The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ARTHUR SCHOTT, JR.,
Plaintiff,
v. CIVIL ACTION
NO. 22-230
UPPER CHICHESTER TOWNSHIP and
UPPER CHICHESTER TOWNSHIP PFC
FRED C. RHODES, JR. #38,
Defendants.
PAPPERT, J. August 16, 2022
MEMORANDUM
Arthur Schott Jr. alleges Upper Chichester Township Police Officer Fred Rhodes
Jr. punched him in the face without provocation or justification. Schott sued Rhodes
and the Township over the alleged assault, and Defendants separately moved to
dismiss Schott’s Amended Complaint.1 The Court denies Rhodes’s Motion and grants
the Township’s Motion in part and denies it in part.
I
On January 29, 2020, Schott was driving to his home in Boothwyn,
Pennsylvania, when he ran a red light. (Am. Compl. ¶¶ 1, 5–6, ECF 10.) Rhodes
followed Schott in his police car for forty-five seconds without turning on his siren or
indicating he intended to pull Schott over. (Id. at ¶¶ 7, 9.) During that time, Schott
drove his car legally and safely. (Id. at ¶ 8.)
1 The Township moved to dismiss Schott’s initial Complaint. (ECF 1, 8.) He then filed his
Amended Complaint, and the Court denied the Township’s motion as moot. (ECF 10, 11.)
1
After Schott pulled into his driveway, Rhodes turned on his siren. (Id. at ¶ 10.)
Schott got out of his car and spoke with Rhodes in a relaxed, nonthreatening manner.
(Id. at ¶¶ 11–12.) By contrast, Rhodes then ordered Schott in an aggressive tone to get
back into his car. (Id. at ¶ 13.) Schott told Rhodes he lived in the house. (Id. at ¶ 14.)
Schott then leaned against his vehicle, crossed his legs and again attempted to speak
with Rhodes in a polite, calm manner. (Id. at ¶¶ 15–16.) Rhodes then sucker punched
Schott in the face, threw him to the ground, put his knee in his back and handcuffed
him. (Id. at ¶¶ 18, 20.) Schott sustained severe injuries, including a broken nose,
concussion and permanent scarring, and continues to suffer anxiety, among other
mental conditions. (Id. at ¶¶ 23–25, 29.)2
Schott was subsequently arrested and charged with driving under the influence,
resisting arrest and failure to stop at a red light. (Id. at ¶ 26.) The charges were later
nolle prossed. (Id. at ¶ 28.)
Schott asserts claims under 42 U.S.C. § 1983 for excessive force against Rhodes
(count one), a “Supplemental Claim” against Rhodes (count two) and for municipal
liability against the Township (count three). Rhodes moved to dismiss count two, the
Township count three. (ECF 12, 13.)
II
To avoid dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient factual content to state a claim
that is facially “plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
2 Schott’s Amended Complaint includes still images of the dash camera video footage from
Rhodes’s police car. (ECF 10 at 3–9.) The Amended Complaint also contains a photo of Schott’s face
showing his injuries. (Id. at 10.)
2
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the
facts pleaded permit a court to make the reasonable inference that a defendant is liable
for the alleged misconduct. Id.
Determining plausibility is a context-specific task requiring a court to use its
judicial experience and common sense. Schuchardt v. President of the United States,
839 F.3d 336, 347 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675). The court disregards
a complaint’s legal conclusions, assumes well-pleaded facts—those supported by
sufficient factual content to make them facially plausible—are true and then
determines whether those facts plausibly entitle the pleader to relief. Id.; Connelly v.
Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). In doing so, the court construes
well-pleaded facts in the light most favorable to the plaintiff and draws reasonable
inferences from them. Connelly, 809 F.3d at 790.
III
A
Schott titles count two as a “[s]upplemental” § 1983 claim against Rhodes. (Am.
Compl. 5.) Within this count, Schott alleges, among other things, that Rhodes
assaulted and battered him. (Id. at ¶ 42.) Schott subsequently clarified that count two
is an assault and battery claim under Pennsylvania law. (Pl’s Resp. to Rhodes’s Mot. to
Dismiss 5–7, ECF 17.)
As an initial matter, though Rhodes argues otherwise, Schott’s allegations
comply with Federal Rule of Civil Procedure 8’s requirements that he assert a short and
plain statement of his claim showing he is entitled to relief and make simple, concise
and direct allegations. While the count is sloppily pleaded and its title is uninformative
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if not misleading, the Court evaluates the pleading based on its substance, not its
labels. Garrett v. Wexford Health, 938 F.3d 69, 81 n.17 (3d Cir. 2019).
A defendant commits assault when he intentionally attempts to injure another
person by force and battery when the attempted injury actually occurs. Minor v.
Kraynak, 155 A.3d 114, 117 n.2 (Pa. Commw. Ct. 2017); see also Sides v. Cleland, 648
A.2d 793, 796 (Pa. Sup. Ct. 1994); Friter v. lolab Corp., 607 A.2d 1111, 1115 (Pa. Sup.
Ct. 1992). Schott’s detailed allegations describing his violent encounter with Rhodes
plausibly establish Rhodes’s liability for assault and battery. Indeed, Rhodes implicitly
concedes as much by asserting Schott has adequately pleaded his excessive force claim.
(Rhodes’s Mot. to Dismiss 2, ECF 13.)3
B
Count three isn’t exactly a model of clarity either. Despite his repeated
references to “policy” and “custom,” Schott appears to allege that Upper Chichester
Township inadequately trained its officers by not requiring appropriate in-service
training or re-training for those who engaged in misconduct. (Am. Compl. ¶ 50.) He
also seemingly contends the Township inadequately supervised its officers by failing to
root out a “blue code” of silence that prevented officers from intervening against or
providing information about constitutional violations committed by fellow officers. (Id.
at ¶ 51.)
3 Rhodes also moved to dismiss Schott’s allegations of invasion of privacy, false light and
denial of court access. (ECF 13 at 7–9.) The Court denies as moot this portion of Rhodes’s Motion
because the parties stipulated to the dismissal of these allegations. (Pl’s Resp. to Rhodes’s Mot. to
Dismiss ¶¶ 1–2, ECF 17.)
4
Schott asserts the Township knowingly failed to enforce policies barring uses of
unreasonable force and turned a blind eye to such conduct. (Id. at ¶ 47.) He further
alleges the Township covered up and avoided detecting uses of excessive force by
charging victims with crimes and failing to conduct internal investigations or discipline
officers. (Id. at ¶¶ 48–49.) According to Schott, officers like Rhodes believed the
Township would condone uses of excessive force, not investigate or punish them. (Id. at
¶ 55.)
1
A municipality is not subject to respondeat superior liability under § 1983 and
must itself cause the alleged constitutional violation. Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978); City of Canton v. Harris, 489 U.S. 378, 385 (1989).
But it can be sued when an employee’s execution of an official policy or custom causes
the constitutional injury. Monell, 436 U.S. at 690, 694.
Municipalities can also face § 1983 liability for constitutional violations resulting
from a failure to train, supervise or discipline police officers when it constitutes
deliberate indifference to people’s rights. Harris, 489 U.S. at 387–89; Forrest v. Parry,
930 F.3d 93, 105 (3d Cir. 2019). This appears to be Schott’s theory of the case.
Deliberate indifference is a stringent standard that requires proof a municipality
disregarded a known or obvious consequence. Bd. of Cnty. Commr’s of Bryan Cnty. v.
Brown, 520 U.S. 397, 410 (1997). Specifically, a plaintiff must show (1) the
municipality knows officers will encounter a specific situation, (2) the situation entails
a difficult choice or employees have mishandled it and (3) an officer’s wrong choice will
frequently violate others’ constitutional rights. Estate of Roman v. City of Newark, 914
5
F.3d 789, 798 (3d Cir. 2019). The plaintiff need not demonstrate an unconstitutional
policy or custom because the policy-or-custom and failure-or-inadequacy theories of
liability are distinct. Forrest, 930 F.3d at 105–06.
The municipality is not liable if the plaintiff shows only that officers could have
been better trained, supervised or disciplined in general. Thomas v. Cumberland Cnty.,
749 F.3d 217, 226 (3d Cir. 2014). Rather, the training, supervisory or disciplinary
shortcoming must be closely related to and have caused the alleged constitutional
violation. Harris, 489 U.S. at 390–91.
A plaintiff asserting a failure-or-inadequacy claim typically must identify a
pattern of similar constitutional violations to put municipal decisionmakers on notice
that different training, supervision or discipline is necessary. Johnson v. City of Phila.,
975 F.3d 394, 403 (3d Cir. 2020). But a single incident is sufficient if the plaintiff
shows the alleged failure to train, supervise or discipline would likely result in
constitutional violations and the need to remedy it was so obvious it amounted to
deliberate indifference. Id. The likelihood the particular situation will recur and
predictability that an officer lacking appropriate training, supervision or discipline will
violate others’ constitutional rights may warrant finding that the failure to train,
supervise or discipline amounted to deliberate indifference. See Brown, 520 U.S. at
409.
2
To begin, for municipal liability to attach under § 1983, a municipality employee
must have committed an underlying constitutional violation. Mulholland v. Gov’t Cnty.
of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013). There is no dispute that Rhodes, an
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Upper Chichester Township police officer, did so. (Am. Compl. ¶ 3.) Again, Rhodes
concedes Schott adequately pleaded his excessive force claim, and the City does not
argue Rhodes’s conduct complied with the Fourth Amendment.
Again, Schott’s allegations against the Township are all over the board. As best
the Court can tell, he alleges it failed to train, supervise and discipline its officers,
including Rhodes. See (Am. Compl. ¶¶ 45–57; Pl’s Resp. to Township’s Mot. to Dismiss
7–12, ECF 16).
Schott has not plausibly alleged a failure to train claim. His general allegations
that the Township “inadequately . . . train[ed]” its officers are nothing more than
conclusory, bare-bones assertions. See (Am. Compl. ¶¶ 50–51, 54); Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Schott’s further allegation that the
Township did not provide “appropriate in-service training or re-training” for officers
who engaged in “police misconduct” is also not facially plausible. See Burtch v. Milberg
Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). In particular, Schott fails to identify a
specific training failure and, as a consequence, cannot show how such a failure caused
Rhodes’s alleged use of excessive force. See Reitz v. Cnty. of Bucks, 125 F.3d 139, 145
(3d Cir. 1997); Harris, 489 U.S. at 390–91.
In contrast, Schott has adequately pleaded failure to supervise and discipline
claims against the Township. Specifically, he plausibly alleges these failures
constituted a disregard for the obvious consequence of Fourth Amendment violations
based on the use of excessive force. See Brown, 520 U.S. at 409. Schott claims the
Township knew its officers would make vehicle stops like his; that such stops involve
difficult choices like Rhodes’s decision whether to use force against Schott and, if so,
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how much; and that an officer’s incorrect decision will violate others’ constitutional
rights, such as Rhodes’s choice to allegedly use excessive force against Schott. See
Estate of Roman, 914 F.3d at 798.
Schott has not plausibly alleged deliberate indifference based on a pattern of
similar Fourth Amendment violations. See Thomas, 749 F.3d at 223–24. His bare
allegations that the Township’s officers have used excessive force in the past are
nothing more than conclusory assertions. See (Am. Compl. ¶¶ 47, 49, 52–53);
Schuchardt, 839 F.3d at 347. However, Schott has adequately pleaded deliberate
indifference based on a single incident—namely, his. See Johnson, 975 F.3d at 403.
The Township knew to a “moral certainty” its officers would make vehicle stops, like
this one, where they may need to decide whether to use force. See Harris, 489 U.S. at
390 n.10. Consequently, Schott asserts the need to supervise and discipline these
officers for their uses of excessive force was sufficiently obvious. See Johnson, 975 F.3d
at 403; e.g., Martínez v. City of Asbury Park, No. 20-8710, 2021 WL 1343837, at *5–7
(D.N.J. Mar. 5, 2021); see also Brown, 520 U.S. at 409.4
Moreover, Schott has sufficiently pleaded a causal connection between the
Township’s failures to supervise and discipline and Rhodes’s alleged violation of
Schott’s Fourth Amendment rights. Schott does not merely contend the Township’s
officers could have been better supervised and disciplined overall. See Thomas, 749
F.3d at 226. Rather, he asserts the Township’s failure to supervise and discipline them
4 The Township argues the January 29, 2020 incident in itself “cannot form the basis of a
Monell claim.” (Township’s Memo of Law in Supp. of Mot. to Dismiss 10, ECF 12-2.) But the
Township ignores the caselaw establishing the single-incident theory for failure to train, supervise or
discipline claims. See, e.g., City of Canton v. Harris, 489 U.S. 378, 390 (1989).
8
with respect to the use of excessive force was closely related to Rhodes’s alleged assault
of Schott. See Harris, 489 U.S. at 390–91; e.g., Stewart v. Kinch, No. 12-1509, 2012 WL
6645547, at *4–5 (E.D. Pa. Dec. 21, 2012).
Specifically, Schott alleges the Township permitted a code of silence that
prevented officers from intervening against or providing information about
constitutional violations (like uses of excessive force) committed by their colleagues.
(Am. Compl. ¶ 51); see Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990). He
further contends the Township deliberately did not enforce policies forbidding uses of
excessive force and ignored such conduct. (Am. Compl. ¶ 47); see Beck v. City of
Pittsburgh, 89 F.3d 966, 974 (3d Cir. 1996). According to Schott, the Township failed to
investigate and covered up excessive-force incidents in part by charging victims with
crimes—such as the charges against Schott that were subsequently nolle prossed. (Am.
Compl. ¶¶ 28, 48–49.) As a result, Schott alleges, officers like Rhodes believed they
could use excessive force with abandon and without consequences. (Id. at ¶ 55.)5
5 The Township primarily contends Schott failed to allege a specific policy or custom.
(Township’s Mot. to Dismiss ¶¶ 27–32, ECF 12.) This ignores the separate type of municipal liability
available for failure to train, supervise or discipline officers—which Schott has adequately pleaded,
though he too confuses things by couching his claims in alleged policies and customs. See Forrest v.
Parry, 930 F.3d 93, 105–06 (3d Cir. 2019). Likewise, the Township incorrectly focuses on the policy-
or-custom theory when it relies on Brower v. Corizon Health Services, Inc., in which the Court
dismissed a pro se inmate’s claims that the City and its prison healthcare provider rendered
inadequate medical care in violation of the Eighth Amendment because he failed to allege a specific
custom that caused the alleged violation. No. 15-5039, 2016 WL 5166330, *8–10 (E.D. Pa. Sept. 20,
2016); (Township’s Memo of Law in Supp. of Mot. to Dismiss 8–9.)
To the extent the Township argues Schott has not adequately pleaded a failure to train,
supervise or discipline, his allegations indicate otherwise. See Schuchardt v. President of the United
States, 839 F.3d 336, 346–48 (3d Cir. 2016). Indeed, Schott’s failure-or-inadequacy claims are
nothing like the conclusory allegations the court dismissed in Williams v. City of Harrisburg, which
the Township also relies on. No. 12-1566, 2013 WL 3784241, at *2–3 (M.D. Pa. July 18, 2013).
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IV
A court should grant a plaintiff leave to amend his complaint when justice
requires it. Fed. R. Civ. P. 15(a)(2). It can deny leave only when amendment would be
futile or inequitable. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008).
Amendment would be futile if the amended complaint could not withstand a motion to
dismiss. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). Schott may amend his
failure to train claim if he can do so consistent with this Memorandum.
An appropriate Order follows.
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.
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