FEDD v. POWELL et al
Filing
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MEMORANDUM OPINION re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by NICHOLAS POWELL. For the reasons discussed in the opinion, the Court will deny Defendants Motion to Dismiss as to Count I. An appropriate Order of Court will follow. Signed by Judge Robert J. Colville on 3/27/24. (cjo)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROSYLEN FEDD,
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Plaintiff,
vs.
NICHOLAS POWELL, in his Individual
Capacity as a Police Officer for the City of
Washington Police Department and FIRST
NAME UNKNOWN POWELL, in his
Individual Capacity as a Police Officer for
the City of Washington Police Department,
No. 2:22-cv-1149
Judge Robert J. Colville
Defendants,
MEMORANDUM OPINION
Robert J. Colville, United States District Judge
Before the Court is the Motion to Dismiss (ECF No. 14) filed by Defendants Nicholas
Powell, in his Individual Capacity as a Police Officer for the City of Washington Police
Department (“Defendant Powell”) and First Name Unknown Powell, in his Individual Capacity as
a Police Officer for the City of Washington Police Department. Defendants’ Motion to Dismiss
has been fully briefed and is ripe for disposition.
I.
Introduction and Factual Background
A. Procedural History
This 42 U.S.C. § 1983 claim was initiated by Plaintiff on August 8, 2022, with the filing
of a Complaint. Count I alleges that under the State Created Danger theory, Plaintiff had a
constitutional right under the Fourteenth Amendment and 42 U.S.C. § 1983 to be free from
Defendant Powell, by affirmative acts, from creating or increasing the risk of danger to Plaintiff.
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Compl. ⁋ 28. Count II alleges that Defendant Powell used excessive force in violation of the
Fourth Amendment. Id. at ⁋ 42.
On October 14, 2022, Defendants filed their Motion to Dismiss (ECF No. 14) along with
their Brief in Support (ECF No. 15). On November 3, 2022, Plaintiff filed her Brief in Opposition.
ECF No. 17.
The Court issued its August 8, 2023, Memorandum Opinion (ECF No. 18) and Order (ECF
No. 19) granting Defendants’ Motion to Dismiss Count II, without prejudice. As to Count I, the
Court ordered additional briefing surrounding the question of whether Plaintiff can assert a state
created danger claim where the harm alleged in the Complaint was inflicted by a state actor, and
not a private actor. ECF Nos. 18-19. The Court deferred addressing the remainder of the parties’
arguments concerning Count I.
On September 7, 2023, Defendants filed their Supplemental Brief (ECF No. 20) in Support
of their Motion to Dismiss. On October 12, 2023, Plaintiff filed her Supplemental Brief (ECF No.
23) in Opposition. On October 19, 2023, Defendants filed their Reply Brief. ECF No. 24. The
matter is now ripe for disposition.
B. Factual Background
The Court detailed the relevant facts in its August 8, 2023 Memorandum Opinion (ECF
No. 18) and incorporates them here for reference.
On August 9, 2020, Plaintiff was working at the Get-Go location on Wylie Avenue
in Washington, Pennsylvania. Compl. ⁋ 8. On that day, an individual named Jesse
Charnik entered the store after allegedly stealing a bicycle. Id. Defendant Nicholas
Powell and his partner, Patrolman Paul Becker, then entered the store in pursuit of
Mr. Charnik. Id. at ⁋ 9. Plaintiff alleges that Mr. Charnik did not have a weapon
and only made passive resistance, not active. Id. at ⁋⁋ 13-14.
Upon hearing commotion, Plaintiff went to see what was going on between the
officers and Mr. Charnik. Id. at ⁋ 16. She was unable to see them because they
were located on the other side of a doorway. Id. at ⁋ 17. When Plaintiff approached
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the doorway, Mr. Charnik broke free from the officers and moved through the
doorway towards Plaintiff. Id. at ⁋ 18. Defendant Powell then fired one shot
towards Mr. Charnik, which missed Mr. Charnik “by mere inches” and Plaintiff
“by mere inches.” Id. at ⁋ 19-20. Plaintiff then moved out of the way of the officers
and sustained injuries to her arms, legs, and hip. Id. at ⁋ 21. The officers then
apprehended Mr. Charnik and took him into custody. Id. at ⁋ 22. As a result of the
use of force by Defendant Powell, Plaintiff sustained the following injuries: terror;
fright; emotional distress; severe emotional distress; the very real fear of being shot;
the fear of dying; anxiety; mental anguish; injuries to her arms, legs, and hip area;
medical bills; loss of the enjoyment of life and life’s pleasures; and the loss of back
pay/benefits. Id. at ⁋ 25.
Plaintiff alleges at Count I that under the State Created Danger theory, Plaintiff had
a constitutional right under the Fourteenth Amendment and 42 U.S.C. § 1983 to be
free from Defendant Powell, by affirmative acts, from creating or increasing the
risk of danger to Plaintiff. Specifically, Plaintiff alleges that Mr. Charnik did not
present a danger to her while he was in the store and that it was Defendant Powell
who increased the risk of harm to Plaintiff when he unreasonably shot at Mr.
Charnik. Id. at ⁋ 30. Further, Plaintiff alleges that Defendant Powell failed to
protect her from danger and placed her at risk of being shot. Id. at ⁋⁋ 32-33.
Plaintiff alleges at Count II that Defendant Powell used excessive force in violation
of the Fourth Amendment. Specifically, Plaintiff alleges that Defendant Powell
used excessive force when he shot at Mr. Charnik while Plaintiff was in the line of
fire. Id. at ⁋ 43. Plaintiff alleges the use of force was unreasonable because Mr.
Charnik was not armed, posed no threat of harm, and only engaged in passive
resistance. Id. at ⁋ 45.
ECF No. 18, pp. 1-2.
II.
Legal Standard
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In
deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail
on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled
factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S.
Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need
detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide
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more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007)). “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 (citing Twombly, 550 U.S. at 556). The Supreme Court of the United States has explained:
The plausibility standard is not akin to a “probability requirement,” but it asks for
more than a sheer possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are “merely consistent with” a defendant’s liability, it
“stops short of the line between possibility and plausibility of ‘entitlement to
relief.’”
Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).
The United States Court of Appeals for the Third Circuit instructs that “a court reviewing
the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d
780, 787 (3d Cir. 2016). The court explained:
First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.”
Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they
are no more than conclusions, are not entitled to the assumption of truth.” Id. at
679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)
(“Mere restatements of the elements of a claim are not entitled to the assumption of
truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are wellpleaded factual allegations, [the] court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
Connelly, 809 F.3d at 787. “Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).
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In addition to reviewing the facts contained in the complaint, a court may 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).
When a document integral to or relied upon in the complaint is included, the court may also
consider that document. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997).
III.
Discussion
At issue is Defendants’ Motion to Dismiss Count I. It is well established that by itself, §
1983 does not create any rights, and instead provides a remedy for violations of those rights created
by the Constitution or federal law. See Baker v. McCollan, 443 U.S. 137, 144 (1979). Therefore,
in order for a plaintiff to state a claim, the “plaintiff must show that defendants, acting under the
color of state law, deprived him of a right secured by the Constitution or the laws of the United
States.” Morse v. Lower Merion School Dist., 132 F.3d 902, 907 (3d Cir. 1997) (citing Parratt v.
Taylor, 541 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327
(1986)). Here, Plaintiff alleges that Defendants violated her Fourteenth Amendment right to
substantive due process under the state created danger theory.
The state created danger theory is an exception to the general rule that “governments and
government actors do not have an affirmative obligation to protect citizens from violations of life,
liberty, or property committed by private actors.” McGhee v. City of Philadelphia, No. Civ.A.028992, 2003 WL 22518759, at *2 (E.D. Pa. Oct. 23, 2003) (citing DeShaney v. Winnebago County
Dep’t of Soc. Serv, 489 U.S. 189, 196 (1989)). When evaluating whether a plaintiff has asserted a
claim under the state created danger theory, the Third Circuit articulated a four-part test finding
that a state actor is liable if:
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(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.
L.R. V. School District of Philadelphia, 836 F.3d 235, 242 (3d Cir. 2016).
In it’s August 8, 2023 Memorandum Opinion, the Court stated the following as to the state
created danger claim:
Defendants argue that Plaintiff has failed to establish any facts that would satisfy
any of these four elements. Mot. 7. Specifically, Defendants argue that there was
no actual harm to Plaintiff, any purported harm to Plaintiff was not foreseeable to
Defendants, any purported harm was not intended or directed at Plaintiff, and
Defendants’ actions did not meet the conscience shocking standard articulated by
the Third Circuit. Id. at 9. Plaintiff argues that she has asserted facts that support
all four elements of this claim. Resp. 2-3.
The Court finds that there is a substantial question as to whether Plaintiff can assert
a state created danger claim that has not been asserted by Defendants in their
Motion to Dismiss. The Court has reviewed case law that provides that a cause of
action brought under the state created danger theory must involve harm inflicted by
a private actor, and not a state actor. See McGhee, 2003 WL 22518759, at *2
(holding that the state created danger exception did not apply when the act of
violence was committed by a public actor and not a private citizen); see also Jowett
v. Churchill, No. 20-13083, 2021 WL 3879084, at *7 (D. N.J. Aug. 31, 2021)
(holding that the plaintiff could not establish a state created danger claim because
the state created danger theory is an exception to the “rule that the state has no duty
to protect its citizens from private harms” and “[a] public employee, acting as a
state actor, cannot cause a ‘private harm’”) (emphasis in original); see also A.B. v.
Vineland Board of Education, Civil No. 17-11509, 2019 WL 2354609, at * (D. N.J.
June 4, 2019) (dismissing the plaintiff’s state created danger claim where the act of
violence was committed by a state actor). Therefore, the Court directs the parties
to file additional briefing on this issue and particularly whether, given the
allegations in Plaintiff’s Complaint, a state created danger claim can be brought
when the alleged harm was caused by a state actor. The Court will defer ruling on
the remainder of Defendants’ arguments and a briefing schedule will be set forth in
a separate Order.
ECF No. 18, pp. 6-7.
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Therefore, the Court will first address whether Plaintiff can assert a state created danger
claim where the alleged harm was inflicted by a state actor, and not a private actor, before
addressing the parties’ remaining arguments.
Plaintiff argues that a state created danger claim may be asserted “where a state actor uses
their authority to: create a dangerous situation” or “to make the Plaintiff more vulnerable to harm
than the Plaintiff otherwise was.” Pl. Sup. Br. 3. Upon reviewing the case law cited by Plaintiff,
the Court now agrees.
As the Court stated in its August 8, 2023 Memorandum Opinion, numerous district courts
in this Circuit have held that a state created danger claim cannot be brought when the harm to the
plaintiff was inflicted by a state actor, and not a private actor. However, as argued by Plaintiff,
the Third Circuit has made clear that it has “recognized that the Due Process Clause can impose
an affirmative duty to protect if the state’s own actions create the very danger that causes the
plaintiff’s injury.” Morrow v. Balaski, 713 F.3d 160, 167 (3d Cir. 2013) (emphasis added).
Further, in Sauers v. Borough of Nesquehoning, 905 F.3d 711 (3d Cir. 2018), the Third Circuit
held that the plaintiff adequately pled a state created danger claim on similar facts to those at issue
here. In Sauers, the plaintiff alleged that a police officer, upon observing a minor traffic violation,
conducted a high-speed chase driving at over 100 miles-per-hour. 713 F.3d at 716. The plaintiff
further alleged that the police officer, driving recklessly, crashed into the plaintiff’s car, seriously
injuring the plaintiff and killing his wife. Id. In finding that the plaintiff pled a state created danger
claim, the Third Circuit noted that the state created danger “doctrine embodies the principle that
the government has an obligation under the Fourteenth Amendment’s Due Process Clause ‘to
protect individuals against dangers that the government itself creates.’” Id. at 717 (citing Haberle
v. Troxell, 885 F.3d 170, 176 (3d Cir. 2018)). Therefore, the Court finds that Plaintiff may assert
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a state created danger claim even where the harm was inflicted by a state actor, and not a private
actor.
The Court now turns to whether Plaintiff has adequately pled the elements of a state created
danger claim. As stated above, Defendants argue that Plaintiff has failed to establish any facts that
would satisfy any of the four elements of a state created danger claim. Mot. 7. Specifically,
Defendants argue that there was no actual harm to Plaintiff; any purported harm to Plaintiff was
not foreseeable to Defendants; any purported harm was not intended or directed at Plaintiff; and
Defendants’ actions did not meet the conscience shocking standard. Id. at 9. Plaintiff argues that
she has asserted facts that support all four elements of this claim. Resp. 2-3.
Turning to the first element, that the harm caused was foreseeable and direct, this Court
has explained that
foreseeability “requires that officials were actually aware, and thus on notice, of the
risk of the harm.” [Dorley v. South Fayette Tp. School Dist., 129 F. Supp. 3d 220,
233 (W.D. Pa. 2015)] (citing Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir.
2013)); Gremo v. Karlin, 363 F. Supp. 2d 771, 784 (E.D. Pa. 2005) (“Under Third
Circuit jurisprudence, a harm is foreseeable when a state actor has actual awareness,
based on concrete information, of a risk of harm to an individual or class of
individuals such that the actor is on notice that his or her act or failure to act
significantly enhances that risk of harm.”). “Fairly direct” refers to actions that
cannot be “separated from the ultimate harm by a lengthy period of time and
intervening forces and actions.” Id. (quoting Henry, 728 F.3d at 285) (internal
quotations omitted).
Keener v. Hribal, 351 F. Supp. 3d 956, 971 (W.D. Pa. 2018).
Here, in reviewing the Complaint, the Court finds that Plaintiff clearly alleges that the harm
to her was “foreseeable and fairly direct” because Plaintiff alleges that “Defendant Powell knew
there was someone in the line of fire when he shot at Charnik.” Compl. ¶ 31. Further, Plaintiff
alleges that “Defendant Powell knew or should have known that unreasonably shooting at Charnik
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endangered/would endanger [Plaintiff].” Id. at ¶ 34. Therefore, the Court finds that Plaintiff has
adequately pled element one.
As to the second element of a state created danger claim, the parties disagree as to what
standard applies for determining whether Defendant’s actions shock the conscience. When
determining what standard to apply, the Third Circuit has provided the following:
The level of culpability required “to shock the contemporary conscience” falls
along a spectrum dictated by the circumstances of each case. County of Sacramento
v. Lewis, 523 U.S. 833, 847-49 & n.8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Our case law establishes three distinct categories of culpability depending on how
much time a police officer has to make a decision. Haberle, 885 F.3d at 177. In
one category are actions taken in a “hyperpressurized environment[.]” Id. (citation
omitted). They will not be held to shock the conscience unless the officer has “an
intent to cause harm.” Id. (citation omitted). Next are actions taken within a time
frame that allows an officer to engage in “hurried deliberation.” Id. (citation
omitted). When those actions “reveal a conscious disregard of a great risk of
serious harm” they will be sufficient to shock the conscience. Id. (quotation marks
and citation omitted). Finally, actions undertaken with “unhurried judgments,”
with time for “careful deliberation,” will be held to shock the conscience if they are
“done with deliberate indifference.” Id. (citation omitted). Our case law is clear
that this “shocks the conscience” framework for analysis applies to police-pursuit
cases. Brown v. Pa. Dep't of Health & Emergency Med. Servs. Training Inst., 318
F.3d 473, 480 (3d Cir. 2003); cf. Kedra v. Schroeter, 876 F.3d 424, 432, 448 (3d
Cir. 2017) (relying on pre-2014 case law to conclude that the state-created danger
doctrine was a clearly established theory of liability in September 2014).
Sauers, 905 F.3d at 717-18.
Here, Defendants argue that the “intent to cause harm” standard applies because their
pursuit of Charnik was a “hyperpressurized environment.” Br. in Supp. 9-10. Plaintiff argues that
the intermediate standard “conscious disregard of a great risk of serious harm” applies. Br. in Op.
2.
The Complaint alleges that “Defendant Powell acted with deliberate indifference to the risk
of danger posed to [Plaintiff] by recklessly and unreasonably shooting at Charnik.” Compl. ¶ 35.
Further, the Complaint alleges facts that the police were pursuing an “unarmed Charnik over the
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mere theft of a bicycle.” Compl. ¶ 37. Based on the allegations in the Complaint, the Court agrees
with Plaintiff that the “conscious disregard of a great risk of serious harm” standard applies. The
facts as alleged are more similar to those in Sauers, where a police officer was pursuing an
individual for a minor traffic violation and the Third Circuit held that the “conscious disregard”
standard applied. 903 F.3d at 718. The Court acknowledges that the individual in Sauers was not
fleeing from the police, while here, Charnik was. However, based strictly on the allegations in the
Complaint, the Court finds that the facts here are more closely related to those in Sauers compared
with cases where a police officer is responding to an emergency situation. Therefore, the Court
finds that the “conscious disregard” standard applies. The Court, of course, acknowledges that
discovery may reveal additional facts that cause the Court to reconsider what standard applies.
Knowing that the “conscious disregard of a great risk of serious harm” standard applies,
the Court must determine whether the facts as alleged meet this standard. The Court finds that,
taking the facts in the light most favorable to Plaintiff, a reasonable jury may conclude that they
do. While the parties have not directed the Court to any case law precisely on point, and the Court
has not identified any itself, courts in this circuit have found that injury to bystanders as a result of
a police officer’s alleged reckless conduct during police chase meets the “conscious disregard”
standard. See Sauers, 903 F.3d at 718; Igwe v. Skaggs, Civil Action No. 16-1403, 2017 WL
395745, at *4 (W.D. Pa. Jan. 30, 2017). Therefore, Plaintiff has sufficiently alleged facts to state
a claim as to the second element.
Moving to the third element, Plaintiff must allege that a relationship between the state and
the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or that
she is 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. A plaintiff need only establish
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that the relationship at issue “contemplates some contact such that the plaintiff was a foreseeable
victim of the defendant's acts in a tort sense.” Morse, 132 F.3d at 912 (quoting Kneipp, 95 F.3d at
1209 n.22).
Defendants argue that Plaintiff has not pled any facts that would suggest that a special
relationship existed or that any harm to Plaintiff was not foreseeable to Defendants. Br. in Supp.
6, 9. The Court disagrees. Plaintiff has alleged facts that she was a foreseeable victim for the
same reasons articulated by the Court in discussing the first element. Specifically, Plaintiff alleges
that “Defendant Powell knew there was someone in the line of fire when he shot at Charnik.”
Compl. ¶ 31. Further, Plaintiff alleges that “Defendant Powell knew or should have known that
unreasonably shooting at Charnik endangered/would endanger [Plaintiff].” Id. at ¶ 34. For these
reasons, Plaintiff has alleged facts to support the third element.
Turning to the fourth element, Plaintiff must allege that 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. In Bright v. Westmoreland County, 443
F.3d 276 (3d Cir. 2006), the Third Circuit stated that
[l]iability under the state-created danger theory is predicated upon the states’
affirmative acts which work to the plaintiffs’ detriments in terms of exposure to
danger.” D.R. by L.R. v. Middle Bucks Area Vo. Tech. School, 972 F.2d 1364, 1374
(3d Cir. 1992) (en banc) (emphasis supplied); Brown v. Grabowksi, 922 F.2d 1097,
1100-01 (3d Cir. 1990) (finding that DeShaney holds “that a state’s failure to take
affirmative action to protect a victim from the actions of a third party will not, in
the absence of a custodial relationship . . . support a civil rights claim”). It is misuse
of state authority, rather than a failure to use it, that can violate the Due Process
Clause.
Bright, 443 F.3d at 282.
Here, Plaintiff has alleged affirmative acts by Defendants. The allegations at issue are not
merely allegations of a failure to act by Defendants, instead, Plaintiff clearly alleges that Defendant
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Powell acted by firing his gun in the vicinity of Plaintiff. Compl. ¶ 36. Therefore, Plaintiff has
sufficiently alleged facts to support the fourth element.
Lastly, the Court must briefly address Defendants’ last argument concerning Monell
liability and the failure of Plaintiff to allege that a policy, practice, or custom was the moving force
of Plaintiff’s injuries. Here, Plaintiff has only sued Defendants in their individual capacities. Not
in their official capacities. Therefore, the Court need not determine whether Plaintiff has made
allegations that would allow for liability against the municipality.
For the above reasons, Plaintiff has pled a valid state created danger claim and Defendants’
Motion to Dismiss Count I is denied.
IV.
Conclusion
For the reasons discussed above, the Court will deny Defendants’ Motion to Dismiss as to
Count I. An appropriate Order of Court will follow.
BY THE COURT:
/s/Robert J. Colville
Robert J. Colville
United States District Judge
DATED: March 27, 2024
cc/ecf: All counsel of record
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