The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Pending before the Court is CO-DEFENDANTS COMMONWEALTH OF PENNSYLVANIA ("Commonwealth"), PENNSYLVANIA STATE POLICE ("PSP"), CAPT. SCOTT NEAL ("Neal"), SGT. WILSON ("Wilson"), TROOPER HAGETER ("Hageter"), CPL. CARMICHAEL ("Carmichael"), CPL. DAVIS ("Davis") AND FORMER COMMISSIONER, FRANK PAWLOWSKI'S ("Pawlowski") MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) (Document No. 10), with brief in support (Document No. 11). Plaintiff Shawn Mohney ("Plaintiff"), the duly appointed representative of the estate of Levi Mohney ("Decedent"), has filed a Memorandum of Law in Opposition to the Motion to Dismiss . . . (Document No. 12). Accordingly, Defendants' motion is now ripe for disposition.
Factual and Procedural Background
As the law requires, all disputed facts and inferences therefrom are resolved in favor of Plaintiff, the non-moving party. The following facts are drawn from the Amended Complaint, and the factual allegations therein are accepted as true for the purpose of this Opinion.
This tragic case arises out of an encounter at the residence of the Decedent's girlfriend on March 18, 2009. For reasons unstated in the Amended Complaint, Defendants Davis, Carmichael, and Hageter (collectively, the "Trooper Defendants") were called to the residence at approximately 7:30 p.m. The Decedent, who is alleged to have been mentally disabled prior to and during the incident, had doused himself in gasoline before the Trooper Defendants had arrived. The Amended Complaint states that although Decedent was not armed or resisting arrest, and in no way posed a threat "to any of the Troopers who entered the mobile home,"*fn1
(Amend. Compl. at ¶ 24) they allegedly escalated the situation with aggressive tactics and yelling. Eventually, after the Decedent did not comply with an order, Trooper Hageter fired his taser weapon at the Decedent, after which Decedent burst into flames. Ultimately, he died from the burns that he suffered.
The Amended Complaint states that when Troopers Davis and Carmichael arrived at the scene, they positioned themselves outside a door on the north side of the home. (Amend. Compl. at ¶ 17). Trooper Hageter and another trooper were positioned on the west side of the home. (Amend. Compl. at ¶ 17). Davis then approached the door and knocked, ordering the Decedent to present himself. (Amend. Compl. at ¶ 18). After the Decedent came to the door, he was asked to come outside.*fn2 (Amend. Compl. at ¶ 18). He declined the request. (Amend. Compl. at ¶ 18).
There are no direct allegations that Trooper Hageter or the other Defendants knew that the Decedent was disabled or regarded him as disabled at the time. However, Plaintiff avers that the Decedent's mental illness was illustrated by two prior threats to commit suicide. Specifically, Plaintiff points to a report prepared after the Decedent's death by an unnamed trooper, which allegedly referenced a suicide threat the prior week to which Trooper Davis had allegedly responded. (Amend. Compl. at ¶ 20). Further, the investigating trooper allegedly checked off on his report that the Decedent had a mental health condition.
Even though Trooper Davis allegedly knew that the Decedent suffered from a mental illness, Plaintiff avers that the Trooper Defendants did nothing to defuse the "tense situation," such as calling for a CRISIS Intervention Team or back-up personnel with proper training in handling mentally disabled individuals. (Amend. Compl. at ¶ 22). Instead, they allegedly rushed into the mobile home and yelled at the Decedent to lie on the ground. (Amend. Compl. at ¶ 24). When the Decedent did not go to the ground as ordered, it is alleged that Trooper Hageter deployed his taser, which was being used in "barb" mode. (Amend. Compl. at ¶ 25).
As soon as the taser barbs contacted the Decedent's body, he burst into flames because his clothing had been doused with gasoline. (Amend. Compl. at ¶¶ 26, 27). The flames, which engulfed the Decedent from head to toe, were eventually extinguished, but not until after the Decedent had suffered serious burns over ninety-eight (98) percent of his body. (Amend. Compl. at ¶ 26). He died several hours later. (Amend. Compl. at ¶ 26).
Plaintiff avers that there was enough gasoline on the Decedent's clothing and in a container that he was holding that the Trooper Defendants should have been aware of its presence.*fn3 (Amend. Compl. at ¶ 27). Further, it is Plaintiff's contention that the Trooper Defendants were aware of or should have been aware of the rules and warnings provided by Taser International, Inc., the manufacturer of the taser allegedly used by Trooper Hageter, with respect to the use of tasers in the presence of flammable materials such as gasoline. (Amend. Compl. at ¶¶ 28-29).
Plaintiff, individually and as Administrator of the estate of Levi Mohney, filed his Original Complaint (Document No. 1) with this Court on March 15, 2011. The following were named as defendants: the Commonwealth, PSP, Neal, Wilson, Hageter, Carmichel, Davis, Pawlowski, and unnamed "police officers, supervisors, trainers, instructors, employees, agents, and/or employees," identified as "John Doe(s) 1 through 10."*fn4 Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (Document No. 7). In response, on May 27, 2011, Plaintiff filed a four-count Amended Complaint (Document No. 9).*fn5
In Count I, the Amended Complaint sets forth claims pursuant to 42 U.S.C. § 1983 against the Trooper Defendants and Neal, Wilson, and Pawlowski (collectively, the "Supervisory Defendants"), alleging that they caused Plaintiff to suffer fatal injuries in violation of his Fourth and Fourteenth Amendment rights. Specifically, Plaintiff avers that as a result of the Trooper Defendants' conduct, the Decedent was deprived of his right to protection against unreasonable and excessive force, to be secure in his person, and to due process of law. Plaintiff further avers that the Supervisory Defendants encouraged, tolerated, ratified, and were deliberately indifferent to a number of "patter[n]s and practices, and customs," related to the use of excessive force "and to the need for more or different training, supervision, investigation, or discipline" with regard to the proper use of tasers and interaction with disabled individuals.
Plaintiff alleges in Count II that the Commonwealth, PSP and Supervisory Defendants failed to put in place reasonable procedures for interacting with persons with mental disabilities, even though they knew that a large percentage of police encounters occur with such persons, in violation of Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("RA"). The remaining counts state claims under the Pennsylvania Survival Act, 42 Pa. C.S.A. § 8302, and the Pennsylvania Wrongful Death Act, 42 Pa. C.S.A § 8301.*fn6
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) challenges the legal sufficiency of a complaint. The Court must accept as true all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor of the plaintiff. However, as the Supreme Court made clear in Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007), the "factual allegations must be enough to raise a right to relief above the speculative level." Id. The Supreme Court has subsequently broadened the scope of this requirement, stating that only a complaint that states a plausibleclaim for relief survives a motion to dismiss." Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1950 (2009) (emphasis added). A district court must conduct a two-part analysis when presented with a motion to dismiss for failure to state a claim. First, the Court must separate the factual and legal elements of the claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the Court "must accept all of the complaint's well-pleaded facts as true, [it] may disregard any legal conclusions." Id. at 210-211. Second, the Court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts."
Id. at 211 (citing Iqbal, 129 S. Ct. at 1949). The determination of "plausibility" will be "'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 211 (quoting Iqbal, 129 S. Ct. at 1950).
I. Count I -- Section 1983 Claims Against the Supervisory Defendants*fn7
The Supervisory Defendants seek to dismiss the § 1983 claims against them in both their official and individual capacities, raising two contentions. First, they argue that as state government officials, they are not subject to suit in their official capacities under § 1983. In addition, the Supervisory Defendants argue that the Amended Complaint fails to allege facts sufficient to establish that they were "personally involved" in the commission of the alleged wrong, which they suggest is necessary for liability to attach against them in their individual capacities under § 1983.
Section 1983 does not create substantive rights, but rather provides a remedy for the violation of rights created by federal law. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To state a prima facie case under § 1983, a plaintiff must demonstrate that: (1) the alleged wrongful conduct was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Both elements must be simultaneously present to sustain a claim.
A. Official Capacity Claims
The Supervisory Defendants argue that Plaintiff's § 1983 claims against them in their official capacities should be dismissed. The Court agrees. The United States Supreme Court has instructed that suits against state government officials in their official capacities should be treated as suits against the state itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (citing Kentucky v. Graham, 473 U.S. 159, 166 (1985)). It is well established that "a state is not a 'person' within the meaning of § 1983." Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989). Furthermore, although "state officials literally are persons," they are not "'persons' under § 1983" and cannot be sued under the statute. Id. at 71. Accordingly, the claims against Defendants Neal, Wilson, and Pawlowski in their official capacities will be DISMISSED with prejudice.
B. Individual Capacity Claims
The Supervisory Defendants also seek dismissal of the § 1983 claims against them in their individual capacities, arguing that the allegations of improper custom or policy and failure to train, supervise and discipline are not sufficient to establish that these defendants were personally involved in the alleged wrongful conduct. Plaintiff, in response, contends that the claim is premised on the "deliberate indifference" theory of supervisory liability, and thus facts related to the Supervisory Defendants' personal involvement in the alleged misconduct need not be pleaded.
Generally, in order to establish supervisory liability against government officials in their individual capacities under § 1983, a plaintiff must demonstrate that the officials were personally involved in the commission of the conduct alleged. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Id. However, the United States Supreme Court has recognized a second theory of supervisory liability in that "there are limited circumstances in which an allegation of 'failure to train' can be the basis for liability under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989). In such case, a plaintiff must establish that the alleged "failure to train amounts to deliberate indifference to the rights of persons with whom the [untrained persons] come into contact." Id. at 388; see Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725 (3d Cir. 1989) (policymakers may be liable under § 1983 if they, with "deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm"). Only then "can such a shortcoming be properly thought of as a [government] 'policy or custom' that is actionable under § 1983." City of Canton, 489 U.S. at 388. Accordingly, Defendants are not correct in asserting that personal involvement is a necessary element of a viable § 1983 claim.
Nonetheless, even taken in the light most favorable to Plaintiff, the facts pleaded in the Amended Complaint are not sufficient to constitute deliberate indifference. "'[D]eliberate indifference' is a stringent standard of fault, requiring proof that [an] actor disregarded a known or obvious consequence of his action." Board of Commissioners of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997). In view of that, the Supreme Court has explained that "[a] pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train." Connick v. Thompson, -- U.S.--, 131 S.Ct. 1350, 1360 (2011).
In his Amended Complaint, Plaintiff states that the Supervisory Defendants "have encouraged, tolerated, ratified, and had been deliberately indifferent to" a pattern of misconduct involving, among other things, the use of excessive force, the failure to establish proper procedures with respect to encounters with mentally disabled persons, the improper use of taser weapons, and the failure to discipline officers who were the subject of prior complaints. (Amend. Compl. at ¶ 35). In addition, Plaintiff notes that the alleged "deficiency in training is illustrated by [Decedent's] treatment by the Defendants." (Amend. Compl. at ¶ 23). However, there are no facts offered in support of those conclusory statements. The Amended Complaint does not establish the requisite pattern of constitutional violations necessary to make Plaintiff's supervisory liability claim plausible on its face. Nor has Plaintiff provided any facts related to prior encounters between mentally disabled individuals who have doused themselves with gasoline and PSP officers, which would demonstrate the need for the sort of specialized training that Plaintiff alleges was lacking in this case. See, e.g., Agnello v. Straitiff, 2011 WL 1458090, at * 3 (W.D. Pa. 2011) (granting ...