The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BETH WETZEL, No. 4:21-CV-01004
Plaintiff, (Chief Judge Brann)
v.
CHARLES DIETTERICK and
HEMLOCK TOWNSHIP,
Defendants.
MEMORANDUM OPINION
SEPTEMBER 22, 2022
It is a serious thing to hold a municipality liable for the actions of its
employees, and that is why the legal standard for municipal liability under 42 U.S.C.
§ 1983 is a challenging, but not insurmountable, one for plaintiffs to overcome. That
standard cannot be satisfied by asserting conclusory allegations, or by failing to
plead key facts connecting the municipality itself to the unconstitutional conduct.
Most importantly for this case, the standard cannot be satisfied by alleging that a
custom or practice of deliberate indifference exists because of one unsubstantiated
incident that took place over six years ago. And one incident is one incident; a
plaintiff may not dice a single event into multiple violations in an attempt to
demonstrate a pattern where one does not exist under the facts alleged. For the
reasons provided below, Hemlock Township’s motion to dismiss is granted.
I. BACKGROUND
Plaintiff Beth Wetzel’s Amended Complaint alleges that on January 16, 2020,
Plaintiff was pulled over and arrested by at least one Hemlock Township police
officer.1 Defendant Charles Dietterick was “present” at the scene, and when he
informed Plaintiff that she was under arrest, she began to cry and said “[n]o, wait,”
with the intention to ask that she be handcuffed in the front of her body instead of
from behind.2 Before Plaintiff could make this request, Dietterick “grabbed her left
arm and the back of her head and slammed her face into the rear windshield of one
of the police cars.”3 At the scene, Plaintiff expressed her belief that excessive force
had been used against her, to which Dietterick responded “[y]ou said ‘[n]o.’”4
Collectively from the incident, Plaintiff suffered two black eyes, facial bruising,
migraines (which continue to cause fatigue, light sensitivity, and nausea), and post-
concussive syndrome.5
According to the Amended Complaint, this is not the first time that Dietterick
has improperly used excessive force against a suspect.6 There was an alleged
incident on July 20, 2016 when Dietterick “unnecessarily inserted himself into the
scene, and according to the actual arresting officers, forcefully grabbed and shoved
1 Doc. 24 at ¶ 6.
2 Id. at ¶¶ 7-11.
3 Id. at ¶ 12.
4 Id at ¶ 3.
5 Id. at ¶¶ 21-25.
the not-resisting suspect for no legitimate law enforcement reason.”7 After this
incident, Hemlock Township’s Chief of Police became aware of Diettrick’s conduct
when the arresting officers informed the Chief that they were disturbed by
Dietterick’s actions.8 The Township failed to investigate these verbal reports of
excessive force and ultimately did nothing, allowing Dietterick to continue working
as a police officer, and putting suspects such as Plaintiff at risk.9
Based on these alleged facts, Plaintiff filed an original complaint against
Dietterick on June 7, 2021.10 She amended her complaint to add Hemlock Township
as a party on December 30, 2021,11 and the Township moved to dismiss the
Amended Complaint on March 22, 2022 for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6).12 That motion has been fully briefed and is ripe
for disposition.
7 Id. at ¶¶ 42-43. In their briefing, the parties argue about the facts surrounding the 2016 incident.
Hemlock Township argues that Plaintiff cannot sufficiently allege that Dietterick was on duty
and operating under the “color of law” during the incident (Doc. 35 at 5), and Plaintiff argues
that whether Dietterick was on duty is “immaterial,” citing a deposition of which this Court
has no knowledge (Doc. 36 at 7). The parties then discuss at length the unpublished opinion
K.M.M. v. Scott Brozowski, No. 97-CV-186 (M.D. Pa. 1998). As will be discussed in this
opinion, this Court finds the 2016 incident, as alleged, to be an insufficient basis upon which
to impose liability due to the fact it is only a single incident. Therefore, this Court need not
address the parties’ factual dispute. Nor will this Court address Dietterick’s history of filing or
not filing “use of force reports,” as it seems Plaintiff concedes to have made these allegations
in error—and even if they were true, they are not enough to overcome the Amended
Complaint’s single-incident fatal flaw.
8 Doc. 24 ¶ 45.
9 Id. at ¶¶ 45-49.
10 Doc. 1.
11 Doc. 24.
II. LAW
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a
complaint, in whole or in part, if the plaintiff fails to “state a claim upon which relief
can be granted.” Following Bell Atlantic Corp. v. Twombly13 and Ashcroft v. Iqbal14,
“[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.’”15 In deciding
a motion to dismiss, courts within the United States Court of Appeals for the Third
Circuit must follow three steps: (1) take note of the elements the plaintiff must plead
to state a claim; (2) identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth; and (3) assume the veracity
of all well-pleaded factual allegations and determine whether they plausibly give rise
to an entitlement to relief.16
III. ANALYSIS
Plaintiff brings a single claim against Defendant Hemlock Township under 42
U.S.C. § 1983. A plaintiff asserting a cause of action under Section 1983 must allege:
(a) “that some person has deprived [her] of a federal right;” and (b) “that the person
who has deprived [her] of that right acted under color of state or territorial law.”17 In
13 550 U.S. 544 (2007).
14 556 U.S. 662 (2009).
15 Id. at 678 (quoting Twombly, 550 U.S. at 570).
16 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations
and citations omitted).
17 Jarrett v. Twp. of Bensalem, 312 F. App’x 505, 506-07 (3d Cir. 2009) (internal quotations
the Third Circuit, it is established that Monell v. N.Y.C. Department of Social
Services18 “sets forth the test to determine if municipalities, not individuals, can be
held liable under § 1983.”19 “Municipalities and other local government entities,”
such as Hemlock Township, “are ‘persons’ for purposes of Section 1983 liability.”20
Municipal liability “only arises when a government causes an employee to violate
another’s constitutional rights by an official custom or policy.”21 Under Monell, a
plaintiff must “identify the challenged policy or custom, demonstrate proper
attribution to the public entity, and show a causal link between the execution of the
policy or custom and the injury suffered.”22
A policy exists “when a decisionmaker possessing final authority to establish
public policy with respect to the disputer action issues an official proclamation,
policy, or edict.”23 A custom “is an act that is not formally approved but is
nonetheless ‘so widespread as to have the force of law.’”24 A plaintiff may also
establish municipal liability by demonstrating that “a policymaker failed to take
affirmative action despite an obvious need to correct the ‘inadequacy of existing
practice [which is] so likely to result in the violation of constitutional rights’ that
18 436 U.S. 658 (1978).
19 Lepre v. Lucas, 602 Fed. App’x 864, 869 n.4 (3d Cir. 2005) (per curiam).
20 Loomis v. Montrose Borough Police Dep’t, 2021 U.S. Dist. LEXIS 126980, at *8 (M.D. Pa.
July 8, 2021) (citing Monell, 436 U.S. at 690).
21 Id.
22 Id. (internal citations omitted).
23 Id. (internal citations omitted).
inaction exhibits ‘deliberate indifference’ to the need”—often referred to as the
“deliberate indifference” standard.25 A municipality exhibits deliberate indifference
when it “disregard[s] a known or obvious consequence of [its] . . . action.”26
The Third Circuit has elaborated on this standard, stating that “a policy or
custom may also exist where the policymaker has failed to act affirmatively at all,
[when] the need to take some action to control the agents of the government is so
obvious, and the inadequacy of existing practice so likely to result in the violation
of constitutional rights, that the policymaker can reasonably be said to have been
deliberately indifferent to the need.”27 In those circumstances, the municipal actor is
determined to have adopted a “policy of inaction” where “the government’s failure
to act amounts to deliberate indifference towards the plaintiff’s constitutional
rights.”28 However, the Supreme Court of the United States has established that “a
single incident of unconstitutional activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof that it was caused by an existing,
unconstitutional municipal policy, which policy can be attributed to a
policymaker.”29
25 Id. at *8-9 (quoting Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
26 Id. at *9 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
27 Forshey, 2015 U.S. Dist. LEXIS 117777, at *9 (M.D. Pa. Aug. 10, 2015) (quoting Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d. Cir. 2003)).
28 Id.
29 Id. (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24) (1985)); see also Brown v. City of
Notwithstanding the Supreme Court’s general rule, it is possible—though
challenging—for a plaintiff to demonstrate a policy or custom via deliberate
indifference in a single incident of unconstitutional conduct. This is only available
to a plaintiff “in a very narrow range of circumstances,” where the “risk of injury
must be a highly predictable consequence of the municipality’s failure to train and
supervise its employees.”30 “Even if that showing can be made, the plaintiff still
must demonstrate that the failure to train proximately caused [her] constitutional
injury by identifying a particular failure in a training program that is closely related
to the ultimate injury.”31 Ultimately, when asserting a single-incident Monell claim,
“it is incumbent upon the plaintiff to assert well-pleaded facts which permit a finding
of deliberate indifference grounded upon a risk of injury that must be a ‘highly
predictable consequence’ of the municipality’s failure to train and supervise its
employees.”32
Hemlock Township argues that the Amended Complaint fails to satisfy the
standard set forth in Monell and its progeny. For the reasons set forth below, this
Court agrees.
30 Santiago v. City of Harrisburg, 2020 U.S. Dist. LEXIS 50359, at *28-29 (M.D. Pa. March 20,
2020) (internal citations and quotations omitted).
31 Id. at *29.
32 Id. (quoting Thomas v. Cumberland County, 749 F.3d 217, 225 (3d. Cir. 2014) (quoting
A. Official Policy or Custom
The facts alleged in the Amended Complaint, even when taken as true and
viewed in the light most favorable to Plaintiff, do not demonstrate that Hemlock
Township acted in a manner evincing a requisite policy or custom, or deliberate
indifference, that would justify municipal liability under Section 1983.
The Amended Complaint seeks to demonstrate a policy or custom via
Hemlock Township’s alleged failure to investigate excessive uses of force by
Dietterick.33 To support this, the Amended Complaint pleads facts about one alleged
incident of suspected excessive force by Dietterick over six years ago in 2016.34
Plaintiff makes the—frankly, quite strange—argument that the single 2016 incident
comprised multiple instances of excessive force by Dietterick.35 For example,
Plaintiff argues that Dietterick’s alleged shoving of the suspect was one use of
excessive force, and that his using a head lock style hold was another, and so on.36
Thus, Plaintiff argues, the “2016 incident is in fact demonstrative of repeated uses
of excessive force.”37 Plaintiff likewise argues that each report made by each officer
regarding the 2016 incident should be counted as a separate report of excessive
force.38 Hemlock Township disagrees, arguing that the 2016 incident was single and
33 Doc. 24.
34 Id. at ¶¶ 42-47.
35 Doc. 36 at 5.
36 Id.
37 Id.
isolated, not to be interpreted in such a “piecemeal manner.”39 This Court agrees
with Hemlock Township. The Amended Complaint must plead more than the
existence of a single incident in 2016 (including any reports that incident generated)
in order to establish a policy or custom of deliberate indifference on the Township’s
part.
It is established that “[s]ingle-incident Monell claims are judged against a
particularly exacting standard of pleading and proof.”40 Hemlock Township cites to
a number of cases that support this assertion,41 and Plaintiff’s attempts to distinguish
or refute these cases are unavailing. For example, in Waugaman v. City of
Greenburg, the court found that the plaintiff had presented “no evidence of a pattern
of prior excessive force complaints, and thereby, no acquiescence by the City to prior
uses of force.”42 Instead, the “record reflect[ed] that [the defendant] had one prior
allegation of excessive force, which was found not to violate the Constitution.”43
Plaintiff argues that the instant case is factually distinguishable because the 2016
incident included reports by “multiple officers” that they were disturbed by
Dietterick’s behavior.44
39 Doc. 35 at 6-9; Doc. 37 at 1.
40 Santiago v. City of Harrisburg, 2020 U.S. Dist. LEXIS 50359, at *28 (M.D. Pa. March 20,
2020).
41 See Doc. 35 at 7-9.
42 2019 U.S. Dist. LEXIS 95887, at *38 (W.D. Pa. June 7, 2019).
43 Id. (emphasis added).
This argument is pedantic and unpersuasive; just like in Waugaman, the
Amended Complaint in this case alleges one prior allegation of excessive force by
Dietterick. That fact remains regardless of how many officers complained about it.
Also as in Waugaman, it is not clear from the Amended Complaint that Dietterick’s
alleged conduct during the 2016 incident was found to have violated the
Constitution. All we know from the Amended Complaint is that Dietterick behaved
in a certain manner and that certain officers expressed concern to the police chief.
Those vague facts are insufficient to satisfy the high single-incident standard.
Along the same lines, Hemlock Township cited to Shuman v. Raritan
Township, where the plaintiff alleged that there had been three prior complaints of
excessive force by an officer, and the court held that this “limited number of
complaints . . . [fell] short of what is deemed acceptable in custom cases.”45 The
court further reasoned that although the plaintiff did “introduce one prior and
subsequent excessive force complaint against [the officer], other than alleging that
the investigation [of each complaint] was deficient, plaintiff [did] not provide the
Court with any basis to presume that those complaints in fact involved any
misconduct that was not appropriately addressed.”46
To distinguish and refute this case, Plaintiff again argues that each complaint
by each officer relating to the 2016 incident should be counted separately. Assuming,
45 2016 U.S. Dist. LEXIS 164996, at *81 (D.N.J. Nov. 30, 2016).
arguendo, that each complaint by each officer stemming from the same incident
should be counted separately, that would still only total a handful of complaints, just
like in Shuman. Those allegations were insufficient to demonstrate Monell liability
in Shuman, and they are likewise insufficient here.
In Pharoah v. Dewees, the plaintiff pointed to five prior lawsuits against a
police officer and the city to support his claim for Monell liability against the city.47
The existence of those lawsuits, the court found, did not support plaintiff’s Monell
claims because the cases did “not establish that [the officer’s] actions constituted a
pattern of using excessive force”—specifically, two of the lawsuits resulted in jury
verdicts for the defendants because “the triers of fact determined that [the officer]
committed no such violation [of excessive force],” and the remaining three cases
settled and “did not result in a finding that [the officer] used excessive force in
making an arrest or otherwise violated the Constitution.”48 Plaintiff argues that this
case is distinguishable because the Pharoah plaintiff “did not provide any evidence
that the municipality failed to supervise or discipline [the officer] with respect to the
prior incidents of excessive force.”49 The Amended Complaint, Plaintiff argues,
sufficiently alleges details about a prior use of excessive force by Dietterick (the
2016 incident) and the Township’s deliberate indifference in failing to investigate
that incident.
47 2016 U.S. Dist. LEXIS 59668, at *7 (E.D. Pa. May 4, 2016).
48 Id. at *13-14.
Plaintiff is correct that Pharoah is distinguishable from this case, but in
principle it is instructive. Yes, unlike the Pharoah plaintiff, the Plaintiff in this case
has pled the existence of one prior incident of alleged excessive force. But just as
the court in Pharoah found that the five prior lawsuits did not lead to any factual
finding that excessive force was used by the officers, the 2016 incident did not result
in any finding of excessive force. If there were, for example, over fifty other
inconclusive or ignored complaints of excessive force by Dietterick (akin to the facts
in Adams discussed infra), then deliberate indifference on the Township’s part would
be plausible. It is simply implausible, however, to determine that Hemlock Township
was deliberately indifferent to Plaintiff’s constitutional rights on the basis of a
handful of comments50 from two police officers about a single incident over six years
ago.
Hemlock Township cites to Adams v. City of Atlantic City as an example of
what Plaintiff would have had to plead in order to sufficiently demonstrate liability
under Section 1983.51 In Adams, the plaintiff pointed to over sixty-three complaints
of excessive force about the officers in question.52 One of the officers had received
50 Indeed, it is unclear from the Amended Complaint whether the other officers present for the
2016 incident even filed formal complaints against Dietterick. Instead, the facts alleged seem
to indicate that they “provided information” to the police chief and, at most, “reported” that
they were “disturbed” by Dietterick’s conduct. It is hard to imagine how Hemlock Township’s
alleged response gives rise to “deliberate indifference” under the Monell doctrine, when it is
not apparent that any formal process was triggered by the officers’ comments, or even should
have been.
51 Doc. 35 at 8-9.
forty-four complaints—and while none of those complaints were sustained—he
“could not remember a single time he was warned or reprimanded by the police
department.”53 Further, the Atlantic City Internal Affairs Department had received
more than 550 complaints of excessive force, and of that monstrous number only
two had been sustained.54 This was highly suspect due to the fact that medical
attention was required for excessive force complainants 71.9% of the time.55
For the reasons stated above, the facts of Adams and this case are worlds apart.
The facts alleged in Adams reveal a troubling and pervasive practice whereby dozens
and dozens of individuals complained about excessive force and were harmed to the
point that medical attention was required, all while Atlantic City routinely failed to
sustain nearly all complaints and never even discussed them with the alleged
offending officers. While Plaintiff’s allegations against Dietterick are serious, they
do not come close to demonstrating “a municipal custom coupled with causation”56
attributable to Hemlock Township.57
53 Id.
54 Id.
55 Id.
56 Id. at 303 (quoting Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990)).
57 The facts in this case are more akin to those in Franks v. Cape May County, where the plaintiff
pointed to a single prior complaint lodged against an officer for excessive force as evidence
that there was a “city practice or policy not to follow up on such claims and to tolerate an
atmosphere of police misconduct.” 2010 U.S. Dist. LEXIS 93226, at *33-34 (D.N.J. Sept. 8,
2010). Citing the Third Circuit, the court stated: “‘[V]ague assertions about the police
department’s failure to investigate other wrongdoings,’ coupled with a single case of failure to
investigate, standing alone, ‘will not support a reasonable jury finding of municipal policy or
custom . . . which rises to the level of deliberate indifference required for Section 1983
liability.’” Id. at *36 (quoting Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d. Cir.
Be that as it may, the Amended Complaint is bereft of facts establishing a
causal link between Hemlock Township’s alleged policy of not investigating
excessive force reports, and Plaintiff’s injury. The Amended Complaint states that
Dietterick is a police officer for Hemlock Township, and that he was “present” when
Wetzel was pulled over, arrested, and injured at Dietterick’s hand.58
But Plaintiff fails to plead one vital fact, which is that Dietterick was in some
manner connected to, or operating on behalf of, the Township on January 16, 2020
during the incident. Yes, the Amended Complaint alleges that Dietterick is a
Township police officer, and yes, it alleges that Dietterick was present during the
incident. But present in what capacity? As a civilian? As a police officer wearing a
uniform? Was he displaying a badge? Did he announce himself as an officer?
Plaintiff may argue that this Court can infer that Dietterick was on duty during the
incident in question, but the Rule 12(b)(6) standard tests the sufficiency of facts, not
inferences. As drafted, it seems that the Amended Complaint is asking this Court to
“fill in” a blank in order to satisfy Monell’s “causal link” requirement. That is not
the job of this Court. The link must be pled in the complaint itself, and it is worth
noting, as a separate matter, that it is not properly pled here.
IV. CONCLUSION
Because the Complaint fails to sufficiently plead that Hemlock Township
acted with “deliberate indifference” as required by Monell and its progeny, Count
IV of the Complaint is dismissed without prejudice.59
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
59 This Court will give Plaintiff one final opportunity to amend her complaint and cure the defects
described herein. But, the Court advises Plaintiff: should she choose to amend, the amendments