# ONYIAH v. CITY OF PHILADELPHIA

> District Court, E.D. Pennsylvania · March 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10404970

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 10, 2023
- **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/10404970

## How later opinions describe it (automated extraction)

- discussing failure-to-intervene liability in the excessive force and unreasonable seizure context
- explaining that other inadequacies include a failure to supervise or discipline

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

OBINA ONYIAH : CIVIL ACTION
:
v. :
:
CITY OF PHILADELPHIA, ET AL. : NO. 22-1556

MEMORANDUM
Padova, J. March 10, 2023

Plaintiff Obina Onyiah commenced this civil rights action pursuant to 42 U.S.C. § 1983
against Defendant the City of Philadelphia (the “City”), former Philadelphia Police Commissioner
Charles Ramsey, and several individual detectives/police officers after Plaintiff was sentenced to
life in prison without parole and spent over eleven years in prison in connection with a murder for
which he was subsequently exonerated.1 Plaintiff alleges that his conviction was based on a
coerced confession, false testimony, and the withholding of exculpatory evidence. Presently
before the Court is a Partial Motion to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) filed by the City and Defendants Detective Ohmarr Jenkins, Detective Thurston Lucke,
and former Commissioner Ramsey (collectively, the “City Defendants”). For the reasons that
follow, the Motion is dismissed as moot in part, granted in part, and denied in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Amended Complaint alleges the following facts. On October 21, 2010, Kevin Turner
and one accomplice attempted to rob a jewelry store in Philadelphia. During the attempted
robbery, Turner and the store owner, William Glatz, were shot and killed. The accomplice
survived and fled the scene. Three witnesses present at the time of the robbery described the

1 The named detectives/police officers are Defendants James Pitts, Ohmarr Jenkins, and
Thurston Lucke. The Amended Complaint also lists as Defendants Detectives/Police Officers
John Does 1-10 and Police Captain/Lieutenant John Does 1-5.
accomplice as younger and shorter than Turner who was 6’1”. They each described the accomplice
as approximately 5’8”.
Following the attempted robbery, Defendant Detective Lucke obtained surveillance video
from the store and extracted stills of the accomplice’s profile from the video. Two days later, on
October 23, 2010, a tip led investigators to Donte Waters, who is 5’9”, has a 2008 robbery

conviction, and was not incarcerated on the date of the attempted robbery. When presented with
a photo array of suspects including Waters, two of the eyewitnesses identified Waters as the
accomplice. As a result, on October 24, 2010, Lucke, Jenkins, and Defendant former Detective
James Pitts (together, the “Named Detectives”) searched Waters’s residence and found clothing
and a hat consistent with descriptions of the accomplice. Despite the evidence against him,
however, the Named Detectives never interviewed Waters.
On October 25, 2010, Donnell Cheek, who was then incarcerated at a federal detention
center and saw the surveillance video on television, identified Plaintiff as the accomplice. Plaintiff
is 6’3”. On November 8, 2010, the Named Detectives searched Plaintiff’s mother’s home and

found no relevant evidence, yet they took Plaintiff’s sister to the Homicide Detectives’ Unit for an
interview. Defendants Pitts and Jenkins wrote a summary of the interview, which stated that
Plaintiff’s sister had identified Plaintiff as the accomplice from the surveillance video. Plaintiff’s
sister denies ever identifying her brother as the accomplice.
As a result of Plaintiff’s sister’s alleged identification, the Named Detectives took Plaintiff
into custody, transported him to the Homicide Detectives’ Unit, placed him in an interrogation
room, handcuffed him to a table, and left him alone. The Named Detectives then searched the
home of Plaintiff’s then-girlfriend, Katherine Cardona. Cardona was present at the time of the
search, as was her friend, Robert Iezzi, Jr., and her landlord, Anthony Brown. The Named
Detectives found no relevant evidence in Cardona’s home. Nevertheless, upon completion of the
search, the Named Detectives transported Cardona, Iezzi, and Brown to the Homicide Detectives’
Unit.
The Named Detectives brought Cardona into an interrogation room where they told her
that Plaintiff was wanted for murder and threatened that her children would be removed from her

custody if she lied for Plaintiff. They then showed Cardona a still from the surveillance video and
asked her to identify Plaintiff as the accomplice. Cardona stated that Plaintiff was not the man in
the photograph. In response, the Named Detectives called Cardona “a fucking whore” and placed
her on a bench approximately 30 feet away from the room where Plaintiff was held. (Am. Compl.
¶ 70.) Meanwhile, the Named Detectives handcuffed Iezzi and placed him in an interrogation
room next to the room where Plaintiff was held.
The Named Detectives then began interrogating Plaintiff, who at that point had been
handcuffed to a table for 7.5 hours. The Named Detectives stated that they knew that Plaintiff and
Turner had murdered Glatz while attempting to rob the jewelry store. Plaintiff denied having any

knowledge of either the crime or Turner. In response, Defendant Pitts yelled aggressively at
Plaintiff, spit in his face, and punched him three times in the chest and twice in the shoulders.
Defendants Jenkins and Lucke watched Pitts assault Plaintiff and failed to intervene. Eventually,
to stop the assault, Plaintiff falsely confessed that he was the accomplice. The Named Detectives
then asked Plaintiff to identify certain individuals from photographs. When Plaintiff stated that he
did not know the individuals, Pitts, in full view of Jenkins and Lucke, grabbed the back of
Plaintiff’s neck and forced his head between his legs. Plaintiff screamed, but neither Jenkins nor
Lucke intervened. Once again, in order to stop the assault, Plaintiff falsely stated that he knew the
men in the photographs.
Both Cardona and Iezzi heard the sounds of punches and Plaintiff’s screams. Cardona also
heard the Named Detectives say, “stop f’ing around and tell us the truth,” and Plaintiff reply, “yo
man I ain’t do nothing.” (Id. ¶ 86.) At one point, a detective exited the interrogation room and
said something to the effect of, “I can’t do this anymore . . . . this is not our guy.” (Id. ¶ 87.)
As a result of Plaintiff’s coerced confession on November 8, 2010, he was charged with

the attempted robbery and related offenses two days later, on November 10, 2010. On May 10,
2013, Plaintiff’s defense attorney moved to suppress Plaintiff’s coerced confession. Cardona
testified at the suppression hearing, but because the Named Detectives did not record Cardona’s
name in the daily Homicide Unit Logbook, the court did not believe her testimony and
subsequently denied Plaintiff’s motion to suppress.2 On May 31, 2013, a jury convicted Plaintiff
of second-degree murder, three counts of robbery, conspiracy to commit robbery, and violation of
the Uniform Firearms Act.
On May 9, 2016, after Plaintiff’s conviction was affirmed on direct appeal, Plaintiff filed
a timely pro se Post-Conviction Relief Act petition, raising claims including actual innocence and

a coerced confession. The District Attorney’s Office Conviction Integrity Unit investigated
Plaintiff’s case and filed joint stipulations of fact with Plaintiff. On May 4, 2021, Philadelphia
County Court of Common Pleas Judge Tracy Brandeis-Roman vacated Plaintiff’s conviction and
approved the dismissal of the charges against him.
The Amended Complaint contains seven Counts, all of which are grounded in 42 U.S.C. §
1983. Count I asserts a claim against the Named Detectives for using threats and physical violence

2 The Amended Complaint does not explicitly state that Plaintiff’s motion to suppress his
confession was denied, but the state court record is clear that Judge “Sandy L.V. Byrd denied the
motion and a jury trial commenced on May 23, 2013.” Commonwealth v. Onyiah, No. 3010 EDA
2013, 2015 WL 5971352, at *6 (Pa. Super. Ct. Sept. 28, 2015).
to coerce a false confession from Plaintiff in violation of the Due Process Clause of the Fourteenth
Amendment and the Pennsylvania Constitution. Count II asserts a claim against the Named
Detectives for malicious prosecution in violation of the Fourth and Fourteenth Amendments.
Count III asserts a claim against the Named Detectives for failure to disclose exculpatory evidence
relating to the circumstances surrounding Plaintiff’s false confession in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and/or United States v. Giglio, 405 U.S. 150 (1972). Count IV
asserts a claim against the Named Detectives for a failure to intervene to prevent violations of
Plaintiff’s rights to be free from malicious prosecution and coerced confessions in violation of the
Fourth and Fourteenth Amendments. Count V asserts a civil rights conspiracy claim against the
Named Detectives.3 Count VI asserts a supervisory liability claim against John Doe Police
Captain/Lieutenants. Count VII asserts a municipal liability claim against the City and former
Commissioner Ramsey pursuant to Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978).
The City Defendants move to dismiss several aspects of the Amended Complaint, including
Count IV as against Jenkins and Lucke and Count VII. In response, Plaintiff concedes that the

Amended Complaint is subject to dismissal in certain respects and requests to withdraw the
following: (1) Count I to the extent it seeks monetary damages under the Pennsylvania
Constitution; (2) Count II insofar as it asserts a malicious prosecution claim under the Fourteenth
Amendment; and (3) Count VII as against former Commissioner Ramsey. Thus, those portions of
the Amended Complaint are withdrawn and the Motion is dismissed as moot insofar as it seeks
dismissal of the withdrawn claims. Plaintiff, however, opposes the Motion insofar as it seeks
dismissal of (1) Count IV against Jenkins and Lucke, and (2) Count VII against the City.

3 The Amended Complaint also asserts Counts I through V against Defendants
Detectives/Police Officers John Does 1-10.
II. LEGAL STANDARD
When deciding a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the
complaint, exhibits attached to the complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant’s claims are based upon [those] documents.”
Alpizar-Fallas v. Favero, 908 F.3d 910, 914 (3d Cir. 2018) (quoting Mayer v. Belichick, 605 F.3d

223, 230 (3d Cir. 2010)). “We accept the factual allegations in the complaint as true and construe
them in the light most favorable to the plaintiff.” Shorter v. United States, 12 F.4th 366, 371 (3d
Cir. 2021) (citing Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011)). However,
we “are not bound to accept as true a legal conclusion couched as a factual allegation.” Wood v.
Moss, 572 U.S. 744, 755 n.5 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
A plaintiff’s pleading obligation is to set forth “a short and plain statement of the claim,”
which “give[s] the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (first quoting Fed. R. Civ. P. 8(a)(2);
then quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) (second alteration in original)). The

complaint must allege “‘sufficient factual matter to show that the claim is facially plausible,’ thus
enabling ‘the court to draw the reasonable inference that the defendant is liable for [the]
misconduct alleged.’” Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009)). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). In the end, we will grant a motion to
dismiss brought pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not
sufficient “to raise a right to relief above the speculative level.” Geness v. Admin. Off. of Pa. Cts.,
974 F.3d 263, 269 (3d Cir. 2020) (quoting Twombly, 550 U.S. at 555).
III. DISCUSSION
A. Count IV against Jenkins and Lucke
Count IV of the Amended Complaint is grounded in 42 U.S.C. § 1983, which “provides
remedies for deprivations of rights established in the Constitution or federal laws.” Kaucher v.
Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). Section 1983 “does not, by its own terms, create

substantive rights.” Id. (citing Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979)). Consequently,
in order to state a claim for relief pursuant to § 1983, a plaintiff must allege that “the defendant,
acting under color of state law, deprived him or her of a right secured by the Constitution or the
laws of the United States.” Id. (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50
(1999), and Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). It is also incumbent
on the plaintiff to “identify the exact contours of the underlying right said to have been violated.”
Berg v. Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000) (quotation omitted).
In Count IV, Plaintiff asserts that the Named Detectives are liable, pursuant to § 1983, as
bystanders for failing to intervene in Plaintiff’s coerced confession and malicious prosecution in

violation of the Fourth and Fourteenth Amendments. Specifically, Plaintiff maintains that Lucke
and Jenkins were present when Pitts “obtained the false confession from Plaintiff through the use
of verbal and physical force” and “knew or should have known that any beating of a false
confession out of a suspect . . . cannot serve as the basis for probable cause to arrest and charge,”
yet neither Lucke nor Jenkins intervened to ensure that Plaintiff’s statement was taken voluntarily
and/or that probable cause existed to charge Plaintiff. (Pl.’s Resp. at 23-24 of 45.) The City
Defendants move to dismiss Count IV, as against Jenkins and Lucke, on the grounds that the two
detectives are entitled to qualified immunity.
“The principles of qualified immunity shield an officer from personal liability when an
officer reasonably believes that his or her conduct complies with the law.” Pearson v. Callahan,
555 U.S. 223, 244 (2009). Our determination as to whether a government official is entitled to
qualified immunity involves two inquiries: (1) whether the facts alleged in the complaint “make
out a violation of a constitutional right” and (2) whether that right “was clearly established at the

time of [the] defendant’s alleged misconduct.” Montanez v. Thompson, 603 F.3d 243, 250 (3d
Cir. 2010) (quoting Pearson, 555 U.S. at 232). These two steps do not have to be considered in
this order. Id. (quoting Pearson, 555 U.S. at 236).
A “clearly established right” is one “defined with specificity,” rather than “‘at a high level
of generality.’” City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (quoting Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018)). An officer “cannot be said to have violated a clearly
established right unless the right’s contours were sufficiently definite that any reasonable official
in the defendant’s shoes would have understood that he was violating it.” Kisela, 138 S. Ct. at
1153 (quoting Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014)). “While there does not have to

be a case directly on point, existing precedent must place the lawfulness of the particular [action]
beyond debate.” Dist. of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quotation omitted).
“This exacting standard ‘gives government officials breathing room to make reasonable but
mistaken judgments’ by ‘protect[ing] all but the plainly incompetent or those who knowingly
violate the law.’” City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611 (2015) (alteration
in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)).
The City Defendants argue that Count IV of the Amended Complaint is barred by qualified
immunity as against Jenkins and Lucke because there is no clearly established constitutional
obligation to intervene in a coerced confession or malicious prosecution. They acknowledge that
a constitutional claim for failure to intervene has been recognized in connection with excessive
force claims, but they maintain that the same principle has not clearly been extended beyond that
Eighth Amendment context.4 Plaintiff counters that the duty to intervene is clearly established in
the context of Fourth and Fourteenth Amendment violations, pursuant to the United States Court
of Appeals for the Third Circuit’s holding in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), as

well as other appellate and district court cases.
Just last year, in Ogrod v. City of Philadelphia, 598 F. Supp. 3d 253 (E.D. Pa. 2022), we
considered this same issue by analyzing Smith and its progeny. Id. at 272-73. In Smith, the Third
Circuit held that a police officer could be liable pursuant to § 1983 and the Eighth Amendment for
failure to intervene in a beating, explaining that “[c]ourts have held that a police officer has a duty
to take reasonable steps to protect a victim from another officer’s use of excessive force, even if
the excessive force is employed by a superior.” 293 F.3d at 650. Since Smith, the Third Circuit
has observed that it has not extended failure-to-intervene liability to the false arrest context, i.e.,
to hold an officer liable under § 1983 for failing to intervene when another officer arrested the

plaintiff without probable cause. Lozano v. New Jersey, 9 F.4th 239, 246 n.4 (3d Cir. 2021); see
also Ekwunife v. City of Philadelphia, 245 F. Supp. 3d 660, 673 (E.D. Pa. 2017) (finding no legal
basis for a conclusion that “a failure-to-intervene claim exists under federal . . . law . . . where a
prosecutor allegedly failed to intervene to correct false information in an affidavit of probable

4 To the extent that Plaintiff may assert a claim for failure to intervene in the excessive
force context, the City Defendants maintain that “any such claim is barred by the applicable [two-
year] statute of limitations,” because the claim would have accrued in 2010 when the assault is
alleged to have occurred. (Defs.’ Mem. at 9 (citing Farrow v. City of Philadelphia, Civ. A. No.
20-5792, 2021 WL 2778554, at *1-2 (E.D. Pa. July 1, 2021).) In response, Plaintiff does not assert
that his failure to intervene claim rests on Pitts’s alleged use of excessive force; rather, he asserts
only that the Named Detectives are liable for failing to intervene to prevent his coerced confession
“from being made and relied upon in [his] trial.” (Pl.’s Resp. at 29 of 45.) Accordingly, we only
analyze Plaintiff’s failure to intervene claim as one falling outside the realm of excessive force.
cause submitted by a police officer”); cf. Ekwunife v. City of Philadelphia, 756 F. App’x 165, 170
(3d Cir. 2018) (assuming without deciding that a failure to intervene claim could be asserted
against an officer who served a deficient arrest warrant).
As we observed in Ogrod, district courts within the Third Circuit, relying on this Circuit
precedent, have concluded that police officers have no clearly defined duty to intervene outside of

the Eighth Amendment excessive force context. See Ogrod, 598 F. Supp. 3d at 273. For example,
in Thorpe v. City of Philadelphia, Civ. A. No. 19-5094, 2020 WL 5217396 (E.D. Pa. Sept. 1,
2020), the court rejected the plaintiff’s argument that Smith had put the defendants on notice that
they were obligated to intervene in the face of another officer’s fabrication and withholding of
evidence, observing that “this line of reasoning runs the risk of defining the clearly established law
‘at a high level of generality,’ which the Supreme Court has long[] instructed courts not to do.”
Id. at *10 (quoting Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018)). The court also
observed that the plaintiff’s position was that the defendants’ duty to intervene “exists for the entire
duration of the investigation and prosecution—rather than the fleeting moment in time afforded an

officer in the presence of unconstitutional physical action,” and it noted that this attempt to impose
a duty over such a long time period “exemplifies the heightened generality of the proposition.”
Id. at *10. Thus, the court concluded that “it was not sufficiently clear that reasonable officers
would have understood that failing to intervene when confronted with another’s fabrication and
withholding of evidence violated [the plaintiff’s] constitutional rights,” and it found that the
defendant officers were entitled to qualified immunity with respect to the plaintiff’s failure to
intervene claims. Id. at *11.
In a second district court case, Outlaw v. City of Philadelphia, Civ. A. No. 21-1290, 2021
WL 3471168 (E.D. Pa. Aug. 6, 2021), the court relied in part on Thorpe to find that police
detectives were entitled to qualified immunity on a claim that they had failed to intervene to
prevent a plaintiff’s false arrest, malicious prosecution, false imprisonment, and deprivation of
liberty. Id. at *7. The court explained that neither its independent research nor the plaintiff’s
briefing had identified any cases from the Third Circuit that had recognized a constitutional duty
to intervene under such circumstances, and it therefore refused to take “impermissible liberties in

defining the asserted rights.” Id.
Based on all of these cases, we concluded in Ogrod that there was no clearly established
duty to intervene outside of the excessive force context, and we reach that same conclusion here.
Ogrod, 598 F. Supp. 3d at 273. Nevertheless, Plaintiff urges us here to consider nonbinding
precedent outside of this Circuit. See Assaf v. Fields, 178 F.3d 170, 179 (3d Cir. 1999) (suggesting
that decisions of other circuits may be consulted to determine the state of clearly established law,
but not where “within this court’s jurisdiction” we have “numerous opinions to serve as guidance
on the subject”). Even considering the precedent that Plaintiff cites from other Circuits, however,
we are unable to find a “robust consensus of cases of persuasive authority in the Courts of Appeals
that could clearly establish [the] right [at issue] for purposes of qualified immunity.”5 Porter v.

5 Plaintiff cites four appellate court cases from other circuits in support of his position that
the Named Detectives had a clearly established duty to intervene in a coerced confession and/or
malicious prosecution. See Gragnon v. Ball, 696 F.2d 17, 21 (2d Cir. 1982) (applying failure-to-
intervene liability in the false arrest context); Yang v. Hardin, 37 F.3d 282, 284 (7th Cir. 1994)
(discussing failure-to-intervene liability in the excessive force and unreasonable seizure context);
Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986) (discussing failure-to-intervene liability in
the excessive force context); and Randall v. Prince George’s Cnty., 302 F.3d 188, 203-04 n.23 (4th
Cir. 2002) (declining to apply failure-to-intervene liability in the unlawful detention context).
None of these cases actually involve a failure to intervene in the context of a coerced confession
and/or malicious prosecution or are otherwise “clear enough that every reasonable official would
interpret [them] to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at
590 (citation omitted).
Pennsylvania Dep’t of Corr., 974 F.3d 431, 449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs.
of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)).
For all of these reasons, we find that there is simply no persuasive authority on which we
could conclude that Lucke and Jenkins had a clearly established duty to intervene to prevent
Plaintiff’s coerced confession or malicious prosecution. We therefore conclude that Jenkins and

Lucke did not violate a clearly established right by allegedly failing to intervene in their fellow
officers’ actions in coercing a confession and pursuing a malicious prosecution. Consequently,
we conclude that Jenkins and Lucke are entitled to qualified immunity on Plaintiff’s failure to
intervene claims and we dismiss Count IV to the extent that it asserts a claim against them on that
basis.
B. Count VII against the City
Count VII of the Amended Complaint asserts a § 1983 claim against the City, pursuant to
Monell. To state a § 1983 claim against a municipality, i.e., a Monell claim, a plaintiff must allege
that (1) he suffered a constitutional violation and (2) the municipality caused that constitutional

violation through a policy, a custom, or a failure to train or other inadequacy. Monell, 436 U.S. at
694; Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997); City of Canton
v. Harris, 489 U.S. 378, 388-89 (1989); Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).
A municipal policy is a “statement, ordinance, regulation, or decision officially adopted and
promulgated by [a local governing] body’s officers.” Simmons v. City of Philadelphia, 947 F.2d
1042, 1059 (3d Cir. 1991) (alteration in original) (quoting Monell, 436 U.S. at 690). “A custom
is an act ‘that has not been formally approved by an appropriate decision-maker,’ but that is ‘so
widespread as to have the force of law.’” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
584 (3d Cir. 2003) (quoting Bryan Cnty., 520 U.S. at 404); see also Brown v. Muhlenberg Twp.,
269 F.3d 205, 215 (3d Cir. 2001) (“A custom . . . must have the force of law by virtue of the
persistent practices of state [or municipal] officials.” (quotation omitted)). A plaintiff need not
allege that an unconstitutional municipal policy or custom exists to proceed on a failure to train or
other inadequacy theory. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (explaining that other
inadequacies include a failure to supervise or discipline) (citing Est. of Roman v. City of Newark,

914 F.3d 789, 798-99 (3d Cir. 2019))). Nevertheless, under any theory of Monell liability, a
plaintiff must allege that the municipal body employed the deficient policy, custom, or other
inadequacy with “deliberate indifference” to the constitutional deprivations it caused. City of
Canton, 489 U.S. at 388-89 (“‘[M]unicipal liability under § 1983 attaches where—and only
where—a deliberate choice to follow a course of action is made from among various alternatives’
by city policymakers.” (alteration in original) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-
484 (1986) (plurality)) (citation omitted). Generally, Plaintiffs can plead such deliberate
indifference by alleging that decision-makers knew that similar constitutional deprivations had
previously occurred and were aware of ways to prevent them, “but either deliberately chose not to

pursue these alternatives or acquiesced in a long-standing policy or custom of inaction in this
regard.” Beck v. City of Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996) (emphasis omitted)
(quoting Simmons, 947 F.2d at 1064).
In Count VII, Plaintiff identifies multiple policies, customs, and inadequacies that he
asserts caused his coerced confession and/or malicious prosecution. We distill two clear theories
of Monell liability in Plaintiff’s allegations: (1) a custom and failure to train, supervise, or
discipline relating to the use of unconstitutional methods of interrogation, and (2) a written policy,
custom, and failure to train, supervise, or discipline concerning the handling of exculpatory
evidence. (Am. Compl. ¶¶ 121, 172, 190.) The City Defendants move to dismiss Count VII in its
entirety on the grounds that Plaintiff has failed to identify the alleged policies or practices with the
requisite specificity, and has failed to “demonstrate a causal link between any [of the City’s]
alleged failures” and his alleged constitutional deprivations. (Defs.’ Mem. at 12.) In the
alternative, the City Defendants move to dismiss Count VII insofar as it rests on violations of rights
that are not clearly established, i.e., malicious prosecution in violation of the Fourteenth

Amendment and failure-to-intervene liability.
1. Unconstitutional Interrogation Methods
Plaintiff’s Monell claim primarily challenges the City’s conduct relating to the alleged use
of unconstitutional methods of interrogation by Homicide Unit officers that result in coerced
confessions and false witness statements. Specifically, Plaintiff alleges that the City had a custom
or practice “of condoning and/or acquiescing to law enforcement officers[’] use [of]
unconstitutional methods when interrogating suspects and/or witnesses,” and that the City failed
to train, supervise, or discipline Homicide Unit officers regarding the constitutional limits of
interrogation. (Am. Compl. ¶ 172.) As a result of these actions and omissions, Plaintiff avers that

Homicide Unit officers used unconstitutional methods of interrogation, including “excessive
detention without food, water, and/or access to a bathroom; the use of fabricated evidence [during
the questioning]; [and] verbal threats, excessive berating, and/or physical assault.” (Id. ¶¶ 171-
72.) Plaintiff alleges that the City’s conduct therefore caused his own constitutional injuries
because the Named Detectives subjected him to those same unconstitutional methods during his
interrogation, in order to elicit his false confession and pursue his malicious prosecution.
The Amended Complaint identifies and describes forty circumstances between 2001 and
2013 in which former Detective Pitts and/or Detective Jenkins allegedly employed
unconstitutional methods of interrogation, i.e., excessive detention and/or verbal and physical
assault, to obtain a false confession or false witness statement. Based on this “lengthy list of
complaints against Former Detective Pitts and Detective Jenkins regarding conduct similar to that
alleged in Plaintiff’s Amended Complaint,” Plaintiff contends that the City had notice of a custom
and inadequacy relating to the use of unconstitutional methods of interrogation, yet it failed “to
take steps to terminate said practices.” (Id. ¶¶ 175, 188.) Plaintiff also specifically alleges that the

City’s failure to train Homicide Unit officers on constitutional methods of interrogation amounted
to deliberate indifference because the need for such training was “obvious” given the list of “formal
and informal complaints being filed against the [Named Detectives].” (Id. ¶ 174.)
At this early stage of the proceeding, these allegations are more than sufficient to plausibly
state a claim for Monell liability based on a custom and a failure to train, discipline, or supervise
relating to unconstitutional interrogation methods. Specifically, Plaintiff has pled sufficient facts
to support the reasonable inference that (1) the City had a custom and/or other inadequacy relating
to Homicide Unit officers’ use of unconstitutional interrogation methods; (2) the City’s actions or
omissions proximately caused Plaintiff’s constitutional deprivations because the Named

Detectives subjected Plaintiff to those same unconstitutional methods; and (3) the City’s conduct
amounted to deliberate indifference because it knew that its officers had used unconstitutional
interrogation methods in the past, and yet it failed to take precautions against the use of those
methods in the future. Thus, we conclude that Plaintiff has stated a cognizable Monell claim based
on the City’s alleged custom and failures to train, supervise, and/or discipline officers relating to
unconstitutional methods of interrogation. Defendants’ Motion is therefore denied insofar as it
seeks dismissal of those claims.
2. Exculpatory Evidence
Count VII also contains allegations concerning the City’s handling of exculpatory
evidence. Unlike the allegations discussed above, however, these allegations are scattered and
difficult to parse. For example, Plaintiff alleges that the City, through former Commissioner
Ramsey, promulgated an unconstitutional written policy in January 2009 whereby supervisors

were instructed to review investigative reports and “ensure that only those officers/investigators
who are necessary for the successful outcome of the case are listed.” (Am. Compl. ¶ 119 (emphasis
added) (quoting Am. Compl. Ex. A).) According to Plaintiff, this policy encouraged supervisors
“to remove from all police paperwork the names of all police witnesses who possess exculpatory
information.” (Id.) Based on the text of the alleged policy, however, we cannot reasonably infer
that it played any role in the documentation of witnesses’ names during an investigation.
Moreover, Plaintiff does not allege that the names of any officers/investigators have been removed
from the investigative reports relating to his criminal case. Therefore, we cannot reasonably infer
that the alleged written policy had any effect on Plaintiff’s criminal proceedings.

Plaintiff also alleges that the City had a custom of withholding exculpatory evidence from
the District Attorney’s office and that it failed to train, discipline, or supervise its Homicide Unit
officers regarding their duty to disclose exculpatory evidence. (Id. ¶¶ 179-80.) However, in
support of these claims, Plaintiff alleges only that the Named Detectives withheld certain
exculpatory evidence in his criminal case.6 We cannot reasonably infer, based on Plaintiff’s case
alone, that the City had a widespread and persistent practice of withholding exculpatory evidence.

6 Plaintiff alleges that former Detective Pitts also withheld exculpatory evidence in one
other case, but those additional allegations, which only concern former Detective Pitts and fail to
identify what type of exculpatory evidence he allegedly withheld, do not change our analysis.
(Am. Compl. ¶ 184(h).)
Natale, 318 F.3d at 584 (quoting Bryan Cnty., 520 U.S. at 404); see also Brown, 269 F.3d at 215.
Because Plaintiff only alleges that the Named Detectives mishandled exculpatory evidence in his
case, we also cannot reasonably infer that the City knew that similar constitutional deprivations
had previously occurred and acted with deliberate indifference in failing to prevent them. Beck,
89 F.3d at 972 (quoting Simmons, 947 F.2d at 1064).

Under these circumstances, we conclude that Plaintiff has failed to allege sufficient facts
to show that any policy, custom, or failure to train, supervise, or discipline relating to the City’s
handling of exculpatory evidence caused his coerced confession or malicious prosecution. The
factual allegations contained in the Amended Complaint are simply insufficient “to raise a right to
relief above the speculative level,” and the new theories of liability that Plaintiff puts forth in his
brief do not change this conclusion. Geness, 974 F.3d at 269 (quoting Twombly, 550 U.S. at 555).
Consequently, we dismiss Count VII of the Amended Complaint insofar as it asserts a claim for
Monell liability relating to the City’s handling of exculpatory evidence.
3. Clearly Established Rights/Duties

The City Defendants also move for dismissal of Count VII to the extent that it rests upon
an alleged constitutional violation that is not clearly established. The existence of an underlying
constitutional violation is implicit in any Monell claim. See City of Canton, 489 U.S. at 385
(citing Monell, 436 U.S. at 694-95); Mosca v. Cole, 217 F. App’x 158, 165 (3d Cir. 2007). Here,
the City Defendants assert that Plaintiff’s Monell claim cannot arise from a constitutional violation
that is not clearly established, specifically, (1) failure to intervene in the context of a malicious
prosecution or coerced confession, and (2) malicious prosecution in violation of the Fourteenth
Amendment. Plaintiff does not respond to this argument.
While the Third Circuit has not yet addressed this issue, Courts of Appeals in other Circuits
have held that a municipality cannot be deliberately indifferent to a right that is not clearly
established. Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en banc) (“[A]
municipal policymaker cannot exhibit fault rising to the level of deliberate indifference to a
constitutional right when that right has not yet been clearly established.” (citations omitted)); see

also Bustillos v. El Paso Cnty. Hosp. Dist., 891 F.3d 214, 222 (5th Cir. 2018) (quoting Hagans v.
Franklin Cnty. Sheriff’s Off., 695 F.3d 505, 511 (6th Cir. 2012)); Arrington-Bey v. City of Bedford
Heights, 858 F.3d 988, 995 (6th Cir. 2017) (explaining that there can be no deliberate indifference
under Monell when the constitutional right allegedly violated was not clearly established); Young
v. Cnty. of Fulton, 160 F.3d 899, 904 (2d Cir. 1998) (stating that a Monell claim based on “failure
to train cannot be sustained unless the employees violated a clearly established federal
constitutional right” (citation omitted)).
In Ogrod, we concluded, consistent with other district courts in this Circuit, that where
rights are not clearly established, there can be no Monell liability for violations of those rights

because there can be no deliberate indifference. Ogrod, 598 F. Supp. 3d at 276; Thomas v. City
of Philadelphia, 290 F. Supp. 3d 371, 387; see also Outlaw, 2021 WL 3471168, at *8 (citations
omitted); Lewis v. City of Philadelphia, Civ. A. No. 19-2847, 2020 WL 1683451, at *12 (E.D. Pa.
Apr. 6, 2020) (explaining that “[i]f the right at issue is not clearly established, then any assertion
of deliberate indifference is substantially undercut because, by definition, there are no clear
constitutional guideposts for the municipality to follow in developing policy” (quotation and
internal quotation marks omitted)); Dennis v. City of Philadelphia, 379 F. Supp. 3d 420, 435 (E.D.
Pa. 2019) (citations omitted).
Here, as explained above, we are permitting Plaintiff’s Monell claims against the City to
proceed insofar as they are based on the City’s alleged custom and failure to train, supervise, or
discipline relating to the use of unconstitutional methods of interrogation. Based on the caselaw
above, however, we conclude that Plaintiff’s Monell claims cannot rest on the violation of a right
that is not clearly established. The City Defendants assert that these relevant, unestablished rights

include (1) failure to intervene in the context of a malicious prosecution or coerced confession,
and (2) malicious prosecution in violation of the Fourteenth Amendment. Plaintiff has conceded
that the Fourteenth Amendment right against malicious prosecution is not clearly established and
we agree.7 In addition, we have already concluded that failure-to-intervene liability is not clearly
established in the context of a coerced confession and/or malicious prosecution. Thus, we grant
the Motion to Dismiss the Monell claim in Count VII insofar as it rests on failure-to-intervene
liability and malicious prosecution in violation of the Fourteenth Amendment, which are not
clearly established constitutional violations and therefore cannot form the basis of a Monell claim.
IV. CONCLUSION

For the foregoing reasons, the Motion is dismissed as moot in part, granted in part, and
denied in part. Specifically, the Motion is dismissed as moot insofar as it seeks dismissal of the
claims against the City Defendants in the following portions of the Amended Complaint that
Plaintiff has withdrawn: (1) Count I insofar as it seeks monetary damages under the Pennsylvania
Constitution; (2) Count II insofar as it asserts a claim for malicious prosecution in violation of the

7 In 2014, the Third Circuit explicitly stated that there was a lack of clarity in its own case
law regarding the viability of a Fourteenth Amendment procedural due process claim for malicious
prosecution. Halsey v. Pfeiffer, 750 F.3d 273, 290 n.14 (3d Cir. 2014). Based on this Third Circuit
authority, we can only conclude that, between 2010 and 2013, when Plaintiff was both interrogated
and convicted, it was not clearly established that the Fourteenth Amendment provided for a
procedural due process right against malicious prosecution.
Fourteenth Amendment; and (3) Count VII insofar as it asserts a claim against Ramsey. The
Motion is granted insofar as it seeks dismissal of (1) Count IV against Jenkins and Lucke; and (2)
Count VII to the extent it asserts a claim for Monell liability based on (a) a policy, custom, or
failure to train, supervise, or discipline relating to the handling of exculpatory evidence, and (b)
failure-to-intervene liability and malicious prosecution in violation of the Fourteenth Amendment.

In all remaining respects, the Motion is denied. An appropriate Order follows.
BY THE COURT:

/s/ John R. Padova, J.
______________________
John R. Padova, J.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10404970. Public record. Not legal advice.