# WILLIAMS v. HAMMER

> District Court, E.D. Pennsylvania · April 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10403320

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** April 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10403320

## How later opinions describe it (automated extraction)

- noting that the district court properly considered criminal complaint and arrest warrant in deciding a motion to dismiss a false arrest claim

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10403320. Public record. Not legal advice.