LEXIS 9498, at *16 (3d Cir. 1994); Simmons v. City of Philadelphia, 947 F.2d at 1063. A municipality, however, cannot be held liable solely because it employs a tortfeasor. There is no respondeat superior liability under Section 1983. Monell v. New York City Department of Social Services, 436 U.S. at 691, 98 S. Ct. at 2036. "Instead, it is when execution of a government's policy or custom . . . inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S. Ct. at 2037-38.
Plaintiff alleges in his complaint that the City of Pottsville had violated decedent's constitutional rights by (1) failing to require that detainees' personal effects be removed and secured prior to incarceration; (2) enacting a safety policy requiring that the personal effects of detainees be removed but not secured prior to incarceration; and (3) failing to train officers to ensure that safety policies, such as requiring that the personal effects of detainees be removed and secured, are properly carried out. In City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989), the Supreme Court, in a decision relevant to both plaintiff's municipal policy or custom and failure to train theories of the City's liability, held that a municipality's failure to train its police officers can give rise to a constitutional violation only when that failure "amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id., 489 U.S. at 388, 109 S. Ct. at 1204.
The Third Circuit addressed the issue of independent municipal liability in Simmons v. City of Philadelphia, 947 F.2d at 1042, which also involved a detainee who committed suicide. In that case, the jury found that the turnkey, who was responsible for supervising the decedent, had not violated the decedent's due process rights, but it found that the city had done so through a policy of improper training. On appeal, the Third Circuit upheld these verdicts, reasoning that the verdicts were consistent because the city's policymakers, rather than the turnkey, were the city actors whose primary liability must be established in order to hold the city liable under Section 1983 for a failure to train. Id. at 1063.
Although we acknowledge that plaintiff can fail to state a cause of action under Section 1983 as to individual municipal employees while properly pleading a case with respect to the municipality directly, we nonetheless find that this action cannot be maintained against the City on the basis of the bare allegations that Pottsville's safety policies and failure to adequately train officers amount to deliberate indifference to the needs of a detainee. In Colburn I, in deciding whether plaintiff properly stated a claim against the municipality for inadequate safety policies or failure to train in a prison suicide case, the Third Circuit recalled the two-pronged test it first enunciated in Chinchello v. Fenton. 838 F.2d at 673 (citing 805 F.2d 126, 134 (3d Cir. 1986)); see also Freedman v. City of Allentown, 853 F.2d at 1117 (reiterating the statement made in Chinchello outlining the two-pronged test forming the basis for municipal liability under Section 1983). In Chinchello, the Third Circuit suggested that at a minimum such liability could be imposed "only where there are both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate." 805 F.2d at 133 (footnote omitted).
In Colburn I, the Third Circuit further explained that in order to state a Section 1983 claim against a municipality, arising from a jailhouse suicide and premised on the failure to provide employees with adequate training, a plaintiff must allege a policymaker's knowledge of a constitutionally violative incident or pattern of incidents arising from inadequate training. 838 F.2d at 673. See also Freedman v. City of Allentown, 853 F.2d at 1115-16 (discussing Colburn's requirements for stating a Section 1983 claim based on a jailhouse suicide and alleging violations of constitutional rights arising from a municipal policy or custom and a failure to train).
In this case, the complaint is silent as to whether responsible policymakers had contemporaneous knowledge of the events leading up to decedent's suicide, or even whether decedent gave any prior indication at all to suspect that he needed special medical care. Moreover, there are no allegations that policymakers had knowledge or reason to know of prior suicides in the City's jails, or of the alternatives for preventing them. In order for this court to find the City of Pottsville liable for the death of detainee, plaintiff must include in the complaint some allegations indicating that responsible policymakers either deliberately chose not to pursue a policy of securing the personal effects of detainees prior to incarceration or acquiesced in a long-standing policy or custom of inaction in light of a prior pattern of similar incidents. See Simmons v. City of Philadelphia, 947 F.2d at 1064. The lone fact that the City maintained a policy of removing but not securing the personal effects of a pretrial detainee, in light of the plaintiff's failure to allege that the officers' had reason to know that decedent posed a suicide risk, can at most amount to negligence, which falls short of the threshold for stating a Section 1983 claim.
As a predicate to maintaining his concomitant theory that the City violated decedent's rights by means of a deliberately indifferent failure to train, plaintiff must similarly have alleged that such policymakers, likewise knowing of a prior pattern of similar incidents, either deliberately chose not to provide officers with training in suicide prevention or acquiesced in a longstanding practice or custom of providing no training in this area. Id. Mere conclusory allegations, such as here, that the defendants failed to properly train are not enough to support a constitutional claim.
3. Proposed Action.
Despite all of the above findings with respect to plaintiff's Section 1983 claims against Chief Repp, other individual officers and the City of Pottsville, we are fully aware that if we dismiss plaintiff's complaint, we will be depriving plaintiff of his "day in court." The Third Circuit has consistently held that when a plaintiff has filed a complaint under Section 1983 which is dismissable for lack of factual specificity, he should be given a reasonable opportunity to cure the defect, if he can, by amendment of the complaint. See Darr v. Wolfe, 767 F.2d 79 (3d Cir. 1985); Ross v. Meagan, 638 F.2d at 646. Therefore, while the deficiencies in plaintiff's complaint fully justify dismissal, we will not dismiss the complaint with prejudice at this stage. The Third Circuit has cautioned us that "failure to permit amendment of a complaint for want of specific allegations constitutes an abuse of discretion." Ross v. Meagan, 638 F.2d at 650.
Accordingly, plaintiff's Section 1983 claims against both the individual officers and the City of Pottsville will be dismissed without prejudice to plaintiff's right to file an amended complaint, if he can, setting forth the proper factual information necessary to make out a valid Section 1983 claim as described in this Memorandum. Plaintiff's direct constitutional claims, however, will be dismissed with prejudice at this time.
B. Section 1985 and 1986 Claims
Plaintiff also brings claims under 42 U.S.C. §§ 1985 and 1986. 42 U.S.C. § 1985(3)
provides, in relevant part:
(3) If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws;