The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY BARASKY, No. 4:21-CV-02041
Plaintiff, (Chief Judge Brann)
v.
KEVIN DENT, TYSON HAVENS,
JOSHUA BELL, CLINTON
GARDNER, CHRISTOPHER
KRINER, JOSEPH HOPE,
LYCOMING COUNTY, OLD
LYCOMING TOWNSHIP, and CITY
OF WILLIAMSPORT
Defendants.
MEMORANDUM OPINION
OCTOBER 25, 2022
Plaintiff Anthony Barasky has sued two detectives, three police officers, one
police chief, and three municipalities for their alleged conduct that resulted in
Barasky suffering a 229-day incarceration that he should never had been forced to
serve. The First Amended Complaint’s claims are far-reaching and, for the most part
and as to most of the Defendants, do not sufficiently plead facts upon which relief
can be granted. However, certain counts against Defendant Kevin Dent, the detective
alleged to have directed and participated in the unlawful arrest, search, seizure,
prosecution, and detention of Barasky, satisfy the pleading standard and survive
Dent’s Motion to Dismiss.
I. BACKGROUND
Barasky’s allegations revolve around the actions taken by various members
of the Narcotics Enforcement Unit spearheaded by the Lycoming County District
Attorney’s Office.1 These members included the following named Defendants:
(i) Detective Kevin Dent (employed by Lycoming County); (ii) Detective Tyson
Havens (employed by Lycoming County); (iii) police officer Joshua Bell (employed
by the City of Williamsport); police officer Clinton Gardner (employed by the City
of Williamsport); (iv) police officer Christopher Kriner (employed by Old Lycoming
Township); and (v) police chief Joseph Hope (employed by Old Lycoming
Township).2 The municipalities themselves of Lycoming County, the City of
Williamsport, and Old Lycoming Township (the “Municipal Defendants”) have also
been named as Defendants in this action.3
According to the Amended Complaint, Detective Dent was the individual in
charge of the alleged conduct that led Barasky to suffer harm and file suit.4 It all
began on October 2, 2020, when Dent arrested a man named Matthew Thomas
Sumpter for illegally selling suboxone, a controlled substance.5 Sumpter offered to
cooperate with Dent by giving him “information” about where he had purchased
1 Doc. 21 ¶ 8.
2 Id. at ¶¶ 8-13.
3 Id. at ¶¶ 14-15.
4 Id. at ¶ 27 (“Det. Dent was also in charge of this investigation and supervising every other
Defendant.”).
drugs in the past.6 Sumpter informed Dent that he had previously purchased heroin
from Barasky, and then—at Dent’s direction—Sumpter contacted a person via
telephone whom he alleged was Barasky.7 Sumpter made an oral agreement to
purchase heroin from the person on the other end of the line.8
Barasky alleges that Sumpter was under the influence of heroin on the day he
shared this information with Dent, and that Dent was aware that Sumpter had four
prior crimen falsi (i.e., a crime involving falsehood) convictions, which the
Amended Complaint alleges should have called his credibility into serious question.9
Despite these alleged red flags, Dent conducted no further independent investigation
to verify that Sumpter was being truthful and assumed that the person on the other
line of the telephone call with Sumpter was in fact Barasky.10
Later that day, Defendants Bell, Gardner, Hope, Kriner, and Havens initiated
a traffic stop of Barasky’s vehicle, at a location that was not the designated meeting
location for the purported drug deal with Sumpter.11 It is worth noting that Barasky
alleges he committed no traffic violation to justify the stop.12 These Defendants
immediately arrested Barasky, searched his vehicle, and Dent conducted a
6 Id. at ¶¶ 36, 40-41.
7 Id. at ¶¶ 40-41.
8 Id. at ¶ 46.
9 Id. at ¶¶ 39, 44.
10 Id. at ¶ 45.
11 Id. at ¶¶ 48-49.
warrantless search of a cell phone found in Barasky’s vehicle.13 During this search,
no controlled substances or contraband were found in Barasky’s vehicle or on his
person.14 Following this arrest and search, Dent did obtain a search warrant for
Barasky’s vehicle, and Barasky was taken to the Lycoming County Prison and
incarcerated after his arrest.15 Upon arrival to the prison, Barasky was forced into a
“dry cell” (presumably a cell without plumbing facilities such as a shower, toilet, or
sink) where police could monitor Barasky and search his excrement to determine if
he had ingested any controlled substances.16
Ultimately, no controlled substances or contraband were ever found.17
Nonetheless, Dent filed a criminal complaint with the Magisterial District Court,
charging Barasky with one count of Criminal Use of a Communication Facility
under 18 Pa.C.S. § 7512(a).18 With bail originally set too high for Barasky to afford,
he was incarcerated until May 19, 2021, when his bail was eventually lowered.19
Altogether, Barasky served 229 days in prison.20 On June 25, 2020, the Court of
Common Pleas of Lycoming County dismissed the count against Barasky and
13 Id. at ¶¶ 51, 54.
14 Id. at ¶ 53.
15 Id. at ¶¶ 55, 57.
16 Id. at ¶ 58.
17 Id. at ¶¶ 60-61.
18 Id. at ¶ 62.
19 Id. at ¶¶ 63-65.
suppressed evidence that had been gathered as the result of the unconstitutional
arrest and search of Barasky’s person, vehicle, and phone.21
Barasky alleges to have suffered numerous harms during this long period of
incarceration, including forced withdrawal from his college courses, loss of
employment, loss of freedom, reputational harm, and financial harm.22 Barasky filed
suit against all Defendants in an original complaint filed December 7, 2021.23
Barasky then filed an Amended Complaint on February 16, 2022,24 which each
Defendant has moved to dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6).25 Those motions are ripe for disposition.
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
21 Id. at ¶ 70.
22 Id. at ¶ 67.
23 Doc. 1.
24 Doc. 21.
25 Docs. 23 (Motion to Dismiss filed by Defendants Dent, Havens, and Lycoming County), 24
(Motion to Dismiss filed by Defendants Hope, Kriner, and Old Lycoming Township), 25
(Motion to Dismiss filed by Defendants Bell, Gardner, and City of Williamsport). This Court
notes that Barasky filed an opposition brief in response to each of these motions, and that only
Defendants Hope, Gardner, and City of Williamsport filed a reply brief. This Court also notes
that in Section K of their Motion to Dismiss, Bell, Gardner, and the City of Williamsport “adopt
any additional arguments . . . made by any other defendant not specifically addressed herein as
if the same were set forth at length herein.” Doc. 40 at p. 24. This is impermissible. Parties are
responsible for making their own arguments, and while this Court does review all parties’
arguments and apply them to other parties when applicable, it is inappropriate for a party to
“reserve” any hypothetical better arguments for itself. This “adoption” is meaningless and
can be granted.” Following Bell Atlantic Corp. v. Twombly26 and Ashcroft v. Iqbal,27
“[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.’”28 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.29
With respect to claims brought under 42 U.S.C. § 1983, “[a] defendant in a
civil rights action must have personal involvement in the alleged wrongs; liability
cannot be predicated solely on the operation of respondeat superior.”30 A plaintiff
may show personal involvement “through allegations of personal direction or of
actual knowledge and acquiescence,” but “[a]llegations of participation or actual
knowledge and acquiescence” must “be made with appropriate particularity.”31
“Each named defendant must be shown, through the complaint’s allegations, to have
26 550 U.S. 544 (2007).
27 556 U.S. 662 (2009).
28 Id. at 678 (quoting Twombly, 550 U.S. at 570).
29 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations
and citations omitted).
30 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (internal quotations and citations
omitted).
been personally involved in the events or occurrences upon which Plaintiff’s claims
are based.”32
III. ANALYSIS
A. Probable Cause
Key to this Court’s analysis of whether the Amended Complaint sufficiently
pleads facts upon which relief can be granted is whether the Amended Complaint
plausibly pleads the existence of probable cause at the time of Barasky’s arrest.
Typically, “the existence of probable cause in a Section 1983 action is a question of
fact.”33 However, a court can conclude “that probable cause did not exist as a matter
of law if the evidence viewed in the light most favorable to the non-moving party
would not reasonably support a finding of probable cause.”34 “It is the court’s role
to determine whether the objective facts available to the police officer at the time of
the arrest would justify a reasonable belief that an offense was being committed.”35
“Probable cause exists when the facts and circumstances which are within the
knowledge of the police officer at the time of the arrest, and of which he [or she] has
32 Hagerty v. Smith, No. 3:18-1973, 2021 U.S. Dist. LEXIS 44372, at *4 (M.D. Pa. Mar. 9, 2021)
(citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976)); see
Donahue v. Stalfa, No. 3:CV-13-1276, 2013 U.S. Dist. LEXIS 107446, at *7-8 (M.D. Pa. June
11, 2013); Robinson v. Varano, No. 3:CV-10-2131, 2012 U.S. Dist. LEXIS 91178, at *13-14
(M.D. Pa. Feb. 9, 2012); Mitchell v. Dauphin County Comm’rs, No. 1:CV-11-1240, 2011 U.S.
Dist. LEXIS 87903, at *5 (M.D. Pa. July 18, 2011).
33 Weiss v. Pa. State Game Comm’n, No. 3:CV-11-1495, 2011 U.S. Dist. LEXIS 124174, at *24
(M.D. Pa. Sept. 9, 2011) (quoting Wilson v. Russo, 212 F.3d 781, 796 (3d. Cir. 2000) (citing
Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d. Cir. 1997))).
34 Id. at *25; see Sherwood, 113 F.3d at 401.
reasonable trustworthy information, are sufficient to warrant a [person] of
reasonable caution in the belief that the suspect has committed or is committing a
crime.”36
As a preliminary matter and because this inquiry is essential for more than
one of Barasky’s claims, this Court will begin by determining if the Amended
Complaint sufficiently pleads facts demonstrating whether the law enforcement
Defendants had probable cause at the time of Barasky’s arrest.
1. Defendant Dent
The Amended Complaint’s facts as to Detective Kevin Dent are the most
detailed. Specifically, those facts are as follows: (i) Dent directed Sumpter, who may
or may not have been under the influence of heroin, to call Sumpter’s drug dealer;
(ii) after Sumpter placed that call, Dent had no way to know who was on the other
line (and whether that individual was Barasky); (iii) Dent was aware that Sumpter
had four crimen falsi convictions and still chose to use him as an informant with no
additional investigation to corroborate Sumpter’s statements; (iv) after Barasky was
stopped in his vehicle—not at the planned “drop site”—and the arresting officers
found no contraband in Barasky’s vehicle or on his person, Dent still proceeded to
conduct a warrantless search of Barasky’s cell phone; (v) after all this, and after no
substances or contraband were found during Barasky’s time in the dry cell, Dent still
proceeded to file a criminal complaint against Barasky, which led for Plaintiff to be
incarcerated for more than 200 days.37
Dent argues that “the facts alleged against [Dent] are limited to his
involvement in filing criminal charges” and only materially addresses the Amended
Complaint’s Dent-specific allegations as they relate to the malicious prosecution
claim. Dent argues that “[P]laintiff’s allegation that Dent failed to investigate the
information provided by Mr. Sumpter is insufficient,” and that “the allegation that
Dent did not perform an investigation is contradicted” by the Amended Complaint’s
“claims in paragraph 54 that Dent and Havens performed a search on [P]laintiff’s
cell phone” to verify the information given by Mr. Sumpter.38 Dent further argues
that “[w]hile that search was later suppressed, the conduct of that search indicates
that Dent sought to verify information,” citing a case from the United States District
Court for the Northern District of New York, which states: “the fact that evidence
which served the basis for an arrest is later suppressed does not, for purposes of a
[Section] 1983 claim, eviscerate the validity of the officer’s decision based on his
awareness of that evidence at the time of arrest.”39
While this statement is true, it does not obviate all of the Amended
Complaint’s allegations about Dent’s conduct that took place prior to the alleged
37 Doc. 21 ¶¶ 36-66.
38 Doc. 29 at 14.
39 Doc. 29 at 14-15, quoting Miller v. Carney, No. 9:12-CV-972, 2014 U.S. Dist. LEXIS 132780,
warrantless search of Barasky’s cell phone. Those allegations, even when viewed in
the light most favorable to Dent, plausibly demonstrate that Dent did not have
probable cause to orchestrate the stop of Barasky’s vehicle and the various searches
that followed. The Amended Complaint alleges that prior to procuring Barasky’s
cell phone: (i) Dent relied on an unreliable informant who may have been under the
influence of drugs; (ii) Barasky never showed up to the “drop site,” yet Dent directed
for his vehicle to be stopped at an unrelated location anyway (and after Barasky had
committed no traffic violations); and (iii) no controlled substances were found in
Barasky’s vehicle or on Barasky’s person. The facts plausibly allege that only after
his officers found nothing on Barasky or in his vehicle, Dent searched Barasky’s cell
phone and did so without a warrant. Notably, the results of that warrantless search
have not been alleged and were ultimately suppressed by the Court of Common
Pleas; it is not for this Court to speculate regarding what Dent did or did not find.
Probable cause is assessed in part by determining the alleged facts and
circumstances which are within the knowledge of the police officer at the time of the
arrest. Here, there was no reasonable indication that Barasky had committed or was
about to commit a crime. Probable cause analysis also requires the officer to have
reasonable, trustworthy information, and—as alleged—Mr. Sumpter’s information
was not reliable due to his four prior crimen falsi convictions and alleged drug use
on the same day he spoke to Dent. These alleged facts and circumstances, paired
with the alleged unreliability of Mr. Sumpter’s statements, would not lead a
reasonable person to believe that Barasky had committed or was committing a crime.
Therefore, this Court finds that the Amended Complaint sufficiently pleads facts
demonstrating that Dent did not have probable cause when he directed the arresting
officers to stop Barasky’s vehicle, search Barasky and his vehicle, and seize
Barasky’s cell phone (which Dent then searched without a warrant).
2. Remaining Law Enforcement Defendants
As for Defendants Havens, Gardner, Kriner, and Hope, this Court finds that
the Amended Complaint fails to sufficiently allege facts demonstrating that they
lacked probable cause in arresting, searching, and/or seizing Plaintiff. Unlike the
allegations as to Dent, the allegations as to these Defendants are either nonexistent,
conclusory, or vague.40 Barasky does not plausibly allege that these Defendants
knew that the informant was unreliable or otherwise behaved unreasonably under
the standard required for probable cause.
B. Count I (False Arrest) and Count IV (False Imprisonment)
A false arrest is “one which either the arrest is made without probable cause
or the arrest was made by a person without privilege to do so.”41 In Pennsylvania,
“the cases involving false arrest claims against police officers turn on the existence
40 E.g., Doc. 21 at ¶¶ 49 (“PO Bell, PO Gardner, Chief Hope, PO Kriner, and Det. Havens
initiated a traffic stop upon Plaintiff’s vehicle.”), 52 (“Det. Havens, PO Bell, PO Gardner,
Chief Hope, and PO Kriner also searched Plaintiff’s vehicle.”), 81 (“Defendants had no
probable cause to believe Plaintiff committed a crime.”).
or nonexistence of probable cause.”42 Generally, a claim for false arrest requires
there to have been: (1) an arrest; (2) made without probable cause.43 A Section 1983
claim for false arrest “turns on whether the officer had probable cause to arrest for
any offense[.]”44
“False arrest and false imprisonment are essentially the same claim,” and
“there are two elements to a claim of false imprisonment under Pennsylvania law:
(1) the detention of another person; and (2) the unlawfulness of such detention.”45
Pennsylvania state law false arrest claims and federal constitutional false arrest
claims are “co-extensive as to both elements of proof and elements of damages.”46
Where a police officer lacks probable cause to make an arrest, “the arrestee has a
claim under [Section 1983] for false imprisonment based on a detention pursuant to
that arrest.”47 A claim for false arrest will fail “if there was probable cause for at
least one of the offenses involved.”48 Because Barasky’s false arrest and false
imprisonment claims have the same basis and identical elements, the Court will
address them together.49
42 Kokinda v. Breiner, 557 F.Supp. 2d 581, 593 (M.D. Pa. 2008).
43 Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (quoting James v. City of Wilkes-Barre,
700 F.3d 675, 680 (3d Cir. 2012)).
44 Brackbill v. Ruff, No. 1:17-CV-01046, 2022 U.S. Dist. LEXIS 60600, at *10-11 (M.D. Pa.
Mar. 31, 2022).
45 Kokinda, 557 F.Supp. at 593 (internal citations and quotations omitted).
46 Id. at 593-94.
47 Id. at 592 (quoting Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d. Cir. 1995)).
48 Id.
49 See Meketa v. Kamoie, 955 F.Supp. 2d 345, n.3 (M.D. Pa. 2013) (“Because the Plaintiff’s false
arrest and false imprisonment claims have the same basis and identical elements, we address
As discussed above, the Amended Complaint sufficiently alleges that only
one Defendant—Kevin Dent—acted without probable cause in the events leading
up to, and in the actual effectuation of, Barasky’s arrest. And because Dent is alleged
to have been the officer who directed the arrest, the Amended Complaint therefore
sufficiently pleads facts satisfying both elements of a claim for false arrest and false
imprisonment against Dent. Therefore, Dent’s Motion to Dismiss as to Counts I and
IV is denied.
Because the Amended Complaint fails to sufficiently allege that Defendants
Havens, Bell, Gardner, Kriner, and Hope acted without probable cause, as discussed
supra, that element for false arrest and false imprisonment is not satisfied. Those
Defendants’ Motions to Dismiss as to Counts I and IV are therefore granted. Further,
as discussed infra, the Amended Complaint fails to sufficiently plead facts alleging
Monell claims against the Municipal Defendants. Accordingly, the Municipal
Defendants’ Motions to Dismiss as to Counts I and IV are granted.
C. Count II: Malicious Prosecution
A fourth amendment claim of malicious prosecution under Section 1983
requires proof of five elements: “(1) the defendant initiated a criminal proceeding;
(2) the criminal proceeding ended in his [or her] favor; (3) the defendant initiated
the proceeding without probable cause; (4) the defendant acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as a consequence of a
legal proceeding.”50
In most cases, “a prosecutor rather than a police officer initiates a criminal
prosecution,” because “[t]he principal player in carrying out a prosecution is not [a]
police officer but a prosecutor.”51 Therefore, in most circumstances, “a plaintiff
cannot proceed against a police officer for a claim of malicious prosecution because
a prosecutor, not a police officer, initiates criminal proceedings against an
individual.”52 However, a plaintiff “can proceed against a police officer for
malicious prosecution only if the officer fails to disclose exculpatory evidence to
prosecutors, makes false or misleading reports to the prosecutor, omits material
information from the reports, or otherwise interferes with the prosecutor’s ability to
exercise independent judgment in deciding whether to prosecute.”53
The Amended Complaint brings a claim for malicious prosecution only
against Dent, alleging that when he filed the criminal complaint with the Magisterial
District Court on October 2, 2020, the affidavit of probable cause “omitted crucial
material information regarding his case thereby misleading the Magisterial District
50 Vega v. Ripley, No. 1:11-CV-2015, 2013 U.S. Dist. LEXIS 191975, at *26 (M.D. Pa. May 15,
2013) (citing Dice v. Johnson, 711 F. Supp. 2d 340, 364-65 (M.D. Pa. 2010) (quoting Johnson
v. Knorr, 477 F.3d 75, 81-82 (3d. Cir. 2007)).
51 Milbourne v. Baker, No. 11-cv-1866, 2012 U.S. Dist. LEXIS 72014, at *36 (E.D. Pa. May 23,
2012) (citing Zeglen v. Miller, No. 3:04cv1940, 2008 U.S. Dist. LEXIS 20344, at *8 (M.D. Pa.
Mar. 12, 2008)) (other internal quotations and citations omitted).
52 Id. (internal quotations and citations omitted).
[Judge] when making his bail determination.”54 Barasky highlights the following
material allegedly omitted from the affidavit: that no contraband was ever found;
that Mr. Sumpter had four crimen falsi convictions and had used heroin on October
2, 2020; and the police had conducted no additional independent investigation to
corroborate the lone statements made by Mr. Sumpter.55
The other elements, Barasky alleges, are satisfied because: (i) the criminal
proceeding ended in Plaintiff’s favor when the charges were dismissed; (ii) Dent
acted with a malicious purpose other than to bring Barasky to justice when he filed
the criminal complaint based solely on Sumpter’s statements after no contraband
was found in Barasky’s car and Barasky failed to show up to the “drop” site; and
(iii) Barasky suffered a deprivation of liberty by being incarcerated.56
Dent argues that the Amended Complaint’s allegations as to the malicious
purpose element are “insufficient and mostly duplicative.”57 In Dent’s view, Barasky
“fails to allege what facts were known to Dent at the time of the swearing of his
affidavit,” which is the moment critical to the determination of whether Dent acted
maliciously.58 Dent further alleges that, under the law, his alleged failure to
investigate Sumpter’s claim does not indicate a malicious purpose, and that Dent and
Havens did perform a search of Plaintiff’s cell phone—while the results of that
54 Doc. 21 at ¶¶ 108-09.
55 Id. 109-10.
56 Id. 21 at ¶¶ 106-126.
57 Doc. 29 at 13.
search were ultimately suppressed, they still could have served as Dent’s basis to
file a criminal complaint against Plaintiff for a legitimate, non-malicious purpose.59
And the “results of that search would have been known to Dent when he made the
decision to charge [P]laintiff.”60
Despite Dent’s attempted “hints” as to what the warrantless search of the
phone may have revealed, that information is not relevant to this Court at the motion
to dismiss stage. This Court’s task is to assess what is pled in the Amended
Complaint, and to determine whether those allegations satisfy the Rule 12(b)(6)
standard. And in this case and as to Barasky’s malicious prosecution claim, that
standard is satisfied.
Malice “has been stated to include ill-will in the sense of spite, the use of
prosecution for an extraneous, improper purpose, or the reckless and oppressive
disregard of the plaintiff’s rights.”61 Malice may also be “inferred from the absence
of probable cause.”62 This Court finds that the Amended Complaint’s allegations
satisfy the malice element of Barasky’s malicious prosecution claim. Barasky
sufficiently alleges that Dent acted without probable cause when he filed the criminal
complaint and omitted material information from it (e.g., the unreliability of the
informant and the fact that no contraband was found), and that the totality of Dent’s
59 Id.
60 Id.
61 Carson v. Aurand, No. 1:17-cv-01263, 2019 WL 2539447, at *8 (M.D. Pa. June 20, 2019)
(internal quotations and citations omitted).
alleged actions demonstrate a recklessness or oppressive disregard for Barasky’s
rights.
Therefore, because the Amended Complaint’s allegations satisfy the elements
for malicious prosecution, Dent’s Motion to Dismiss is denied as to Count II.
D. Count III: Unconstitutional Conspiracy
A civil conspiracy claim under Section 1983 requires proof of the following:
“(1) two or more individuals; (2) acting ‘under color of law’; (3) [who] reached an
agreement to deprive the plaintiff of a constitutional right.”63 “To properly plead an
unconstitutional conspiracy, a plaintiff must assert facts from which a constitutional
agreement can be inferred,” and this Court will not consider any “conclusory
allegations [such as] that there was a corrupt conspiracy, an agreement, or an
understanding in place between the [d]efendants.”64 A plaintiff must “set forth
allegations that address the period of the conspiracy, the object of the conspiracy,
and the certain actions of the alleged conspirators taken to achieve that purpose.”65
A conspiracy is “not parallel conduct by different parties; it must embody, at its
63 Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700 (3d Cir. 1993).
64 Figueroa v. Shenandoah Borough, No. 3:21-601, 2022 U.S. Dist. LEXIS 71077, at *9 (M.D.
Pa. Apr. 18, 2022).
65 Smith v. Law Office of Eric J. Weisbrod P.C., No. 1:21-CV-01243, 2021 U.S. Dist. LEXIS
160905, at *8 (M.D. PA. Aug. 25, 2021) (quoting Shearin v. E.F. Hutton Grp., Inc., 885 F.2d
1162, 1166 (3d Cir. 1989), abrogated on other grounds by Beck v. Prupis, 529 U.S. 494
heart, ‘an agreement between the defendants and state officials—a meeting of the
minds—to violate the plaintiff’s rights.”66
The Amended Complaint alleges that all Defendants agreed to arrest Barasky
without probable cause, and that all Defendants “knew that no probable cause
existed to arrest and prosecute Plaintiff.”67 The conspiracy is alleged to have begun
on October 2, 2020, and to have ended when the state court charge was dismissed
on June 25, 2021.68 Defendants Bell and Dent are alleged to have played specific
roles in the conspiracy—Bell by ensuring that Plaintiff would be segregated in a dry
cell, and Dent by filing the criminal complaint against Barasky.69
Defendants, in their respective Motions, argue that that the Amended
Complaint fails to sufficiently plead specific factual allegations required to satisfy
the elements of a Section 1983 conspiracy claim.70 This Court agrees as to all
Defendants. Indeed, the Amended Complaint names nine defendants, and only
devotes eleven conclusory paragraphs to this claim.71 The allegations fail to state the
“certain actions of the alleged conspirators,” which—for this matter—would require
specific allegations as to the involvement of each named Defendant. The heart of the
66 Smith v. Law Office of Eric J. Weisbrod P.C., No. 1:21-CV-01243, 2021 U.S. Dist. LEXIS
160905, at *8 (M.D. PA. Aug. 25, 2021) (internal citations and quotations omitted); see
Zenquis v. City of Phila., 861 F.Supp. 2d 522, 528-29 (E.D. Pa. 2012).
67 Doc. 21 at ¶ 129, 130.
68 Id. at ¶¶ 70, 131, 135.
69 Id. at ¶¶ 133-34.
70 Doc. 29 at 10-11; Doc. 40 at 13-15; Doc. 27 at 12-13.
Amended Complaint’s allegations is that “[t]he agreements between Defendants was
to seize Barasky and immediately arrest him without probable cause solely on the
word of Mr. Sumpter.”72
While the Amended Complaint describes the purpose of the conspiracy (to
arrest Barasky without probable cause) and the duration of the conspiracy (from
October 2020 to June 2021), it fails to attribute certain actions to each Defendant
and instead—and at best—sets forth allegations that certain of the Defendants
engaged in parallel conduct. As discussed above, parallel conduct alone is
insufficient to demonstrate an unconstitutional conspiracy under Section 1983. Even
where the Amended Complaint does allege certain conduct only by Defendants Bell
and Dent, the conduct alleged does not describe those Defendants working together
or with the other Defendants—it only describes their separate, individual actions.73
For that reason, Defendants’ Motions to Dismiss Count III are granted.
E. The Municipal Defendants
Plaintiff brings claims against the Municipal Defendants under Section 1983.
A plaintiff asserting a cause of action under Section 1983 must allege that: (a) “some
person has deprived [her] of a federal right,” and (b) “the person who has deprived
72 Doc. 21 at ¶ 129.
73 Id. at ¶¶ 133-34 (“PO Bell further carried out the purpose of this conspiracy by calling the
Lycoming County Prison…” and “Dent furthered the purpose of the conspiracy by filing a
[her] of that right acted under color of state or territorial law.”74 In the Third Circuit,
it is established that Monell v. N.Y.C. Department of Social Services75 “sets forth the
test to determine if municipalities, not individuals, can be held liable under §
1983.”76 “Municipalities and other local government entities are ‘persons’ for
purposes of Section 1983 liability.”77 Municipal liability “only arises when a
government causes an employee to violate another’s constitutional rights by an
official custom or policy.”78 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.”79
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.”80 A custom “is an act that is not formally approved but is
nonetheless ‘so widespread as to have the force of law.’”81 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
74 Jarrett v. Twp. of Bensalem, 312 F. App’x 505, 506-07 (3d Cir. 2009) (internal quotations
omitted).
75 436 U.S. 658 (1978).
76 Lepre v. Lucas, 602 Fed. App’x 864, 869 n.4 (3d Cir. 2005) (per curiam).
77 Loomis v. Montrose Borough Police Dep’t, No. 3:20-CV-1610, 2021 U.S. Dist. LEXIS
126980, at *8 (M.D. Pa. July 8, 2021) (citing Monell, 436 U.S. at 690).
78 Id.
79 Id. (internal citations omitted).
80 Id. (internal citations omitted).
inaction exhibits ‘deliberate indifference’ to the need”—often referred to as the
“deliberate indifference” standard.82 A municipality exhibits deliberate indifference
when it “disregard[s] a known or obvious consequence of [its] . . . action.”83
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.”84 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.”85 “Generally, deficient training can only amount to the requisite deliberate
indifference ‘where the failure to train has caused a pattern of violations.’”86
A Monell claim may survive in the absence of such a pattern, however, when
“(1) a violation of federal rights may be a highly predictable consequence of a failure
to equip law enforcement officers with specific tools [or skills] to handle recurrent
situations; and (2) where the likelihood of recurrence and predictability of the
82 Id. at *8-9 (quoting Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997)).
83 Id. at *9 (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)).
84 Forshey v. Huntingdon Cnty., No. 1:13-CV-00285, 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)).
85 Id.
violation of a citizen’s rights could justify a finding that policymakers’ decision not
to train an officer reflected ‘deliberate indifference’ to the obvious consequence of
the policymakers’ choice—namely, a violation of a specific constitutional or
statutory right.”87 However, it is established in the Third Circuit that requiring a
plaintiff to identify a particular policymaker or policy before discovery is unduly
harsh, and that at the motion to dismiss stage, a plaintiff does not need to specify the
policies and practices in place.88
The Amended Complaint alleges that each Municipal Defendant had a “policy
or custom . . . to fail to train and supervise municipal employees on how to properly
decide if probable cause exists to place someone under arrest.”89 This policy or
custom includes “fail[ure] to train and supervise municipal employees on when
confidential informants can be reliable enough to establish reliable cause.”90
“Municipal policymakers for [the municipal Defendants] knew that their employees,
servants, or agents, specifically individuals working with or on the [Narcotics
Enforcement Unit], would confront situations where a person would be arrested for
a suspected crime and where informants would be utilized.”91
87 Kline ex rel. Arndt v. Mansfield, 255 F. App’x 624, 629 (3d Cir. 2007).
88 Marte v. Oliver, No. 3:20-CV-00252, 2020 U.S. Dist. LEXIS 207893, at *15 (M.D. Pa. Nov.
6, 2020) (internal citations and quotations omitted).
89 Doc. 21 at ¶ 87.
90 Id. at ¶ 88.
Each Municipal Defendant argues that the Amended Complaint’s allegations
fail to satisfy the requirements of Monell and its progeny because the allegations are
bereft of facts establishing the existence of a policy or custom as defined by the
Monell doctrine.92 Barasky, however, argues that the Amended Complaint’s
allegations are sufficient. This Court disagrees.
The Monell standard is a high one, and the facts alleged in the Amended
Complaint do not satisfy that standard. Essentially, the Amended Complaint pleads
that, combined, the Municipal Defendants have a “policy or custom” of failing to
adequately train their law enforcement employees to handle informants and assess
whether probable cause exists before arresting a person. As the Third Circuit has
made clear, a “failure to train” deliberate indifference claim must allege a pattern of
violations committed by the municipality or satisfy the even higher standard required
for a single-incident failure-to-train claim of deliberate indifference. Deliberate
indifference is not sufficiently alleged here.
The Amended Complaint does not allege a pattern whereby the Municipal
Defendants’ failure to train resulted in other individuals’ rights being violated in a
similar manner as Barasky’s. Such a pattern could, for example, link the Municipal
Defendants’ conduct to situations where other individuals where unlawfully
detained, where officers failed to establish probable cause, or where officers did not
work properly with informants. No such pattern is alleged.
Because no pattern is alleged, Barasky’s Monell claims can survive only if
they satisfy the standard required for single-incident deliberate indifference. They
do not. Setting aside the fact that it is implausible to allege—in the absence of a
sufficiently pled factual predicate or unique circumstance93—that three
municipalities have wholly failed to train all of their officers in the routine concepts
of establishing probable cause and working with informants, the Amended
Complaint could be read to imply that the Municipal Defendants do train their
officers, and that there is only a “need for more or different training.”94 There either
is training or there is not, and if there is not, then Barasky needs to plead more facts
that speak to the plausibility of the Municipal Defendants’ alleged failure to train
their police officers to perform such a basic and well-established function of their
jobs.
While Barasky is given some leeway at the motion to dismiss stage, more
must be alleged than what is set forth in the Amended Complaint. The current
93 See, e.g., Marte, 2020 U.S. Dist. LEXIS 207893, at *14 (alleging that a lack of training
persisted while Pennsylvania’s Latino population had been steadily increasing, which should
have put the municipality on notice that a continued lack of training would lead to improper
conduct and constitutional violations by police officers); J.Q.T. v. Amato, No. 17-3316, 2018
U.S. Dist. LEXIS 162368, at *15 (E.D. Pa. Sept. 21, 2018) (plaintiff’s single-incident Monell
claim surviving motion to dismiss because plaintiff alleged that the municipality not only failed
to train employees as to how to detect the signs of sexual abuse, but also had no policy
whatsoever requiring teachers to report suspicious behavior of fellow colleagues).
allegations are conclusory and implausible. Accordingly, the Municipal Defendants’
Motions to Dismiss Counts I, III, and IV are granted.
IV. CONCLUSION
For the reasons stated above, the Motions to Dismiss filed by Defendants
Havens, Bell, Gardner, Kriner, Hope, Lycoming County, Old Lycoming Township,
and the City of Williamsport are granted without prejudice as to Counts I, III, and
IV. Defendant Dent’s Motion to Dismiss is denied as to Counts I, II, and IV, and
granted without prejudice as to Count III.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge