# Peterson v. Berkeley County Council

> District Court, M.D. Pennsylvania · December 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10414060

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASHLEY PETERSON, : Civil No. 1:23-CV-00330
:
Plaintiff, :
:
v. :
:
BERKELEY COUNTY SHERIFF’S :
DEPARTMENT, et al., :
: Judge Jennifer P. Wilson
Defendant.
MEMORANDUM
Before the court is the motion filed by Defendants Berkeley County
Sheriff’s Department, Berkeley County Council,1 N. Chronister, Christopher
Merson, D. Walker, J. Shockey, H. Heagy, J. Miller, and D. Keller (collectively
“Defendants”) asking the court to dismiss Plaintiff Ashley Peterson’s (“Peterson”)
complaint for failure to state a claim upon which relief can be granted. (Doc. 11.)
This case involves a motor vehicle crash on Interstate 81 that resulted from a
police chase across state lines, and Peterson alleges state law negligence claims
against Berkeley County Sheriff’s Department, County Council, and the individual
Defendants, and also alleges a violation of 42 U.S.C. § 1983 against Berkeley
County Sheriff’s Department and County Council. For the reasons that follow, the
motion will be granted in part and denied in part.

1 The court approved a stipulation filed by both parties changing amending the name of
Defendant “Berkeley County Commission” to “Berkley County Council.” Doc. 16.
FACTUAL AND PROCEDURAL HISTORY
Peterson is a resident of Massachusetts. (Doc. 1, ¶ 2.) Berkeley County

Sheriff’s Department and County Council are municipal entities located in
Berkeley County, West Virginia. (Id. ¶¶3, 4.) The individually-named Defendants
are all employees of Berkeley County Sheriff’s Department. (Id. ¶¶ 5–12.)
On November 5, 2021, the individually-named Defendants, who are police

officers from Berkeley County Sheriff’s Department, began pursuing an individual
named Terrell Thorne (“Thorne”) in West Virginia at around 5:50 p.m. (Id. ¶19.)
The chase began on rural roads, but then continued onto Interstate 81 (“I-81”) and

crossed both Maryland and Pennsylvania state lines. (Id.) Peterson alleges that the
vehicle pursuit lasted for an excessive amount of time, swerved through “no
passing zones and on-crowded highways,” occurred “after daylight hours,” and
exceeded speed limits, reaching up to 130 MPH. (Id. ¶ 23.) Peterson was a

passenger in a car travelling northbound on I-81 in Franklin County, Pennsylvania.
(Id. ¶ 16.) At approximately 6:11 p.m., Thorne’s car struck the car Peterson was
riding in, causing it to leave the road and overturn. (Id. ¶ 17.) As a result of this

crash, Peterson sustained severe injuries. (Id. ¶ 30.)
Peterson alleges that the individual officers were reckless in their pursuit of
Thorne. (Id. ¶ 34.) Peterson further alleges that Defendant Berkeley County
Sheriff’s Department failed to have adequate policies regarding vehicle pursuits,
failed to properly train its officers regarding pursuits, and failed supervise its
officers regarding pursuits. (Id. ¶ 26.)

Peterson filed her complaint on February 24, 2023. (Doc. 1.) In the
complaint, Peterson alleges one count of negligence against the Berkeley County
Sheriff’s Department and Berkeley County Council (Count I), one count of

negligence against the individual officers (Count II), and one count of violation of
42 U.S.C. § 1983 against the Berkeley County Sherriff’s Department and Berkeley
County Council (Count III). Defendants filed their motion to dismiss for failure to
state a claim on March 29, 2023. (Doc. 11.) This motion is fully briefed and ripe

for disposition.
JURISDICTION AND VENUE
This court has jurisdiction under 28 U.S.C. § 1332 because the parties are
completely diverse, and the matter in controversy exceeds $75,000. Jurisdiction is

also proper under 28 U.S.C. § 1331 because Peterson also brings claims under 42
U.S.C. § 1983. Venue is proper in the Middle District of Pennsylvania under 28
U.S.C. § 1391 because a substantial part of the events or omissions occurred within

the District.
STANDARD OF REVIEW
In order “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

DISCUSSION
Defendants first argue that Berkeley County Sherriff’s Department is not
distinct from the Berkeley County Council, and, therefore, cannot be sued. (Doc.
14, p. 5.)2 Peterson concedes this point and agrees to dismiss the claims against

Berkeley County Sheriff’s Department. (Doc. 17, p. 5.) Additionally, the court
agrees that under West Virginia law, the Berkeley County Sheriff’s Department is
not a legal entity that is capable of being sued. W.Va. Code § 7-1-1(a).

2 For ease of reference, the court utilizes the page numbers contained in the CM/ECF header.
Accordingly, Defendants’ motion to dismiss on this point is granted. Berkeley
County Sheriff’s Department will be dismissed from this action with prejudice.

Defendants next argue that Berkeley County Council and its employees are
immune from liability pursuant to West Virginia’s Governmental Tort Claims and
Insurance Reform Act (“WVGTCIRA”). (Id. at 8–10.) Defendants also argue that

Peterson has failed to state a claim for a violation of § 1983 because she has failed
to allege a constitutional violation and failed to point to a policy which caused a
constitutional violation. (Id. at 10–14.) Finally, Defendants argue that Peterson
has improperly pleaded a specific amount of monetary damages contrary to W. VA.

CODE § 29-12A-6(d). (Id. at 14.)
Peterson responds that both Berkeley County Council and the individually-
named defendants are not immune from liability for injuries caused by their

negligent acts during a vehicular pursuit, pointing to Sergent v. City of Charleston,
549 S.E. 2d 311 (W. Va. 2001) and Peak v. Ratliff, 408 S.E. 2d 300 (W. Va. 1991).
(Doc. 17, p. 6.) Peterson also argues that she has alleged sufficient facts to support
her negligence claims against both Berkeley County Council and individual

defendants under both West Virginia and Pennsylvania law. (Id. at 7–12.)
Peterson argues she is not required to point to a specific policy to state a claim
under § 1983. (Id. at 13.) Finally, Peterson argues that she requested a specific
amount of monetary damages in order to establish jurisdiction. (Id. at 15.) The
court will address each argument in turn.

A. Immunity of Berkeley County Council
West Virginia Code § 29-12A-4 details a political subdivision’s liability in
West Virginia, starting with the principle that political subdivisions are immune
from “damages in a civil action for injury, death, or loss to persons or property

allegedly caused by any act or omission of the political subdivision or of an
employee . . . in connection with a governmental property function . . . .” §29-
12A-4(b)(1). This provision is subject to exceptions listed in subsection (c), which

provides:
Subject to sections five and six of this article, a political subdivision is
liable in damages in a civil action for injury, death, or loss to persons
or property allegedly caused by an act or omission of the political
subdivision or of any of its employees in connection with a
governmental or proprietary function, as follows:
(1) Except as otherwise provided in this article, political subdivisions
are liable for injury, death, or loss to persons or property caused by the
negligent operation of any vehicle by their employees when the
employees are engaged within the scope of their employment and
authority.
(2) Political subdivisions are liable for injury, death, or loss to persons
or property caused by the negligent performance of acts by their
employees while acting within the scope of employment.
§ 29-12A-4(c)(1), (2). As such, political subdivisions in West Virginia are
generally not liable for damages in a civil action, except that a political subdivision
will be liable for damages when the injuries, damages, or loss arise from an
employee’s negligent performance of their duties within the scope of their

employment, including negligent operation of a vehicle.
However, the exception allowing political subdivisions to be liable for
negligent acts is further subject to sections five and six of the act. Relevant here, §

29-12A-5(a)(5) provides “[a] political subdivision is immune from liability if a loss
or claim results from: (5) civil disobedience, riot, insurrection or rebellion or the
failure to provide, or the method of providing, police, law enforcement or fire
protection.” W. VA. CODE § 29-12A-5(a)(5). Accordingly, the subsection

allowing liability for an employee’s negligent acts performed while in the scope of
their employment, does not apply when the loss or claim results from the method
of providing police or law enforcement protection.

Defendants argue that “[a] high-speed pursuit of a criminal suspect across
state lines is indisputably a method of providing police and law enforcement[,]”
and every alleged breach of duty is a failure in the method of providing police and
law enforcement protection. (Doc. 14, p. 9.) Peterson counters that, in the context

of police pursuits, West Virginia law, as established by Sergent and Peak, does not
provide for “blanket immunity” for police officers engaged in vehicle pursuits
which result in injury to a third party.
In Sergent, the Supreme Court of Appeals of West Virginia held that the
individual officers involved in a police chase resulting in the death of a bystander

bicyclist were not negligent in their pursuit of a criminal suspect, and therefore, the
individual officers and their employer, the political subdivision, were not liable.
Sergent, 549 S.E. 2d at 317. The Supreme Court of Appeals applied the standard

established in Peak in reaching their determination. Id. at 318. Peak dealt with a
vehicular pursuit by police officers and applied the West Virginia statute that
governs the immunities and privileges of police officers while operating
emergency vehicles. Peak, 408 S.E. 2d at 300 (citing W. VA. CODE § 17C-2-5

(1971)). Specifically, the Peak court held that “the pursuing officer is not liable
for injuries to the third party arising out of the collision unless the officer’s conduct
in the pursuit amounted to reckless conduct or gross negligence and was a

substantial factor in bringing about the collision.” Id.
As Defendants point out, these cases govern the individual liability of the
specific officers, as provided in W. VA. CODE §29-12A-5(b). Accordingly,
Peterson’s reliance on Sergent and Peak to hold Berkeley County Council liable is

misplaced. The relevant inquiry for Berkekey County Council’s liability is
whether the immunity provided in § 29-12A-5(a)(5) applies to the instant case.
The scope of this specific provision has been the subject of some debate

within West Virginia; however, it appears that the West Virginia Supreme Court of
Appeals’ holding in Albert v. City of Wheeling, 792 S.E. 2d 628 (W. Va. 2016) is
the final word. In Albert, the Supreme Court of Appeals overruled one of its prior

decisions, Smith v. Burdette, 566 S.E. 2d 614 (W. Va. 2002), and held:
Because any potential liability set forth in [§29-12A-4(c)(2)] is made
expressly subject to the grant of immunity provided in section 5(a)(5),
there is no right to seek recovery from a political subdivision for the
negligent performance of its employee’s actions performed within the
scope of his or her employment and authority when those actions
pertain to either the failure to provide fire [or police] protection or the
method of providing fire [or police] protection
Albert, 792 S.E. 2d at 631. The Supreme Court of Appeals further explained that
the interpretation of “method” provided in Smith3 was overruled, concluding that:
statutory immunity exists for a political subdivision under the
provisions of West Virginia Code § 29-12A-5(a)(5) if a loss or claim
results from the failure to provide fire protection or the method of
providing fire protection regardless of whether such loss or claim,
asserted under West Virginia Code § 29-12A-4(c)(2), is caused by the
negligent performance of acts by the political subdivision’s employees
while acting within the scope of employment.
Id. at 632. Federal courts within West Virginia have interpreted the provision
consistently with Albert. See Fields v. King, 576 F. Supp. 3d 392, 402–403
(S.D.W. Va. 2021) (holding that Albert overruled Smith in its entirety and
expressly rejecting plaintiff’s argument that “method” referred to the decision-
making process). Peterson does not argue that the police chase at issue is not a

3 Smith held that “’the method of providing police, law enforcement or fire protection’ contained
in [W. VA. CODE § 29-12A-5(a)(5)] refers to the decision-making or the planning process in
developing a governmental policy, including how that policy is to be performed.” 566 S.E. 2d at
618.
“method of providing police or law enforcement protection” such that the
exception contained in §29-12A-5 does not apply. Pursuing a fleeing criminal

suspect is plainly a method of providing police or law enforcement protection.
Accordingly, Berkeley County Council is immune from liability for the negligent
acts of its employees which resulted from this method of providing police or law

enforcement. As Berkeley County Council is immune from liability and
amendment would be futile, the court will grant Berkely County Council’s motion
and dismiss Count I with prejudice. Foman v. Davis, 371 U.S. 178, 182 (1962).
B. Immunity of the Individual Officers

Before addressing whether the individual officers are immune from liability,
the court must address Peterson’s choice of law argument. Peterson argues that,
under Pennsylvania’s choice of law rules, Pennsylvania law should govern the
individual officers’ immunity because Pennsylvania is the location of the accident,

and Defendants subjected themselves to the laws of Pennsylvania by entering the
Commonwealth. (Doc. 17, pp. 11–12.) Defendants argue there is a false conflict
because only West Virginia’s interest is impacted by applying the other state’s law

and, therefore, West Virginia’s law must apply. (Doc. 18, p. 7.)
The court will apply Pennsylvania choice of law rules because Pennsylvania
is the forum state. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 226 (3d Cir.
2007). In Pennsylvania, the first step in a choice of law analysis is determining
whether there is an “actual or real conflict between the potentially applicable
laws.” Id. at 230. If there is an actual conflict, then the court must determine

whether the differences create a “true,” “false,” or an “unprovided for” conflict.
Id.
Here, there is an actual conflict between the laws of West Virginia and

Pennsylvania regarding when a police officer can be personally liable for injuries
incurred by an innocent bystander as a result of a negligent police chase. In West
Virginia, the employee of a political subdivision is generally immune from
liability, unless the injury results from acts done “with malicious purpose, in bad

faith, or in a wanton or reckless manner. . . .” W.VA. CODE § 29-12A-5(b)(2). In
the context of injury to a third party caused by a vehicle pursued by the police, “the
pursuing officer is not liable for injuries to the third party arising out of the

collision unless the officer’s conduct in the pursuit amounted to reckless conduct
or gross negligence and was a substantial factor in bringing about the collision.”
Peak, 408 S.E. 2d at 307–08.
In Pennsylvania, by contrast, “[a]n 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.” 42 PA. CON. STAT. § 8545. Thus, under the

immunity statute for local agencies, an employee will be liable if:
(1) The damages would be recoverable under common law or a statute
creating a cause of action . . .; and (2) The injury was caused by the
negligent acts of the . . . employee . . . acting within the scope of his
office or duties. . . [and an exception from subsection (b) applies.]
42 PA. CON. STAT. § 8542(a). Subsection (b) provides “[t]he following acts by a
local agency or any of its employees may result in the imposition of liability on a
local agency: (1) Vehicle liability. – The operation of any motor vehicle in the
possession or control of the local agency . . .[.]”4 Accordingly, when an innocent
third party bystander is injured by a vehicle pursued by the police, the individual

officer must “operate their vehicle with ‘due regard for the safety of all
persons[]’ . . . .” Kuzmics v. Santiago, 389 A.2d 587, 590 (Pa. Super. 1978)
(quoting 75 PA. CON. STAT. § 3105)). This standard of care results in liability if

the officer was negligent under emergency circumstances. Johnson v. City of
Phila., 808 A.2d 978, 982 (Pa. Commw. Ct. 2002).5
Further, Pennsylvania courts have explained that “[t]he difference between
reckless misconduct and conduct involving only such a quantum of risk as is

4 The omitted portions of the statute provide the local agency is not liable to the plaintiff if the
plaintiff was the driver or passenger of the vehicle being pursued. See Cornelius v. Roberts, 71
A.3d 345, 351 (Pa. Commw. Ct. 2013). As Peterson was not a passenger in the car being
pursued, this portion of the statute is not relevant and is omitted for brevity.

5 Interestingly, Peak cites factors that Kuzmics used to determine whether an officer acted
negligently as the factors to be used to determine whether an officer acted recklessly. These
factors are: “the length, characteristics, and speed of the pursuit; the area of the pursuit, whether
rural or urban; the highway characteristics such as curves or no passing zones; the presence of
pedestrians; weather and visibility; and the seriousness of the law violation.” Peak, 408 S.E. 2d
at 308.
necessary to make it negligent is a difference in the degree of the risk, but this
difference is so marked as to amount substantially to a difference in kind.” Id. at

983 (citing RESTATEMENT (SECOND) OF TORTS § 500 cmt. g.) Accordingly,
because reckless misconduct and negligence are “different in kind,” there is an
actual difference between the laws of West Virginia and Pennsylvania governing

liability of an individual police officer for damages of a third party resulting from
vehicle pursuit. Therefore, the court must now determine whether this is a “true,”
“false,” or “unprovided for” conflict.
A true conflict exists “when the governmental interests of both jurisdictions

would be impaired if their law were not applied. Garcia v. Plaza Oldsmobile Ltd.,
421 F.3d 216, 220 (3d Cir. 2005) (quoting Lacey v. Cessna Aircraft Co., 923 F.2d
170, 187 n.15 (3d Cir. 2015)). In this situation, the court must apply the “law of

the state having the most significant contacts or relationship with the particular
issue.” Id. (quoting In re Estate of Agostini, 457 A.2d 861, 871 (Pa. Super. 1983)).
“A false conflict exists if only one jurisdiction’s governmental interests
would be impaired by the application of the other jurisdiction’s law. In such a

situation, the court must apply the law of the state whose interests would be
harmed if its law were not applied.” Lacey, 923 F.2d at 187. Additionally,
“[u]nder Pennsylvania choice of law analysis, a false conflict exists ‘where [an]

accident is fortuitous and the state where the accident occurred has no interest in
the regulatory standard at issue.’” LeJuene v. Bliss-Salem, Inc., 85 F.3d 1069,
1071 (3d Cir. 1996).

An “unprovided-for” conflict exists where “neither jurisdiction’s interests
would be impaired if its laws are not applied. The principle of lex loci delicti, the
law of the place of the wrong, supplies the substantive law to be applied in

unprovided-for cases.” Garcia, 421 F.3d at 220.
Here, as Defendants argue, there is a false conflict between the West
Virginia and Pennsylvania political subdivision immunity laws because both states
favor political subdivision immunity, and West Virginia’s interest will be impaired

by the application of Pennsylvania law. In West Virginia, the WVGTCIRA
specifically states West Virginia’s policy regarding political subdivision immunity,
providing “[the WVGTCIRA’s] purposes are to limit liability of political

subdivisions and provide immunity to political subdivisions in certain instances
and to regulate the costs and coverages of insurance available to political
subdivisions for such liability.” W. VA. CODE § 29-12A-1. In Pennsylvania, the
courts have recognized that, in enacting Pennsylvania’s political subdivision

immunity act, it was “the General Assembly’s clear intent to insulate local
agencies and agency employees from tort claims. . . [.]” Cornelius, 71 A.3d at
350. See also Mascaro v. Youth Study Ctr., 523 A.2d 1118, 1123 (Pa. 1987)
(collecting cases). Therefore, both states favor immunizing political subdivisions
from tort claims, but they do so by applying differing standards of care.

As such, applying West Virginia’s recklessness standard would not frustrate
Pennsylvania’s interest in immunizing its own political subdivisions because there
is no Pennsylvania political subdivision involved in this case. Further, looking to

Pennsylvania’s general interest in regulating tort litigation within the state,
applying a standard of care which is more exacting is still in line with
Pennsylvania’s own determinations of limiting the liability of political
subdivisions. Applying a recklessness standard instead of a “plain negligence”

standard still achieves Pennsylvania’s goal of limiting political subdivision
liability.
However, applying Pennsylvania’s negligence standard would frustrate West

Virginias’s interests by making it easier to hold political subdivisions and
employees liable. This would be contrary to West Virginia’s stated policy of
immunizing political subdivisions and employees. Additionally, West Virginia has
the additional purpose of regulating the costs of insurance coverage available to

political subdivisions. § 29-12A-1. Subjecting political subdivisions and
employees to a different standard of care when they enter a different state would
frustrate West Virginia’s interest in regulating the insurance market by making

liability more uncertain.
Moreover, Pennsylvania has less of an interest in this specific litigation
because Peterson is not a citizen of Pennsylvania. States generally have an interest

in providing redress for injuries to their own citizens. However, because Peterson
is not a citizen of Pennsylvania, this interest is not implicated in this case. Finally,
although no party makes this argument, it could be argued that Pennsylvania has an

interest in maintaining safe roads for both citizens and visitors travelling through
the commonwealth, such as Peterson. However, as explained above, the statute
governing standards of care for drivers of emergency vehicles6 is part and parcel of
Pennsylvania’s policy governing immunity of political subdivisions and their

employees. Pennsylvania has decided on a lower standard of care for police
officers compared to regular users of the roadway. Accordingly, applying West
Virginia’s law, which also employs a lower standard for officers engaged in an

emergency pursuit, will not frustrate Pennsylvania’s purposes of maintaining safe
roadways.
Because there is a false conflict between the Pennsylvania and West Virginia
laws, the court will apply the law of the state whose interests will be most

impaired. Here, the court will apply West Virginia law in order to determine
whether Peterson has stated a claim of negligence against the individual
Defendants.

6 75 PA. CON. STAT. § 3105.
West Virginia Code § 29-12A-4(b) provides for an employee’s individual
liability, providing:

An employee of a political subdivision is immune from liability unless
one of the following applies:
(1) His or her acts or omissions were manifestly outside the scope of
employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner; or
(3) liability is expressly imposed upon the employee by a provision of
this code.
§ 29-12A-4(b)(1)–(3). As discussed above, West Virginia has further held that, in
the context of injury to a third party caused by a vehicle pursued by the police
colliding with the bystander’s vehicle, “the pursuing officer is not liable for
injuries to the third party arising out of the collision unless the officer’s conduct in
the pursuit amounted to reckless conduct or gross negligence and was a substantial
factor in bringing about the collision.” Peak, 408 S.E. 2d at 307–08. In making

this determination, the court should consider factors “such as the length,
characteristics, and speed of the pursuit; the area of the pursuit, whether rural or
urban; the highway characteristics such as curves or no passing zones; the presence

of pedestrians and traffic; weather and visibility; and the seriousness of the law
violation.” Id. at 308.
Defendants argue that a high-speed pursuit of a criminal suspect is within
the scope of the officer’s employment, and that the police officers’ actions were

not with malicious purpose, in bad faith, or in a wanton or reckless manner because
the criminal suspect struck Peterson’s vehicle. (Doc. 14, p. 10.) Defendants
further argue that the allegations regarding Defendants’ reckless actions are merely

conclusory allegations. (Id.). Peterson argues, on the other hand, that she has
adequately pleaded a negligence claim against the individual officers under either
Pennsylvania or West Virginia law. (Doc. 17, pp. 6–12.)
Peterson has specifically alleged the length, characteristics, and speed of the

pursuit, the area of pursuit, the highway characteristics, and the visibility of the
pursuit. (Doc. 1, ¶¶ 1–20.) Specifically, Peterson alleges that Defendants were
reckless in pursuit of Thorne because they pursued him for over twenty minutes,

over a distance of thirty-four miles, swerving through no-passing zones and on
crowded highways at night, and at times exceeded 130 miles per hour. (Id. ¶¶ 20,
23.) Peterson also states conclusory allegations that the pursuit was not necessary
and was not done with “due regard for the safety of all persons.” (Id. ¶¶ 21, 24.)

Defendants argue that because Peterson has failed to allege the seriousness of
Thorne’s violation (i.e. the purpose of the pursuit), the complaint must be
dismissed. (Doc. 18, p. 3.) While it is true that Peterson has not alleged the reason

that Thorne was being pursued, she has alleged sufficient facts regarding the
pursuit for this claim to survive Defendants’ challenge. The failure to allege one of
the six factors when she has adequately alleged four is not fatal to stating a claim at

this stage. Further, Peterson has alleged that Thorne struck her car as a result of
Defendants’ pursuit. (Doc. 1, ¶ 27.) While Peterson’s allegations do include
various conclusory statements, she has provided sufficient factual information to

state a claim. Accordingly, Defendants’ motion to dismiss Count II will be denied.
C. Monell liability of Berkeley County Council
A municipality can be liable for constitutional violations committed by its
employees only when “the action that is alleged to be unconstitutional implements

or executes a policy, statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658, 690 (1978). Accordingly, a plaintiff must
“plead that the complained-of injury was caused directly by a local government’s

‘policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.’” Schlaybach v. Berks Heim
Nursing & Rehab, 434 F. Supp. 3d. 342, 350–51 (E.D. Pa. 2020) (quoting Harris v.

City of Phila., 171 F. Supp. 3d 395, 400 (E.D. Pa. 2016)). “The municipal policy
or custom must be the ‘moving force’ behind the constitutional violation such that
there is a direct link between the municipal policy or custom and the deprivation of
constitutional rights.” Jewell v. Ridley Twp., No. CIV.A. 09-4947, 2011 WL
5524260, at *6 (E.D. Pa. Nov. 10, 2011), aff'd, 497 F. App'x 182 (3d Cir. 2012)
(citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 404

(1997)).
Peterson argues that “[i]n the context of injuries caused by a police
pursuit, municipal liability may be based on a deficient policy or custom and/or

a failure to properly train officers with respect to police pursuits.” (Doc. 17, p.
12.) (emphasis in original). Peterson then relies on Fagan v. City of Vineland, 22
F.3d 1283, 1292 (3d Cir. 1994), to argue that a municipality can be held liable for
injuries arising from a police chase. (Id. at 13–14.) Defendants argue that

Peterson alleges no underlying constitutional violation and also argue that Peterson
fails to allege a specific policy. (Doc. 14, pp. 11, 14.)
The court agrees with Defendants that Peterson does not allege a

constitutional violation. Peterson alleges that she was physically injured due to the
Berkely County Sheriff’s Department’s negligence and the Department’s failure to
have a policy governing vehicle pursuits. These are not allegations of a
constitutional injury. Additionally, Peterson’s reliance on Fagan is misplaced.

The court in Fagan held:
If it can be shown that the plaintiff suffered that injury, which amounts
to deprivation of life or liberty, because the officer was following a
city policy reflecting the city policymakers’ deliberate indifference to
constitutional rights, then the City is directly liable under section 1983
for causing a violation of the plaintiff’s Fourteenth Amendment rights.
The pursuing police officer is merely the causal conduit for the
constitutional violation committed by the City.
Fagan, 22 F.3d at 1292 (emphasis added). Thus, in Fagan, the plaintiff alleged that
their Fourteenth Amendment substantive due process rights were violated by the

city “following a policy of not properly training its police officers on how to
conduct high-speed pursuits in compliance with the guidelines.” 22 F.3d 1283,
1291 (3d Cir. 1994). The Third Circuit went on to hold that, when an individual
officer and a municipality are sued for constitutional violations, the municipality

may still be held liable for the constitutional violations, even if the individual
officer is not held liable. Id. at 1292.
Here, there is no allegation of a constitutional violation. The only allegation

regarding the constitution at all is Plaintiff’s allegation that “Defendants were
grossly negligent, deliberately indifferent, and reckless with regard to the potential
violations of the constitutional rights of individuals such as Ashley Peterson.”
Doc. 1, ¶ 50. This type of conclusory assertion does not state a claim for relief

under § 1983. Moreover, in her brief in opposition, Plaintiff argues that her
personal injuries are a violation of her Fourteenth Amendment rights. (Doc. 17, p.
14.) This conclusory statement, not contained in her complaint, is also insufficient
to meet the pleading standards established by 12(b)(6).7 See also West v. Atkins,

7 For example, stating a claim for violation of one’s Fourteenth Amendment Due Process Clause
right to be from dangers that the government itself creates requires four elements: “(1) [t]he harm
487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under
color of state law.”); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), as
amended (June 6, 2011) (“[I]f there is no constitutional right, it does not matter

what facts have been provided as there can be no § 1983 claim.”); Reichley v. Pa.
Dep’t of Agric., 427 F.3d 236, 244 (3d Cir. 2005) (“Accordingly, there can be no
cause of action under § 1983 absent violation of a right secured by the Constitution
or the laws of the United States.”).

Therefore, because Peterson has failed to state a constitutional violation, she
fails to state a claim of Monell liability against Berkeley County Council.
Defendants’ motion to dismiss Count III will be granted and Count III will be
dismissed without prejudice.8

ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of
culpability that shocks the conscience; (3) a relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a
discrete class of persons subjected to the potential harm brought about by the state’s action, as
opposed to a member of the public in general; and (4) a state actor affirmatively used his or her
authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable
to danger than had the state not acted at all.” Sauers v. Borough of Nesquehonig, 905 F.3d 711,
717 (3d Cir. 2018) (quoting Haberle v. Troxel, 885 F.3d 170, 176 (3d Cir. 2018) (involving
injuries to third parties resulting from police pursuit of a vehicle)).

8 Peterson will be granted to leave to amend Count III because there was no undue delay, bad
faith, or dilatory motive on her part. Foman v. Davis, 371 U.S. 178, 182 (1962). Additionally,
amendment would not be futile or prejudice Defendants. Id. See also Fletcher-Harlee Corp. v.
Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007) (requiring courts offer leave
to amend in civil rights cases “unless doing so would be inequitable or futile.”).
Finally, Defendants argue that Peterson’s complaint must be dismissed
because she pleaded a specific amount of damages, in violation of W. VA. CODE §

29-12A-6 and Local Rule 8.1. (Doc. 14, p. 18.) Peterson argues she pleaded
damages “in excess of $150,000” in order to establish diversity jurisdiction. (Doc.
17, p.15.)

W. Va. Code § 29-12A-6(d) provides:
In the complaint filed in a civil action against a political subdivision or
an employee of a political subdivision to recover damages for injury,
death, or loss to persons or property allegedly caused by an act or
omission of such political subdivision or employee, whether filed in an
original action, cross-claim, counterclaim, third-party claim, or claim
for subrogation, the complainant shall include a demand for a judgment
for the damages that the judge in a nonjury trial or the jury in a jury trial
finds that the complainant is entitled to be awarded, but shall not specify
in the demand any monetary amount for damages sought.
Middle District of Pennsylvania Local Rule 8.1 provides
The demand for judgment required in any pleading in any civil action
pursuant to FED. R. CIV. P. 8(a)93) may set forth generally that the party
claiming damages is entitled to monetary relief but shall not claim any
specific sum where unliquidated damages are involved. The short plain
statement of jurisdiction, required by FED. R. CIV. P. 8(a)(1), shall set
forth any amounts needed to invoke the jurisdiction of the court but no
other.
While Defendants ask the court to dismiss Peterson’s complaint because she
pleaded a specific sum of damages in the ad damnum clause contrary to Local Rule
8.1 and West Virginia statute, this request is more accurately construed as a motion
to strike the ad damnum clause. Erroneously pleading a specific amount of
damages is not a reason to dismiss the complaint, especially when Peterson has
stated that she pleaded this amount to establish diversity jurisdiction. Accordingly,

the court will strike the specific request for damages “in excess of $150,000” in the
ad damnum clause and allow Peterson to include the jurisdictional amount in a
jurisdictional statement should she choose to file a second amended complaint.

CONCLUSION
Defendants’ motion to dismiss will be granted regarding Count I and III.
Count I will be dismissed with prejudice and Count III will be dismissed without
prejudice. Defendants’ motion to dismiss will be denied as to Count II. An

appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Dated: December 27, 2023 Middle District of Pennsylvania

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414060. Public record. Not legal advice.