Cole v. Troy Borough

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JACOB COLE and JENNIFER No. 4:21-CV-01779

CARNWRIGHT HIBBERT, as parents

and natural guardians of Levi Cole, (Chief Judge Brann)

deceased, and as Co-Administrators of

the Estate of Levi Cole,

Plaintiffs,

v.

BRIAR JENKINS and TROY

BOROUGH,

Defendants.

MEMORANDUM OPINION

JUNE 17, 2022

I. BACKGROUND

On January 7, 2022, Plaintiffs Jacob Cole and Jennifer Carnwright Hibbert

filed a four-count Amended Complaint against Defendants Briar Jenkins and Troy

Borough. Plaintiffs bring negligence claims under Pennsylvania law and

constitutional claims through 42 U.S.C. § 1983.

On January 21, 2022, Defendants moved to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). This motion to dismiss is now

ripe for consideration. For the following reasons, it is granted.

Plaintiffs’ § 1983 claim against Jenkins and state-law negligence claims are

dismissed without leave to amend. Plaintiffs will only be provided leave to amend

their § 1983 claims against Troy Borough.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which

relief can be granted.” A motion to dismiss “tests the legal sufficiency of a claim”1

and “streamlines litigation by dispensing with needless discovery and factfinding.”2

“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive

issue of law.”3 This is true of any claim, “without regard to whether it is based on

an outlandish legal theory or on a close but ultimately unavailing one.”4

Following the Roberts Court’s “civil procedure revival,”5 the landmark

decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7 tightened

the standard that district courts must apply to 12(b)(6) motions.8 These cases

1 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.

Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.)).

2 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

3 Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

4 Id. at 327.

5 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.

313 (2012).

6 550 U.S. 544 (2007).

7 556 U.S. 662 (2009).

“retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and replaced

it with a more exacting “plausibility” standard.9

Accordingly, after Twombly and Iqbal, “[t]o 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.’”10 “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.”11 “Although the plausibility

standard does not impose a probability requirement, it does require a pleading to

show more than a sheer possibility that a defendant has acted unlawfully.”12

Moreover, “[a]sking for plausible grounds . . . calls for enough facts to raise a

reasonable expectation that discovery will reveal evidence of [wrongdoing].”13

The plausibility determination is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.”14 No matter

the context, however, “[w]here a complaint pleads facts that are merely consistent

with a defendant’s liability, it stops short of the line between possibility and

plausibility of entitlement to relief.”15

9 Id.

10 Id. at 678 (quoting Twombly, 550 U.S. at 570).

11 Id.

12 Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (cleaned up).

13 Twombly, 550 U.S. at 556.

14 Iqbal, 556 U.S. at 679.

When disposing of a motion to dismiss, the Court “accept[s] as true all factual

allegations in the complaint and draw[s] all inferences from the facts alleged in the

light most favorable to [the plaintiff].”16 However, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal

conclusions.”17 “Threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.”18

As a matter of procedure, the United States Court of Appeals for the Third

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps. First, it

must tak[e] note of the elements [the] plaintiff must plead to state a

claim. Second, it should identify allegations that, because they are no

more than conclusions, are not entitled to the assumption of truth.

Finally, [w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement to relief.19

When deciding a motion to dismiss, a Court generally considers only the

allegations in the complaint, exhibits attached thereto, and facts of public record.20

Normally, to consider anything beyond those sources, a motion to dismiss must be

converted to a motion for summary judgment.21 But consideration of materials

outside the complaint is not completely barred on a 12(b)(6) motion. A Court may

16 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

17 Iqbal, 556 U.S. at 678 (internal citations omitted).

18 Id.

19 Connelly, 809 F.3d at 787 (internal quotation marks and citations omitted).

20 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

consider any documents that are integral or explicitly relied upon in the complaint.22

“However, before materials outside the record may become the basis for a dismissal,

several conditions must be met.”23 “For example, even if a document is ‘integral’ to

the complaint, it must be clear on the record that no dispute exists regarding the

authenticity or accuracy of the document.”24 It must also be clear that there exist no

material disputed issues of fact regarding the relevance of the document.25 In this

matter, I find that these conditions have been met, and will consequently consider

the parties’ attachments.

B. Facts Alleged in the Complaint

The facts alleged in the Complaint, which I must accept as true for the

purposes of this motion, are as follows.

On September 26, 2020, Levi Cole was riding a motorcycle in Troy Borough,

Bradford County, Pennsylvania.26 Officer Briar Jenkins saw Cole riding at about

fifty-seven miles per hour in a twenty-five-miles-per-hour zone.27 So Jenkins

activated his police vehicle’s warning lights and siren and began pursuing Cole.28

22 Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).

23 Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).

24 Id.; see also Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004); Alternative Energy, Inc. v.

St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

25 Faulkner, 463 F.3d at 134.

26 Doc. 8 at ¶ 5.

27 Id. at ¶ 6.

Jenkins pursued Cole through Troy Township and Sylvania Borough to the

area of Columbia Township.29 Jenkins then pursued Cole further west into Tioga

County, continuing on into Roseville Borough.30 Eventually, Cole turned onto Kittle

Road.31

At some point, physical contact occurred between Jenkins’s vehicle and

Cole’s motorcycle.32 As a result, Cole lost control of the motorcycle, struck a tree,

and died.33 His parents, Jacob Cole and Jennifer Carnwright Hibbert, sued.34

C. Analysis

1. Municipal Immunity

First, Plaintiffs allege negligence under Pennsylvania law. But in their brief

opposing Defendants’ motion to dismiss, Plaintiffs “concede that at the current state

of the proceedings in the instant case the state negligence pendant jurisdiction claims

are barred by the provisions of 42 Pa.C.S. § 8542(b)(1).”35 Because Plaintiffs agree

that municipal immunity bars their state-law negligence claims, these claims are

dismissed.

29 Id. at ¶ 8.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id. at ¶ 1.

2. Qualified Immunity

Next, Plaintiffs sue Jenkins under 42 U.S.C. § 1983, alleging that he failed to

properly operate and control his vehicle, excessively sped, and failed to maintain a

proper lookout. Plaintiffs also allege that Jenkins was deliberately indifferent to and

recklessly disregarded Cole’s life, safety, and constitutional rights. Plaintiffs further

allege that Jenkins’s actions rose to a level of intention to cause harm and were

outrageous, egregious, and conscious-shocking.

In response, Jenkins asserts qualified immunity.36 “Qualified immunity

shields federal and state officials from money damages unless a plaintiff pleads facts

showing (1) that the official violated a statutory or constitutional right, and (2) that

the right was ‘clearly established’ at the time of the challenged conduct.”37 A court

has the “discretion to decide which of the two prongs of qualified-immunity analysis

to tackle first.”38

“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would [have understood] that what he is doing

violates that right.’”39 “[C]learly established rights are derived either from binding

Supreme Court and Third Circuit precedent or from a ‘robust consensus of cases of

36 Doc. 10 at 8–18.

37 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

38 Id.

persuasive authority in the Courts of Appeals.’”40 And “[u]nless the plaintiff’s

allegations state a claim of violation of clearly established law, a defendant pleading

qualified immunity is entitled to dismissal before the commencement of

discovery.”41

a. Shocks-the-Conscience Test

“[T]he appropriate standard to be applied in police pursuit cases involving an

alleged violation of substantive due process is the ‘shocks the conscience’ test.”42

Here, Jenkins’s conduct did not shock the conscience or violate clearly-established

law. Several police-pursuit cases illustrate why.

In County of Sacramento v. Lewis, officers “saw a motorcycle approaching at

high speed.”43 “Instead of pulling over in response to [the officers’] warning lights

and commands,” the motorcycle “sped off.”44 So the officers “began pursuit at high

speed.”45

40 Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (quoting Fields v. City of Phila., 862

F.3d 353, 361 (3d Cir. 2017)).

41 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

42 Kneipp v. Tedder, 95 F.3d 1199, 1207 (3d Cir. 1996); see also Sauers v. Borough of

Nesquehoning, 905 F.3d 711, 717–18 (3d Cir. 2018) (“Our case law is clear that this ‘shocks

the conscience’ framework for analysis applies to police-pursuit cases.”); Brown v.

Commonwealth of Pennsylvania, Dep’t of Health Emergency Med. Servs. Training Inst., 318

F.3d 473, 480 (3d Cir. 2003) (“We derive from these cases the principle that the ‘shocks the

conscience’ standard should apply in all substantive due process cases if the state actor had to

act with urgency. This has been the law for police pursuit cases . . . .”).

43 523 U.S. 833, 836 (1998).

44 Id. at 837.

“The chase ended after the motorcycle tipped over as [its driver] tried a sharp

left turn.”46 “The patrol car skidded into [a motorcycle passenger] at 40 miles an

hour, propelling him some 70 feet down the road and inflicting massive injuries.”47

The passenger “was pronounced dead at the scene.”48

The Supreme Court of the United States found that the officers “had done

nothing to cause [the driver’s] high-speed driving in the first place, nothing to excuse

his flouting of the commonly understood law enforcement authority to control

traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race

through traffic at breakneck speed forcing other drivers out of their travel lanes.”49

Moreover, the officers did not intend to “induce [the driver’s] lawlessness, or to

terrorize, cause harm, or kill.”50 Accordingly, the Supreme Court held that the

officers’ behavior did “not shock the conscience.”51

Similarly, in Davis v. Township of Hillside, a stolen Acura automobile “sped

away with the marked police cars in pursuit . . . .”52 “[T]he chase ended when the

pursuing police car bumped into the rear of” the Acura.53 “The Acura spun out of

46 Id.

47 Id.

48 Id.

49 Id. at 855.

50 Id.

51 Id.

52 190 F.3d 167, 169 (3d Cir. 1999).

control and collided with two other cars, one of which was propelled into plaintiff,

who was standing on the sidewalk, severely injuring him.”54

The Third Circuit reasoned that “the officers were faced with lawless

behavior—the flight from their investigation—for which they were not to blame.”55

“They had done nothing to cause [the Acura driver’s] high-speed driving or his

flouting of their law-enforcement authority.”56 “Their intent was to do their job as

law enforcement officers, not to cause injury.”57 Accordingly, the Third Circuit held

that the officers’ “actions did not shock the conscience.”58

Like the officers in Lewis and Davis, Jenkins did not cause Cole’s high-speed

driving or flouting of law-enforcement authority. And besides a conclusory

allegation that Jenkins’s actions “rise to a level of intention to cause harm,” Plaintiffs

do not allege facts permitting an inference that Jenkins intended to harm Cole.59 So

Jenkins’s conduct did not shock the conscience under Davis and Lewis. At the very

least, Jenkins’s conduct did not violate clearly-established law.

54 Id. at 169.

55 Id. at 171.

56 Id.

57 Id.

58 Id.; see also Fagan v. City of Vineland, 22 F.3d 1296, 1308–09 (3d Cir. 1994) (en banc)

(“Therefore, we will affirm the district court’s grant of summary judgment for the defendant

officers under the ‘shocks the conscience’ standard.”).

b. Level of Culpability

Plaintiffs counter that “the standard to be applied is deliberate indifference”

because “Officer Jenkins was able to make an unhurried judgment with time to

deliberate, uncomplicated by the pulls of competing obligations . . . .”60 The Third

Circuit addressed this issue in Sauers v. Borough of Nesquehoning.61

There, an officer observed a vehicle “commit a summary traffic offense . . .”62

“At some point he took the time to radio ahead to the police in the neighboring

borough to request that officers there pull the [vehicle] over when it reached their

jurisdiction.”63 Then the officer “decided that catching the [vehicle] himself was

important enough to warrant a chase at speeds of over 100 miles-per-hour.”64

Because the officer ‘“had at least some time to deliberate’ before deciding whether

and how to pursue the traffic offender,” the Third Circuit did not require an intent to

harm.65

But here, Plaintiffs do not allege that Jenkins had time to deliberate before

pursuing Cole.66 Nor do Plaintiffs allege facts permitting such an inference.67

60 Doc. 14 at 11.

61 905 F.3d at 717–18.

62 Id. at 715.

63 Id.

64 Id.

65 Id. at 718 (citation omitted).

66 Doc. 8.

Because Jenkins did not have time to deliberate before pursuing Cole, the Court will

not apply a deliberate-indifference standard.

Plaintiffs further counter by citing Dean v. McKinney.68 There, Deputy

Sheriff Mckinney “deactivated his emergency lights and siren as required for non-

emergency responses.”69 But more than two minutes after his fellow Deputy Sheriff

canceled the emergency response, “McKinney continued to drive at 83 miles per

hour—nearly forty miles per hour over the 45-mph speed limit—on a dark, curved

road with full knowledge of the risks of night driving under such conditions.”70 This

violated “department policy and state law . . . .”71

Eventually, McKinney “lost control of his vehicle and collided with” another

vehicle.72 The United States Court of Appeals for the Fourth Circuit found that “a

reasonable jury could conclude that McKinney deliberately operated his police

vehicle in a dangerous and reckless manner with full knowledge of the risks

involved.”73 Accordingly, the Fourth Circuit affirmed the district court’s denial of

qualified immunity.74

68 976 F.3d 407 (4th Cir. 2020).

69 Id. at 416.

70 Id.

71 Id.

72 Id. at 417.

73 Id. at 416.

Unlike McKinney, Jenkins drove with his lights and siren on.75 Moreover,

Jenkins’s fellow officers did not cancel the emergency response several minutes

“before he lost control of his vehicle and collided . . .”76 So Dean v. McKinney’s

facts are “insufficiently analogous to the facts of this case to have put Officer

[Jenkins] on notice of a clearly established right . . .”77

In sum, Plaintiffs “have identified neither Supreme Court precedent nor a

robust consensus of cases of persuasive authority” demonstrating that Jenkins

violated clearly-established law.78 The Court could not identify such precedent

either. Accordingly, Plaintiffs’ § 1983 claim against Jenkins is dismissed on

qualified-immunity grounds.

3. Municipal Liability

Finally, Plaintiffs sue Troy Borough under 42 U.S.C. § 1983. Third Circuit

precedent “requires the district court to review the plaintiffs’ municipal liability

claims independently of the section 1983 claims against the individual police

officers, as the City’s liability for a substantive due process violation does not

depend upon the liability of any police officer.”79 Indeed, “a municipality can be

75 Doc. 8 at ¶ 8 (“At one point decedent turned around on Kittle Road to travel west on Kittle

Road, with Defendant Jenkins claiming that he was 20 to 30 yards behind the motorcycle, with

lights and siren still activated.”).

76 Id.

77 Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010).

78 Mirabella v. Villard, 853 F.3d 641, 653 (3d Cir. 2017) (internal quotations marks and citation

omitted) (holding that defendants were entitled to qualified immunity at the pleading stage).

liable under section 1983 and the Fourteenth Amendment for a failure to train its

police officers with respect to high-speed automobile chases, even if no individual

officer participating in the chase violated the Constitution.”80

a. Policy/Custom

“[A] local government may not be sued under § 1983 for an injury inflicted

solely by its employees or agents. Instead, it is when execution of a government’s

policy or custom . . . inflicts the injury that the government as an entity is responsible

under § 1983.”81 “To satisfy the pleading standard, [Plaintiffs] must identify a

custom or policy, and specify what exactly that custom or policy was.”82

Here, Plaintiffs allege that Troy Borough employs “policies and/or procedures

which recklessly disregard and/or are deliberately indifferent to the safety and

constitutional rights of the public relating to the operation of motor vehicles by

police officers.”83 Plaintiffs also allege that Troy Borough engages “in customs

and/or practices which recklessly disregard and/or are deliberately indifferent to the

safety and constitutional rights of the public relating to the operation of motor

vehicles by police officers.”84 Plaintiffs further allege that Troy Borough’s “actions

constitute policies and/or practices which evidence a deliberate indifference to

80 Fagan v. City of Vineland, 22 F.3d 1283, 1294 (3d Cir. 1994).

81 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978).

82 McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).

83 Doc. 8 at ¶ 38.

and/or reckless disregard for the decedent’s safety and/or constitutional right to

life.”85

These allegations are conclusory and general.86 They do not identify a specific

policy or custom. Nor do they specify how this policy or custom injured Cole.

Accordingly, Plaintiffs have not sufficiently alleged that Troy Borough’s policy or

custom injured Cole.87

b. Deliberate Indifference

Plaintiffs also allege failures to train, supervise, and discipline as well as

failures to create, enact, adopt, implement, and enforce policies and standards.

These claims all require Troy Borough to be deliberately indifferent.88

85 Id. at ¶ 40.

86 See Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014) (“The District Court dismissed

Wood’s Monell claim because her complaint failed to identify any unlawful policy or custom

and failed to identify any policymaker or decisionmaker responsible for the unlawful conduct

alleged. . . . The District Court was correct in finding that Wood’s complaint allegations stated

the elements of the cause of action and were insufficient.”); see also McTernan, 564 F.3d at

(“McTernan’s complaint simply paraphrases § 1983 . . . . Accordingly, the District Court

properly dismissed McTernan’s Monell claim against the City and official capacity suit against

Defendants Barth, Brenner, and Whitman.”).

87 See Brown v. Moore, No. 20-3600, 2022 WL 1772992, at *2 (3d Cir. June 1, 2022) (“We agree

with the District Court’s conclusion that Brown did not allege sufficient facts to establish a

plausible claim that any injury resulted from the execution of a policy or custom of CEC.”);

Lesher v. Zimmerman, 822 F. App’x 116, 121 (3d Cir. 2020) (“None of these prior incidents

show that a School District custom or policy led to Lesher’s injuries.”); Rees v. Off. of Child.

& Youth, 473 F. App’x 139, 144 (3d Cir. 2012) (“Furthermore, the Appellant’s Monell claim

against the County fails because the Appellant’s complaint fails to allege a specific policy or

custom by an OCY policy-maker. After a careful review of each of Appellant’s contentions,

we affirm the District Court.”).

88 See Est. of Roman v. City of Newark, 914 F.3d 789, 799 n.7 (3d Cir. 2019) (“We consider

allegations of failure to train, supervise, and discipline together because they fall under the

same species of municipal liability.”); Christopher v. Nestlerode, 240 F. App’x 481, 490 (3d

Cir. 2007) (“Christopher contends Hose and the County were liable for failure to promulgate

policies, failure to train, and failure to monitor or supervise. We apply the same ‘deliberate

Ordinarily, “[a] pattern of similar constitutional violations by untrained

employees is” necessary “to demonstrate deliberate indifference for purposes of

failure to train.”89 “A pattern of violations puts . . . decisionmakers on notice that a

new program is necessary . . . .”90 Otherwise, Plaintiffs must show that “the need

for more or different training is so obvious, and the inadequacy so likely to result in

the violation of constitutional rights, that the policymakers of the city can reasonably

be said to have been deliberately indifferent to the need.”91

Here, Plaintiffs allege that Troy Borough “possessed actual and/or

constructive notice of Mr. Jenkins’ and/or other police officers’ prior operation of

motor vehicles with reckless disregard and/or deliberate indifference to the safety

and/or constitutional rights of others.”92 Plaintiffs also allege that Troy Borough did

not “discipline Briar Jenkins for prior operation of a motor vehicle with reckless

disregard and/or deliberate indifference to the safety and/or constitutional rights of

others.”93

But Plaintiffs do not detail any prior high-speed chases by Troy Borough

officers.94 Nor do Plaintiffs explain how these prior chases violated the

25 (3d Cir. 1997) (“Section 1983 would impose liability for La Penta’s inadequate training and

discipline only if the Plymouth Police Department was deliberately indifferent to the rights of

persons with whom he came in contact.”).

89 Connick v. Thompson, 563 U.S. 51, 62 (2011).

90 Thomas v. Cumberland Cnty., 749 F.3d 217, 223 (3d Cir. 2014).

91 City of Canton v. Harris, 489 U.S. 378, 390 (1989).

92 Doc. 8 at ¶ 37.

93 Id. at ¶ 38.

Constitution.95 Accordingly, Plaintiffs have “not plausibly alleged that the

[Borough] was deliberately indifferent to anyone’s substantive due process rights.”96

c. Causation

“Causation is a requirement for . . . liability that is separate from deliberate

indifference.”97 Causation involves more than “showing that . . . employees could

have been better trained or that additional training was available that would have

reduced the overall risk of constitutional injury.”98 Instead, causation requires that

“the injury [would] have been avoided had the employee been trained under a

program that was not deficient in the identified respect.”99

Here, Plaintiffs allege that Troy Borough’s “actions were the direct and

proximate causes of and/or substantial contributing factors to Plaintiffs’

damages.”100 Again, this conclusory allegation does not sufficiently indicate

causation.101

In sum, Plaintiffs have not plausibly alleged a policy/custom, deliberate

indifference, or causation. So their § 1983 claims against Troy Borough are

dismissed.

95 Id.

96 Johnson v. City of Philadelphia, 975 F.3d 394, 403 (3d Cir. 2020) (“We will therefore affirm

the dismissal of her Monell claim.”)

97 Thomas, 749 F.3d at 226.

98 Colburn v. Upper Darby Twp., 946 F.2d 1017, 1030 (3d Cir. 1991).

99 Canton, 489 U.S. at 391.

100 Doc. 8 at ¶ 42.

101 See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“After Iqbal, it is clear that

III. CONCLUSION

Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is granted. The law

in the Third Circuit is clear that leave to amend should be “freely given” regardless

of whether leave is specifically requested.102 “Among the grounds that could justify

a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and

futility.”103 A complaint is “futile” if even as amended, it would fail to state a claim

upon which relief could be granted.104

Here, amending Plaintiffs’ state-law negligence claims would be futile

because Plaintiffs agree that municipal immunity bars these claims.105 Because

qualified immunity protects Jenkins, amending Plaintiffs’ § 1983 claim against him

would also be futile.106 Plaintiffs have already amended these claims once, and

further leave to amend is not granted.

102 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) (quoting Fed. R. Civ. P. 15(a)).

103 Id. (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)).

104 Id.

105 Doc. 14 at 15.

106 See Wilson v. Altman, 807 F. App’x 172, 177 (3d Cir. 2020) (affirming denial of leave to amend

because plaintiff “cannot offer any factual amendments that would cure the deficiencies in her

complaint, where she has failed to allege the violation of any constitutional right and the

Insurance Officials are shielded by qualified immunity”); Tate v. Wiggins, 805 F. App’x 159,

163–64 (3d Cir. 2020) (“Even assuming that Tate’s condition constitutes a serious medical

need, we agree that the defendants are entitled to qualified immunity because there is no clearly

established right involved here. . . . Finally, amendment of these claims would be futile.”);

McCormick v. Kline, 670 F. App’x 764, 766 (3d Cir. 2016) (holding that “it would be futile to

allow leave to amend” when qualified immunity protected a corrections officer); Gray v.

Pagano, 287 F. App’x 155, 159 (3d Cir. 2008) (affirming denial of leave to amend because

That leaves Plaintiffs’ § 1983 claims against Troy Borough. Plaintiff will be

given fourteen days from today’s date to file a Second Amended Complaint as to

these municipal-liability claims only. This Second Amended Complaint should

allege facts detailing a specific Troy Borough policy/custom and permitting

inferences of deliberate indifference and causation. If Plaintiffs do not file a Second

Amended Complaint, Plaintiffs § 1983 claims against Troy Borough will be subject

to dismissal with prejudice.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge