessary element” of the claims alleged in the
complaint. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Moreover, the plaintiff must allege facts that “justify moving the case
beyond the pleadings to the next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint, the court may also consider
“matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court need not accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
Discussion
The Borough defendants move to dismiss plaintiff’s complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim upon which relief can be granted. Plaintiff argues, however, that his
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federal civil rights and state law claims are sufficiently alleged. We first
address plaintiff’s federal civil rights claims, and then, if necessary,
plaintiff’s state law claims.1
I. Section 1983 Claims
The Borough defendants first seek to dismiss plaintiff’s section 1983
claims stated in Counts I and III of the complaint. Count I asserts section
1983 supervisory liability and state-created danger claims against
Nesquehoning police chief Sean Smith (hereinafter “Defendant Smith”).
Count III asserts a section 1983 municipal liability claim against the
Borough of Nesquehoning (hereinafter “the Borough”).
Section 1983 does not, by its own terms, create substantive rights.
Rather, it provides remedies for deprivations of rights established
elsewhere in the Constitution or federal law. Kneipp v. Tedder, 95 F.3d
1199, 1204 (3d Cir. 1996). Section 1983 states, in pertinent part:
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The Borough defendants also move to dismiss plaintiff’s claim for
punitive damages, arguing that punitive damages are not available against
the Borough or against Defendant Smith in his official capacity. Plaintiff
does not challenge this argument in his brief in opposition, and the law
provides that such damages are not available. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 271 (1981) (holding that punitive damages
cannot be awarded against municipalities); Kentucky v. Graham, 473 U.S.
159, 167 n.13 (1985) (determining that suits against individual defendants
in their official capacities are equivalent to suits against the municipalities
that employed them, and therefore, the individual defendants are immune
from punitive damages). Therefore, we will grant the Borough defendants’
motion challenging punitive damages.
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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two
criteria must be met. First, the conduct complained of must have been
committed by a person acting under color of state law. Sameric Corp. of
Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.1998). Second, the
conduct must deprive the plaintiff of rights secured under the Constitution
or federal law. Id. Here, the parties do not contest whether the Borough
defendants acted under state law. Rather, the parties disagree as to
whether the Borough defendants deprived plaintiff and his late wife of their
constitutional rights.
The Borough defendants challenge plaintiff’s section 1983 claims on
two grounds. First, they move to dismiss Count I, arguing that plaintiff’s
supervisory liability and state-created danger claims against Defendant
Police Chief Smith fail as a matter of law. Alternatively, the Borough
defendants assert that qualified immunity shields Defendant Smith from
section 1983 liability. Second, the Borough defendants contend that
plaintiff’s municipal liability claim should be dismissed because plaintiff has
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failed to identify any policy, practice, or custom that caused plaintiff and his
late wife’s injuries. We address these arguments in turn.
A. Supervisory Liability Claim Against Defendant Smith
The Borough defendants first move to dismiss Count I of plaintiff’s
complaint against Defendant Smith, arguing that plaintiff has failed to state
a viable section 1983 supervisory liability claim. The United States
Supreme Court has determined that respondeat superior is not a viable
theory in section 1983 cases. Monell v. NYC Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978). Rather, supervisory liability can only be imposed
in section 1983 claims if that supervisor played an “affirmative part” in the
complained-of misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“In
a section 1983 suit–where masters do not answer for the torts of their
servants–the term ‘supervisory liability’ is a misnomer.”).
The Third Circuit Court of Appeals has recognized that “there are two
theories of supervisory liability, one under which supervisors can be liable if
they established and maintained a policy, practice or custom which directly
caused the constitutional harm, and another under which they can be liable
if they participated in violating plaintiff’s rights, directed others to violate
them, or, as the persons in charge, had knowledge of and acquiesced in
their subordinates’ violations.” Parkell v. Danberg, 833 F.3d 313, 330 (3d
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Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5
(3d Cir. 2010)) (internal quotations omitted).
Here, the Borough defendants argue that plaintiff has failed to
sufficiently plead either theory.2 Plaintiff claims that his supervisory claims
against Defendant Smith should proceed. After a careful review, we agree
with the Borough defendants.
Supervisors can be held liable under section 1983 if the plaintiff
establishes that the supervisor “maintained a policy, practice or custom
which directly caused the constitutional harm . . . .” Parkell, 833 F.3d at
330 (quoting Santiago, 629 F.3d at 129 n.5) (internal quotations omitted).
In the instant matter, the Borough defendants argue that Defendant Smith
was not a policymaker, and therefore, this theory of liability does not apply
to him. We agree.
The determination as to who is a final policymaker for purposes of
section 1983 liability “is ultimately a legal rather than a factual
question . . . .” Santiago, 629 F.3d at 135 n.11 (citing City of St. Louis v.
Praprontik 485 U.S. 112, 124 (1988) (plurality)). To ascertain who is a

2

The Borough defendants initially argue that plaintiff has failed to establish
a constitutional harm. We previously addressed this issue in our February
14, 2017 memorandum denying Defendant Stephen Homanko’s motion to
dismiss. Thus, relying on our analysis from that memorandum, we find that
plaintiff has established a constitutional harm.
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policymaker, we “must determine which official had final, unreviewable
discretion to make a decision or take action.” McGreevy v. Stroup, 413
F.3d 359, 369 (3d Cir. 2005) (quoting Kneipp, 95 F.3d at 1213 (internal
quotations omitted)).
Notably, the identification of officials who possess final policymaking
authority with regard to a given act is an issue of state or local law. See
Praprontik, 485 U.S. at 131 (1988). The “full charge and control of the chief
of police and the police force” of a borough is statutorily vested with the
borough’s mayor. 8 PA. STAT. ANN. § 1123.1(a). Significantly, however,
“[t]he mayor may delegate to the chief of police or other officer supervision
over and instruction to subordinate officers in the manner of performing
their duties.” 8 PA. STAT. ANN. § 1123.1(c).
Here, plaintiff has failed to plead that the Borough’s mayor delegated
to Defendant Smith supervision over and instruction to subordinate officers.
As mentioned above, such supervision over and instruction to subordinate
officers are statutorily vested with the Borough’s mayor. Stated differently,
final policymaking decisions, supervision, and instruction regarding
subordinate officers are statutorily vested with the Borough, not Defendant

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Smith.3 Thus, plaintiff’s supervisory liability claims against Defendant Smith
fail as a matter of law.
B. State-Created Danger Claim Against Defendant Smith
The Borough defendants next move to dismiss Count I of plaintiff’s
complaint against Defendant Smith, arguing plaintiff has failed to establish
a viable section 1983 state-created danger claim. “Generally, the Due
Process Clause does not impose an affirmative duty upon the state to
protect citizens from the acts of private individuals.” Sanford v. Stiles, 456
F.3d 298, 303-04 (3d Cir. 2006) (citing DeShaney v. Winnebago Cty. Dep’t
of Soc. Servs., 489 U.S. 189, 198-200 (1989)). “There are, however, two
exceptions to this rule: the ‘special relationship’ exception and the ‘statecreated danger’ exception.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d
247, 255 (3d Cir. 2007). Here, plaintiff argues only the state-created
danger exception.

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Supervisors can also be held liable under section 1983 if the
plaintiff establishes that the supervisor “participated in violating plaintiff’s
rights, directed others to violate them, or, as the persons in charge, had
knowledge of and acquiesced in their subordinates’ violations.” Parkell,
833 F.3d at 330 (quoting Santiago, 629 F.3d at 129 n.5) (internal
quotations omitted). Having already determined that supervisory authority
is statutorily vested with the Borough, plaintiff’s supervisory liability claim
under this “knowledge and acquiescence theory” likewise fails as a matter
of law with regard to Defendant Smith.
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Under the state-created danger exception, liability under section 1983
can attach “when the harm incurred is a direct result of state action[.]” Ye
v. U.S., 484 F.3d 634, 637 (3d Cir. 2007); see also Kneipp, 95 F.3d at
1210-11. A plaintiff must establish the following four elements to
successfully plead a state-created danger claim:
(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 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.
L.R., 836 F.3d at 242 (quoting Bright v. Westmoreland Cty., 443 F.3d 276,
281 (3d Cir. 2006)). The Borough defendants challenge the first, third, and
fourth factors of plaintiff’s state-created danger claim. We address only the
fourth factor, as it is dispositive.
The fourth factor of a state-created danger claim requires plaintiff to
establish that Defendant Smith affirmatively used his authority in a way that
created a danger to plaintiff and his wife or that rendered plaintiff and his
wife more vulnerable to danger than had Defendant Smith not acted at all.
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L.R., 836 F.3d at 242 (quoting Bright v. Westmoreland Cty., 443 F.3d at
281) (quotations omitted). In the instant matter, the Borough defendants
argue that plaintiff has failed to plead that Defendant Smith affirmatively
used his authority in a way that created a danger. We agree.
The three conditions necessary to satisfy the fourth factor of a statecreated danger claim are: “(1) a state actor exercised his or her authority,
(2) the state actor took an affirmative action, and (3) this act created a
danger to the citizen or rendered the citizen more vulnerable to danger than
if the state had not acted at all.” Ye, 484 F.3d at 638 (citing Bright, 443
F.3d at 281-82).
Here, with respect to the first element, plaintiff has failed to plead
facts sufficient to establish that Defendant Smith exercised his authority.
As mentioned above, plaintiff has failed to establish that Defendant Smith
had any policymaking authority. Such authority is statutorily vested in the
Borough’s mayor, and plaintiff has not pled that the Borough’s mayor
delegated this authority to Defendant Smith. Defendant Smith, therefore,
could not exercise policymaking authority he has not been alleged to have
inherited. Additionally, plaintiff has not alleged that Defendant Smith drove
the car at issue. Thus, plaintiff’s state-created danger claim against
Defendant Smith fails as a matter of law.
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At this juncture, even viewing plaintiff’s allegations as true, we find
that plaintiff has failed to allege facts sufficient to establish either a
supervisory liability claim or a state-created danger claim against
Defendant Smith under section 1983. Thus, we will grant the Borough
defendants’ motion to dismiss Count I.4
C. Municipal Liability Against Defendant Nesquehoning Borough
Next, the Borough defendants seek to dismiss plaintiff’s section 1983
municipal liability claim. The United States Supreme Court has determined
that a municipality cannot be held liable for the unconstitutional acts of its
employees under the theory of respondeat superior. Monell, 436 U.S. at
694. Indeed, municipal liability attaches only when a plaintiff demonstrates
that an official policy or custom caused the asserted constitutional
deprivation. Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014)
(citing Monell, 436 U.S. at 690-91). A policy may be established in several
different ways, including a municipality’s failure to train or supervise. See
id.; Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999). Plaintiff’s
complaint alleges a section 1983 municipal liability claim against the

4

Having concluded that plaintiff’s section 1983 claims against Defendant
Smith fail as a matter of law, we need not address the Borough defendants’
argument that qualified immunity shields Defendant Smith from section
1983 liability.
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Borough based upon its alleged failure to train and supervise its police
officers with regard to police pursuits.
After a plaintiff identifies the “policy” at issue, he must demonstrate
causation, that is, that the municipality, through its policy, was the “‘moving
force’ behind the injury.” Berg v. City of Allegheny, 219 F.3d 261, 276 (3d
Cir. 2000) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.
397, 404 (1997)). Where the policy does not facially violate the
Constitution, causation is established by demonstrating deliberate
indifference to the policy’s known or obvious consequences. Id. “Failure to
adequately screen or train municipal employees can ordinarily be
considered deliberate indifference only where the failure has caused a
pattern of violations.” Id. (citing City of Canton, Ohio v. Harris, 489 U.S.
378, 389 (1989)).
If no pattern of violations exists, the plaintiff bears a high burden to
establish deliberate indifference. He must demonstrate that the violation of
federal rights was a highly predictable consequence of the municipality’s
failure to train its employees regarding how to handle recurring situations.
Id. The fact that a situation is likely to recur and the predictability that a
municipal employee will violate federal rights without adequate training can
reflect deliberate indifference. Id.
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Here, plaintiff has alleged facts sufficient to establish municipal
liability against the Borough. Specifically, plaintiff alleges that the Borough
failed to train, supervise, and establish an adequate police pursuit policy.
(Compl. ¶ 54). He further avers that the Borough “permitted or acquiesced
to a custom of constitutional deprivation with regard to its police officers
engaging in high speeds pursuits.” (Id.) Read in conjunction with plaintiff’s
factual averments, these allegations may impose municipal liability against
the Borough. As such, we will deny the Borough defendants’ motion to
dismiss Count III.
II. State Law Claims
The Borough defendants also seek to dismiss plaintiff’s law claims
asserted in Counts V, VI, and VII of the complaint. Counts V and VI aver
respective state law wrongful death and survival claims against all
defendants while Count VII asserts a state law vicarious liability claim
against the Borough. We address these claims in turn.
A. Wrongful Death and Survival Claims
The Borough defendants first seek to dismiss Counts V and VI of the
complaint, plaintiff’s respective state law wrongful death and survival
claims. Under Pennsylvania law, wrongful death and survival claims are
not independent, substantive causes of action; rather, both are derivative of
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the underlying tortious acts that resulted in a fatal injury. Valentino v.
Phila. Triathlon, LLC, 160 A.3d 483, 493 (Pa. Super. Ct. 2016) (citing
Pisano v. Extendiare Homes, Inc., 77 A.3d 651, 659-60 (Pa. Super. Ct.
2013)); see also 42 PA. CONS. STAT. ANN. §§ 8301(a), 8302.
Here, plaintiff has pled facts sufficient to establish his wrongful death
and survival actions. Specifically, plaintiff has alleged negligence against
Defendant Homanko in Count IV and vicarious liability against the Borough
in Count VII. These state law claims constitute underlying tortious acts that
allegedly resulted in plaintiff’s wife’s fatal injury. Thus, plaintiff’s wrongful
death and survival claims are properly pled as derivative causes of action.
B. Viability of All State Law Claims
Finally, the Borough defendants move to dismiss all of plaintiff’s state
law claims. This portion of the Borough defendants’ motion relies on the
court’s dismissal of plaintiff’s federal law claims against either or both of
them. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the district court
has dismissed all claims over which it has original jurisdiction[.]”). As
mentioned above, plaintiff has failed to plead viable federal claims against
Defendant Smith. Thus, we will grant the Borough defendants’ motion to
dismiss plaintiff’s state law claims with respect to Defendant Smith. As
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plaintiff has pled facts sufficient to establish viable federal claims against
the Borough, we will deny the motion in all other respects.
Conclusion
For the foregoing reasons, the court will grant in part and deny in part
the Borough defendants’ motion to dismiss. Specifically, we will grant the
motion with respect to Count I and plaintiff’s punitive damages claims. We
will deny the motion in all other respects. Thus, remaining in this case are
the following claims: Count II, section 1983 state-created danger claim
against Defendant Homanko; Count III, section 1983 municipal liability
claim against the Borough; Count IV, state law negligence claim against
Defendant Homanko; Count V, state law wrongful death claim against the
Borough; Count VI, state law survival claim against the Borough; and Count
VII, state law vicarious liability claim against the Borough. Only Defendant
Homanko and the Borough remain as party defendants. An appropriate
order follows.

Date: March 3, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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