# MILLS v. CITY OF PHILADELPHIA

> District Court, E.D. Pennsylvania · March 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10406973

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 22, 2024
- **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/10406973

## How later opinions describe it (automated extraction)

- explaining that the Tort Claims Act provides “absolute immunity to the City of Philadelphia from tort liability, except [for the statutorily] enumerated [exceptions]”

## Opinion text

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

BRITTNEY MILLS, :
:
Plaintiff, : CIVIL ACTION
v. : No. 14-593
:
CITY OF PHILADELPHIA, et al., :
:
Defendants. :

MEMORANDUM
Kenney, J. March 22, 2024
Presently before the Court is the City of Philadelphia’s (the “City”) Motion to Preclude the
Testimony and Report of Plaintiff’s Expert Shaun T. Santos (the “Motion to Preclude”) (ECF No.
70) and the City’s Motion for Summary Judgment (ECF No. 68).1 For the reasons detailed below,
the Court will grant in part and deny in part the City’s Motion to Preclude and will also grant in
part and deny in part the City’s Motion for Summary Judgment. An appropriate Order will follow.
I. PROCEDURAL HISTORY2
On January 27, 2014, Plaintiff Brittney Mills filed a Complaint against the City, Police
Officer Jeffrey Walker, and Police Officers John/Jane Does 1-10. ECF No. 1. Judge Stewart

1 Although the Motion to Preclude and the Motion for Summary Judgment were brought by both
the City and Officer Timothy Dunne, Dunne was terminated as a defendant following the Court’s
October 5, 2023 Order granting summary judgment in his favor (ECF No. 103). Accordingly, the
Court treats the Motion to Preclude as brought only by the City, and, consistent with the Court’s
October 5, 2023 Order and Memorandum, only decides the Motion for Summary Judgment to the
extent it pertains to the City. See ECF Nos. 102 at 1 n.2, 103.
2 The relevant factual background is set forth in the Court’s October 5, 2023 Memorandum
granting the Officers’ summary judgment motions. See ECF No. 102 at 7–15. In providing the
below reasoning, the Court writes primarily for the attorneys and parties—all of whom are well
familiar with the background of this case—and therefore will not provide a recitation of the facts
again.
Dalzell, to whom this case was originally assigned, subsequently placed it in suspense pending
resolution of consolidated cases involving the Narcotics Field Unit (“NFU”) that were then-
pending before Judge Paul Diamond. ECF No. 15. The next day, on August 1, 2014, Plaintiff
filed an Amended Complaint—the operative complaint—against the City, Walker, Does 1-6, and

substituting Michael Alice, Timothy Dunne, Thomas Liciardello, and John Speiser for Does 7-10.
ECF No. 16.
On September 21, 2015, Liciardello and Speiser filed an Answer to the Amended
Complaint. ECF No. 23. The City, Alice, and Dunne filed their Answer to the Amended
Complaint on December 29, 2015. ECF No. 27. On March 29, 2021, Mills requested an entry of
default against Walker because he had not yet served an Answer to the Amended Complaint. ECF
No. 39.3 That same day, consistent with Federal Rule of Civil Procedure 55(a), the Clerk’s office
entered a default against Walker.4 See ECF No. 102 at 1 n.1.
Aside from Walker, each named defendant in this action has filed a motion for summary
judgment. Alice filed a Motion for Summary Judgment seeking to dismiss all of Plaintiff’s claims

against him on June 20, 2022. ECF No. 66. Liciardello and Speiser then filed a separate joint
Motion for Summary Judgment seeking to dismiss all of Plaintiff’s claims against them on June
24, 2022. ECF No. 69. Also on June 24, 2022, the City and Dunne filed a separate joint Motion
for Summary Judgment seeking to dismiss all of Plaintiff’s claims against them. ECF No. 68.

3 Plaintiff’s counsel originally filed a Motion for a Default Judgment on July 9, 2014 (ECF No. 9),
but the Motion for a Default Judgment was premature and was never granted. See ECF No. 102
at 1 n.1.
4 Mills has not yet moved for a default judgment as required by Federal Rule of Civil Procedure
55(b).
All Motions for Summary Judgment have been resolved, see ECF Nos. 102, 103, except
the instant Motion for Summary Judgment as it relates to the City (ECF No. 68), and the City’s
related Motion to Preclude against Plaintiff’s municipal liability expert, Shaun T. Santos (ECF No.
70). The below Memorandum addresses these two remaining motions.

II. LEGAL STANDARD
A. Motion to Preclude
Federal Rule of Evidence (“FRE”) 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if the proponent
demonstrates to the court that it is more likely than not that:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and
methods to the facts of the case.5

5 This language reflects a recent amendment to FRE 702, which took effect as of December 1,
2023. See Fed. R. Evid. 702, Advisory Comm. Notes, 2023 Amendments. While “[n]othing in
the amendment imposes any new, specific procedures,” the purpose of the amendment was to
clarify and emphasize (1) the applicability of the “preponderance of the evidence standard,” that
is, “expert testimony may not be admitted unless the proponent demonstrates to the court that it is
more likely than not that the proffered testimony meets the admissibility requirements set forth in
[FRE 702],” and (2) that “each expert opinion must stay within the bounds of what can be
concluded from a reliable application of the expert’s basis and methodology.” Id.; see also Allen
v. Foxway Transp., Inc., No. 4:21-CV-00156, 2024 WL 388133, at *3 (M.D. Pa. Feb. 1, 2024)
(explaining that the amendment was motivated by the Advisory Committee’s observation that in
“a number of federal cases . . . judges did not apply the preponderance standard of admissibility to
Rule 702’s requirements of sufficiency of basis and reliable application of principles and methods,
instead holding that such issues were ones of weight for the jury,” which is an incorrect application
of FRE 702 and 104(a) (citation omitted)).
This Rule places district courts in the role of the “gatekeeper,” requiring courts to ensure
that the expert testimony is both (1) relevant and (2) reliable. See David v. Black & Decker (US)
Inc., 629 F. Supp. 2d 511, 514 (W.D. Pa. 2009) (citing Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). In the Daubert

context, “relevance has been described as one of ‘fit’ or ‘helpfulness’”; that is, the expert’s
testimony must help “the trier of fact to understand the evidence or to determine a fact in issue.”
Oddi v. Ford Motor Co., 234 F.3d 136, 144 n.12 (3d Cir. 2000) (citing Daubert, 509 U.S. at 591–
92). To determine whether an expert’s conclusions are reliable, “a district court must . . . determine
whether [the conclusions] could reliably follow from the facts known to the expert and the
methodology used.” Heller v. Shaw Indus., Inc., 167 F.3d 146, 153 (3d Cir. 1999). Fundamentally,
an expert must have “good grounds” for his opinions. See In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 732 (3d Cir. 1994) (citing Daubert, 509 U.S. at 590).
B. Summary Judgment
A district court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Therefore, “[s]ummary judgment is appropriate when ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.’” Wright v. Owens Corning, 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti
v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995)). A fact is “material” if it “might
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc. 477 U.S.
242, 248 (1986). There is a genuine issue of material fact if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
The party moving for summary judgment has the initial burden “of informing the district
court of the basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986) (quotation marks omitted). Once the moving party has met this burden,
the non-moving party must counter with “specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation
omitted); see also Fed. R. Civ. P. 56(c)(1). The non-movant must show more than the “mere
existence of a scintilla of evidence” for elements on which the non-movant bears the burden of
production, Anderson, 477 U.S. at 252, and may not “rely merely upon bare assertions, conclusory
allegations or suspicions,” see Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982),
or arguments made in briefs, as those “are not evidence,” Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109–10 (3d Cir. 1985).
When determining the existence of a genuine issue of material fact, a court must “examine

the evidence of record in the light most favorable to the party opposing summary judgment[] and
resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d
Cir. 2007). The court need only decide whether “a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.” Anderson, 477 U.S. at 252. “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial’” and the court should grant summary judgment in favor of the moving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation omitted).
III. DISCUSSION
A. Motion to Preclude
In its Motion to Preclude, the City seeks to strike the opinions and testimony of expert
Shaun T. Santos on two grounds: Santos’s opinions (1) do not “fit” the facts of this case because
they are “not relevant to the ultimate issues of the case,” ECF No. 70 at 10, and (2) are “inherently
unreliable” because they are not supported with “cognizable, accepted principles and

methodology,” id. at 16. Plaintiff provides no meaningful response. Instead, Plaintiff’s response
is filled with a litany of complaints regarding the City’s litigation tactics, see, e.g., ECF No. 76 ¶¶
8–9 (complaining that the City objected to discovery requests “at every turn”), and conclusory
statements about the purported usefulness of Santos’s testimony, see, e.g., id. ¶ 9 (“There is no
question that the expertise, experience, knowledge, education, writings, training and research that
plaintiff’s expert presents will assist the jury in understanding and explaining police policy and
procedure . . . .”).
Upon its own review of Santos’s report (ECF No. 70-1), and as further detailed below, the
Court finds that Santos offers some opinions that are both reliable and relevant—namely, those

opinions on the inadequacy of internal affairs investigations and the City’s protection of NFU
Officers, as expressed within paragraphs 334–94 of his report. Santos will be permitted to testify
and opine on those opinions only; the remainder of his report will be excluded.
1. Santos’s opinions on the inadequacy of internal affairs investigations
and the City’s protection of the NFU Officers are relevant to
Plaintiff’s municipal liability claim.
In the Daubert context, “relevance has been described as one of ‘fit’ or ‘helpfulness’”; that
is, the expert’s testimony must help “the trier of fact to understand the evidence or to determine a
fact in issue.” Oddi, 234 F.3d at 144 n.12 (citing Daubert, 509 U.S. at 591–92). Put differently,
“the expert testimony must fit the issues in the case”—it must “be relevant for the purposes of the
case.” Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).
Here, Santos’s opinions and testimony in three sections of his report—specifically, the
sections entitled (1) “Custom and Practice of Conducting Inadequate Internal Affairs

Investigations,” (2) “Internal Affairs Investigations Were Routinely Compromised,” and (3) “NFU
Officers Were Protected”—are relevant to this case. ECF No. 70-1 ¶¶ 334–94. In those three
sections, Santos opines that “the [Philadelphia Police] Department has failed to conduct adequate
Internal Affairs Investigations to remedy [rampant police misconduct], even after being on notice
that internal controls have consistently been inadequate to address the corruption,” id. ¶ 334; that
there is a “custom and practice of compromising Internal Affairs investigations” given evidence
showing that Philadelphia police officers were routinely able to, among other things, “access[]
Internal Affairs [i]nvestigators prior to their interview” and “shar[e] their [Internal Affairs]
testimony transcripts [with each other] upon being interviewed,” see id. ¶¶ 367–79; and that
“Philadelphia Police NFU officers felt that they were protected from any adverse consequences

for any misconduct,” see id. ¶¶ 380–94. This testimony is plainly relevant to the thrust of
Plaintiff’s municipal liability claim that “[i]t was the policy and/or custom of the City of
Philadelphia to cover-up and avoid detection of improper and illegal police activity.” ECF No.
16-2 ¶ 77.
However, the Court agrees with the City that the remainder of Santos’s report is unhelpful
to the trier of fact in understanding the evidence or issues in this case.6 For example, Santos’s

6 In fact, much of Santos’s report reads as a “one-size-fits-all” report that he only slightly tweaks
to fit this case. The Court cautions both Plaintiff’s counsel and Santos against taking this approach
in the future. Such an approach not only burdens courts, as it requires courts to review the expert’s
report with a fine-tooth comb in hopes of finding the relevant or helpful portions, but it also
damages the expert’s credibility.
longwinded discussion of the “Rule of Two”—i.e., that it is a best practice for two officers to
observe a confidential informant (“CI”), see ECF No. 70-1 ¶ 149—is entirely irrelevant to
Plaintiff’s municipal liability claim. Plaintiff’s municipal liability claim turns on Walker’s
underlying constitutional violation: that he lied about witnessing a CI conduct a controlled buy

with Plaintiff and swore out an affidavit of probable cause based on that lie. Whether or not Walker
conducted the controlled buy alone is not at issue. Similarly, Santos’s opinion that “the failure to
conduct periods of surveillance and/or [to] access available Police Department, RMV, and utility
databases in an attempt to identify any connection between Brittney Mills and the target location,
747 N. 37th St Philadelphia, PA, is not consistent with generally accepted practices, trainings, and
law enforcement policies nationwide,” id. ¶ 138, has nothing to do with this case. There is no
claim that the Philadelphia police should have used police, RMV, or utility databases to identify a
connection between Mills and the “target location.” Therefore, the Court will strike any portions
of Santos’s report that do not relate to the inadequacy of internal affairs investigations and the
City’s protection of the NFU Officers as contained within paragraphs 334–94 of his report.

2. Santos’s opinions on the inadequacy of internal affairs investigations
and the City’s protection of the NFU Officers are reliable.
For a party’s expert opinion or testimony to be deemed reliable, the party must demonstrate
that it is “more likely than not” that the expert’s testimony and opinions “reflect[] a reliable
application of the principles and methods to the facts of the case.” Fed. R. Evid. 702. Put
differently, the expert’s opinions and testimony “must be grounded in acceptable principles and
methodology and provide the substantive rationale in detail with respect to the basis and reasons
for the proffered opinions.” Torain v. City of Phila., No. CV 14-1643, 2023 WL 174952, at *5
(E.D. Pa. Jan. 12, 2023) (citations omitted). An expert must provide an “objective anchor for his
conclusions” beyond mere training and experience. See Booth v. Black & Decker, Inc., 166 F.
Supp. 2d 215, 221–22 (E.D. Pa. 2001) (excluding expert testimony because the expert did not offer
any source for his conclusion beyond “his own training and experience”).
Here, the Court finds that it is more likely than not that Santos’s proffered testimony and
opinions relating to the inadequacy of internal affairs investigations and the City’s protection of

the NFU contained within paragraphs 334–94 of his report are reliable. Santos’s opinions are not
anchored merely in his training or experience; rather, Santos reaches these opinions by applying
his decades of experience in law enforcement, training and skills to the facts of this case based
upon materials from the record, including Walker’s “IAPro Alert entries,”7 as well as relevant
deposition testimony, including testimony by Walker, Reginald Graham (another NFU officer),
Debra Frazier (Captain of the NFU from 2009 to 2012), and Edward McCann, Jr. (a former
Assistant District Attorney). See ECF No. 70-1 ¶¶ 334–94; ECF No. 68-2 ¶ 44. For example, in
opining that the City had a “Custom and Practice of Conducting Inadequate Internal Affairs
Investigations,” Santos provides an overview of Walker’s IAPro alerts, and then explains that “the
sheer number of alerts warranted some type of supervisory intervention beyond a cursory

review”—but that after reviewing Walker’s deposition testimony, it appeared that “Walker had
been disciplined only once while assigned to NFU.” ECF No. 70-1 ¶ 364.
Santos also provides a robust and substantive rationale for his opinion that NFU officers
were “protected.” See id. ¶ 380. He cites to many portions of Walker’s testimony, see id. ¶ 381
(noting Walker’s testimony that his squad was “untouchable”), Graham’s testimony, see id. ¶ 382
(summarizing Graham’s testimony that after he told the Police Commissioner’s Office that NFU

7 As Santos explains in his report, “IAPro is a commercially available internal investigation web-
based platform utilized by a number of law enforcement agencies nationwide to manage internal
investigations” and can be used to sort through “specific data such as . . . civilian complaints”
against police officers. ECF No. 70-1 ¶ 356. In his report, Santos provides an overview of civilian
complaints lodged against Walker. See id. ¶¶ 356–64.
officers were “subverting probable cause requirements,” a sergeant responded that these NFU
officers would “be put back on the street” anyway), and Frazier’s testimony, see id. ¶ 383 (citing
Frazier’s testimony that Deputy Commissioner William Blackburn “refused” to disband a squad
of NFU officers that Frazier suspected were engaging in misconduct due to a “social relationship”

between Blackburn and one of the NFU officers).
While Santos’s method of applying his experience and training to materials in the record
may not be “a formal, testable method,” it is one that is commonly “used by police practices experts
and accepted by the courts.” See Roberson v. City of Phila., No. CIV. A. 99-3574, 2001 WL
210294, at *4 (E.D. Pa. Mar. 1, 2001) (finding municipal liability expert opinion reliable where
expert “reaches his conclusions by applying his significant experience, training and skills” to
“numerous materials” provided to him, including deposition transcripts and various Philadelphia
Police Department memoranda and directives); see, e.g., Jefferson v. Lias, Civ. No. 15-1086, 2022
WL 4550144, at *8 (D.N.J. Sept. 28, 2022) (finding municipal liability expert’s opinions reliable
because they were based upon “an analysis of the deposition testimony and documentary evidence

produced in this case—including hundreds of pages of CAP investigation reports and EPD internal
affairs statistics—as well as his considerable law enforcement experience”).
It is worth noting that the City lodges only one specific objection to the opinions contained
within paragraphs 334–94 of Santos’s report: the fact that Santos cites a Wikipedia article in
paragraph 350. See ECF No. 70 at 15-16. That may indeed be an appropriate point to raise on
cross-examination. But given the numerous other sources that Santos cites and in which he
grounds his opinions, one cite to one Wikipedia article is not sufficient to warrant exclusion under
Daubert. See Keller v. Feasterville Fam. Health Care Ctr., 557 F. Supp. 2d 671, 682 (E.D. Pa.
2008) (refusing to exclude expert’s opinion as unreliable where it was “based on his review of the
medical records and numerous other sources of information including pathological evidence, his
experience as a pathologist . . . , and his board certification in anatomic and clinical pathology”
and instead holding that “[a]ny weaknesses or inadequacies in the facts and assumptions of [the
expert’s] conclusions can be highlighted through effective cross-examination.”). Accordingly, the

Court will deny the motion to preclude as to any of Santos’s opinions or testimony on the
inadequacy of internal affairs investigations and the City’s protection of NFU Officers. The
remainder of Santos’s proffered opinions and testimony will be excluded.
B. Motion for Summary Judgment
The only live claims in this case following the Court’s October 5, 2023 Order (ECF No.
103) are those pending against the City: Plaintiff’s state law claim of negligent hiring, retention,
and supervision (Count XV) and municipal liability claim (Count XIV). The City moves for
summary judgment on both counts and asks this Court to enter judgment in its favor. ECF Nos.
68, 68-3 at 1, 17. For the following reasons, the Court will grant summary judgment on Plaintiff’s
negligent hiring, retention, and supervision claim (Count XV), but declines to do so on Plaintiff’s

municipal liability claim (Count XIV).
1. Negligent Hiring, Retention, and Supervision Claim (Count XV)
With respect to Count XV, the City argues that Plaintiff’s claim of negligent hiring,
retention, and supervision—that the City “failed to exercise reasonable care in the hiring, retention
and supervision of the defendant Police Officers with such failure being the direct and proximate
cause of Plaintiff’s injuries,” ECF No. 16-2 ¶ 84—is barred by Pennsylvania’s Political
Subdivision Tort Claims Act (the “Tort Claims Act”). ECF No. 68-3 at 8–9. The Court agrees.
With certain specified exceptions, the Tort Claims Act immunizes a “local agency,” which
includes the City of Philadelphia, from liability for “any damages on account of any injury to a
person or property caused by any act of the local agency or an employee thereof or any other
person.” 42 Pa. C.S.A. § 8541; see Staples v. City of Phila., No. CV 22-2118, 2023 WL 4440278,
at *7 (E.D. Pa. July 10, 2023) (“It is well-established that the City of Philadelphia is a ‘local
agency’ within the meaning of these provisions.” (citing Weinerman v. City of Phila., 785 F. Supp.

1174, 1178 (E.D. Pa. 1992), Walsh v. City of Phila., 526 Pa. 227, 585 A.2d 445, 450 (Pa. 1991))).
These exceptions are the operation of motor vehicles; the care, custody and control of real property,
personal property, and animals; sexual abuse; and the maintenance of utility service facilities,
streets, trees, street lighting, traffic controls, and sidewalks. 42 Pa. C.S.A. § 8542(b); Wakshul v.
City of Phila., 998 F. Supp. 585, 588 (E.D. Pa. March 24, 1998) (explaining that the Tort Claims
Act provides “absolute immunity to the City of Philadelphia from tort liability, except [for the
statutorily] enumerated [exceptions]”).
Here, Plaintiff’s negligent hiring, retention, and supervision claim does not fall under any
of these exceptions. See, e.g., Clark v. City of Phila., No. CIV.A. 13-2204, 2014 WL 4812182, at
*4 (E.D. Pa. Sept. 26, 2014) (dismissing Plaintiff’s claim of negligent training and supervision

against the City of Philadelphia because it does not fall within any of the enumerated exceptions
of the Tort Claims Act); Thomas v. Cianfrani, No. CIV.A. 01-3096, 2009 WL 1704471, at *4 &
n.10 (E.D. Pa. June 17, 2009) (concluding that the Tort Claims Act affords immunity to City of
Philadelphia against claims of negligent hiring, retention, and supervision of police officers).
Therefore, Plaintiff’s negligent hiring, retention, and supervision claim fails as a matter of law.
2. Municipal Liability (Count XIV)
A municipal liability claim “against the City may proceed in two ways”: (1) “Plaintiff may
show that an unconstitutional policy or custom of the City caused [her] injuries,” or (2) “Plaintiff
may show that [her] injuries were caused by a failure or inadequacy by the municipality that
reflects a deliberate or conscious choice.” McIntyre v. Liciardello, No. 13-2773, 2020 WL 605717,
at *13 (E.D. Pa. Feb. 7, 2020) (citing Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019)) (additional
citations omitted). “The latter liability encompasses a municipality’s failure to train, supervise, or
discipline its employees.” See id. (citing Forrest, 930 F.3d at 105). A plaintiff may plead both

theories in the alternative, and if she does, the Court must address them separately. See, e.g., id.
(analyzing the plaintiff’s first theory—that the City had a “custom of municipal acquiescence in
misconduct”—and the plaintiff’s second theory—that “the City is liable for failing to train Officers
‘against a code of silence,’ and failing to supervise and discipline ‘rampant illegal conduct in
narcotics investigations’”—separately) (citation omitted).
Here, Plaintiff pleads both theories of municipal liability: that (1) “[i]t was the policy
and/or custom of the City of Philadelphia to cover-up and avoid detection of improper and illegal
police activity,” ECF No. 16-2 ¶ 77, and (2) the City failed to “sufficiently supervise against, train
and/or retrain against, and discipline against illegal police activity” and against a “code of silence,”
id. ¶¶ 78, 80.8

8 In the operative complaint, Plaintiff’s second theory is pled as follows: “It was the policy and/or
custom of the City of Philadelphia to fail to sufficiently supervise against, train and/or retrain
against, and discipline against illegal police activity,” ECF No. 16-2 ¶ 78, and “[i]t was the policy
and/or custom of the City of Philadelphia to inadequately supervise and train its Police Officers,
including the defendant Officers, against a code of silence or ‘blue code’ of Officers,” id. ¶ 80.
However, as Judge Diamond recognizes in McIntyre, the Third Circuit has held that a theory that
the City has maintained a “policy” or “custom” of failing to supervise, train, or discipline its police
officers “has no basis in law.” See McIntyre, 2020 WL 605717, at *13 (“In reversing a summary
judgment grant in favor of a municipality on a Monell claim, the Third Circuit recently emphasized
that “policy or custom” and “failure to train” are distinct and must be treated accordingly.”) (citing
Forrest, 930 F.3d at 107 (“[T]he bare notion that a custom or policy of ‘essentially unsupervised’
officers led to [plaintiff’s] injury has no basis in law.”)).

Therefore, Plaintiff’s second theory is appropriately reframed as alleging that the City’s failure to
supervise, discipline or train its officers amounted to deliberate indifference to the constitutional
rights of its citizens. See, e.g., Forrest, 930 F.3d at 107 (explaining that the plaintiff’s theory that
Camden maintained a policy or custom of inadequately supervising and training its police officers
The City argues that summary judgment is appropriate on both. ECF No. 68-3 at 12–17.
On the first “policy or custom” theory, the City argues that Plaintiff has adduced no evidence of a
municipal “policy” or “custom” that caused her alleged harm. Id. at 12–13. On the second “failure
to train, supervise, and discipline” theory, the City argues that Plaintiff has not adduced sufficient

evidence to establish that a failure to train, supervise and/or discipline was the moving force behind
her alleged constitutional violation. Id. at 13–17.
In response to the City’s arguments, Plaintiff primarily relies upon Judge Diamond’s
decision on the City’s summary judgment motion in the related case of McIntyre, 2020 WL
605717, at *5. See ECF No. 95-1 at 3–6, 16 (“Plaintiff adopts the Argument and Legal Standards
as set forth in . . . the Honorable Paul Diamond’s Decision entered in McIntyre.”). As the parties
understand—and as the City recognizes in its opening brief—McIntyre was “litigated as the
bellwether case” for hundreds of cases arising out of alleged misconduct by members of the NFU,
including this one. ECF No. 68-3 at 15; see McIntyre, 2020 WL 605717, at *1.
The Court largely agrees with Plaintiff that Judge Diamond has sufficiently vetted the

municipal liability claim against the City arising from the NFU’s misconduct through his analysis
in McIntyre. After a review of Judge Diamond’s decision in McIntyre and the record evidence in
this case, the Court will deny summary judgment on Plaintiff’s first “policy or custom” theory and
the portion of Plaintiff’s second theory that relates to the City’s “failure to supervise and
discipline.” However, the Court will grant summary judgment on the portion of Plaintiff’s second
theory that relates to the City’s “failure to train.”

is not legally cognizable, but when “properly considered,” sounds in a theory that “Camden’s
failure to supervise, investigate, and train its officers amounted to deliberate indifference”).
Before beginning its analysis, the Court must first explain what evidence it will consider.
After a review of the docket and the exhibits appended to the parties’ briefings, the Court will
consider not only the evidence submitted with the parties’ briefings (ECF Nos. 68-2, 68-4–13, 95-
2–42), but also the record underlying Judge Diamond’s decision in McIntyre.9 As the parties

acknowledge, the discovery conducted in McIntyre was intended to be used in its related cases.
Plaintiff says so in her opposition brief, see ECF No. 95-1 at 5, 10–11, and the City also concedes,
as stated by the City in prior correspondence to this Court, that the “Monell discovery in [the
McIntyre case] is also applicable here.” ECF No. 95-2 at 1 (attached hereto as Exhibit A).
To survive summary judgment on either of her theories, Plaintiff must first show an
underlying constitutional violation. See Monell v. New York City Dept. of Soc. Servs., 436 U.S.
658, 658 (1978). Here, the City does not dispute that Walker violated Plaintiff’s constitutional
rights. See generally ECF No. 68-3. It is undisputed that Walker obtained a search warrant for
747 N. 37th Street by relying on false information. ECF No. 102 at 8 (citing ECF 66 ¶¶ 18-19,
ECF 74 ¶ 6). Specifically, Walker admitted that he falsely claimed to have observed a CI make a

controlled buy from a woman matching Mills’s description; he swore out an affidavit of probable
cause based on that fabricated information in support of a search warrant; and upon execution of
that warrant, Plaintiff was arrested. ECF No. 66, Ex. E (Walker Dep.) at 827:3–829:13, Ex. L, Ex.
H; ECF No. 102 at 8 & n.9, 10–13. Such conduct is unequivocally a violation of Plaintiff’s
constitutional rights. U.S. Const. Amend. IV (“The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and

9 The Court recognizes and thanks Judge Diamond for his hard work in McIntyre—both for
managing discovery for the hundreds of related cases arising out of the NFU’s alleged misconduct
(including this one), which is no easy feat, and for his comprehensive analysis in his summary
judgment opinion, see 2020 WL 605717, at *13–15.
no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”).
i. Policy or Custom
To establish liability on her first theory, Plaintiff must show that “an unconstitutional

policy or custom” of the City caused her injuries. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir.
2019). A “policy” is an official proclamation or edict of a municipality, while a “custom” is a
practice that is “so permanent and well settled as to virtually constitute law.” Beck v. City of
Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citations omitted). There is no evidence of an
unconstitutional “policy,” or official proclamation or edict, in the record; to the contrary, Plaintiff
argues that Walker violated official policies of the Philadelphia Police Department that were meant
to bar Walker’s specific misconduct, see, e.g., ECF No. 95-1 at 1, 3, 8.
However, viewing the relevant evidence in the light most favorable to Plaintiff, and
accepting those facts and all justifiable inferences as true, the Court finds that there is sufficient

evidence of an unconstitutional “custom” of the City “cover[ing]-up and avoid[ing] detection of
improper and illegal police activity,” ECF No. 16-2 ¶ 77, for Plaintiff to withstand summary
judgment. For example, there is testimony by Frazier that a chief inspector instructed officers “to
operate confidential informants in a totally corrupt way,” including by planting drugs on people to
“make them confidential informants,” and that he “informed the officers that he would take care
of any problems that they had.” ECF No. 95-16 (Frazier Dep.) at 89:16-90:3. There is testimony
from former Deputy District Attorney Douglas—who was head of the District Attorney Office’s
(“DAO”) Investigations Division—that Captain Werner (who oversaw the NFU) and then-IAB
Inspector Blackburn would “cover” for a NFU officer when he used “bogus probable cause
statements” in search warrant affidavits. ECF No. 95-20 (Douglas Dep.) at 46:4-10; McIntyre,
2020 WL 605717, at *5. And there is testimony that Walker and the other NFU officers in his
squad were “untouchable”; even if the IAB received a complaint, someone from IAB would call
the officers to forewarn them or “give them a heads up,” tell them to “get their stories together,”
and tell them to “stick to the paperwork.” ECF No. 95-9 (Walker Dep.) at 77:19-78:1; see also

ECF No. 95-11 (Walker Dep.) at 56:7–23 (“We had [IAB] in the pocket.”).
In addition to proving a “custom,” Plaintiff must also show that the “custom was the
‘proximate cause’ of [her] injuries.” Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir.
2019) (citation omitted). Plaintiff may make such a showing “by demonstrating an ‘affirmative
link’ between the [custom] and the particular constitutional violation” alleged. Id. (quoting
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)). Distilled further, this “affirmative link”
consists of three prongs: (1) the City’s awareness “of similar unlawful conduct in the past”; (2) its
failure “to take precautions against future violations”; and (3) “that this failure, at least in part, led
to their injury.” McIntyre, 2020 WL 605717, at *15 (citing Bielevicz, 915 F.2d at 851 (“[T]o
sustain a § 1983 action against the City, plaintiffs must [] establish a municipal custom coupled

with causation—i.e., that policymakers were aware of similar unlawful conduct in the past, but
failed to take precautions against future violations, and that this failure, at least in part, led to their
injury.”)).
Here, Plaintiff has adduced sufficient evidence on all three prongs. First, the record shows
that the City was aware of similar unlawful conduct by NFU officers. As noted by Judge Diamond
in McIntyre and as acknowledged by the City itself in its opening brief, Liciardello (a NFU officer
and member of Walker’s squad) was found responsible for misconduct nine times, including five
times for executing unlawful searches or seizures. See 2020 WL 605717 at *14; ECF No. 68-3 at
15. Nor does the City contest that Walker himself had a significant number of complaints leading
up to Plaintiff’s wrongful arrest; rather, the City concedes this point. See ECF No. 68-3 at 15
(“The City does not assert – nor could it – that Jeffrey Walker did not have a high number of
complaints filed against him in the years leading up to Plaintiff’s arrest. During the twenty-one
years he worked for the Philadelphia Police Department prior to that arrest, Walker had twenty-

four complaints filed against him.”); ECF No. 68-2 ¶¶ 39–42.
While the City argues that Walker’s prior misconduct is not “similar” enough to the type
of conduct alleged by Plaintiff because Walker is “not alleged to have improperly utilized
confidential informants to make narcotics purchases,” ECF No. 68-3 at 15, the City characterizes
Walker’s misconduct too narrowly. Walker admitted that he swore out an affidavit of probable
cause based upon fabricated information, and then upon execution of that warrant, Plaintiff was
arrested. ECF No. 102 at 8, 13 (citing ECF 66 ¶¶ 18-19, Ex. H; ECF 74 ¶ 6). In the years preceding
Plaintiff’s false arrest, Walker had been repeatedly accused of similar misconduct: his record
shows eight complaints of illegal searches and six complaints of false arrest. ECF No. 68-12; see
Beck, 89 F.3d at 973 (pattern of written complaints similar in nature to the alleged constitutional

injury sufficient for reasonable jury to conclude policymaker knew or should have known of
violations).10 On this record, the Court finds that there is sufficient evidence to raise a genuine
issue of material fact on the awareness prong.
On the second prong, the record sufficiently demonstrates that, even knowing of the
rampant misconduct by the NFU, the City nonetheless failed to take precautions. As noted by
Judge Diamond in McIntyre, the record shows that high level officials in the DAO “knew about

10 The City also argues that Walker only admitted to wrongdoing on three complaints but “[t]he
remaining twenty-one resulted in no findings of wrongdoing.” ECF No. 68-3 at 15. That argument
falls flat in light of the exact allegations at issue. After all, if the City maintained a custom of
“cover[ing]-up and avoid[ing] detection of” Walker’s (and other officer) misconduct as Plaintiff
alleges, ECF No. 16-2 ¶ 77, logic dictates that his record would reflect repeated acquittals.
the IAB’s complicity in Defendant Officers’ wrongs but took no corrective action.” 2020 WL
605717 at *14 (finding that the DAO had received “numerous complaints against [the] NFU” and
that “senior DAO prosecutors believed NFU Officers routinely committed misconduct” yet
continued to rely on these officers in hundreds of prosecutions). Additionally, there is evidence

that even when various supervisors raised NFU misconduct to Deputy Commissioner Blackburn,
he refused to intervene. For example, when Captain Frazier “had concerns about the operations in
Walker’s squad” and made a recommendation to separate the officers in his squad, Blackburn
ultimately rejected the recommendations because “he felt [the officers] were the best squad in the
unit.” ECF No. 68-2 ¶ 49. And when McCann (a former Assistant District Attorney) raised NFU
officer misconduct to Blackburn, Blackburn simply “defended the officers.” ECF No. 95-17
(McCann Dep.) 16:18–17:2, 20:19–22, 21:15–17. Moreover, Walker testified that Blackburn was
aware—that it was “obvious”—that NFU officers frequently went “in and out of houses without
warrants,” and yet Blackburn did nothing. ECF No. 95-11 (Walker Dep.) 54:3–24. Lastly, there
is evidence that even when the City Solicitor was told that the NFU Officers were “dirty,” nothing

happened—the City Solicitor gave the NFU officers a “heads-up and that was it,” because they
were “protected.” ECF No. 95-9 (Walker Dep.) 78:5–79:21.
On the third prong, the Court finds that there is sufficient evidence to show that the City’s
failure to address the NFU officers’ misconduct led to the injury suffered by Plaintiff. As noted,
the injury suffered by Plaintiff—that is, Walker’s fabrication of probable cause and the ensuing
false arrest of Plaintiff—is the exact harm that had been perpetrated repeatedly by NFU officers,
including Walker. As detailed above, Walker had been accused of false arrest six times and illegal
searches eight times before Plaintiff’s arrest. Accordingly, given the record at hand, the Court
finds that the issue of proximate causation should be left to the jury. Bielevicz, 915 F.2d at 851
(“As long as the causal link is not too tenuous, the question whether the municipal policy or custom
proximately caused the constitutional infringement should be left to the jury.”).
As a final attempt to justify summary judgment, the City attempts to distinguish this case
from McIntyre by arguing that “[t]he record evidence in this case is in marked contrast to that

found to be sufficient to withstand summary judgment in the McIntyre v. Liciardello matter.” ECF
No. 68-3 at 15. The Court finds this argument entirely unavailing. As discussed, the City has
already represented to this Court that “the Monell discovery in [McIntyre] is also applicable here,”
ECF No. 95-2 at 2—and Plaintiff submitted much of that same discovery to this Court in
opposition to the City’s motion, as cited throughout this analysis. The City even went so far as to
note in its October 13, 2021 letter that it “ha[d] no intention to file a motion for summary
judgment” in this case because “Judge Diamond already decided the City’s Motion for Summary
Judgment in McIntyre,” so “it would be an inefficient use of judicial and municipal resources to
re-litigate the same issues involving the same evidentiary record.” Id. (emphasis added). Despite
this letter being appended to Plaintiff’s opposition brief, id., the City makes no attempt to explain

its bait-and-switch in its reply, see ECF No. 100.
For the reasons articulated above, the Court will deny summary judgment as to Plaintiff’s
“policy or custom” theory.
ii. Failure to Train, Supervise, and Discipline
Turning now to Plaintiff’s second theory, a city can only be liable for a failure to supervise,
discipline, and train where such failure “reflects a ‘deliberate’ or ‘conscious’ choice by a
municipality” that “amounts to deliberate indifference to the rights of persons with whom the
police come into contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 389 (1989). To
demonstrate “deliberate indifference,” Plaintiff must show that “(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.” Forrest, 930 F.3d at 106 (citing Carter v. City of Phila., 181
F.3d 339, 357 (3d Cir. 1999)).

The Court will deny summary judgment as to the failure to supervise and discipline portion
of Plaintiff’s theory. Given the evidence laid out above, a reasonable jury certainly could find that
the City’s failure to supervise or discipline NFU officers, including Walker, reflects a “deliberate”
or “conscious” choice by the City. The record is replete with evidence of a failure to supervise or
discipline police officers against illegal police activity or a “code of silence.” As noted above,
Deputy Commissioner Blackburn refused to intervene even once he was put on notice of the NFU’s
misconduct. ECF No. 68-2 ¶ 49; ECF No. 95-17 (McCann Dep.) 16:18–17:2, 21:15–17.
Moreover, Walker testified that his supervisor knew that Walker had not followed protocols, but
did nothing about it; in fact, Walker testified that “every long-term supervisor . . . either turned a
blind eye [to] or participated in what [Walker] was doing.” ECF No. 95-11 (Walker Dep.) 40:14–

22, 21:12–22:7. And when asked under oath if Walker was “ever afraid of being disciplined,”
Walker responded with one word: “never.” Id. at 60:22–24.
Moreover, there is sufficient evidence in the record to establish all three elements of
“deliberate indifference.” First, it cannot be disputed that City municipal policymakers know that
police officers will confront situations in which they obtain search warrants based on probable
cause and use observations of controlled buys by confidential informants to justify probable cause.
Second, as noted above, there was a history of police officers mishandling these types of situations:
Liciardello was found responsible for misconduct nine times, including five times for executing
unlawful searches or seizures, see 2020 WL 605717 at *14; ECF No. 68-3 at 15, and Walker was
accused of illegal searches eight times, ECF No. 68-12. Third, such misconduct—falsely attesting
to facts to justify probable cause—clearly deprives a citizen of their Fourth Amendment rights.
However, summary judgment is appropriate on Plaintiff’s “failure to train” theory. To
succeed on a failure to train claim, Plaintiff “must identify a failure to provide specific training

that has a causal nexus with their injuries and must demonstrate that the absence of that specific
training can reasonably be said to reflect a deliberate indifference to whether the alleged
constitutional deprivations occurred.” Reitz v. Cty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).
Plaintiff has failed to identify any specific training failure, let alone adduce any evidence of
deficient trainings. To the contrary, Walker provided testimony demonstrating that he knew what
the correct protocols were, which indicates that official training was not the problem. See, e.g.,
ECF No. 95-11 at 20:6–8 (testifying that it was a “mistake” to “act[] solely on what the confidential
informant told [him]”). Nor is there any evidence suggesting that additional training would have
made any difference; after all, Walker knew—and admits—that his conduct was illegal. See id.
Therefore, as this Court found in McIntyre, “‘there is no proof from which to infer that

implementing’ different training practices ‘would have made any difference.’” 2020 WL 605717,
at *15 (quoting Forrest, 930 F.3d at 109). For this reason, the Court will grant summary judgment
as to the failure to train portion of Plaintiff’s theory.
IV. CONCLUSION
For the reasons stated above, the Court grants in part and denies in part the City’s Motion
to Preclude (ECF No. 68). The Court will deny the motion to preclude any testimony or opinions
related to the following three enumerated sections in Santos’s report: (1) “Custom and Practice of
Conducting Inadequate Internal Affairs Investigations,” (2) “Internal Affairs Investigations Were
Routinely Compromised,” and (3) “NFU Officers Were Protected.” ECF No. 70-1 ¶¶ 334–94.
The remainder of Santos’s opinions and testimony will be excluded.
Additionally, the Court grants in part and denies in part the City’s Motion for Summary
Judgment (ECF No. 70). The Court will grant summary judgment on Plaintiff’s negligent hiring,
retention, and supervision claim (Count XV) and the “failure to train” theory as it relates to
Plaintiff’s municipal liability claim (Count XIV). Summary judgment is denied as to the rest.

An appropriate Order will follow.

BY THE COURT:

/s/ Chad F. Kenney

CHAD F. KENNEY, JUDGE
EXHIBIT A
A. A
ses CITY OF PHILADELPHIA _ Sstsacnsi
ery see ae Philadelphia, PA 19102-1595
UAE: DIANA P. CORTES
Philadelphia City Solicitor
(215) 683-5003

ANNE B. TAYLOR
Chief Deputy City Solicitor
Civil Rights Unit
(215) 683-5381
anne, taylor@phila gov
October 13, 2021
The Honorable Berle M. Schiller
Senior United States District Court Judge
United States Courthouse, Rm 13613
601 Market St.
Philadelphia, PA 19106
Via email: Jean_Pennie@paed.uscourts.gov
Re: Mills v. City of Philadelphia, et al., 14-cv-593
Dear Judge Schiller,
The following provides some brief background and context for the discovery issue raised to the
Court, and then addresses the substance of the three sought depositions.
Plaintiff Brittney Mills filed suit on January 27, 2014, alleging that, on January 5, 2011, she was
wrongfully arrested as a result of observations made by Defendants Jeffrey Walker, Michae]
Alice, and Timothy Dunne. On that date, Officer Alice and Dunne were patrol officers, and
shared their observations of narcotics activity with Jeffrey Walker who was, at that time, a
member of the Narcotics Field Unit. Plaintiff contends that she was visiting the house at which
she was arrested, and that Officer Walker lied when he testified that Plaintiff possessed and sold
drugs. Am. Compl. 10-18. Plaintiff entered into a negotiated guilty plea on August 21, 2012,
subsequent to which, on December 6, 2013, her plea was vacated and her case nolle prossed. Id.
9 18, 21. As a result of her arrest and conviction, Plaintiff was incarcerated for five days before
making bail, and was on probation for two years. Id. {1 16, 18. In her Amended Complaint,
Plaintiff named as defendants the officers who observed the narcotics activity (Walker, Alice,
Dunne), the officers who participated in the execution of the search warrant (Liciardello,
Spieser), and the City of Philadelphia. See generally id.
Discovery has thus far included seven depositions — that of Plaintiff, that of five officer
defendants, and that of Lieutenant Otto, a supervisor in the Narcotics Field Unit. Plaintiff also
has been provided the entire production from the first bellwether NFU case, Mcintyre v.
Liciardello, comprising over thirteen thousand pages of material. Plaintiff has also indicated that
she has access to the depositions taken in that case, notably of retired Commissioner Charles
Ramsey and Chief Inspector Christopher Flacco (who oversaw the Internal Affairs Department at

Acknowledging that Judge Diamond already decided the City’s Motion for Summary
Judgment in McIntyre, and that the Monell discovery in that case is also applicable here, the City
takes the position that it would be an inefficient use of Judicial and municipal resources to re-
litigate the same issues involving the same evidentiary record. Accordingly, to the extent the
evidentiary record on Monell remains identical to that in McIntyre, the City has no intention to file
a motion for summary judgment. For the avoidance of doubt, however, in the event Plaintiff seeks
and/or obtains additional Monell discovery beyond that which was adduced in Mcintyre, the City
submits that it should then likewise have the opportunity to further develop the record, and to file
a motion if that changes the landscape.
To address Plaintiff's contention that the Monell issue is “more or less dead,” the City
simply notes that its decision to refrain from filing a dispositive motion should in no way preclude
it from mounting a defense at trial. In the event this matter proceeds to trial, it should proceed as
all other cases do, allowing all remaining Defendants to have the claims against them adjudicated
by a jury.
Finally, in light of the undersigned’s recent return from vacation, the parties will be
conducting their Rule 26(f) conference as soon as possible, following which time a proposed
scheduling order will be submitted to the Court.

Respectfully submitted,
/s/ Jon Cooper
Jon Cooper, Esq.
Counsel for Defendant City of
Philadelphia

cc: Margaret Boyce Furey, Esq., Counsel for Plaintiff (via email)
John Gonzales, Esq., Counsel for co-Defendants (via email)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10406973. Public record. Not legal advice.