The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RAKYM DURHAM : CIVIL ACTION
:
v. : NO. 20-3944
:
CITY OF PHILADELPHIA, et al. :
MEMORANDUM
KEARNEY, J. November 25, 2020
Philadelphia Police arrested a disabled man driving a vehicle designed for handicapped
persons. The officers placed his wheelchair in the police vehicle to transport him to the police
station for questioning and processing. John Doe police officers ordered him to stand up at the
police station for his photograph. He could not do so. The John Doe officers then forcibly lifted
him to make him stand. They then let go of him causing him to fall on the floor and fracture his
leg. The John Doe officers then did not provide him medical care while in custody although one
of his leg bones poked and pressed against his skin. The officers released him two days later. He
sought medical treatment and learned of the leg fracture.
The man now sues the John Doe officers for excessive force, failure to intervene, and
assault and battery. He sues the City of Philadelphia for municipal liability. The City moves to
dismiss. He does not allege facts allowing us to find the City has a custom or practice of
disregarding handicapped persons’ needs upon arrest or during intake at police stations. He does
not allege a subsequent cover up or the John Doe officers’ history of similar conduct. He does
not plead a causal connection with a City policy or custom. He does not plead the City failed to
train its police officers on this type of incident under a either a pattern of violations or a single
violation theory. We grant the City’s motion to dismiss without prejudice to the handicapped
man possibly pleading facts necessary to proceed against the City on a municipal liability
consistent with his obligations under Fed. R. Civ. P. 11.
I. Alleged facts
Philadelphia Police officers arrested Rakym Durham after observing him operating a
vehicle specifically designed for handicapped persons. When they arrested him, they placed his
wheelchair into their police vehicle before transporting him to the police station.1 When they
arrived at the police station, the officers ordered Mr. Durham to stand so they could take his
photograph.2 When he could not comply, they forcibly lifted him from his wheelchair to try and
make him stand.3 They then let go of Mr. Durham, causing him to fall onto the floor and causing
his leg to fracture.4 Mr. Durham did not receive medical attention after falling even though “one
of his leg bones [was] poking and pressing against his skin.”5 The Philadelphia Police released
Mr. Durham two days later without charging him.6 Lankenau Hospital physicians later
diagnosed Mr. Durham with a “nondisplaced tibial plateau fracture,” which he contends resulted
from “being dropped to the ground.”7
II. Analysis8
Mr. Durham sued the City and John Doe officers. Mr. Durham asserts claims against the
John Doe Officers for excessive force, failure to intervene, and assault and battery.9 He seeks to
impose supervisory liability upon the City under 42 U.S.C. §1983 and Monell v. New York City
Department of Social Services, alleging the City maintained a custom/policy of: (1) “cover[ing]
up and avoid[ing] detection of improper and illegal police activity, including excessive force,
conspiracies, unlawful detention, failure to intervene against Officer’s [sic] illegal conduct, false
imprisonment, and assault and battery”; and (2) faili[ing] to sufficiently supervise against, train,
and/or re-train against, and sufficiently discipline against illegal police activity, including but not
limited to excessive force, unlawful detention, failure to intervene against other Officer’s [sic]
illegal conduct, false imprisonment, false arrest, and assault and battery.”10
The City moves to dismiss Mr. Durham’s Monell claim, arguing he asserts “only
conclusory statements about the City’s alleged policy, practice or custom, with no supporting
factual allegations.”11 Mr. Durham argues he alleged a cognizable claim of municipal liability
because he included John Doe Officers, and discovery may reveal potential earlier misconduct
during their employment.12
A. Mr. Durham does not plead the City had a custom or policy of covering up or
avoiding detection for police misconduct.
Mr. Durham does not plead a Monell claim based on the alleged custom or policy of
covering up or avoiding detection for police misconduct.
To plead municipal liability under Monell, Mr. Durham must allege: “(1) [he] possessed
a constitutional right of which he was deprived; (2) the municipality had a policy [or custom];
(3) the policy [or custom] amounted to deliberate indifference to the plaintiff’s constitutional
right; and (4) the policy was the ‘moving force behind the constitutional violation.”13 A
municipality’s policy is a “statement, ordinance, regulation, or decision officially adopted and
promulgated by” the governing body’s officers.14 A custom is a practice “not formally approved
by an appropriate decision maker” but “so widespread as to have the force of law.”15
Mr. Durham does not allege facts showing a member of the City Police Department
“cover[ed] up” or “avoid[ed] detection” for police misconduct. He falls far short of alleging a
“policy” or “custom.” Even if Mr. Durham pleaded a municipal policy or custom of covering up
misconduct, he fail to plead this policy was the “moving force” behind the alleged constitutional
violations. Mr. Durham instead conclusorily alleges officers physically mishandled him,
resulting in a serious injury. He does not allege a subsequent cover up exacerbated his injuries,
nor does he allege the John Doe officers had a history of similar conduct, which the City sought
to cover up. Simply put, Mr. Durham does not draw a causal connection between the harm he
suffered and the alleged municipal policy or custom. He pleads no facts from which we cause
plausibly infer the City had a custom or policy of covering up or avoiding detection of police
misconduct.
B. Mr. Durham does not plead the City failed to train its police officers.
Mr. Durham also does not adequately plead a failure to train theory under Monell.
“A municipality’s failure to adequately train its employees gives rise to a cause of action
under Section 1983 if the deficient training reflects a deliberate indifference to an individual’s
civil rights, and is ‘closely related to the ultimate injury.’”16 While “[g]enerally, deficient
training can only amount to . . . deliberate indifference ‘where the failure to train has caused a
pattern of violations,’” our Court of Appeals recognizes an exception to this rule in the single-
violation theory. 17 Under the single-violation theory, Mr. Durham may state a Monell claim
absent a pattern of violations if he can plead: (1) the violation of his federal rights was a “highly
predictable consequence of a failure [to] train officers”; and (2) “the likelihood of recurrence and
predictability of the violation” justifies finding “[the] policymakers’ decision not to train an
officer reflected ‘deliberate indifference to the obvious consequence of the policymakers’
choice.’”18 Mr. Durham cannot state a claim by “[m]erely alleging . . . a single injury ‘could
have been avoided if an employee . . . had better or more training.’”19 To prevail under a single-
violation theory, Mr. Durham must instead “show that the need for the [City] to provide specific
training in order to avoid constitutional injury was “highly predictable” or “patently obvious.’”20
Mr. Durham fails to allege a “failure to train” Monell claim under either a pattern-of-
violations theory or under a single-violation theory.
1. Mr. Durham does not adequately plead a pattern-of-violations theory.
Mr. Durham does not allege a pattern of violations. His “[c]omplaint is devoid of any
reference to any other occasion where a” Philadelphia Police officer engaged in similar
misconduct, and “[t]he paragraph alleging deficient training mentions no other person or persons
whose rights were violated because of [the officers’] deficient training.”21 Because “[t]he facts
pled describe a single incident,” (the officers forcing Mr. Durham to stand and then fall), Mr.
Durham’s present conclusory allegations are “by definition insufficient . . . to state a ‘failure to
train’ Monell claim under a ‘pattern-of-violations’” theory.22
2. Mr. Durham does not adequately plead a single-violation theory.
Mr. Durham does not adequately plead a Monell claim under a single-violation theory
because he does not “identify a failure to provide specific training that has a causal nexus with
[his] injuries.”23
To state a Monell claim under a single-violation theory, Mr. Durham must plead “the
failure to train ‘proximately caused his constitutional injury by identifying a particular failure in
a training program that is ‘closely related to the ultimate injury.’”24 Whether we may hold the
City liable under a single-violations theory “depends on ‘the likelihood that the situation will
recur and the predictability that an officer lacking specific tools to handle that situation will
violate citizens’ rights.’”25 As Mr. Durham does not allege a “particular” or “specific” failure in
the training program with a causal nexus to his injuries, he fails to plead a Monell claim under a
single-violation theory.
A general averment of a municipality’s “failure to offer some unspecified training or
supervision” is insufficient to plead a Monell claim.26 In Tucker v. Petruzzi, a police officer
forcibly opened the door to the Mr. Tucker’s home, entered his home, struck him, threw him
onto the couch, handcuffed him, dragged him outside, and knocked him down onto the
concrete.27 Mr. Tucker sued the officer as well as municipal defendants, asserting in a summary
fashion the municipal defendants’ supervisory liability under Monell for failing to train the
officer “in the proper use, and limits, or police authority and force, including de-escalation and
alternatives to physical force.”28 Magistrate Judge Carlson recommended the district court
dismiss this conclusory allegation as lacking the specificity to state a single-violation Monell
claim,29 and Judge Mariani adopted this report and recommendation in full.30
By contrast, a civil rights plaintiff suing under Monell may defeat a municipality’s
motion to dismiss by specifically alleging the type of training the municipality failed to provide
and the predictability of the consequences of this failure. In Kane v. Chester County Department
of Children, Youth, and Families, an employee of the Children’s Home of Reading Youth and
Family Services, Inc. received a report from a foster mother of an incident involving
inappropriate sexual behavior between children in the foster home.31 The employee reported the
incident to a Chester County caseworker, who noted the report in the victim’s file for her
supervisor to review.32 The caseworker and the employee decided to monitor the situation, but
did not alert the court, the victim’s guardian ad litem, or the psychologist who later performed a
psychological evaluation on the victim.33 The victim’s guardian ad litem alleged the caseworker
had several opportunities to alert the authorities. The sexually inappropriate conduct in the home
escalated until the caseworker reported an incident to the court a year later, marking the first time
the guardian ad litem or the court became aware of the situation and had the victim removed
from the foster home.34
The guardian ad litem brought a Monell claim against the municipality, alleging it “failed
to properly train and apprise their respective employees as to the employees’ duty to report to
guardians ad litem and to the court on a timely basis and failed to provide caseworkers and
supervisors with the necessary training for supervising and assisting children who experience
inappropriate sexual conduct.”35 Judge Gardner held the guardian ad litem adequately pleaded a
failure to train claim because “occasions for caseworkers to deal with instances of sexual conduct
are likely to recur in the caseworkers’ duties, perhaps even with sufficient frequency to create a
need for the county to provide specific training on the duties to report sexual misconduct to
guardians ad litem and to the court on a timely basis and to create a need for specific training on
supervising children who experience inappropriate sexual conduct and the necessity to obtain
appropriate help on a timely basis.”36
We do not have the benefit of this level of specific facts. Mr. Durham broadly alleges, “[i]t
was the policy and/or custom of the City of Philadelphia to fail to sufficiently supervise against,
train, and/or re-train against, and sufficiently discipline against illegal police activity, including
but not limited to excessive force, unlawful detention, failure to intervene against other Officers’
illegal conduct, false imprisonment, false arrest, and assault and battery.”37 Like the allegations
in Tucker, Mr. Durham’s allegation lacks the type of specificity required to state a single-
violation failure to train claim. Unlike in Kane, where the alleged lack of training tied in
specifically to the allegations of harm suffered, the alleged lack of training here is not tailored to
the harm Mr. Durham suffered. Mr. Durham does not allege, for example, the City failed to
properly train its officers on how to safely transport, arrest, and/or process wheelchair-bound,
immobile, or otherwise physically disabled individuals. Nor does he allege the City failed to
properly train its officers on the importance of rendering aid or providing medical attention if a
disabled individual is injured during intake. Unlike in Kane, Mr. Durham does not allege the
John Doe officers interact with physically disabled individuals with sufficient frequency to create
a need for the City to create a specific training program to handle these situations appropriately.
He fails to plead facts which may allow us to plausibly infer municipal liability under Monell.
III. Conclusion
We dismiss Mr. Durham’s claims against the City of Philadelphia without prejudice to his
ability to timely amend his claims under our accompanying Order consistent with Federal Rule
of Civil Procedure 11.38
1 ECF Doc. No. 1 ¶¶ 9-10.
2 Id. ¶ 13.
3 Id.
4 Id.
5 Id. ¶¶ 14-15
6 Id.
7 Id. ¶ 15.
8 When considering a motion to dismiss “[w]e accept as true all allegations in the plaintiff's
complaint as well as all reasonable inferences that can be drawn from them, and we construe
them in a light most favorable to the non-movant.” Tatis v. Allied Interstate, LLC, 882 F.3d 422,
426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir.
2010)). To survive dismissal, “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 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.” Id. (citing Twombly, 550 U.S.
at 556). Our Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
(1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679).
9 ECF Doc. No. 1 ¶¶ 22-23, 26, 32.
10 Id. ¶¶ 33-34.
11 ECF Doc. No. 4 at 5.
12 ECF Doc. No. 5 at 4-5.
13 Vargas v. City of Phila., 783 F.3d 962, 974 (3d Cir. 2015)
14 Monell v. Dept. of Soc. Serv. of City of New York, 436 U.S. at 658, 690 (1978).
15 Board of Cnty. Comm’rs of Bryan Cnty., Okl. V. Brown, 520 U.S. 397, 404 (1997).
16 Kane v. Chester Cnty. Dept. of Children, Youth, and Families, 10 F. Supp. 3d 671, 688 (E.D.
Pa. 2014) (quoting Kline ex rel. Ardnt v. Mansfield, 255 Fed. App’x 624, 629 (3d Cir. 2007)).
17 Id. (quoting Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)).
18 Id. (quoting Kline, 255 Fed. App’x at 629).
19 Id. at 689 (quoting Connick v. Thompson, 563 U.S. 51, 66 (2011)).
20 Id. (quoting Connick, 563 U.S. at 74).
21 Id.
22 Id.
23 Tucker v. Petruzzi, No. 17-1848, 2018 WL 3623766, at *6 (M.D. Pa. June 27, 2018) (quoting
Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)).
24 Id. at *7 (quoting Buoniconti v. City of Phila., 148 F. Supp. 3d 425, 441 (E.D. Pa. 2015)).
25 Id. (quoting Thomas v. Cumberland Cnty., 749 F. 3d 217, 223-24 (3d Cir. 1999)).
26 Id.
27 Id. at *1.
28 Id. at *7.
29 Id. at *7-8.
30 Tucker v. Petruzzi, No. 17-1848, 2018 WL 3622772 (M.D. Pa. July 30, 2018).
31 10 F. Supp. 3d at 682.
32 Id.
33 Id. at 682-84.
34 Id.
35 Id. at 689.
36 Id. at 690.
37 ECF Doc. No. 1 at ¶ 35.
38 We recognize our dismissal of the City of Philadelphia could make it difficult for Mr. Durham
to discover the identity of, and serve, the Officer John Doe defendants if he cannot plead the
City’s municipal liability in an amended complaint. If so, and in the interest of justice and upon
a showing of unsuccessful efforts to confirm their identity through public records, Mr. Durham’s
counsel may move to direct service upon the John Doe officers through the City of Philadelphia
Police Department and we may direct the City to identify the officers who arrested and processed
him on August 15, 2019 as soon as possible. When Mr. Durham learns the identity of the John
Doe officers, he must apply to this court for an order granting leave to amend to identify the
officers involving in the arrest or conduct at the police station. Stevenson v. Unknown
Correctional Officers, No. 17-198, 2017 WL 2789045 at *2 (D.Del. June 26, 2017) (recognizing
dismissal of the police department would make service of the John Doe defendants difficult and
thus ordering service on the police department and ordering the police department to identify the
John Doe officers); Watson v. Wilmington Police Dep’t., No. 07–344, 2007 WL 4572959 (D.
Del. Dec. 20, 2007) (recognizing dismissal of the police department would make service of the
John Doe defendants difficult and thus ordering service on the police department and ordering
the police department to identify the John Doe officers); Borges v. Administrator for Strong
Memorial Hosp., No. 99–6351, 2002 WL 31194558, at *1 n. 1 (W.D.N.Y. Sept.30, 2002)
(recognizing dismissal of a named administrator would make it difficult to identify John and Jane
Doe defendants and entering a similar order); Searcy v. Dallas Police Dep't, No. 01–0687, 2001
WL 611169 (N.D. Tx. May 31, 200l) (action against two John Doe City of Dallas police officers
claiming excessive force and Magistrate Judge ordered service completed on the John Doe
officer defendants through the City of Dallas Police Department). Mr. Durham can also plead
the City’s municipal liability and then pursue the identities of the John Doe officers in discovery
and move for leave to amend once identified.