PERONACE v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSEPH PERONACE, CIVIL ACTION

Plaintiff,

NO. 23-3943-KSM

v.

CITY OF PHILADELPHIA,

Defendant.

MEMORANDUM

Marston, J. December 12, 2023

Plaintiff Joseph Peronace brings claims against the City of Philadelphia for “negligent,

reckless, and outrageous conduct” and “civil rights [violations] under 42 U.S.C. § 1983” for

injuries that he suffered while incarcerated at Philadelphia’s Curran Fromhold Correctional

Facility (“CFCF”). (Doc. No. 8 at 4–5.) The City moves to dismiss the Amended Complaint

under Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below that motion is

granted.

I. FACTUAL BACKGROUND

The Amended Complaint1 focuses on three categories of misconduct that Peronace

alleges occurred while he was incarcerated at CFCF from May 19 to May 31, 2022. (Doc. No. 8

at ¶ 6.)

First, Peronace alleges that during intake on May 19, a member of the facility’s medical

staff was unable to locate a viable vein for a blood draw. (Id. at ¶ 7.) As a result, Peronace was

designated as non-compliant and housed in “C-block.” (Id. at ¶ 8.) After he was placed into a

1 In deciding the City’s motion to dismiss, the Court accepts as true the allegations in the

Amended Complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).

cell, Peronace suffered three seizures which caused his legs to become numb and unresponsive,

and which left him unable to bear weight or move around his cell, including to the toilet, without

assistance. (Id. at ¶¶ 9–11.) Peronace alleges that on several occasions prison staff ignored his

repeated requests for assistance with using the toilet, causing him to soil himself and sit in his

excrement for extended periods of time. (Id. at ¶¶ 12–13.)

Second, Peronace claims, without additional detail, that on three occasions his jail cell

“was unlocked” and unknown individuals “were permitted” to enter his cell and assault him with

“punches and kicks.” (Id. at ¶¶ 14, 19, 21.)

Third, Peronace alleges that prison staff ignored his repeated requests for medical

treatment until May 30 or 31, 2022, when he was transferred to Jefferson Torresdale Hospital.

(Id. at ¶¶ 15–16.)

Peronace claims that in each instance, the City “acted through its employees, agents and

prison guards/correctional officers.” (Id. at ¶¶ 17, 18.) He also alleges that the City “owned,

operated, managed, controlled, [and] supervised the daily operations and running of” CFCF. (Id.

at ¶ 3.)

II. PROCEDURAL HISTORY

Peronace filed this action in the Court of Common Pleas for Philadelphia County on

September 13, 2023. (Doc. No. 1 at ¶ 1.) The City removed the case to this Court on December

12, 2023, and because the Complaint did not include separate counts identifying the claims

asserted against the City, the City moved for a more definite statement under Federal Rule of

Civil Procedure 12(e). (Doc. No. 3.) On November 6, 2023, Peronace filed an Amended

Complaint (Doc. No. 8), and the Court denied as moot the motion for more definite statement

(Doc. No. 9).

The Amended Complaint largely reiterates the factual averments stated in the Complaint

and identifies two counts against the City. (Doc. No. 8.) In Count I, Peronace brings a claim for

“negligent, reckless, and outrageous conduct” for the denial of medical care and for conduct

which allowed “unknown and unidentified individuals to enter the Plaintiff’s jail cell to assault

him.” (Id. at ¶ 23.) In Count II, Peronace brings a claim for civil rights violations under § 1983,

asserting that the City violated, among other things, his “right to liberty; right to reasonable

personal safety while in custody; right to medical care when in custody; . . . right to be free from

cruel and unusual punishment; and . . . [his right to] substantive and procedural due process as

guaranteed by the Fourth, Fifth, Eighth, and Fourteenth Amendment[s].” (Id. at ¶¶ 26–27.) The

City now moves to dismiss the Amended Complaint for failure to state a claim under Rule

12(b)(6). (Doc. No. 10.)

III. LEGAL STANDARD

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quotation marks omitted). “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. “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.” Id. In determining whether this standard is met, the court must accept as true the

factual allegations in the complaint and all reasonable inferences that can be drawn from those

allegations. Phillips, 515 F.3d at 228. That said, “threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678.

IV. DISCUSSION

The City moves to dismiss the Amended Complaint in its entirety. The Court addresses

the City’s arguments as to Count I and Count II in turn.

A. Count I: Negligent, Reckless, and Outrageous conduct

First, the City argues that Count I, which is labeled “negligent, reckless, and outrageous

conduct,” is prohibited by the Pennsylvania Political Subdivision Tort Claims Act (the “Tort

Claims Act”). (Doc. No. 10 at 5.) The Court agrees.

The Tort Claims Act provides that “no local agency shall be liable for any damages on

account of any injury to a person or property caused by an act of the local agency or an employee

thereof.” 42 Pa. Stat. & Cons. Ann. § 8541. That said, “[a] local agency or its employees may

be liable for claims of negligence that fall into one of the nine enumerated exceptions under

Section 8542(b) of the Tort Claims Act.” James v. Cmty. Coll. of Allegheny Cnty., No. 1303

C.D. 2019, 2021 WL 3701746, at *3 (Pa. Cmw. Ct. Aug. 20, 2021). These exceptions are

vehicle liability; care, custody or control of personal property; real property; trees, traffic

controls, and street lighting; utility service facilities; streets; sidewalks; care, custody or control

of animals; and sexual abuse. 42 Pa. Stat & Cons. Ann. § 8542(b)(1)–(9). The conduct about

which Peronace complains does not fall into any of these exceptions, and therefore, his state law

claim in Count I is barred by the Tort Claims Act. See Hernandez v. York County, 288 F. App’x

781, 783 (3d Cir. 2008) (holding district court correctly found the Tort Claims Act immunized

York County from plaintiff’s state law claims arising from his incarceration at County prison).

Peronace seems to concede that his state law claims are barred by the Tort Claims Act,

emphasizing that “[t]he main thrust of the Plaintiff’s Complaint [is] that his civil rights under the

Eight[h] Amendment have been violated,” not “state law claims.” (Doc. No. 11 at 4.) He then

baldly states that “[i]t may be the inclusion of the word ‘negligent’ which triggered the

Defendant’s assumption that this Count applied to the Pennsylvania Political Subdivisions Tort

Claims Act, but this is not the case.” (Id. at 5.) Given that Peronace chose to label Count I as

sounding in negligence,2 he can hardly blame the City (or the Court) for taking him at his

word—especially given prior motion practice on Peronace’s failure to clarify the scope of his

claims.

Focusing on the Amended Complaint as phrased, Count I is impermissible against the

City, and therefore, dismissed with prejudice. To the extent Peronace meant to state a

constitutional claim for violations of the Eighth Amendment, the Court analyzes that claim

below in connection with Count II.

B. Count II: Civil Rights Under 42 U.S.C. § 1983

In Count II, Peronace brings a claim for civil rights violations under § 1983, arguing that

the City violated, among other things, his “right to liberty; right to reasonable personal safety

while in custody; right to medical care when in custody; . . . right to be free from cruel and

unusual punishment; and . . . [his right to] substantive and procedural due process as guaranteed

by the Fourth, Fifth, Eighth, and Fourteenth Amendment.” (Doc. No. 8 at ¶¶ 26–27.) In his

response to the motion to dismiss, Peronace focuses only on his Eighth Amendment right to be

free from cruel and unusual punishment. (See Doc. No. 11 at 6 (“As set forth above, the instant

claim is based on violations of the Plaintiff’s Eighth Amendment rights as brought pursuant to

§ 1983 as the vehicle for bringing such an action.”).)

Section 1983 states:

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

2 As a reminder, “the complaint may not be amended by the briefs in opposition to a motion to

dismiss.” Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quotation

marks omitted); Ernst v. Union Cnty. Conservation Dist., Civil Action No. 4:21-CV-1702, 2023 WL

6276698, at *12 n.65 (M.D. Pa. Sept. 26, 2023) (same).

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. “[T]o state a claim under § 1983, a plaintiff must allege, first, the violation of

a right secured by the Constitution or laws of the United States, and second, that the alleged

deprivation was committed or caused by a person acting under color of state law.” Jenkins v.

Cordova, Civ. No. 22-6482 (KM) (CLW), 2023 U.S. Dist. LEXIS 84428, *9 (D.N.J. May 15,

2023) (citing Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011)).

Local governments and municipalities are considered persons under § 1983. Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality, however, “may not be held

liable for constitutional torts under § 1983 on a vicarious liability theory rooted in respondeat

superior.” Mulholland v. County of Berks, 706 F.3d 227, 237 (3d Cir. 2013); see also Monell,

436 U.S. at 690 (explaining that local government and municipalities may be sued directly under

§ 1983 when “the action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s

officers”). Instead, there are two different ways for a § 1983 claim against a municipality to

proceed: “[a] plaintiff may put forth that an unconstitutional policy or custom of the

municipality led to his or her injuries, or that they were caused by a failure or inadequacy by the

municipality that reflects a deliberate or conscious choice.” Forrest v. Parry, 930 F.3d 93, 105

(3d Cir. 2019) (quotation marks and citations omitted).

“Policy is made when a decisionmaker possessing final authority to establish municipal

policy with respect to the action issues an official proclamation, policy, or edict.” Mulholland,

706 F.3d at 237 (quotation marks omitted). And a “course of conduct is considered to be a

‘custom’ when, though not authorized by law, such practices of state officials are so permanent

and well-settled as to virtually constitute law.” Id. (quotation marks omitted). “[W]hen the

absence of action denies individuals their constitutional rights, the failure to act can amount to a

policy or custom.” Newsome, 2020 WL 6730946, at *6 (citing Simmons v. City of Philadelphia,

947 F.2d 1042, 1060–61 (3d Cir. 1991)).

“On the other hand, one whose claim is predicated on a failure or inadequacy,” need not

identify a municipal policy or custom, and instead, “has the separate, but equally demanding

requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the

part of the municipality.” Forrest, 930 F.3d at 106. A plaintiff satisfies this standard by

alleging: “(1) municipal policymakers know that employees will confront a particular situation,

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

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

Here, the City argues that Peronace has not alleged facts tending to suggest a municipal

policy, custom, or deliberate indifference caused his injuries, and instead, impermissibly seeks to

hold it liable under a theory of vicarious liability. (Doc. No. 10 at 7.) Peronace responds that he

has sufficiently alleged that he was injured by an inadequate City policy or custom:

[B]ased on the clear language of the [Amended] Complaint, all

actions are attributable to the [City] based on [its] ownership,

operation, management, control, and supervision of the subject

jail. . . . This supervision and control is the main thrust of a Monell

claim, as the inadequacy of the Defendant’s official policy or

custom caused a violation of the Plaintiff’s Constitutional rights,

which has been clearly pled in the [Amended] Complaint.

(Doc. No. 11 at 7–8.) But contrary to this argument, Peronace has not “clearly” identified which

City policy or custom he believes is inadequate and caused the alleged violations of his Eighth

Amendment rights. See Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984) (“A

plaintiff must identify the challenged policy, attribute it to the city itself, and show a causal link

between execution of the policy and the injury suffered.”). Peronace alleges that unidentified

CFCF employees denied him access to necessary medical care, left him in his cell in an

unsanitary condition, and allowed him to be assaulted in his cell. (See Doc. No. 8.) He does not

identify a City policy that explicitly authorized this conduct, nor has he alleged similar conduct

was suffered by other prisoners, such that the Court could infer CFCF has a custom of denying

prisoners access to necessary medical care, of leaving prisoners to lie in their excrement, of

leaving cells unlocked, or of allowing unknown individuals to assault prisoners in their cells.3

To the contrary, Peronace has alleged only that the City “owned, operated, managed,

controlled, [and] supervised the daily operations and running” of CFCF and that it “acted

through the conduct of [its] servants, agents, and employees.” (Doc. No. 8 at ¶¶ 4–5.) This is

insufficient under Monell. See Russell v. City/Town of Hammonton, Civil No. 15-1669

(NLH/KMW), 2015 WL 8780460, at *3 (D.N.J. Dec. 15, 2015) (“Plaintiff in this case has

properly named the municipality, Hammonton, as a defendant in this action. However, with

respect to Hammonton’s involvement, Plaintiff alleges that Hammonton ‘owned an[d]

maintained the Hammonton Police Department and employed the individual defendant[s] sued

herein’ and is ‘responsible for the policy of procedures implemented through its various

agencies.’ This statement is insufficient to establish liability under Monell.” (citation omitted));

see also Taylor v. Pennsylvania, CIVIL ACTION NO. 17-3369, 2018 WL 6574187, at *10 (E.D.

Pa. Dec. 12, 2018) (“Although Plaintiff pleads numerous instances of mail tampering by

individual prison employees, he never links these incidents to custom, policy, or a pattern of

deliberate indifference. Again, Monell expressly prohibits municipal liability on the basis of

respondeat superior. Thus, Plaintiff’s failure to attribute the mail tampering to policy, custom,

or deliberate indifference on the part of the City is fatal.”); cf. McTernan v. City of York, 564

3 Although Peronace defends his Monell claim under the policy or custom theory, the Court notes

that he has also failed to allege a claim under a failure or inadequacy theory. See Forrest, 930 F.3d at

106.

F.3d 636, 658 (3d Cir. 2009) (“To satisfy the pleading standard, McTernan must identify a

custom or policy, and specify what exactly that custom or policy was.”). Contra. Hargrove v.

City of Philadelphia, __ F. Supp. 3d __, No. CIVIL ACTION NO. 21-4082, 2023 WL 3229927,

at *1, *6 (E.D. Pa. May 3, 2023) (finding the plaintiff’s “adequately alleged . . . that the City had

a policy or custom [at CFCF] of releasing [defenseless] inmates late at night into a high crime

area with no reliable mode of transportation, proximately causing Hargrove’s death” at the hands

of “individuals in a car who shot him to death after chasing him back on to CFCF property”).

Accordingly, the motion to dismiss is also granted as to Count II.

V. CONCLUSION

The City’s motion to dismiss is granted. Count I of the Amended Complaint is dismissed

with prejudice, and Count II is dismissed without prejudice. Peronace may file a second

amended complaint reasserting his § 1983 claim to the extent he can in good faith cure the

deficiencies identified in this Memorandum.4 Any second amended complaint must include a

redline identifying changes between it and the Amended Complaint.

4 The Court declines to dismiss Peronace’s § 1983 claim with prejudice as requested by the City.

(Doc. No. 10 at 8–9.) See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252

(3d Cir. 2007 (recognizing sua sponte allowance of amendment is required in the civil rights context).

Although Peronace previously amended his Complaint in response to the City’s motion for more definite

statement, this is the first time that the Court has given guidance on the deficiencies in Peronace’s

allegations. Peronace is warned, however, that if he files a second amended complaint that fails to correct

the issues identified by the Court in this Memorandum, it could result in dismissal of his § 1983 claim

with prejudice. See, e.g., Ezeibe v. City of York, No. 1:19-cv-00189, 2020 WL 1922632, at *3 n.3 (M.D.

Pa. Apr. 21, 2020) (“In the present case, Plaintiff was put on notice of the deficiencies present in his

complaint by the Court's prior dismissal, was previously granted leave to amend, and nonetheless failed to

plead any additional facts to support a Monell claim based on false arrest. Accordingly, the Court finds

no reason to allow further amendment of this claim and will dismiss it with prejudice.” (citation omitted)).