WILLIAMS v. HAMMER

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY MUSTAFA LIFE

WILLIAMS, :

:

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-CV-0312

:

GARY HAMMER, et al., :

Defendants. :

MEMORANDUM OPINION

Goldberg, J. April 26, 2022

Plaintiff Anthony Mustafa Life Williams brings this action against Defendants Detective

Gary Hammer, Detective Mark Mazzitelli, Colonial Regional Police Department, Whitehall

Township Police Department, and Northampton County challenging various events surrounding

his arrest and conviction in 2019. On September 3, 2021, Defendants Detective Mazzitelli and

Whitehall Township Police Department filed a Motion to Dismiss under Federal Rule of Civil

Procedure 12(b)(6), and, on October 29, 2021, Defendant Northampton County filed a separate

Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).1 Plaintiff also moved for a default judgment

against Northampton County. For the following reasons, I will grant the Motions to Dismiss and

dismiss all claims against Defendants Mazzitelli, Whitehall Township Police Department, and

Northampton County with prejudice. I will also deny Plaintiff’s Motion for Default Judgment.

1 On September 1, 2021, Defendants Colonial Regional Police Department and Gary

Hammer filed an Answer.

I. FACTS IN THE THIRD AMENDED COMPLAINT

The following facts are set forth in the Third Amended Complaint.2

On July 29, 2019, Detective Gary M. Hammer of the Colonial Regional Police Department

filed a criminal complaint and caused Plaintiff to be arrested for burglary and related charges.

(Third Am. Compl. ¶ 1.) The affidavit of probable cause attached to the criminal complaint

provided that:

On 01/09/19 the affiant’s department received a report from

a Lisa Emory who resides at 4080 Jacksonville Rd Bethlehem, Pa.

She reported that an unknown person entered her home by breaking

the glass in the front door of the house and the suspect took items

from the house. The burglary occurred between 0630hrs and

1830hrs on 01/09/19. The neighbor of Emery a Joshua Moratz who

resides next to the victim, reported that about 1400 hrs on 01/09/19

he heard a car door close and he looked out the window. He reported

that he saw a black vehicle in the victim’s driveway. He described

the vehicle as a black Dodge Caliber. He stated that he didn’t think

anything of it because the victim’s house was for sale. The home

owner reported that stolen from her home was TCL 43” flat screen

television with a value of $400.00, an Apple Mac Book Pro

computer with a value of $2,000.00 a pair of Boise noise cancelling

headphones $300.00 and a jewelry box full of jewelry total [sic]

$500.00.

On 01/10/19 the affiant contacted the pawn shop called Buy

Sell Trade located on 1125 Hamilton Blvd Allentown and they

reported that a person was just in the store and sold them a TCL

television and a[n] Apple Mac Book Pro computer for $70.00. The

affiant went to the pawnshop and was able to determine through the

serial numbers that the items at the pawnshop were the homeowner’s

items. The pawnshop advised the affiant that they got a copy of the

2 In deciding a motion under Federal Rule of Civil Procedure, the court must accept all

factual allegations in the complaint as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to

relief. Atiyeh v. Nat’l Fire Ins. Co. of Hartford, 742 F. Supp. 2d 591, 596 (E.D. Pa. 2010).

The Third Amended Complaint, once submitted to and accepted by the Court, became the

governing pleading in the case because an amended complaint supersedes the prior pleading. See

Shahid v. Borough of Darby, 666 F. App’x 221, 223 n.2 (3d Cir. 2016) (per curiam) (“Shahid’s

amended complaint, however, superseded his initial complaint.” (citing W. Run Student Hous.

Assocs. LLC v. Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013).

driver’s license of the person who sold them the items. The driver’s

license was that of the defendant. The affiant found looking at the

victim’s computer, that the defendant did a factory reset of the

laptop computer and put himself in as the only contact.

The affiant learned that the defendant was a suspect in a

daytime burglary that had occurred in the Borough of Emmaus on

12/28/2018 where a door window was broken to gain entry. The

affiant also found that the defendant owns and operates a black

Dodge Journey which looks the same as a black Dodge Caliber that

was seen in the victim’s driveway at the time of the burglary.

The affiant found that the defendant was arrested by the

Whitehall Twp Police Department for a daytime burglary that had

occurred at that location on 02/04/19. The Affiant contacted Det.

Mazzitelli of the Whitehall Twp Police Department. He informed

the affiant that he had seized the defendant’s phones. He informed

me that a search warrant was executed on both phones. He found

that the defendant would commonly use his phone and take pictures

of the items that he stolen [sic] and research the value of his stolen

items. Mazzitelli stated that the defendant did that involving the

items he had stolen from Whitehall Twp. Mazzitelli also informed

the affiant that the defendant was seen in his black Dodge Journey

at the burglary scene.

The affiant received a copy of the computer forensic report

for the defendant’s phones. The affiant found that soon after the

burglary at the Emery residence at 4060 Jacksonville Rd the

defendant had taken a picture of a 43 inch TCL flat screen television

and he researched the value of an Apple MAC Book Computer.

The homeowner advised the affiant that the front door

damage that was done by the defendant braking [sic] into the home

totaled $900.00.

(Pl.’s Opp’n Mot. to Dismiss, ECF No. 36, Ex. B.)3

3 As a general rule, a district court reviewing a motion to dismiss under Fed. R. Civ. P.

12(b)(6) “may not consider matters extraneous to the pleadings” without converting the motion

into one for summary judgment. In re Burlington Coat Factory Secs. Litg., 114 F.3d 1410, 1426

(3d Cir. 1997). The rule, however, has three exceptions that permit courts to consider: (1) exhibits

attached to the complaint; (2) matters of public record; and/or (3) undisputedly authentic

documents integral to or explicitly relied upon in the complaint. Schmidt v. Skolas, 770 F.3d 241,

249 (3d Cir. 2014).

Based on the affidavit of probable cause, Plaintiff was arrested on July 29, 2019 and

charged with burglary, theft by unlawful taking of movable property, receiving stolen property,

criminal trespass, and criminal mischief. (Id. at ¶ 2(g)); see also Commonwealth v. Williams, CP-

48-CR-3017-2019. He was placed in a cell in Northampton County with four people, causing him

high anxiety due to possible COVID-19 exposure and exposure to “deplorable conditions.” In

addition, the arrest and charges were considered by the parole board as a parole violation from a

different offense. (Third Am. Compl. ¶ 2(g).)

Plaintiff alleges that the affidavit in support of the criminal complaint was deficient or

misleading in multiple respects:

• Detective Hammer omitted that the pawn shop gave him a piece of paper with Plaintiff’s

license and phone number, not a receipt that Plaintiff sold them any items.

• Detective Hammer misstated the facts surrounding contacting the pawn shop. Plaintiff

alleges that Hammer contacted the pawn shop early in the morning while on the lookout

for the stolen items. The pawn shop received the stolen property later in the day and,

knowing it was stolen, called Hammer indicating that they had the items, which he came

to retrieve the next day.

• Detective Hammer claimed that Plaintiff reset the stolen computer and put his name and

contact information in that computer but had no proof to back up that statement.

• Detective Hammer stated that Plaintiff owned the same type of car that was seen at the

burglary scene and that Plaintiff was a suspect in a previous burglary. Yet, Hammer knew

that Plaintiff had been charged six days before with receiving stolen property, not burglary,

and that the charges were dismissed on September 2019.

• Plaintiff owned a black Dodge Journey, not a Dodge Caliber as was reported by a witness

to the January 2019 burglary. Defendants Hammer and Mazzitelli conspired to create a

The affidavit of probable cause attached as Exhibit B to Plaintiff’s Response in Opposition

to the Motion to Dismiss is a public document and is explicitly relied upon and paraphrased in the

Third Amended Complaint. As such, I may consider this document when ruling on the Motions

to Dismiss. See Shelley v. Wilson, 339 F. App’x 136, 137 (3d Cir. 2009) (noting that the district

court properly considered criminal complaint and arrest warrant in deciding a motion to dismiss a

false arrest claim).

false fact that Plaintiff was seen in his black Dodge Journey at the Whitehall Township

crime scene.

• Defendants Hammer and Mazzitelli conspired to create a false story that Plaintiff would

commonly use his phone to take pictures of items that he would steal and research the value

of them.

Plaintiff further alleges that Detectives Hammer and Mazzitelli knew these allegations were false.

(Id. ¶¶ 4–9, 11–12.)

The Third Amended Complaint states that at a hearing on November 9, 2020 in

Northampton County, Defendant Hammer claimed that certain photos of the stolen television and

computer came from Plaintiff’s phone. The Assistant District Attorney, Katherine Kurnas,

corrected Hammer and stated that the photos did not come from Plaintiff’s phone. The Third

Amended Complaint also alleges that, at the same hearing, it was established that Plaintiff was

researching Mac computer products on his phone well before the neighbor reported seeing a black

SUV in the target property’s driveway. On December 3, 2020, the judge dismissed four of the five

charges. The Assistant District Attorney nolle prossed the remaining charge on December 9, 2020.

(Id. ¶¶ 13–15.)

Plaintiff alleges that Detectives Hammer and Mazzitelli knowingly, willfully, and

intentionally provided false and fabricated evidence in support of the affidavit of probable cause.

As a result, Plaintiff claims he was falsely arrested and imprisoned for those charges. (Id. ¶¶ 16–

17.)

Plaintiff further claims that neither Detective Hammer nor Detective Mazzitelli were

properly trained or supervised by their respective municipalities to investigate, fact check, and

submit truthful facts to the District Attorney’s Office. According to Plaintiff, both Colonial

Regional Police Department and Whitehall Township Police Department knew or should have

known that the lack of training or supervision would permit their officers to submit cases to the

district attorney’s office in violation of citizens’ constitutional rights. Likewise, both police

departments allegedly failed to put into a place a procedure to allow citizens of each area to report

the violation of these constitutional rights and to discipline officers for engaging in such acts. As

a result of the lack of policies, Detectives Hammer and Mazzitelli submitted false and inaccurate

information, which resulted in Plaintiff’s sixteen-month prosecution. (Id. ¶¶ 20, 21, 22, 24.)

Plaintiff also contends that the Assistant District Attorney relied on multiple inaccuracies

and falsehoods in her brief submitted against Plaintiff. (Id. ¶¶ 25–27.) Plaintiff notes that because

prosecutors are absolutely immune for their actions, they are able to prosecute cases without

sufficient information and, in turn, violate citizens’ constitutional rights. (Id. ¶ 30.) Plaintiff

alleges that the failure of Northampton County policy makers to have policies in place that would

provide checks and balances of the District Attorney’s Office allowed the prosecution of Plaintiff

based on false and fabricated evidence. (Id. ¶ 31.)

II. PROCEDURAL HISTORY

On January 15, 2021, Plaintiff filed a complaint against Northampton County, Gary

Hammer, Assistant District Attorney Kathrine Kurnas, and Mark Mazzitelli. He filed a first

amended complaint on February 3, 2021. I dismissed that complaint for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and granted him leave to file a second amended

complaint, which he did on May 7, 2021. I again screened this complaint under 28 U.S.C. §

1915(3)(2)(B)(ii) and dismissed all claims against Defendant Katherine Kurnas with prejudice and

all claims against Northampton County to the extent they were based on the conduct of Defendants

Hammer, Mazzitelli, and Kurnas. I again granted Plaintiff leave to file a third amended complaint,

which he did on June 15, 2021.

The Third Amended Complaint was served on all Defendants. Defendants Colonial

Regional Police Department and Detective Gary Hammer filed an answer with affirmative

defenses on September 1, 2021. Defendants Detective Mark Mazzitelli and Whitehall Township

Police Department filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

on September 3, 2021. Defendant Northampton County subsequently filed its own Rule 12(b)(6)

Motion to Dismiss. Plaintiff also filed a Motion for Default against Defendants.

On November 24, 2021, Plaintiff filed a Fourth Amended Complaint against all

Defendants, including previously-dismissed Defendant Katherine Kurnas. I dismissed that

complaint given Plaintiff’s failure to seek leave as required by Federal Rule of Civil Procedure 15.

III. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of

demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R.

Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United

States Supreme Court has recognized that “a plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice” and only a complaint that

states a plausible claim for relief survives a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,

678–79 (2009). “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. at 678. A complaint does not show an entitlement to relief when the well-pleaded

facts do not permit the court to infer more than the mere possibility of misconduct. Id. at 679.

The Court of Appeals has detailed a three-step process to determine whether a complaint

meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court

outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court

must “peel away those allegations that are no more than conclusions and thus not entitled to the

assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s]

their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.’”

Id. (quoting Iqbal, 556 U.S. at 679). The last step is “‘a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Iqbal, 556

U.S. at 679).

A pro se complaint should be “held to less stringent standards than formal pleadings drafted

by lawyers.” U.S. ex rel. Walker v. Fayette Cty., Pa., 599 F.2d 573, 575 (3d Cir. 1979), (citing

Haines v. Kerner, 404 U.S. 519, 521 (1972)). The court must construe the facts stated in the

complaint liberally in favor of the plaintiff. Haines, 404 U.S. at 520. “Yet there are limits to our

procedural flexibility. For example, pro se litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.

2013). Thus, even a pro se complaint must conform with the requirements of Rule 8(a) of the

Federal Rules of Civil Procedure, which “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation” or “naked assertions” that are devoid of “factual

enhancement.” Iqbal, 556 U.S. at 678 (internal quotations omitted). “A pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’ will not do.” Id.

IV. MOTIONS TO DISMISS

A. Claims Against Officer Mazzitelli

Section 1983 provides that:

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. The statute itself does not independently create substantive rights, but rather

merely “provides a remedy for deprivations of rights established elsewhere in the Constitution or

federal laws.” Kopec v. Tate, 361 F.3d 772, 775–76 (3d Cir. 2004). A plaintiff may bring a §

1983 action if he alleges that a person acting under color of state law deprived him of rights,

privileges, or immunities secured by the Constitution or laws of the United States. 42 U.S.C. §

1983. In other words, a plaintiff alleging a § 1983 violation must demonstrate that: (1) the

defendants acted under color of [state] law; and (2) their actions deprived [the plaintiff] of rights

secured by the Constitution or federal statutes. Anderson v. Davila, 125 F.3d 148, 159 (3d Cir.

1997).

Plaintiff alleges that Officer Mazzitelli violated his constitutional rights by (a) submitting

false and inaccurate information to the District Attorney’s office, and (b) conspiring with Detective

Hammer to distort the truth and fabricate evidence.

To plead a fabrication-of-evidence claim, a plaintiff must allege that “there is a reasonable

likelihood that, absent that fabricated evidence, the defendant would not have been criminally

charged.” Black v. Montgomery Cty., 835 F.3d 358, 371 (3d Cir. 2016), cert. denied, 137 S. Ct.

2093. To meet the “reasonable likelihood” standard, the plaintiff must establish a “meaningful

connection” between the due process injury and the use of fabricated evidence. Id. at 372. The

plaintiff must also establish “that the fabricated evidence ‘was so significant that it could have

affected the outcome of the criminal case.’” Id. (quoting Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d

Cir. 2014)). Further, there is a “notable bar” for evidence to be considered “fabricated.” Id.

“[T]estimony that is incorrect or simply disputed should not be treated as fabricated merely

because it turns out to have been wrong.” Halsey, 750 F.3d at 295. Instead, there must be

persuasive evidence that the fabricated evidence’s proponents knew the evidence was incorrect or

offered it in bad faith. Id. At the motion to dismiss stage, a plaintiff must plead sufficient facts to

establish that the defendant officers either knowingly stated deliberate falsehoods or acted with

reckless disregard for the truth. Basile v. Twp. of Smith, 752 F. Supp. 2d 643, 657–58 (W.D. Pa.

2010).

Here, the allegations of fabricating evidence against Detective Mazzitelli are sparse at best.

Plaintiff asserts that, in connection with his investigation of the January 2019 burglary, Detective

Hammer discovered that Plaintiff had been arrested by the Whitehall Township Police Department

for a burglary occurring on February 4, 2019. The Third Amended Complaint details that

Detective Hammer reached out to Detective Mazzitelli of Whitehall Township, and Detective

Mazzitelli indicated that, according to his own investigation, the perpetrator had used his phone to

take pictures of stolen items and research their value. Detective Mazzitelli also conveyed to

Detective Hammer that Plaintiff was seen at the February 2019 burglary scene in his black Dodge

Journey. Detective Hammer then included those facts in his affidavit of probable cause for the

January 2019 burglary. Nothing in these allegations allows any reasonable inference that Officer

Mazzitelli conveyed anything other than the results of his investigation of the separate February

2019 burglary.

Likewise, Plaintiff fails to adequately plead a conspiracy claim against Detective

Mazzitelli. In order to state a civil conspiracy under section 1983, a plaintiff must “demonstrate

(1) an agreement between two or more conspirators (2) to deprive the plaintiff of a constitutional

right, (3) under color of state law.” Kist v. Fatula, No. 2006-cv-67, 2007 WL 2404721, at *8

(W.D. Pa. Aug. 17, 2017) (internal quotations omitted). “In order to properly plead the existence

of an agreement ‘[t]he plaintiff must make specific factual allegations of combination . . . or

understanding among all or any of the defendants to plot, plan, or conspire to carry out the alleged

chain of events.’” Id. (quoting Hammond v. Creative Fin. Planning, 800 F. Supp. 1244, 1250 (E.D.

Pa. 1999)).

Here, the Third Amended Complaint contains no allegations of any agreement between

Detective Hammer and Detective Mazzitelli. Rather, as noted above, Plaintiff simply alleges that

Detective Hammer reached out to Detective Mazzitelli about the results of his investigation of a

different burglary and found that some of those facts matched the facts of his own investigation

into the January 2019 burglary. The Third Amended Complaint is devoid of any assertion that

Detective Mazzitelli knew, prior to giving Detective Hammer the information, that the information

would match any of the events involving the January 2019 burglary or that Detective Hammer

would use that information in an affidavit of probable cause. Plaintiff’s conclusory allegation that

Detectives Hammer and Mazzitelli conspired to create certain false facts is insufficient to plausibly

plead an agreement between the two officers to deprive Plaintiff of his constitutional rights.

Accordingly, I will dismiss this claim as against Detective Mazzitelli.

B. Claims Against Whitehall Township4

The standard for alleging § 1983 claims against a municipality is different than against an

individual defendant. In order to recover against a municipality or municipal corporation under §

1983, a plaintiff must plead that the City itself caused an injury through the implementation of a

policy, practice or custom. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694

(1978); Natale v. Camden Cty Corr. Facility, 318 F.3d 575 (3d Cir. 2003). Section 1983 imposes

liability on a municipality where, “through its deliberate conduct, the municipality was the

‘moving force’ behind the injury alleged.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 404 (1997) (emphasis in original). The Third Circuit has recognized liability for local

governments in three circumstances:

First, the municipality will be liable if its employee acted pursuant

to a formal government policy or a standard operating procedure

long accepted within the government entity; . . . second, liability will

attach when the individual has policy making authority rendering

his or her behavior an act of official government policy; . . . third,

the municipality will be liable if an official with authority has

ratified the unconstitutional actions of a subordinate, rendering such

behavior official for liability purposes.

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (internal citations omitted).

A plaintiff must prove that the action in question, conducted pursuant to official municipal

policy, caused his/her injury. Connick v. Thompson, 563 U.S. 51, 60–61 (2011). When a plaintiff

alleges that a policy “concerns a failure to train or supervise municipal employees, liability

under section 1983 requires a showing that the failure amounts to ‘deliberate indifference’ to the

4 Plaintiff actually names Whitehall Township Police Department as opposed to Whitehall

Township. It is well established that a police department cannot be sued. “In Section 1983 actions,

police departments cannot be sued in conjunction with municipalities, because the police

department is merely an administrative arm of the local municipality, and is not a separate judicial

entity.” Padilla v. Twp. of Cherry Hill, 110 F. App’x 272, 279 (3d Cir. 2004) (quotation omitted).

Accordingly, I will liberally construe Plaintiff’s complaint as suing Whitehall Township.

rights of persons with whom those employees will come into contact.” Thomas v. Cumberland

Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citations omitted). “A pattern of similar constitutional

violations by untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference

for purposes of failure to train.” Connick, 563 U.S. at 61 (citations omitted).

In Mcternan v. City of York, Pa., 564 F.3d 636 (3d Cir. 2009), the Third Circuit offered

guidance as to what constitutes proper pleading of a Monell claim. The Court remarked that “[t]o

satisfy the pleading standard, [a plaintiff] must identify a custom or policy, and specify what

exactly that custom or policy was.” Id. at 658. The Court further noted that the complaint in that

case, which simply alleged that the plaintiff’s rights were violated “due to the City’s policy of

ignoring First Amendment right[s],” was insufficient. Id. “Equally fatal,” according to the Third

Circuit, was that the complaint’s allegations relevant to the Monell claim failed to allege conduct

by a municipal decisionmaker. Id. Accordingly, the Third Circuit affirmed the dismissal of the

Monell claim.

Repeatedly, courts within the Third Circuit have dismissed similar Monell allegations. See,

e.g., Langford v. Gloucester Twp. Police Dept., No. 16-cv-1023, 2016 WL 7130912, at *6 (D.N.J.

Dec. 7, 2016) (dismissing Monell claim where plaintiff alleged only that the township and police

department “had policies and procedures of relying on uncorroborated statements, not verifying

facts, willfully disregarding the constitutional rights of New Jersey citizens, arresting citizens

without probable cause, and failing to investigate cases. Such allegations fail to identify any

particular official statements, ordinances, regulations, or decisions that amount to a policy, and

also fails to mention the existence of previous, similar constitutional violations to show a

custom.”); Jacobs v. Palmer, No. 14-cv-5797, 2015 WL 1033294, at *5–6 (E.D. Pa. Mar. 10, 2015)

(finding that allegations regarding County’s failure to train, supervise, discipline, or terminate

officers regarding past similar violations of constitutional rights were insufficient to state a Monell

claim because the plaintiffs did not specify what exactly the custom or policy was that allegedly

caused their injuries, did not identify the relevant municipal decision maker responsible for that

policy, and have not alleged facts to show a pattern of similar violations by untrained employees);

Collins v. Borough of Trainer, No. 13-cv-7613, 2014 WL 2978312, at *5 (E.D. Pa. July 1, 2014)

(finding that complaint only plead conclusory allegations insufficient to state a Monell claim where

plaintiff alleged that “Defendants developed and maintained policies, practices, procedures and

customs exhibiting deliberate indifference to the Constitutional rights of persons . . . which caused

violations of Plaintiff’s constitutional and other rights as aforesaid.”).

The Third Amended Complaint offers a similarly bareboned Monell claim against

Whitehall Township. Plaintiff alleges only that Whitehall Township has “failed to supervise, train

and discipline and . . . said failure amounts to deliberate indifference to the constitutional rights of

the plaintiff.” (Third Am. Compl., ECF No. 18 at p.14.) Plaintiff goes on assert that Whitehall

Township Police Department has “failed to put in place and allow it to be public knowledge a

procedure which would allow citizens of each area they cover to report the violation of

constitutional rights and the defendants review and discipline said violations. As this training

would or could have forced both detectives and others to not file charges that are not warranted.”

(Id. ¶ 22.) Nothing in this allegation identifies a pattern of similar violations, knowledge by a

municipal policymaker, or a specific failure that led to the violations of Plaintiff’s constitutional

rights. Accordingly, I will dismiss the § 1983 claim against Defendant Whitehall Township Police

Department.

C. Claims Against Northampton County

Plaintiff also brings a Monell claim against Defendant Northampton County alleging that

Northampton County oversees the District Attorney’s Office and knows that, because of absolute

prosecutorial immunity, an assistant district attorney could present false and unreliable information

and be immune from punishment. Plaintiff contends that Northampton County policymakers’

failure to “have policies in place that would provide checks and balances of the District Attorney’s

Office allowed the District Attorney’s Office to prosecute Plaintiff based on false and fabricated

evidence in violation of Plaintiff’s constitutional rights, which opens or has open[ed] the door to

not only do so to Plaintiff, but others as well, all of which was known or should have been known

to be obvious to the policy makers of Northampton County.” (Third Am. Compl. ¶ 31.)

In my May 14, 2021 Memorandum screening the Complaint under 28 U.S.C. § 1915, I

dismissed Plaintiff’s claim against Northampton County without prejudice. I found that such

allegations failed to specify what exactly the custom or policy was that allegedly caused Plaintiff’s

injuries. Moreover, Plaintiff failed to either identify the relevant municipal decision maker

responsible for that policy or allege facts to show a pattern of similar violations by untrained

employees, such that the Township can be deemed to have acted with deliberate indifference.

The Third Amended Complaint does not correct any of these deficiencies. The new

allegations still set forth only a vague assertion that Northampton County does not have a check

on its prosecutors to ensure that they do not use fabricated evidence. Such allegations fail to

establish a pattern of similar violations in the past, such that relevant policymakers can be deemed

to have acted with deliberate indifference. Accordingly, I will dismiss this claim with prejudice.

D. Conclusion as to Motions to Dismiss

In light of the foregoing, I will dismiss all claims in Plaintiff’s Third Amended Complaint

against Defendants Mazzitelli, Whitehall Township, and Northampton County. Although I remain

cognizant that, in a civil rights case, a court must sua sponte allow a plaintiff leave to amend a

complaint, I need not grant leave to amend where it would be inequitable or futile to do so. Phillips

v. Cnty of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

Here, leave to amend would be futile. The current iteration of the Complaint represents

Plaintiff’s fourth attempt to plead his claims. Having failed to set forth a plausible cause of action

against Defendants Mazzitelli, Whitehall Township, and Northampton County, I find that any

further efforts to do so would not be fruitful.

V. PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

On October 25, 2021, Plaintiff moved for default judgment against Defendants for failure

to timely respond to the Third Amended Complaint. No such default judgment is warranted.

According to the docket, service of the Third Amended Complaint was made on all

Defendants on August 13, 2021, making a responsive pleading due by September 3, 2021. On

September 1, 2021, Hammer and Colonial Regional Police Department timely filed an Answer

with Affirmative Defenses. On September 3, 2021, Mazzitelli and Whitehall Township Police

Department timely filed a Motion to Dismiss.

On September 29, 2021, prior to any default motion by Plaintiff, Northampton County

submitted a letter indicating that the person who accepted service on behalf of Northampton

County was not authorized to do so, resulting in a delay in assigning the case to defense counsel.

This letter (a) requested an additional thirty days to investigate the alleged facts and prepare

responsive pleading, (b) asserted that there would be no prejudice to Plaintiff, and (c) averred that

Northampton County has been acting in good faith. Based on good cause shown, I granted

Northampton County an extension of time until October 29, 2021 in which to file a responsive

pleading. On October 29, 2021, Northampton County filed the Motion to Dismiss discussed

above.

The United States Court of Appeals for the Third Circuit has stressed that it “does not favor

entry of defaults or default judgments.” U.S. v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194

(3d Cir. 1984). As all Defendants have timely responded to the Third Amended Complaint, there

is no basis default.

VI. PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL

Indigent civil litigants possess neither a constitutional nor a statutory right

to appointed counsel. See Parham v. Johnson, 126 F.3d 454, 456–57 (3d Cir. 1997). Nevertheless,

Congress has granted district courts statutory authority to “request” appointed counsel for indigent

civil litigants. See 28 U.S.C. § 1915(e)(1) (providing that “[t]he court may request an attorney to

represent any person unable to afford counsel”). The United States Court of Appeals for the Third

Circuit has interpreted § 1915 as affording district courts “broad discretion” to determine

whether appointment of counsel in a civil case would be appropriate. See Tabron v. Grace, 6 F.3d

147, 153 (3d Cir. 1993). The Tabron court found that the decision to appoint counsel may be made

at any point in the litigation and may be made by a district court sua sponte. Id. at 156.

In Tabron, the Third Circuit developed a list of criteria to aid the district courts in weighing

the appointment of counsel for indigent civil litigants. As a threshold matter, a district court must

assess whether the claimant’s case has some arguable merit in fact and law. Tabron, 6 F.3d at

155; see also Parham, 126 F.3d at 457. If a claimant overcomes this threshold hurdle, the Third

Circuit identified a number of factors that a court should consider when assessing a claimant’s

request for counsel, including: (1) the plaintiff's ability to present his or her own case; (2) the

difficulty of the particular legal issues; (3) the degree to which factual investigation will be

necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff’s capacity to

retain counsel on his or her own behalf; (5) the extent to which a case is likely to turn on credibility

determinations, and; (6) whether the case will require testimony from expert witnesses. Tabron, 6

F.3d at 155–57. “[T]his list of factors is not exhaustive, but should serve as a guidepost for the

district courts.” Parham, 126 F.3d at 457 (citing Tabron, 6 F.3d at 155). In addition, the Third

Circuit cautioned that courts should exercise care in appointing counsel because volunteer lawyer

time is a precious commodity and should not be wasted on frivolous cases. Montgomery v.

Pinchak, 294 F.3d 492, 498–99 (3d Cir. 2002).

Consideration of these factors weighs against appointment of counsel at this juncture. The

only remaining claims are those against Detective Hammer and Colonial Regional Police

Department. Although these Defendants have not challenged the claims against them under a Rule

12(b)(6) standard, my initial review of Plaintiff’s various pleadings does not clearly indicate that

they have arguable merit in fact and law. Moreover, turning to the Tabron factors, I note that

Plaintiff has admirably pursued several claims in this Court and has demonstrated a proficient

ability to present his case. The legal issues are straightforward and the degree of factual

investigation necessary appears fairly minimal. Finally, this case will likely not require any expert

testimony.

Given these factors, I decline to exercise my discretion to appoint counsel at this time.

Nonetheless, I recognize that later developments in this case may suggest that appointment of

counsel is prudent. Accordingly, following a Rule 16 conference and the commencement of

discovery, Plaintiff may, if warranted, renew his motion for appointment of counsel.

An order follows.