# Estate of Edward L. Himmelwright v. Trooper Benjamin J. Campana

> District Court, M.D. Pennsylvania · December 28, 2022

URL: https://www.frixlaw.com/law-library/cases/10412957

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 28, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- affirming denial of leave to amend because “the claim against Sheriff McGinn is . . . protected by qualified by immunity”
- holding that for § 1983 conspiracy claim, “a plaintiff must allege and prove the elements of civil conspiracy”
- holding that “it would be futile to 2. Alleged Constitutional Violations Apart from questions of immunity, there are the substantive concerns. As discussed, the Estate asserts three predicates for its § 1983 claim against Brungard: (a

## Opinion text

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

ESTATE OF EDWARD L. No. 4:21-CV-01731
HIMMELWRIGHT, Deceased,
(Chief Judge Brann)
Plaintiff,

v.

BOBBIE JO BRUNGARD,
LYCOMING-CLINTON MENTAL
HEALTH-INTELLECTUAL
DISABILITY PROGRAM, and
TROOPER BENJAMIN J.
CAMPANA,

Defendants.

MEMORANDUM OPINION

DECEMBER 28, 2022
For the second time this year, the Court considers whether the Estate of
Edward L. Himmelwright has adequately stated claims against Bobbie-Jo
Brungard, a publicly employed mental health official, and her employer based on a
referral she made to the Pennsylvania State Police. Specifically, Brungard notified
the State Police that Himmelwright had been involuntarily committed to a mental
health facility, which resulted in a search of Himmelwright’s residence and the
seizure of his firearms. But there was a problem with this referral: Himmelwright
was never involuntarily committed.
The Estate seeks to hold Brungard and her employer liable based on the
allegedly unconstitutional seizure of Himmelwright’s firearms. The Court

previously dismissed these claims without prejudice because, among other things,
the pleadings failed to establish that Brungard’s incorrect referral amounted to
anything more than a mistake. The Estate amended its Complaint, but the

Amended Complaint does not remedy the identified deficiencies. Further, as a
public employee acting within the scope of her employment, Brungard is
qualitatively immune from liability in this suit. As such, the Estate’s claims against
Brungard and her employer are again dismissed—this time with prejudice.

I. BACKGROUND
A. Original Complaint
The Estate initiated this lawsuit on September 22, 2021, in the Court of
Common Pleas of Clinton County, Pennsylvania.1 Shortly thereafter, the

Defendants removed the action to federal court.2
In its original Complaint, the Estate alleged that Himmelwright experienced
a mental health episode on July 10, 2019.3 Relevant here, Bobbie-Jo Brungard, an

employee of the Lycoming-Clinton Mental Health-Intellectual Disability Program
(“Lycoming-Clinton MHID” or the “Program”), initiated an involuntary mental

1 Doc. 1-3 (Compl.).
2 Doc. 1 (Notice of Removal).
health commitment under Pennsylvania’s Mental Health Procedure Act.4 But
according to the Estate, although Brungard told Himmelwright of his rights, neither

Brungard nor any other Lycoming-Clinton MHID employee provided
Himmelwright with copies of the documentation required by the Act.5
Himmelwright was then taken into custody and transported to the UPMC
Lock Haven hospital, where he was examined by Dr. James Sweetland.6 The Estate

alleged that although Dr. Sweetland found Himmelwright “severely mentally
disabled and in need of treatment” and directed that he “be admitted to a facility
designated by the County Administrator for a period of treatment not to exceed 120

hours,” Himmelwright was never committed.7 Instead, he was transferred to Penn
State Hershey Medical Center later that evening for further treatment.8
Even though Himmelwright was not involuntarily committed, Brungard (or

someone else at Clinton-Lycoming MHID) contacted the Pennsylvania State
Police.9 Acting on this referral, State Trooper Benjamin J. Campana obtained a
warrant to search Himmelwright’s residence and then seized Himmelwright’s
firearms found inside.10

4 Id. ¶ 10.
5 Id. ¶¶ 11–13.
6 Id. ¶ 14.
7 Id. ¶¶ 18–19.
8 Id. ¶ 19.
9 Id. ¶ 22.
Based on these facts, the Estate brought claims against Brungard and
Lycoming-Clinton MHID under 42 U.S.C. § 1983.11 Specifically, the Estate

alleged that Brungard (a) “unlawfully and maliciously failed to advise
[Himmelwright] of his rights under the Mental Health Procedures Act”;
(b) “incorrectly informed the Pennsylvania State Police that [Himmelwright] had

been committed to a mental health facility, thereby resulting in an unlawful search
for and seizure of [Himmelwright’s] firearms”; and (c) “conspir[ed] to violate the
rights, privileges, and immunities guaranteed to [the Estate] by the Constitution
and laws of the United States and the laws of the Commonwealth of

Pennsylvania.”12 And the Estate asserted that Lycoming-Clinton MHID “failed to
ensure that Defendant Brungard was properly supervised or trained.”13 Separately,
the Estate brought claims against Officer Campana and the State Police related to
the search and seizure,14 and against Dr. Sweetland and UPMC Lock Haven for its

examination and detention of Himmelwright.15
The Defendants filed motions to dismiss in October 2021.16 This Court
granted those motions on April 29, 2022.17 The counts against UPMC Lock Haven,

11 Id. ¶¶ 32–38.
12 Id. ¶ 33.
13 Id. ¶ 36.
14 Id. ¶¶ 39–45.
15 Id. ¶¶ 27–31, 46–52.
16 Doc. 7 (UPMC Lock Haven MTD); Doc. 8 (Dr. Sweetland MTD); Doc. 9 (Trooper Campana
& State Police MTD); Doc. 10 (Brungard & Lycoming-Clinton MHID MTD).
Dr. Sweetland, and the Pennsylvania State Police were dismissed with prejudice.18
The Court granted the Estate leave to amend its counts against Brungard,

Lycoming-Clinton MHID, and Trooper Campana.19
In the Memorandum Opinion accompanying the April 2022 Order, this
Court explained that none of the three theories underlying the Estate’s § 1983
cause of action against Brungard established a viable claim.20 The first, centered on

a violation of the Mental Health Procedures Act, failed because § 1983 “does not
provide a cause of action for violations of state statutes.”21 The second and third—
asserting constitutional violations and civil conspiracy, respectively—lacked the

requisite support in the pleadings, as “the Estate’s Complaint fail[ed] to allege facts
showing that Brungard’s decision to relay the message to the State Police
amounted to more than a mistake.”22 And “[w]ithout an underlying constitutional

violation against Brungard, the Estate [could not] sustain a claim against
Lycoming-Clinton MHID for failing to train and supervise her.”23 The Court
instructed that for Brungard and Lycoming-Clinton MHID “to be held liable, the
Estate must allege facts showing that Brungard’s incorrect report to the police was

made intentionally or with reckless disregard for the truth.”24

18 Doc. 30 (Order Granting MTDs) ¶¶ 3–4, 6.
19 Id. ¶¶ 1–2, 5.
20 Doc. 29 (Mem. Op.) at 7–9.
21 Id. at 8 (citing Brown v. Grabowski, 922 F.2d 1097, 1113 (3d Cir. 1990)).
22 Id.
23 Id. at 9.
B. Amended Complaint
The Estate amended its Complaint in May 2022.25 Relevant here, supporting

the claims against Brungard and Lycoming-Clinton MHID, the Amended
Complaint restates nearly all the allegations from the Original Complaint
verbatim.26 Indeed, regarding the intent and motivation behind Brungard’s

incorrect involuntary committal referral to the State Police, the Estate simply
supplements its original allegation that “rather than allow [Himmelwright] to
address the firearms situation, Defendant Brungard and/or other employees of
[Lycoming-Clinton MHID] did contact the Pennsylvania State Police,”27 with the

following:
Defendant Brungard and/or other employees are believed
to have communicated that [Himmelwright] was
involuntarily committed when that was not the case. This
statement was an intentional [falsehood] or reckless
disregard for the truth.28
The Amended Complaint contains no other additional factual allegations about
Brungard and likewise presents no new pleadings regarding Lycoming-Clinton
MHID.

25 Doc. 31 (Am. Compl.).
26 Id.
27 Doc. 1-3 (Compl.) ¶ 22.
Brungard and Lycoming-Clinton MHID moved to dismiss the Amended
Complaint on May 26, 2022.29 That motion has been fully briefed and is now ripe

for disposition.30
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 the landmark decisions of Bell Atlantic Corp. v.
Twombly31 and Ashcroft v. Iqbal,32 “[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.’”33 The United States Court of Appeals for the Third
Circuit has instructed that “[u]nder the pleading regime established by Twombly
and Iqbal, a court reviewing the sufficiency of a complaint must take 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-

29 Doc. 32 (Brungard & Lycoming-Clinton MHID MTD Am. Compl.).
30 See Doc. 36 (Defs’ Br.); Doc. 41 (Estate’s Opp.); Doc. 42 (Brungard & Lycoming-Clinton
MHID Reply).
31 550 U.S. 544 (2007).
32 556 U.S. 662 (2009).
pleaded factual allegations” and then “determine whether they plausibly give rise
to an entitlement to relief.”34

III. ANALYSIS
A. Individual Liability: Brungard
In its Amended Complaint, the Estate again alleges that Brungard committed

three distinct constitutional violations actionable under § 1983: Brungard (a) failed
to advise Himmelwright of his rights under the Pennsylvania Mental Health
Procedures Act; (b) incorrectly informed the Pennsylvania State Police that
Himmelwright had been committed to a mental health facility, which resulted in a

search for and seizure of Himmelwright’s firearms and damage to his property; and
(c) conspired to violate the Estate’s “rights, privileges, and immunities.”35 The
Defendants36 move to dismiss the § 1983 claim against Brungard, arguing that she

is immune from liability and, regardless, the Estate’s three proffered theories for
liability are either precluded by law or insufficiently pleaded.37 The Court first
addresses the immunity claims and then turns to the alleged constitutional
violations at issue.

34 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations,
brackets, and citations omitted).
35 Doc. 31 (Am. Compl.) ¶ 24.
36 For the remainder of this Memorandum Opinion, the “Defendants” refers collectively to
Brungard and Lycoming-Clinton MHID; it does not include the remaining Defendant, Trooper
Campana.
1. Immunity
According to the Defendants, Brungard is shielded from liability for two

reasons: (a) she enjoys the protection of the Pennsylvania Political Subdivision
Tort Claims Act,38 and (b) as a county employee sued in her official capacity, she
is entitled to qualified immunity.39 Although the Defendants are wrong on the

former, they are correct as to the latter.
The Tort Claims Act provides that, subject to certain limitations, local
governmental agencies and their employees are immune from state law tort claims
predicated on actions by agency employees.40 That said, the Tort Claims Act “has

no force” when applied to federal civil rights suits under § 1983.41 Here, the Estate
does not bring any state law tort claims against either Brungard or Lycoming-
Clinton MHID; the sole claim against these Defendants alleges violations of
§ 1983.42 As such, the Tort Claims Act does not apply in this case.

38 42 Pa. C.S.A. § 8541, et seq.
39 Doc. 36 (Defs’ Br.) at 13–17.
40 See 42 Pa. C.S.A. § 8541 (“Except as otherwise provided in this subchapter, no local agency
shall be liable 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. § 8545
(“An employee of a local agency is liable for civil damages on account of any injury to a person
or property caused by acts of the employee which are within the scope of his office or duties
only to the same extent as his employing local agency and subject to the limitations imposed
by this subchapter.”); see also Rittenhouse Entertainment, Inc. v. City of Wilkes-Barre, 861 F.
Supp. 2d 470, 489 (M.D. Pa. 2012) (Caputo, J.) (noting that the Tort Claims Act “makes local
agencies immune from state law claims (with a few exceptions not applicable here)”).
41 Wade v. City of Pittsburgh, 765 F.2d 405, 407 (3d Cir. 1985); see also Mariano v. Borough of
Dickson City, 40 F. Supp. 3d 411, 420 (M.D. Pa. 2014) (Mannion, J.) (“[I]t is well established
that immunity under the [Tort Claims Act] applies only to state law tort claims, and not federal
civil rights suits under § 1983.”).
Separately, federal and state officials are immune from lawsuits pertaining to
official conduct unless a plaintiff pleads facts showing the official violated a

statutory or constitutional right that was “clearly established” at the time of the
challenged conduct.43 The Supreme Court of the United States explains that a
government official’s conduct “violates clearly established law when, at the time

of the challenged conduct, the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.”44 Such “clearly established rights are derived either from binding Supreme
Court and Third Circuit precedent or from a robust consensus of cases of

persuasive authority in the Courts of Appeals.”45 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.”46

The official conduct at issue here is Brungard’s incorrect statement to the
State Police that Himmelwright had been committed to a mental health facility.
Assessed on its own, this conduct does not raise constitutional concerns. The

Estate has not identified, and this Court is not aware of, any legal authority from
the Supreme Court, the Third Circuit, or other Courts of Appeals establishing that a

43 See Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
44 Id. at 741 (internal quotation marks, brackets, and citation omitted).
45 Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (internal quotation marks and citation
omitted).
mental health employee’s erroneous referral—even if made with malintent—
violates clearly established law.

Now, in its prior Memorandum Opinion, this Court acknowledged the
general rule that “a government official’s liability for causing an arrest is the same
as for carrying it out,”47 which the Third Circuit recognized in Berg v. County of
Allegheny.48 Relying on this citation, the Estate asserts that the clearly established

right at issue here is the “right not to be unlawfully searched.”49 Put differently, the
Estate argues that for purposes of assessing both immunity and liability, the Court
should attribute to Brungard the State Police’s subsequent decision to search for

and seize Himmelwright’s firearms.50 But that argument fails for two reasons.
First, although articulated in broad terms, the rule as established does not
obviously extend to the circumstances at issue here. As support for the proposition

that Ҥ 1983 liability for an unlawful arrest can extend beyond the arresting officer
to other officials whose intentional actions set the arresting officer in motion,” the
Third Circuit in Berg cites three cases: Malley v. Briggs,51 Kilbourn v. Thompson,52
and Gordon v. Degelmann.53 But these cases involve factual circumstances

inapposite to those at issue here. In its 1986 decision in Malley, the Supreme Court

47 Doc. 29 (Mem. Op.) at 8.
48 219 F.3d 261, 272 (3d Cir. 2000).
49 Doc. 41 (Estate’s Opp.) at 8.
50 Id.
51 475 U.S. 335 (1986).
52 103 U.S. 168 (1880).
addressed qualified immunity in the context of a police officer who obtained an
arrest warrant without probable cause but did not make the actual arrest.54 And in

Kilbourn, a far older decision from 1880, the Supreme Court held that legislators in
the United States House of Representatives who passed a resolution finding a
defendant guilty of contempt and issued a warrant for his commitment to prison
were as responsible as the arresting officer in a claim for false imprisonment.55

In Gordon, the United States Court of Appeals for the Seventh Circuit
considered whether a state prosecutor may be liable for erroneously instructing
police officers that “the law permitted them to arrest” a suspect.56 The Seventh

Circuit held that the district court erred in instructing the jury that an officer who
simply relayed the prosecutor’s conclusion that the law permitted an arrest could
be held liable under § 1983 for a violation of the Fourth Amendment only if he

arrested the plaintiff, explaining that the plaintiff could establish liability by
showing that the officer who relayed the message “induced [the arresting officer]
to arrest [the plaintiff].”57 The Seventh Circuit noted that the plaintiff “would have
had a difficult time” making this showing, as the officer who relayed the message

“was not [the arresting officer’s] supervisor and played little role except as the
intermediary to the prosecutor”; but still, the Seventh Circuit concluded that

54 475 U.S. at 344 n.7.
55 103 U.S. at 200.
56 29 F.3d at 298.
reversal was necessary as “the district court’s instruction prevented the jury from
asking the right question.”58

Relying on this body of law, the Third Circuit in Berg considered whether
three individuals could be held liable under § 1983 for an erroneously issued arrest
warrant: (i) the probation supervisor who requested the arrest warrant; (ii) the

warrant clerk who issued the warrant; and (iii) the elected constable who
conducted the arrest.59 In that case, the probation supervisor requested an arrest
warrant for a probationer who violated conditions of his parole, but the warrant
clerk committed an unintentional clerical error that resulted in an arrest warrant for

a separate individual (i.e., the plaintiff).60 Acting on that erroneous warrant, the
constable arrested the plaintiff.61 Relevant here, the Third Circuit held that the
doctrine of qualified immunity did not shield the probation supervisor or warrant
clerk from “intentional actions [that] set the arresting officer in motion.”62 That

said, it affirmed summary judgment as to these two defendants, explaining that
there is nothing in the record suggesting that the probation supervisor intended to
cause the defendant’s arrest and similarly nothing indicating that the warrant clerk

was aware of her clerical error.63

58 Id.
59 219 F.3d at 266–68.
60 Id.
61 Id.
62 Id. at 272.
Both Berg and the cases it relied on—Malley, Kilbourn, and Gordon—are
factually distinct from the present circumstances. Here, the Estate alleges that

Brungard “contact[ed] the Pennsylvania State Police” and “communicated that
[Himmelwright] was involuntarily committed when that was not the case.”64
Unlike the defendants in Berg and Kilbourn, Brungard neither requested nor issued

the warrant authorizing the seizure at issue. This is also not a case like Malley
where the defendant in question obtained the warrant but did not participate in the
seizure. Here, Brungard was not involved in either seeking or executing the
warrant; Officer Campana “obtain[ed] a warrant” for Himmelwright’s residence,

searched the residence, and then “seize[d] [the] firearms” found inside.65 And
Brungard was not Officer Campana’s supervisor. At most, she can be described as
an “intermediary” between the Lycoming-Clinton MHID and the State Police,

which the Seventh Circuit in Gordon suggested is insufficient to establish liability
under § 1983.66 Taken together, this legal authority does not dictate that a
reasonable person in Brungard’s shoes “would have understood” that incorrectly
notifying the State Police that Himmelwright was involuntarily committed to a

mental institution—even if done intentionally—violates a “clearly established”
right.67

64 Doc. 31 (Am. Compl.) ¶ 18.
65 Id. ¶ 19.
66 29 F.3d at 298.
Second, the legal authority emanating from Berg does not indicate that
Brungard’s erroneous referral (again, assuming it was intentional) violated a

clearly established right. Neither the Supreme Court nor the Third Circuit itself has
ever cited Berg for the proposition that “a government official’s liability for
causing an arrest is the same as for carrying it out,”68 and as such, there is no

binding precedent indicating that this rule extends beyond the circumstances in
Berg and the cases cited therein. As the United States District Court for the Eastern
District of Pennsylvania noted in Greco v. National R.R. Passenger Corp., the
“rule stated in Berg has primarily been applied to situations in which the defendant

requested or issued an arrest warrant which was then used in an improvident
arrest”69—that is, the factual scenarios present in Berg and the relevant prior
authority.

To be fair, in Tobey v. Jones, the United States Court of Appeals for the
Fourth Circuit applied this principle from Berg to find that airport security agents
can be held liable for helping “effectuate” an arrest.70 There, the plaintiff informed
airport security agents that he intended to “peacefully protest” the airport’s

screening measures; the agents “radioed for assistance,” and “[i]mmediately
thereafter,” police arrived and “seized and handcuffed” the plaintiff “from behind

68 219 F.3d at 272.
69 2005 WL 3591196, at *7 (E.D. Pa. Dec. 30, 2005) (citations omitted).
without further inquiry.”71 The Fourth Circuit concluded “[i]t is reasonable to infer
that whatever [the airport security agents] told [the] police caused [the plaintiff’s]

arrest.”72
But this ruling does not change the analysis here. Preliminarily, the factual
circumstances differ. In Tobey, the Fourth Circuit declined to dismiss the claim

because it felt that discovery may reveal “that [the airport security agents]
indicated to [the] police that they should arrest [the plaintiff],” which the Fourth
Circuit seemingly deemed sufficient to qualify as “causing” the arrest.73 Here, the
Estate alleges that Brungard told State Police that Himmelwright was involuntarily

committed;74 there is no allegation—and no basis for inference—that Brungard
“indicated to [the State Police] that they should” search Himmelwright’s residence
and seize his firearms.75

Moreover, this single case does not constitute “a robust consensus of cases
of persuasive authority in the Courts of Appeals” expanding the ruling in Berg to
cover circumstances akin to those at issue here.76 Indeed, the sole Third Circuit
case addressing Tobey repudiated it:

We disagree with the Tobey majority’s conclusion that
“[i]t is an undoubtedly natural consequence of reporting a
person to the police that the person will be arrested.”

71 Id.
72 Id.
73 Id.
74 Doc. 31 (Am. Compl.) ¶ 18.
75 Tobey, 706 F.3d at 386.
That conclusion does not appear to have been based on
anything in the record. Rather, it seems to arise from the
majority’s personal assumptions and inferences.
However, absent something on the record to the contrary,
it seems just as likely that police officers who are
summoned by [airport security officials] would use their
own independent discretion to determine whether there
are sufficient grounds to take someone into custody.77
Accordingly, the Fourth Circuit’s ruling in Tobey has no bearing on this Court’s
qualified immunity analysis.78
The Estate identifies no legal authority supporting its claim that Brungard’s
conduct—erroneously notifying the State Police that Himmelwright was
involuntarily committed to a mental institution—violated a clearly established
constitutional right. And this Court’s review of the relevant case law suggests that
the conduct did not. As such, even accepting the Estate’s assertion that Brungard
made this erroneous referral intentionally or with reckless disregard for the truth,
the § 1983 claim against Brungard cannot proceed: Brungard is entitled to
qualified immunity. This claim is therefore dismissed with prejudice.79

77 George v. Rehiel, 738 F.3d 562, 583 (3d Cir. 2013).
78 See also Mocek v. City of Albuquerque, 813 F.3d 912, 929 n.9 (10th Cir. 2015) (noting the
disagreement between Tobey and Bland and concluding that “[a] circuit split will not satisfy
the clearly established prong of qualified immunity”).
79 See Wilson v. Altman, 807 F. App’x 172, 177 (3d Cir. 2020) (affirming denial of leave to amend
because the 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
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
2. Alleged Constitutional Violations
Apart from questions of immunity, there are the substantive concerns. As

discussed, the Estate asserts three predicates for its § 1983 claim against Brungard:
(a) the Pennsylvania Mental Health Procedures Act; (b) the Fourth and Fourteenth
Amendments’ prohibitions on unreasonable searches and seizures; and (c) civil

conspiracy. But the allegations in the Amended Complaint do not support the
§ 1983 claim on any of these three theories.
a. Mental Health Procedures Act
First, the Estate alleges that Brungard “unlawfully and maliciously” failed to

advise Himmelwright of his rights under the Pennsylvania Mental Health
Procedures Act.80 But as explained in the April 2022 Memorandum Opinion,
Section 1983 “does not provide a cause of action for violations of state statutes.”81

Accordingly, even if Brungard failed to follow the procedures outlined in the
Mental Health Procedures Act, that is not a viable basis for asserting a § 1983
claim. To the extent the Estate’s claim is predicated on alleged violations of this
Pennsylvania state statute, it is dismissed with prejudice.82

Pagano, 287 F. App’x 155, 159 (3d Cir. 2008) (affirming denial of leave to amend because
“the claim against Sheriff McGinn is . . . protected by qualified by immunity”).
80 Doc. 31 (Am. Compl.) ¶ 24(a).
81 Grabowski, 922 F.2d at 1113.
82 See Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008) (explaining that a district
b. Unlawful Seizure
Second, the Estate asserts that Brungard violated Himmelwright’s right to be

free from unlawful searches and seizures when she incorrectly informed the
Pennsylvania State Police that Himmelwright had been committed to a mental
health facility, which resulted in a search of, and the subsequent seizure of firearms
from, Himmelwright’s residence.83 It is well established that “[a]bsent immunity or

an adequate defense, a person who, acting under color of state law, directly and
intentionally applies the means by which another is seized in violation of the
Fourth Amendment can be held liable under § 1983.”84 That said, when a

defendant “does not intentionally cause the plaintiff to be seized, but is nonetheless
responsible for the seizure, it may be that a due process ‘deliberate indifference’
rather than a Fourth Amendment analysis is appropriate.”85 And when a plaintiff

“has not alleged anything more than mere negligence on [the government
official’s] part,” the constitutional claim necessarily fails, as “[n]egligence by
public officials is not actionable as a due process violation.”86
As discussed, this Court dismissed the prior iteration of this claim included

in the Estate’s original Complaint because the Estate “fail[ed] to allege facts
showing that Brungard’s decision to relay the message to the State Police

83 Doc. 31 (Am. Compl.) ¶ 24(b).
84 Berg, 219 F.3d at 271–72.
85 Id. at 274 (citing County of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998)).
86 Id. (citing Daniels v. Williams, 474 U.S. 327 (1986); Colburn v. Upper Darby Township, 946
amounted to more than a mistake.”87 Put differently, the Estate’s prior factual
allegations about Brungard established nothing more than negligence. The Court

thus dismissed this claim without prejudice, permitting the Estate to plead over.88
To that end, the Court instructed the Estate to “allege facts showing that
Brungard’s incorrect report to the police was made intentionally or with reckless
disregard for the truth.”89

The Estate has failed to do so. In the Amended Complaint, the Estate repeats
verbatim the allegation this Court relied on in concluding that the Complaint failed
to plead malintent or reckless disregard:

Per the 302 paperwork, upon examination, Dr. Sweetland
found that [Himmelwright] was “severely mentally
disabled and in need of treatment. He should be admitted
to a facility designated by the County Administrator for a
period of treatment not to exceed 120 hours.”90
This is again the sole factual allegation concerning what was relayed to Brungard
before she notified the State Police that Himmelwright had been involuntarily
committed. Responding to this Court’s instructions, the Estate includes only the
following additional pleading: “Brungard and/or other employees are believed to
have communicated that [Himmelwright] was involuntarily committed when that
was not the case. This statement was an intentional [falsehood] or reckless

87 Doc. 29 (Mem. Op.) at 8.
88 Id.
89 Id.
disregard for the truth.”91 But this allegation simply restates the elements of a
§ 1983 official capacity suit.92 Such “[f]ormulaic recitation[s] of the elements of a

cause of action will not do.”93
As such, the Court again finds that the Estate has failed to state a § 1983
against Brungard based on purported violations of the Fourth and Fourteenth

Amendments. Because the Estate already received the opportunity to cure the
deficiencies with this claim, and it failed to do so, the Courts finds that further
amendment would be futile.94 To the extent the Estate’s claim is predicated on
these alleged constitutional violations, it is dismissed with prejudice.

c. Conspiracy
Finally, the Estate restates its claim that Brungard “conspir[ed] to violate the
rights, privileges, and immunities guaranteed to [the Estate] by the Constitution

and laws of the United States and the laws of the Commonwealth of

91 Id. ¶ 18.
92 See 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding
for redress, except that in any action brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity.”).
93 McTernan v. City of York, PA, 564 F.3d 636, 659 (3d Cir. 2009) (affirming district court’s
dismissal of, among other things, the “official capacity suit against Defendants Barth, Brenner,
and Whitman” because the “complaint simply paraphrases § 1983”) (citation omitted).
94 See Simonton v. Ryland-Tanner, 836 F. App’x 81, 84 (3d Cir. 2020) (holding that the district
court “did not err by declining to give [the plaintiff] an opportunity to amend the complaint a
second time to better support his claims” when the plaintiff failed to remedy the identified
Pennsylvania.”95 But as with the original Complaint, the Amended Complaint
contains no factual allegations supporting this basis for liability under § 1983.

To sustain a claim for conspiracy under § 1983, a plaintiff must adequately
allege the elements of a state law conspiracy claim.96 In Pennsylvania, “[t]he
essential elements of a claim for civil conspiracy are as follows: (1) a combination

of two or more persons acting with a common purpose to do an unlawful act or to
do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act
done in pursuance of the common purpose; and (3) actual legal damage.”97 For the
first element, a complaint must include “allegations of a combination, agreement,

or understanding among all or between any of the defendants.”98 Further, this
agreement must be premised on or designed to achieve a deprivation of the alleged
victim’s federal constitutional or statutory rights.99 Absent allegations establishing

an agreement and “an actual violation of section 1983,” the conspiracy claim “is
not actionable.”100

95 Doc. 31 ¶ (Am. Compl.) 24(c).
96 See Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974) (applying Pennsylvania civil
conspiracy standard for § 1983 conspiracy claim); see also Adams v. Teamsters Local 115, 214
F. App’x 167, 172 (3d Cir. 2007) (holding that for § 1983 conspiracy claim, “a plaintiff must
allege and prove the elements of civil conspiracy”).
97 Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. 2008) (citations omitted).
98 Ammlung, 494 F.2d at 814.
99 See Rink v. Northeastern Educational Intermediate Unit 19, 2016 WL 3912985, at *14 (M.D.
Pa. July 18, 2016) (Mariani, J.) (“[T]o demonstrate a civil conspiracy pursuant to § 1983, [the
plaintiff] must demonstrate that (1) the conduct complained of was committed by a person
acting under color of state law; and (2) the conduct deprived the plaintiff of a federal
constitutional or statutory right.”) (internal quotation marks and citations omitted).
100 Id.; see also Ammlung, 494 F.2d at 814 (finding that “[t]he complaint does not sound in
Here, the Estate again fails to allege the essential elements of a civil
conspiracy claim. The Amended Complaint contains no factual allegations that

Brungard and Officer Campagna plotted, planned, or conspired together to
unlawfully seize Himmelwright’s firearms. Indeed, based on the pleadings in the
Amended Complaint, it’s unclear whether Brungard and Officer Campagna even

spoke before Officer Campagna obtained a warrant for Himmelwright’s residence
and seized Himmelwright’s firearms. The Estate alleges that “Brungard and/or
other employees of [Lycoming-Clinton MHID] did contact the Pennsylvania State
Police” and “are believed to have communicated that [Himmelwright] was

involuntarily committed when that was not the case.”101 These allegations do not
establish who at Lycoming-Clinton MHID contacted the State Police or who at the
State Police received the message. Further, as discussed, the Amended Complaint

fails to state a § 1983 claim against Brungard based on her alleged referral to the
State Police.
Lacking allegations of an agreement or an actual violation of § 1983
attributable to Brungard, the Amended Complaint does not sound in conspiracy.

For this reason, and all those provided above, the § 1983 claim against Brungard is
dismissed with prejudice.

among all or between any of the defendants” and “no factual allegations that the defendants
plotted, planned, or conspired together to carry out the alleged chain of events”).
B. Municipal Liability: Lycoming-Clinton MHID
Along with the § 1983 claim against Brungard, the Estate raises a Monell

claim against Brungard’s employer, Lycoming-Clinton MHID.102 Specifically, the
Estate argues that Lycoming-Clinton MHID is liable under § 1983 for Brungard’s
alleged constitutional violations because it “failed to ensure that [she] was properly
supervised and trained.”103 But the claim against Lycoming-Clinton MHID fares

no better than the claim against Brungard.
First, as this Court noted in its April 2022 Memorandum Opinion, a
governmental unit can be held liable under § 1983 only if “under color of some

official policy,” it “‘causes’ an employee to violate another’s constitutional
rights.”104 Put differently, to establish municipal liability under § 1983, a plaintiff
must first establish that an employee of the governmental unit in question violated
the plaintiff’s constitutional rights.105 Here, the Estate has not done that.

Accordingly, the Estate’s claim against Lycoming-Clinton MHID necessarily fails:
“[w]ithout an underlying constitutional violation against Brungard, the Estate
cannot sustain a claim against Lycoming-Clinton MHID for failing to train and

supervise her.”106

102 See id. ¶ 27.
103 Id.
104 Monell v. Department of Social Services, 436 U.S. 658, 692 (1978).
105 Id.
Second, even if the Estate had properly alleged that Brungard violated
Himmelwright’s constitutional rights, the claim against Lycoming-Clinton MHID

cannot proceed because the Amended Complaint lacks factual allegations
concerning the essential predicate for a § 1983 failure to train/supervise claim:
deliberate indifference. To sustain § 1983 claims against a government unit based

on its failure to train/supervise its employees, a plaintiff must allege facts showing
that the government unit was “deliberately indifferent.”107 Deliberate indifference
is generally established in one of two ways: (1) “[a] pattern of similar
constitutional violations by untrained employees,”108 or (2) “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.”109

As the Defendants note, the Amended Complaint is devoid of any
allegations relevant to the deliberate indifference analysis.110 It contains no
allegations about what training Lycoming-Clinton MHID failed to provide or the

107 See Christopher v. Nestlerode, 240 F. App’x 481, 489 n.6 (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 indifference’ standard to all
three arguments.”); see also Estate 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
the fall under the same species of municipal liability.”); Bonenberger v. Plymouth Township,
132 F.3d 20, 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.”).
108 Connick v. Thompson, 563 U.S. 51, 62 (2011).
109 City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989).
ways in which the relevant training it offered was inadequate. There are likewise
no allegations about prior constitutional violations by Brungard or other “untrained

employees.”111 Indeed, aside from its general allegation that Lycoming-Clinton
MHID “failed to ensure that Defendant Brungard was properly supervised or
trained,”112 the Estate makes no mention of the Department’s training or

supervision whatsoever.
Because the Estate has not alleged an underlying constitutional violation by
Brungard or any facts demonstrating Lycoming-Clinton MHID’s deliberate
indifference, its Monell claim is dismissed.113 As with the official capacity claim

against Brungard, this dismissal is with prejudice.
IV. CONCLUSION
Eight months ago, this Court dismissed without prejudice the Estate’s

§ 1983 claims against Brungard and Lycoming-Clinton MHID. Accordingly, the
Estate was given the opportunity to revise its pleadings and remedy the identified
deficiencies. Although the Estate amended its Complaint, it did not provide any
additional factual allegations responsive to this Court’s instructions; the Estate

111 Connick, 563 U.S. at 62.
112 Doc. 31 (Am. Compl.) ¶ 27.
113 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. Instead, the complaint made conclusory and general claims of failure to screen, train,
or supervise employees to avoid constitutional violations. The District Court was correct in
finding that Wood’s complaint allegations stated the elements of the cause of action and were
restates verbatim the factual allegations in the original Complaint and then asserts,
without support or substantiation, that Brungard’s incorrect referral to the State

Police was intentional or made with reckless disregard for the truth. That is
inadequate.
Upon consideration, the Court finds that Brungard is shielded from liability

because she is qualitatively immune, and that, regardless, the Estate has again
failed to allege facts supporting any of its stated bases for liability under § 1983.
Lacking facts establishing a constitutional violation attributable to Brungard, the
Estate has not stated a viable Monell claim against Brungard’s employer,

Lycoming-Clinton MHID. Further, standing alone, the allegations regarding
Lycoming-Clinton MHID do not demonstrate a failure in its training and
supervision. For these reasons, the Estate’s claims against Brungard and

Lycoming-Clinton MHID are dismissed with prejudice.
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412957. Public record. Not legal advice.