United States District Court, E.D. Pennsylvania
JENIFER REEVEY-GARNER AND BYRON L. SHEPARD, II, Plaintiffs,
CITY OF PHILADELPHIA, LIEUTENANT ANTHONY J. MIRABELLA AND OFFICERS JOHN DOES, Defendants.
Jennifer Reevey-Garner and Byron L. Shepard, II bring this
civil rights lawsuit against Defendants City of Philadelphia
(“City”), Lieutenant Anthony J. Mirabella, and
other unnamed officers for violations of their Fourth
Amendment rights. They assert Monell claims against
the City, contending that it is liable under 42 U.S.C. §
1983 because of a policy and custom of Fourth Amendment
violations. Plaintiffs allege that they were falsely arrested
and subjected to excessive force, and that their home was
unreasonably searched. The City, in a motion to dismiss,
argues that Plaintiffs have failed to sufficiently plead a
policy or custom in support of their Monell claims.
The City's motion shall be granted in full.
2015, Philadelphia police officers arrived at
Reevey-Garner's home to inquire about her son, Terric,
who allegedly brandished a gun at her neighbors. The officers
ordered Reevey-Garner out of her home and detained her
outside for several hours. One officer searched
Reevey-Garner's purse and removed from it a screwdriver
that she used in her job as a computer technician.
Reevey-Garner was detained across the street from her home,
Lieutenant Anthony J. Mirabella tried to coerce her into
consenting that her home be searched. She refused and stated
that she wanted to speak to her attorney. Nevertheless,
officers entered her home accompanied by Reevey-Garner and
her son, Shepard. During the search, Shepard retrieved a
rifle and gave it to the officers. The officers ordered him
to step outside, and allegedly pushed and dragged him towards
the patrol car. No charges were ever brought against
Reevey-Garner or Shepard. Plaintiffs claim that Lieutenant
Mirabella's and the other officers' conduct arose
from the policies and customs of the City's police
department in “fail[ing] to train, supervise and
discipline police officers with respect to constitutional
standards and limitations . . . under the Fourth
2017, the City filed a motion to dismiss Plaintiffs'
claims against it arguing that Plaintiffs had failed to make
“factual allegations regarding a municipal policy or
custom that was the moving force behind the constitutional
violations alleged.” The Court granted the City's
motion and gave Plaintiffs leave to file an amended
complaint. Plaintiffs filed their amended complaint in
September 2017, asserting three Monell claims under
section 1983 against the City based on Fourth Amendment
violations for (1) excessive force (Count II); (2)
unreasonable search and seizure (Count IV); and (3) unlawful
arrest (Count VI). The City moves to dismiss each claim.
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, 570
(2007)). A complaint may not contain just “labels and
conclusions, ” for “a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. In determining the
adequacy of a complaint, a court must “accept all
factual allegations as true [and] construe the complaint in
the light most favorable to plaintiff.” Warren.
Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir.
2011). “[W]ithout some factual allegation in the
complaint, a claimant cannot satisfy the requirement that he
or she provide not only ‘fair notice, ' but also
the ‘grounds' on which the claim rests.”
Phillips v. County of Allegheny, 515 F.3d 224, 232
(3d Cir. 2008).
section 1983 claim “subjects to liability every person
who under color of state law or custom deprives a citizen of
his or her constitutional rights.” Langford v. City
of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). A
municipality may be sued as a “person” under
§ 1983 if it unconstitutionally implements or executes
“a policy statement, ordinance, regulation, or decision
officially adopted and promulgated” by its governing
bodies. Monell v. Dep't of Soc. Svcs., 436 U.S.
658, 690 (1978). However, a municipality may not be liable
based on a theory of respondeat superior. Id. at
691-95. A municipality may be sued under section 1983 based
on the conduct of its police department. Bonenberger v.
Plymouth Twp., 132 F.3d 20, 25 n.4 (3d Cir. 1997).
creates a “two-path track to municipality liability
under section 1983, depending on whether the allegation is
based on municipal policy or custom.” Beck v. City
of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
Accordingly, to survive dismissal Plaintiffs' section
1983 claims against the City must be supported by allegations
demonstrating that it “officially adopted a
‘policy, ' or unofficially adopted a
‘custom'” that resulted in Fourth Amendment
violations by its officers. See Hildenbrand v. Allegheny
County, 757 F.3d 99, 110 (3d Cir. 2014); see also
McTernan v. City of York, 564 F.3d 636, 658 (3d Cir.
2009) (“To satisfy the pleading standard, [plaintiff]
must identify a custom or policy, and specify what exactly
that custom or policy was.”).
“policy” in this context is an “official
proclamation, policy, or edict” made by a
decision-maker who has “final authority to establish
municipal policy.” Andrews v. City of Phila.,
895 F.2d 1469, 1480 (3d Cir. 1990), superseded in part by
statute, Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1072. Although Plaintiffs identify the City's
police commissioner and assert that he is a decision-maker,
they allege no “official proclamation, policy, or
edict” that he has issued. See id. As such,
Plaintiffs' section 1983 claims based on a municipal
policy shall be dismissed. See McTernan, 564 F.3d at
have Plaintiffs adequately alleged a custom by the City that
would support their section 1983 claims. A
“custom” arises when the practices of state
officials, though “not authorized by law, ” are
“so permanent and well settled” as to virtually
constitute law. See Andrews, 895 F.2d at 1480
(citing Monell). Plaintiffs have not alleged
sufficient facts to support a claim that the City has an
informal, pervasive culture that leads to Fourth Amendment
violations. While they generally aver that the City has a
“custom” of “fail[ing] to train, supervise
and discipline police officers with respect to constitutional
standards and limitations . . . under the Fourth
Amendment” and that this custom is “persistent
and widespread custom, ” they do not provide specific
facts that support this allegation. See McTernan,
564 F.3d at 658 (affirming dismissal of section 1983 claim
based on custom where plaintiff only alleged that his rights
were violated “due to the City's policy of ignoring
First Amendment right[s.]”). More to the point,
Plaintiffs fail to plead facts to suggest that the alleged
police misconduct was the result of a City custom, as opposed
to the “idiosyncratic actions of individual public
actors.” See Burke v. Township of Cheltenham,
742 F.Supp.2d 660, 676 (E.D. Pa. 2010).
appropriate order follows.
 In that this is the Plaintiffs'
second bite at the apple to properly plead their
Monell claims, the Court will not grant them another
chance to amend their complaint and Defendants' ...