SIMMONS v. TAYLOR

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICHARD DAVID SIMMONS,

Plaintiff,

CIVIL ACTION

v. NO. 20-4846

TIMOTHY McBRIDE, et al.,

Defendants.

PAPPERT, J. September 10, 2021

MEMORANDUM

Richard Simmons, proceeding pro se, seeks to sue police officers and officials of

Linwood, Pennsylvania pursuant to 42 U.S.C. § 1983 and under Pennsylvania law for

intentional infliction of emotional distress relating to his arrest and criminal charges in

October of 2018. The police officers move to dismiss the Second Amended Complaint,

and the Court grants the Motion.

I

A

On October 4, 2018, Simmons was arrested by Officer Timothy McBride at a

cleaners in Linwood and charged with, inter alia, false imprisonment, rape, aggravated

assault and burglary. (Dec. 2, 2020 Mem. 2, ECF 15.)1 The rape, aggravated assault

1 The Court incorporates herein those aspects of its December 2, 2020 Memorandum

dismissing Simmons’s initial Complaints describing the charges against Simmons and how they

were resolved according to public docket information. See (Dec. 2, 2020 Mem. 2); see also Schmidt v.

Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (explaining courts can take judicial notice of matters of

public record). This Memorandum, however, relies on the facts and allegations set forth in the

Second Amended Complaint. See Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019), cert.

denied, 140 S. Ct. 1611 (2020) (“In general, an amended pleading supersedes the original pleading

and renders the original pleading a nullity. . . . Thus, the most recently filed amended complaint

becomes the operative pleading.”); see also Argentina v. Gillette, 778 F. App’x 173, 175 n.3 (3d Cir.

and one misdemeanor burglary charge were dropped after preliminary proceedings.

(Id.) Simmons ultimately pled guilty to one count of felony burglary, and all other

charges against him were dismissed. (Id.)

Simmons contends the arrest and charges were baseless products of actions and

omissions by the police. According to Simmons, McBride filed a report saying he

stopped Simmons from “a sexual assault in progress” on October 4 after he heard

screams coming from inside the cleaners, went inside and saw Simmons on top of a

woman. (Second Am. Compl. 1, ECF 34.)2 But McBride knew the report was false

when he made it, because the alleged victim gave a statement saying Simmons “didn’t

touch her in any kind of sexual manner and . . . didn’t land on top of her and in her

opinion [he] tried to take her phone and keys.” (Id.) Sergeant Larry Moore purportedly

conspired with McBride and allowed him to file the inaccurate report and “file false

charges” notwithstanding the alleged victim’s statement, and in doing so failed to

supervise or discipline McBride. (Id. at 1, 4.) And Chief Thomas Gaspari allegedly

failed to train McBride on writing a true and accurate police report. (Id. at 4.)

Moreover, Gaspari “condoned” McBride and Moore’s false reporting by telling reporters

for “The Daily Times” newspaper that Simmons “committed the false charges knowing

[he] didn’t” in an interview days after October 4. (Id. at 1–2.)

Simmons further contends certain Linwood officials bear responsibility for his

arrest and criminal charges. See, e.g., (id. at 2, 4). But as the Court explains infra, his

2019) (“[L]iberal construction of a pro se amended complaint does not mean accumulating allegations

from superseded pleadings.”).

2 Citations to the Second Amended Complaint reflect page numbers generated by the Court’s

electronic filing system.

allegations against these officials have long been a moving target, and none of the

purported decisionmakers are currently Defendants in this case.

B

i

Simmons has filed several complaints against numerous defendants over this

incident. He initially filed two Complaints in two separate lawsuits, one against the

City of Linwood, Mayor Gene Taylor, the Linwood Police Department, Police Chief John

Ireland, McBride and Moore and a second against McBride and Moore in their

individual capacities, both based on the same allegations and circumstances. See (Dec.

2, 2020 Mem. 2–3). The Court interpreted the Complaints to raise Fourth Amendment

claims for false arrest, false imprisonment and malicious prosecution as well as

municipal liability. (Id. at 4.) Because Simmons is proceeding in forma pauperis, (ECF

16), the Court screened the Complaints and dismissed Simmons’s claims against the

Police Department with prejudice and all other claims without prejudice for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Id. at 10.) The Court allowed

Simmons to file an amended complaint, but closed his case against McBride and Moore

in their individual capacities without prejudice to him proceeding against them in the

other case so that all claims arising under the same subject matter would be contained

in one pleading and one lawsuit. (Id.); see also (December 2, 2020 Order ¶ 9, ECF 16).

After his initial Complaints were dismissed, Simmons filed a First Amended

Complaint against McBride and Moore only (ECF 19) and then a Second Amended

Complaint against McBride, Moore, Taylor and, for the first time, Police Chief Thomas

Gaspari. The Second Amended Complaint is the operative pleading.

ii

In the Second Amended Complaint, Simmons seeks recovery under § 1983 again

based on Fourth Amendment claims for false arrest, false imprisonment and malicious

prosecution, as well as municipal liability. See generally (Second Am. Compl. 1–2). He

also for the first time asserts a claim of intentional infliction of emotional distress,

though he does not specify against who. See (id. at 3.) His allegations allude to a

defamation claim, see, e.g., (id. at 2), but he says he is not claiming defamation, (Mot. to

Deny Defendants’ Mot. to Dismiss Second Am. Compl. 2, ECF 51).

Since filing the Second Amended Complaint, Simmons has told the Court that

Taylor should not be a Defendant. He first moved to replace Taylor with a John Doe

mayor defendant because he discovered Taylor was not Linwood’s mayor. (Mot. to Deny

Counsel Mots. to Dismiss 1, ECF 37.) Approximately six months later he moved to add

as defendants members of a “borough counsel,” whose identities are thus far unknown

to him, because he now believes counsel members are the policy and decision makers in

Linwood. (Mot. to Add Defendants, ECF 55.) Given Simmons’s recognition that the

mayor of Linwood does not exist, the Court understands the most recent Motion as

seeking to add John Does from the borough counsel in lieu of a John Doe mayor.

Based on his filings, the Court believes Simmons wishes to pursue all claims

alleged in the Second Amended Complaint, but only properly so against the police

officers, as the Court has not ruled on his Motion to add the John Doe borough counsel

members as defendants. McBride, Moore and Gaspari move to dismiss the Second

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to

Dismiss 2, 10–13, ECF 50.) The Court assesses their Motion based on its

understanding of the case’s current claims and purported Defendants.

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

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 is facially

plausible when the facts pled “allow[] the court to draw the reasonable inference that

[a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is

entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, a court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)

(quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to

those allegations for which there is sufficient factual matter to render them plausible

on their face.” Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir.

2016) (internal quotation and citation omitted). “Conclusory assertions of fact and legal

conclusions are not entitled to the same presumption.” Id. This plausibility

determination is a “context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

III

Section 1983 of Title 42 of the United States Code provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege (1) a person

deprived him of a right secured by the Constitution, and (2) the person violating that

right acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

Because Simmons is proceeding pro se, the Court “must liberally construe his

pleadings.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation omitted); see

also Bush v. City of Phila., 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005) (“Courts are to

construe complaints so ‘as to do substantial justice,’ keeping in mind that pro se

complaints in particular should be construed liberally.”) (quoting Alston v. Parker, 363

F.3d 229, 234 (3d Cir. 2004)). Moreover, in a § 1983 action, the Court must “apply the

applicable law, irrespective of whether a pro se litigant has mentioned it by name.”

Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep’t of Veteran

Affairs, 165 F.3d 244, 247–48 (3d Cir. 1999)). At the same time, pro se litigants “must

allege sufficient facts in their complaints to support a claim . . . . At the end of the day,

they cannot flout procedural rules—they must abide by the same rules that apply to all

other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).

A

As the Court explained in its Memorandum dismissing Simmons’s initial

Complaints, a plaintiff must establish a lack of probable cause to plausibly state a claim

for false arrest, false imprisonment or malicious prosecution. See (Dec. 2, 2020 Mem.

5–6,). Specifically, to establish a constitutional violation resulting from false arrest or

false imprisonment, a plaintiff must show he was arrested without probable cause. See

Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (“False arrest and false

imprisonment claims will ‘necessarily fail if probable cause existed for any one of the

crimes charged against the arrestee.”) (quoting Dempsey v. Bucknell Univ., 834 .3d 457,

477 (3d Cir. 2016)).3 “[P]robable cause to arrest exists when the facts and

circumstances within the arresting officer’s knowledge are sufficient in themselves to

warrant a reasonable person to believe that an offense has been or is being committed

by the person to be arrested.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir.

1995). “[I]t is irrelevant to the probable cause analysis what crime a suspect is

eventually charged with,” because “‘[p]robable cause need only exist as to any offense

that could be charged under the circumstances.’” Wright v. City of Phila., 409 F.3d 595,

602 (3d Cir. 2005) (quoting Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.

1994)).

To establish a constitutional violation resulting from malicious prosecution, a

plaintiff must establish that “(1) defendants initiated a criminal proceeding; (2) the

criminal proceeding ended in the plaintiff’s favor; (3) the proceeding was initiated

without probable cause; (4) the defendants acted maliciously for a purpose other than

bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty

consistent with the concept of seizure as a consequence of a legal proceeding.”

McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir. 2009). A lack of probable cause in

3 False arrest and false imprisonment are analyzed together because they are “essentially the

same claim.” Olender v. Twp. of Bensalem, 32 F. Supp. 2d 775, 791 (E.D. Pa. 1999).

the malicious prosecution context can be demonstrated even if probable cause is

established for purposes of a false arrest or false imprisonment claim because “the

validity of the prosecution for each charge comes into question inasmuch as the plaintiff

was subject to prosecution on each individual charge.” Johnson v. Knorr, 477 F.3d 75,

85 (3d Cir. 2007). Accordingly, “notwithstanding the rule when a plaintiff is pursuing

false arrest charges, a defendant initiating criminal proceedings on multiple charges is

not necessarily insulated in a malicious prosecution case merely because the

prosecution of one of the charges was justified.” Id.

i

Simmons’s false arrest, false imprisonment and malicious prosecution claims

appear to be based solely on his allegations that McBride falsely reported he found

Simmons engaging in sexual assault even though the purported victim made a

statement that Simmons “did not touch her in any kind of sexual manner and . . . didn’t

land on top of her and in her opinion [he] tried to take her phone and keys.” (Second

Am. Compl. 1.) He offers no further explanation for why McBride’s report was false,

alleges no facts regarding what McBride would have actually seen him doing when he

entered the cleaners and provides no explanation of the bases for his charges or

circumstances surrounding his guilty plea.

Simmons’s allegations fail to establish a lack of probable cause for any action

taken against him, and his false arrest, false imprisonment and malicious prosecution

claims are dismissed accordingly. With respect to his false arrest and false

imprisonment claims, the victim’s alleged assessment of the October 4 incident is

“sufficient in [itself] to warrant a reasonable person to believe that an offense ha[d]

been or [was] being committed” by Simmons. And Simmons’s otherwise “‘bare-bones’

allegation of falsehoods and fabrications does not meet the applicable pleading

standard.” Santiago v. Hulmes, No. 14-07109, 2015 WL 1422627, at *4 (E.D. Pa. Mar.

30, 2015) (citing Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).4

As to the malicious prosecution claim, none of Simmons’s allegations contain any

facts from which the Court can infer probable cause was lacking with respect to any of

the charges against him. See, e.g., Jenkins v. City of Phila., No. 15-3271, 2015 WL

5585186, at *3 (E.D. Pa. Sept. 23, 2015) (dismissing false arrest, false imprisonment

and malicious prosecution claims where “[t]he only facts [plaintiff] allege[d],” that he

was twice arrested, did not have drugs in his possession, did not break the law and the

police confiscated his property, failed to demonstrate lack of probable cause); Santiago,

2015 WL 1422627, at *4 (dismissing false arrest, false imprisonment and malicious

prosecution claims where plaintiffs did not “allege what they believe actually happened

the day of the arrest” or “affirmatively assert facts to show that the Officer Defendants

did not have probable cause”).

4 Defendants contend the fact that Simmons pleaded guilty to felony burglary is also sufficient

to establish probable cause for his arrest. (Mot. to Dismiss 5.) Indeed, courts in this district have

found a guilty plea precludes a claim of lack of probable cause to arrest. See, e.g., Fields v. City of

Pittsburgh, 714 F. App’x 137, 2017 (3d Cir. 2017) (“Although Fields pleaded to lesser offenses than

he was originally charged with, his guilty plea inherently included an acknowledgement that

probable cause existed to arrest him for some offense”) (emphasis in original); Rosembert v. Borough

of East Landsdowne, 14 F. Supp. 3d 631, 641 (E.D. Pa. 2014) (“Probable cause for a § 1983 unlawful

arrest claim is . . . established by guilty plea or conviction, although not where the conviction is later

overturned.”) (internal quotations and citation omitted); Stief v. Robeson Twp., No. 5:20-cv-06272,

2021 WL 2137588, at *7 (E.D. Pa. May 26, 2021) (“A plaintiff who later pleads guilty cannot argue

that the preceding arrest was without probable cause, even if the guilty plea is for a lesser offense.”).

B

Simmon’s failure to state a constitutional violation is fatal to his municipal

liability claim. See Williams v. West Chester, 891 F.2d 458, 467 (3d Cir. 1989). In any

event, the municipal liability claim fails on its merits.

The Court explained the requirements for pleading municipal liability claims in

its Memorandum dismissing Simmons’s initial Complaints. See (Dec. 2, 2020 Mem. 8–

9). 5 Again, to state a § 1983 claim for municipal liability, a plaintiff must allege that

the defendants’ policies or customs caused an alleged constitutional violation. See

Monell, 436 U.S. at 694. To “satisfy the pleading standard,” a plaintiff must “identify a

custom or policy, . . . specify what exactly that custom or policy was,” McTernan v. City

of York, 564 F.3d 636, 658 (3d Cir. 2009), and “demonstrat[e] an ‘affirmative link’

between the policy or custom and the particular constitutional violation he alleges,”

Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019). The Third Circuit

Court of Appeals has explained:

Policy is made when a ‘decisionmaker possess[ing] final authority to establish a

municipal policy with respect to the action’ issues an official proclamation,

policy, or edict. A course of conduct is considered to be a ‘custom’ when, though

not authorized by law, ‘such practices of state officials [are] so permanently and

well-settled’ as to virtually constitute law.

McTernan, 564 F.3d at 658 (quoting Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d

Cir. 1990)). “Custom requires proof of knowledge and acquiescence by the

decisionmaker.” Id. (citing Watson v. Abington Twp., 478 F.3d 144, 154 (3d Cir. 2007);

Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)).

5 The Court also explained that a lawsuit against individuals in their official capacities is

treated and analyzed as a lawsuit against an entity based on the entity’s municipal liability. See

(Dec. 2, 2020 Mem. 8 (citing Kentucky v. Graham, 473 U.S. 159, 165–66 (1985); Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 n.55 (1978)).

Alternatively, a plaintiff may state a claim for municipal liability under § 1983

by alleging failure to train, supervise or discipline employees. See Estate of Roman, 914

F.3d at 798; Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). “For claims

involving police officers, the Supreme Court has held that the failure to train ‘serve[s]

as [a] basis for § 1983 liability only where [it] . . . amounts to deliberate indifference to

the rights of persons with whom the police come into contact.’” Estate of Roman, 914

F.3d at 798 (quoting City of Canton v. Harris, 489 U.S.378, 388 (1989)). To sufficiently

plead deliberate indifference, a plaintiff must establish that “(1) municipal

policymakers know that employees will confront a particular situation[,] (2) the

situation involves a difficult choice or a history of employees mishandling[,] and (3) the

wrong choice by an employee will frequently cause deprivation of constitutional rights.”

Id. (quoting Doe v. Luzerne Cty., 660 F.3d 169, 180 (3d Cir. 2011)). “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, 563 U.S. 51, 62 (2011).

i

Simmons appears to assert both theories of municipal liability, but his

allegations as to each are entirely conclusory.6 With respect to a policy or custom, he

says that because Gaspari told reporters Simmons was guilty of the charges against

him knowing that was untrue, it “is safe to say that the municipality adopted a custom

of permitting its police officers to file false police reports and false charges for publicity

purposes.” (Second Am. Compl. 2.) The leap Simmons makes obviously lacks any

6 Simmons has not clearly identified the municipality he seeks to hold liable. See, e.g., (Mot. to

Dismiss 3, 10). Even if he had, he fails to state a claim for municipal liability as a general matter.

support which could plausibly establish the existence of a practice “‘so permanently and

well-settled’ as to virtually constitute law.” Moreover, the allegation fails to show a

decisionmaker knew about this purported custom and acquiesced to it, because “as a

matter of Pennsylvania state law, a township Police Chief is not a final policymaker.”

Santiago v. Warminster Twp., 629 F.3d 121, 135 n.11 (3d Cir. 2010) (citing 53 Pa. Stat.

Ann. § 66902; Hicks v. Warminster Twp., No. 00-2895, 2001 WL 1159750, at *3 (E.D.

Pa. July 26, 2011)).

With respect to failure to train, supervise or discipline, Simmons alleges

throughout the Second Amended Complaint that McBride was not properly trained,

supervised or disciplined, but alleges no facts to support those conclusions either. See,

e.g., Freedman v. City of Allentown, 853 F.2d 1111, 1117 (3d Cir. 1988) (“Mere

conclusory allegations . . . that the defendants deliberately elected not to train are not

enough to support a constitutional claim.”); McCall v. City of Phila., 396 F. Supp. 3d

549, 560 (E.D. Pa. 2019) (allegations that City failed to train, supervise and discipline

employees without factual support insufficient to plead deliberate indifference); Cooper

v. Chester, 810 F. Supp. 618, 623 (E.D. Pa. 1992) (pleading alleging city “as a matter of

policy and practice, has, with deliberate indifference failed to adequately discipline,

train or otherwise direct police officers concerning the rights of citizens, thereby

causing the defendant officers in this case to engage in the unlawful conduct”

insufficient).7

7 Defendants argue that regardless of the adequacy of Simmons’s pleadings, they are entitled

to qualified immunity, (Mot. to Dismiss 13–16), which protects state actors who have committed

constitutional violations if the plaintiff’s rights were not “clearly established” at the time of the

violation, Pearson v. Callahan, 555 U.S. 223, 232 (2009). Although qualified immunity is an

affirmative defense, “a complaint may be subject to dismissal under Rule 12(b)(6) when an

affirmative defense appears on its face.” Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001). The

IV

A pro se prisoner alleging claims under Section 1983 must generally be granted

leave to amend unless amendment would be futile or inequitable. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). “‘Futility’ means that the

complaint, as amended, would fail to state a claim upon which relief could be granted.”

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citation

omitted). A district court applies “the same standard of legal sufficiency that applies

under Rule 12(b)(6)” to assess futility. Id.

It would be futile to allow Simmons to again amend his § 1983 claims. When the

Court dismissed his initial Complaints, it identified specific defects in his claims and

detailed the pleading requirements for Simmons to properly allege each. See generally

(Dec. 2, 2020 Mem. 4–10). It then gave Simmons two opportunities to amend his

complaint. See (Dec. 2, 2020 Order, ECF 16); (May 12, 2021 Order, ECF 49).

Notwithstanding the Court’s guidance, each iteration of Simmons’s pleadings

contain essentially the same defects as the initial Complaints.8 Over time Simmons

has added or changed some factual allegations regarding the circumstances of the

October 4 incident, but each modification has made it more apparent that he cannot

state a claim for relief pursuant to § 1983. For example, in his initial Complaint

against the City of Linwood, Mayor Taylor, Chief Ireland, the Police Department,

McBride and Moore, Simmons claimed McBride’s report of the incident was false

Court need not address this argument because Simmons has failed to plausibly allege a

constitutional violation.

8 While the Court has never previously opined on the merits of Simmons’s First Amended

Complaint, the Court reviewed that pleading for the purpose of determining whether amendment

would be futile.

because the alleged victim gave an “interview and statement that contradicted the

conspired police reports.” (Compl. 4.) In his First Amended Complaint, he specified

that the victim “told Sergeant Moore that when [Simmons] fell [he] landed on the side

of her and . . . didn’t touch her in any kind of sexual manner.” (First. Am. Compl. 4.)

Now, he alleges the victim said he did not land on top of her but believed he tried to

take her phone and keys.

In the First Amended Complaint Simmons vaguely discussed the incident from

his perspective, but those allegations would not help him state a claim either. Simmons

said he went into the cleaners for medical attention, had a seizure and while falling

“grabbed the attendant and . . . fell on the side of her.” (First Am. Compl. 5.) Under

any of Simmons’s versions of events, the facts alleged could not establish a lack of

probable cause for his arrest and prosecution. The Court dismisses Simmons’s § 1983

claims with prejudice. Cf. Jones v. Unknown, 944 F.3d 478, 483 (3d Cir. 2019) (finding

amendment by pro se litigant of certain insufficiently pled § 1983 claims would be futile

because “he has already had two chances to tell his story”); Youst v. Lukacs, No. 20-cv-

3287, 2021 WL 3051936, at *5 (E.D. Pa. July 20, 2021) (dismissing with prejudice

§ 1983 municipal liability claims inadequately pleaded by pro se litigant in Second

Amended Complaint, “it appearing that any further attempt at amendment would be

futile”); Nunez v. Pistro, No. 21-cv-0995, 2021 WL 2936032, at *2 (E.D. Pa. July 13,

2021) (finding amendment by pro se plaintiff would be futile where court previously

identified defects in plaintiff’s claims but plaintiff’s amended complaint “contain[ed]

essentially the same defects as his initial Complaint”).

i

Moreover, Simmons cannot add the borough counsel as defendants at this stage.

On September 8, 2021, he moved to assert claims against the counsel arising from the

October 4, 2018 incident. “A section 1983 cause of action accrues when the plaintiff

knew or should have known of the injury upon which its action is based.” Sameric

Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). Section 1983 claims in

Pennsylvania are subject to a two-year statute of limitations. Id.

Where, as here, the limitations period has expired, a plaintiff may only name a

new party if he demonstrates the claims against the new party relate back to the

original complaint. See Fed. R. Civ. P. 15(c); Estate of Grier v. Univ. of Pa. Health Sys.,

No. 07-4224, 2009 WL 1652168, at *2–3 (E.D. Pa. June 2009). Federal Rule of Civil

Procedure 15(c)(1)(C) provides that the addition of a new party relates back when:

(1) The claim or defense set forth in the amended pleading arose out of the

conduct, transaction or occurrence set forth in the original pleading; (2) within

the time period provided in [Federal] Rule [of Civil Procedure] 4(m), the party or

parties to be added received notice of the institution of the suit and would not be

prejudiced in maintaining a defense; and (3) the party sought to be added knew

that, but for a mistake concerning his or her identity, he or she would have been

made a party to the action.

Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir. 2003); Fed. R. Civ. P. 15(c)(1)(C).

For an in forma pauperis action, the Third Circuit Court of Appeals has held that:

once a plaintiff submits an in forma pauperis complaint within the time provided

by the statute of limitations, and after the § 1915(a) in forma pauperis

determination is made, the [90] day period of Rule 15(c)[(1)(C)] for satisfying the

requirements for relation back of an amendment that changes or adds a party is

suspended while the district court considers the § 1915[(e)(2)] question. If an

amendment will cure defects in the complaint, it must be permitted, and upon

the filing of an appropriate amendment, the district judge must order issuance of

the summons and service of the complaint. Upon the entry of that order

directing service of the amended complaint, the suspension ends and the [90] day

period of Rule 15(c)[(1)(C)] for service beings to run.

Smith v. Commonwealth, No. 1:18-cv-01241, 2020 WL 896684, at *4 (M.D. Pa. Jan. 8,

2020) (quoting Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d 451, 453–54 (3d Cir.

1996)).

Even assuming Simmons’s claims against the borough counsel arise “out of the

conduct, transaction or occurrence set forth in the original pleading,” he cannot show

they relate back because he still does not know who he intends to sue and has not

shown, and seemingly cannot show, that these people received notice of this law suit

within the requisite time period—the Court ordered the Clerk of Court to serve waiver

requests on the defendants with a copy of the Amended Complaint over eight months

ago on December 23, 2020. See (Dec. 23, 2020 Order, ECF 20). Nor has Simmons

shown these people would know they would have been parties to this case but-for

Simmons mistaking their identities.

V

The Motion to Dismiss does not address Simmons’s claim for intentional

infliction of emotional distress. But pursuant to 28 U.S.C. § 1367(c)(3), the Court has

discretion to decline to exercise supplemental jurisdiction over state law claims once all

claims over which the Court has original jurisdiction have been dismissed. In such

situations, it is appropriate to refrain from exercising jurisdiction over the state law

claims “in the absence of extraordinary circumstances.” Tully v. Mott Supermarkets,

Inc., 540 F.2d 187, 196 (3d Cir. 1967). With the dismissal of Simmons’s federal claims,

and in the absence of extraordinary circumstances, the Court declines to exercise

supplemental jurisdiction over Simmons’s IIED claim. That claim is dismissed without

prejudice to its renewal in state court.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

GERALD J. PAPPERT, J.