# Small v. Lower Paxton Township

> District Court, M.D. Pennsylvania · February 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10414358

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 20, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414358

## How later opinions describe it (automated extraction)

- noting that, to survive a motion to dismiss (and proceed to discovery), a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his] claims”
- stating that “an amended complaint will not relate back if the plaintiff had been aware of the identity of the newly named party when she filed her original complaint and simply chose not to sue them at that time”
- holding that a “premature notice of appeal does not divest the district court of jurisdiction”

## Opinion text

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

RICHARD SMALL, :
in his own right and as Administrator : No. 1:22-cv-01146
of the Estate of Wally Small a/k/a Wallace :
Clarence Small, Deceased, : (Judge Kane)
Plaintiff :
:
v. :
:
LOWER PAXTON TOWNSHIP, :
Defendant :

MEMORANDUM

Before the Court are: (1) Defendant Lower Paxton Township (“Defendant” or the
“Township”)’s motion to dismiss the Third Amended Complaint (Doc. No. 41) filed by Plaintiff
Richard Small (“Plaintiff”), in his own right and as Administrator of the Estate of Wally Small
a/k/a Wallace Clarence Small, Deceased (“Decedent”) (Doc. No. 45); and (2) Plaintiff’s “Motion
for Leave to File Interlocutory Appeal and Stay Proceedings” (Doc. No. 43). For the reasons
that follow, the Court will deny Plaintiff’s motion for leave to file an interlocutory appeal and
grant Defendant’s motion to dismiss.
I. BACKGROUND
As noted in the Court’s July 19, 2023 Memorandum and Order (Doc. Nos. 38–39)
addressing Defendant’s motion to dismiss Plaintiff’s Second Amended Complaint, this case has
an involved procedural history, which the Court sets forth below after detailing the factual
background of Plaintiff’s Third Amended Complaint.
A. Factual Background1
Plaintiff avers that on July 23, 2020, at approximately 8:00 p.m., Decedent was “lawfully
operating a vehicle” on the 1000 block of Avila Road in Lower Paxton Township, Pennsylvania.
(Doc. No. 41 ¶ 6.) At that same time and place, Officer Michael Elezovic (“Officer Elezovic”),

acting under color of law and within the scope of his employment, “allegedly observed
[Decedent’s] vehicle ‘not utilizing his turn signal 100 feet prior to commencing a turn, and
stopping for 4-6 seconds at a stop sign’, and based on these alleged observations, decided to
commence a high speed chase.” (Id. ¶ 7.) Plaintiff alleges that Decedent “was understandably
fearful when a white police officer would try to stop him without cause just a few weeks after the
tragic murder of George Floyd at the hands of a white police officer[] in Minneapolis, MN, and
therefore fled.” (Id. ¶ 8.) Plaintiff avers that, after Officer Elezovic called in the chase to
dispatch and “provided his justification, he was informed by his supervisor Corporal Pachalski to
terminate the chase immediately.” (Id. ¶ 9.) Plaintiff asserts that “[i]t is believed and therefore
averred that since his justification for probable cause was insufficient, in violation of custom and

practice, and likely in violation of internal policies and procedures of Lower Paxton Township
concerning the initiation and continuation of high speed chases, the specifics of which [sic] have
thus far concealed and yet to disclose.” (Id.) Plaintiff alleges that “[t]his high speed chase
continued for approximately one and one half miles, reaching speeds in excess of 80 miles per
hour, through residential areas and a school zone, before leaving the jurisdiction of Lower
Paxton Township, and continuing into Susquehanna Township, where, predictably, the chase
terminated in a four (4) vehicle motor vehicle accident at the intersection of Union Deposit Road

1 The factual background is drawn from Plaintiff’s Third Amended Complaint, the allegations
of which the Court accepts as true for purposes of the pending motion to dismiss. See Kedra v.
Schroeter, 876 F.3d 424, 434 (3d Cir. 2017).
and South Progress Avenue, Susquehanna Township.” (Id. ¶ 10.) “As a result of this
occurrence, Plaintiff[’]s[] [D]ecedent was caused to sustain severe injuries, including internal
injuries, blunt impact trauma to his torso and other injuries, which ultimately led to the
declaration of his death at Hershey Medical Center at approximately 8:42 p.m. on July 23,

2020.” (Id. ¶ 11.)
B. Procedural Background
On July 25, 2022, the Township filed a Notice of Removal (Doc. No. 1) removing this
case, which was originally filed by Plaintiff on July 1, 2022, in the Dauphin County Court of
Common Pleas, to this Court and attaching the state court complaint (id.). Plaintiff’s state court
complaint asserted negligence allegations against the Township but also included the base
assertion that the Township “also violated the Constitutional Civil Rights of Plaintiff’s
decedent.” (Id.) Accordingly, in reliance on that assertion, the Township removed the case to
this Court, asserting federal question jurisdiction. (Id. at 1–2.)
On August 1, 2022, the Township filed a motion to dismiss Plaintiff’s complaint pursuant

to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 3.) On August 15, 2022, the Township
filed a brief in support of its motion to dismiss in accordance with Local Rule of Court 7.5.
(Doc. No. 5.) Plaintiff subsequently filed a letter request for an extension of time—until
October 1, 2022—to respond to the motion to dismiss (Doc. No. 6), which request the Court
granted (Doc. No. 7). On September 27, 2022, Plaintiff filed a motion to compel discovery
(Doc. No. 8), requesting that the Court enforce discovery obligations imposed in state court prior
to removal of the case to this Court. The Court scheduled a status conference with the parties
(Doc. No. 9), during which the Township’s counsel volunteered to provide the requested
discovery to Plaintiff’s counsel, and Plaintiff’s counsel requested an additional extension of time
to respond to the pending motion to dismiss; accordingly, upon the conclusion of that
conference, the Court issued an Order granting Plaintiff an extension of time until October 17,
2022, to respond to the Township’s motion to dismiss and denying Plaintiff’s motion to compel
as moot (Doc. No. 11). Thereafter, on October 13, 2022, Plaintiff filed a concurred-in motion

for an extension of time to respond to the Township’s motion to dismiss (Doc. No. 12), which
the Court granted (Doc. No. 13), making Plaintiff’s response due November 1, 2022.
On November 1, 2022, Plaintiff filed a Reply to the Township’s Motion to Dismiss and
Cross Motion for Leave to File an Amended Complaint (Doc. No. 14), along with a brief in
support (Doc. No. 14-2). In his motion, Plaintiff represented that “[o]n October 24, 2022, [the
Township] finally provided answers to discovery and produced documents which provide the
factual background for the initiation and continuation of this high-speed chase, which ultimately
led to Plaintiff’s decedent’s untimely death” and, on that basis, “request[ed] leave of Court to file
an Amended Complaint pursuant to FRCP 15(a)(2).” (Doc. No. 14 ¶¶ 7–8.) Plaintiff stated
that he requested defense counsel’s consent to his cross-motion but received no response. (Id. ¶

8.) The Township did not file a brief in opposition to Plaintiff’s Cross Motion for Leave to File
an Amended Complaint within fourteen (14) days of the filing of Plaintiff’s brief in support of
his motion. Accordingly, the Court deemed the motion unopposed in accordance with Local
Rule of Court 7.6 and granted Plaintiff’s Cross Motion by Order dated November 28, 2022,
providing Plaintiff twenty (20) days within which to file an amended complaint. (Doc. No. 15.)
That Order also denied the Township’s motion to dismiss the complaint. (Id.)
Subsequently, on December 15, 2022, Plaintiff filed an amended complaint. (Doc. No.
16.) In addition to the claims asserted in the original complaint, the amended complaint
explicitly asserted a 42 U.S.C. § 1983 (“Section 1983”) municipal liability claim against the
Township and added Officer Elezovic as a defendant, asserting Section 1983 and negligence
claims against him. (Id.) On December 29, 2022, the date any response to Plaintiff’s amended
complaint was due, the Township filed two motions: (1) a Joint Motion for Leave to Amend
(Doc. No. 18); and (2) a Motion to Dismiss Plaintiff’s Amended Complaint (Doc. No. 19). In

the Joint Motion for Leave to Amend the Township represented as follows:
4. Counsel for Defendant Lower Paxton Township and Plaintiff Richard Small
have discussed Defendant’s request that Plaintiff agree to amend his Complaint to
allege facts consistent with the undisputed facts of record, notably that an order to
discontinue the pursuit was not provided until after the car crash at issue had
occurred.

5. The date of this motion, December 29, 2022, is also the deadline for which a
response to Plaintiff’s Amended Complaint was to be filed. Counsel for
Defendant apologizes for the short notice provided to the Court regarding the
subject of this motion.

6. Counsel for both Plaintiff and Defendant have discussed this motion and
submit it as a joint motion for enlargement to this Honorable Court to allow the
pleadings to best represent the facts of record.

7. Defendant concurs to an amendment as proposed but in the event that the
amendment is not made, Defendant respectfully requests an enlargement of time
to respond to Plaintiff’s Amended Complaint as currently filed.

WHEREFORE, the parties request that this Honorable Court provide leave for
Plaintiff to file a Second Amended Complaint, or in the alternative enlarge the
deadline to respond to Plaintiff’s Amended Complaint.

(Doc. No. 18 at 3.)
Faced with these twin filings, the Court construed the first motion as representing the
parties’ joint desire that Plaintiff be permitted the opportunity to file a second amended
complaint, and given the first motion’s filing on the same day that the Township’s response to
the operative amended complaint was due to be filed, the Court viewed the Township’s filing of
a motion to dismiss the amended complaint as protective of its rights in the event the Court
declined to grant the parties’ Joint Motion for Leave to Amend. Accordingly, on January 4,
2023, the Court granted the parties’ Joint Motion for Leave to Amend, providing Plaintiff with a
third opportunity to file a complaint in this matter and denied the Township’s motion to dismiss.
(Doc. No. 20.)
Plaintiff filed a Second Amended Complaint (Doc. No. 21) on January 23, 2023, again

asserting negligence (Count III) and Section 1983 municipal liability (Count II) claims against
the Township and Section 1983 (Count I) and negligence (Count III) claims against Officer
Elezovic.2 On the same day, the Court received a letter from Plaintiff’s counsel detailing a
dispute between Plaintiff and the Township. (Doc. No. 23.) Specifically, the letter represented
that the Township objected to three requests for production of documents seeking the following
information:
18. Lower Paxton Township Police Department complete policy and
procedure manual for the operation of police vehicles including policies,
procedures and directives for operation in a high speed chase or emergency
situation.

19. Lower Paxton Township Police Department directives for police pursuit,
and pursuit outside Lower Paxton Township jurisdiction.

. . . .

24. A complete copy of the personnel file on Officer[] Michael Elezovic, as
well as all investigative documents pertaining to any and all other high speed
chases initiated or participated in by him, which culminated in a motor vehicle
accident.

(Doc. No. 23-1 at 6–7.) Plaintiff’s letter represented that “[t]hese documents are crucial

2 The Second Amended Complaint sought a remedy pursuant to Pennsylvania’s wrongful death
statute, 42 Pa. C.S.A. § 8301 (Count IV), and survival statute, id. § 8302 (Count V). (Doc. No.
21 at 7–9.) Under Pennsylvania law, “wrongful death and survival actions are not substantive
causes of action; rather, they provide a vehicle through which plaintiffs can recover for unlawful
conduct that results in death.” See Sullivan v. Warminster Twp., 765 F. Supp. 2d 687, 707
(E.D. Pa. 2011). Accordingly, Plaintiff’s Second Amended Complaint asserted essentially three
claims: (1) a Section 1983 claim against Officer Elezovic (Count I); (2) a Section 1983
municipal liability claim against the Township (Count II); and (3) a negligence claim against
discovery to investigate the nature and extent of the municipality’s liability on this claim.”
(Doc. No. 23 at 1.)
The Court directed the Township to respond to Plaintiff’s letter (Doc. No. 22), and
accordingly, on January 30, 2023, it filed a letter response (Doc. No. 26). In that letter, the

Township’s counsel represented as follows:
As the Court is aware, Defendants requested that this Honorable Court dismiss the
Monell claim as asserted in the first and second iterations of Plaintiff’s
Complaint. We are now presented with Plaintiff’s third attempt to assert such a
claim in [his] Second Amended Complaint and in Defendants’ view, the claim is
still deficient, and Defendants anticipate filing a motion to dismiss the claim
against the Township. Against this background, Defendants have objected to
providing the Lower Paxton Township police policies and procedures on the basis
that Plaintiff[] ha[s] consistently failed to state a claim that could make such
procedures relevant. Defendants assert that its policies and procedures are
proprietary and privileged absent a claim that warrants their production.
Accordingly, Defendants submit there is a compelling reason to stay the discovery
sought until such time as the Court determines that Plaintiff has asserted a viable
claim.

. . . .

As the Court is aware, Defendants have endeavored to supply Plaintiff[] with all
relevant information based upon the facts alleged in the Complaints. To that end,
Defendants have supplied Plaintiff[] with, inter alia, the mobile video recording
(“MVR”) footage from Officer Elezovic’s vehicle. This discovery is particularly
relevant to Plaintiff’s current claim that he requires the Township’s policies and
procedures to plead a claim against the Township. The MVR footage and
accompanying audio unequivocally demonstrates that the accident occurred less
than two minutes after the pursuit was commenced and, contrary to the allegations
in the Second Amended Complaint, moments before the order to discontinue was
issued.

(Doc. No. 26 at 1–2.) The Township’s counsel requested that the Court “assess the viability of
Plaintiff’s third effort to implicate the Township before ordering the production of the applicable
policies and procedures.” (Id. at 3.)
On February 6, 2023, Defendants filed a motion to dismiss Plaintiff’s Second Amended

both defendants (Count III).
Complaint for failure to state a claim upon which relief may be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6). (Doc. No. 30.) Also on February 6, 2023, Plaintiff’s counsel filed
a reply to the January 30, 2023 letter submitted by Defendants’ counsel. (Doc. No. 29.)
Plaintiff’s counsel’s letter did not respond to the Township’s argument that Plaintiff’s Second

Amended Complaint pleaded facts contradicting the MVR footage produced by the Township to
Plaintiff; instead, it argued that “in order to successfully prosecute a municipal claim for liability
under Monell, it is imperative that the municipality produce written and unwritten policies and
procedures relevant to the facts of the case, as well as the personnel file for the Officer
involved.” (Id.) Further, Plaintiff’s counsel stated that, “[c]onsistent with its prior practice, the
Defendant is once again attempting to conceal discovery in order to support another Motion to
Dismiss,” and “requested that the Court not sanction such impropriety and enter an Order
striking the aforementioned Objections to production, and compel Defendant to produce the
necessary documentation for Plaintiff’s review.” (Id.) Plaintiff also requested that “the Court
afford the Plaintiff . . . an opportunity to file a Third Amended Complaint with greater

specificity, once this discovery has been produced.” (Id.)
After careful consideration of Plaintiff’s request, the Court declined to order the
Township to produce the documents requested by Plaintiff and instead ordered a stay of
discovery in this matter pending the Court’s resolution of Defendants’ Rule 12(b)(6) motion to
dismiss. (Doc. No. 31.) In so doing, the Court noted that the purpose of Rule 12(b)(6) is to
“streamline [] litigation by dispensing with needless discovery and factfinding,” see Neitzke v.
Williams, 490 U.S. 319, 326–27 (1989), and that Plaintiff must file a complaint that states a
plausible claim before he is entitled to discovery, see Mann v. Brenner, 375 F. App’x 232, 239
(3d Cir. 2010) (unpublished) (finding no abuse of discretion in district court’s conclusion that
plaintiff was not entitled to discovery prior to a Rule 12(b)(6) ruling because “[a] motion to
dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and therefore may be
decided on its face without extensive factual development”). (Doc. No. 31 at 8.) The Court
also noted that Plaintiff already had the opportunity to file three versions of a complaint in this

case, two of them after receiving some discovery from the Township, and that the pending
motion to dismiss argued that all the claims asserted in Plaintiff’s Second Amended Complaint
were subject to dismissal for failure to state a claim upon which relief can be granted. (Id.)
Under such circumstances, the Court concluded that Plaintiff’s outstanding discovery requests
were not “proportional to the needs of the case.” See Fed. R. Civ. P. 26(b)(1); (Doc. No. 31 at
8).
Five days after the Court issued its February 16, 2023 Order, Defendants filed a brief in
support of their motion to dismiss. (Doc. No. 32.) After the motion was fully briefed, on July
19, 2023, the Court issued a Memorandum and Order: (1) dismissing Plaintiff’s Section 1983
claim against Officer Elezovic with prejudice as barred by the applicable statute of limitations;

(2) dismissing Plaintiff’s Section 1983 claim against the Township without prejudice to
Plaintiff’s ability to file a Third Amended Complaint addressing the pleading deficiencies
identified by the Court in its Memorandum; and (3) in the absence of a viable federal claim,
declining to exercise supplemental jurisdiction over Plaintiff’s state law claims and dismissing
those claims without prejudice to Plaintiff’s ability to reassert the claims in a Third Amended
Complaint. (Doc. Nos. 38–39.)
More specifically, as to Plaintiff’s Section 1983 claim against Officer Elezovic, the Court
noted that:
Plaintiff timely filed his initial complaint asserting claims against the Township
on July 1, 2022, in the Dauphin County Court of Common Pleas, but did not file
an amended complaint asserting claims against Officer Elezovic until December
15, 2022, well past the two-year statute of limitations. Therefore, as Plaintiff and
Defendants acknowledge (Doc. Nos. 36 at 7–8; 33 at 8), Plaintiff’s claims against
Officer Elezovic are time-barred unless they relate back to Plaintiff’s initial
complaint.

(Doc. No. 38 at 12.) The Court then addressed the relation back requirements of Federal Rule
of Civil Procedure 15(c)(1)(C) and Plaintiff’s argument that the Township “prevented him from
identifying Officer Elezovic as a defendant prior to the filing of the amended complaint on
December 15, 2022, because ‘[t]he only investigative document produced by the Defendant
pre-litigation is the heavily redacted incident report’” and “that ‘a fair reading of the heavily
redacted incident report is that Officer Michael Elezovic was the responding officer to the
accident itself, and may not have been the officer who initiated this illegal chase’ and so was ‘not
specifically named as a party in Plaintiff’s [o]riginal [c]omplaint.’” (Id. at 14 (quoting Doc. No.
36 at 7–8).) Ultimately, the Court concluded that Plaintiff failed to demonstrate that the relation
back requirements of Rule 15(c)(1)(C) were met in this case, stating as follows:
[E]ven if this Court assumes arguendo that Plaintiff has shown that Officer
Elezovic had notice of the action within the 120-day timeframe referenced by
Rule 15 and so would not be prejudiced in defending this case (an issue Plaintiff
fails to address in his briefing beyond stating that “[t]he reference to Officer
Elezovic in the [o]riginal [c]omplaint . . . put both Lower Paxton Township and
Officer Elezovic on notice of his involvement”), the Court concludes that Plaintiff
has failed to demonstrate the third requirement of relation back under Rule
15(c)(1)(C)—that Officer Elezovic “knew or should have known that the action
would have been brought against [him], but for a mistake concerning the proper
party’s identity.” See Fed. R. Civ. P. 15(c)(1)(C). While Plaintiff argues that
this “mistake” was “manufactured by the Defendant’s concealment of the true
facts” (Doc. No. 36 at 9), Plaintiff’s naming of Officer Elezovic in his original
complaint indicates that Plaintiff was aware that Officer Elezovic had a role of
significance in the events underlying this case (and can even be fairly construed
as reflecting that Officer Elezovic was the driver of the vehicle involved in the
police pursuit). Under such circumstances, Plaintiff cannot demonstrate that he
made a “mistake concerning the proper party’s identity.” See Garvin v. City of
Philadelphia, 154 F.3d 215, 221–22 (3d Cir. 2003) (stating that “an amended
complaint will not relate back if the plaintiff had been aware of the identity of the
newly named party when she filed her original complaint and simply chose not to
sue them at that time”). Whether Plaintiff’s failure to name Officer Elezovic as a
defendant in the original complaint was a “tactical” choice, as the Township
describes it, or one of omission, Plaintiff’s Section 1983 claim against Officer
Elezovic, asserted for the first time in his amended complaint, filed December 15,
2022, is time-barred. Accordingly, the Court will grant Defendants’ motion to
dismiss this claim, and the Section 1983 claim against Officer Elezovic will be
dismissed with prejudice because any attempt to re-assert it would be futile.

(Doc. No. 38 at 17–18.) In accordance with the Court’s conclusion, the July 19, 2023 Order
dismissed Plaintiff’s Section 1983 claim against Officer Elezovic with prejudice. (Doc. No. 39.)
As to Plaintiff’s Section 1983 claim against the Township, the Court concluded that the
Second Amended Complaint failed to plausibly allege such a claim, for the following reasons:
(1) Plaintiff failed to allege facts showing an “intent to harm” on the part of a pursuing police
officer as required to plausibly allege a violation of substantive due process in the police pursuit
context; (2) even assuming the truth of Plaintiff’s allegation that the pursuing officer continued
the pursuit in violation of Township orders or policy, such an allegation did not suffice to meet
the shocks-the-conscience test under the due process clause; and (3) Plaintiff’s allegations
regarding the existence of a municipal policy or custom or a failure to train were too vague and
conclusory to plausibly allege a Section 1983 claim against the Township. (Id. at 21–27.) The
Court’s Order dismissed Plaintiff’s Section 1983 claim against the Township without prejudice
to Plaintiff’s ability to file an amended complaint addressing the pleading deficiencies identified
in the Court’s Memorandum, within twenty-one (21) days. (Doc. No. 39 at 1.)3
Thereafter, on August 3, 2023, Plaintiff filed a Notice of Appeal (Doc. No. 40) of the
Court’s July 19, 2023 Order. See (Doc. No. 40 (stating that “Plaintiff in the above case hereby
appeals to the United States Court of Appeals for the Third Circuit, from the Order dismissing

3 In the absence of a viable federal claim, the Court declined to exercise supplemental
jurisdiction over Plaintiff’s state law claims and therefore also dismissed those claims without
prejudice to Plaintiff’s ability to reassert them in a Third Amended Complaint. (Id.)
Count I of Plaintiff’s Second Amended Complaint with prejudice”)).4 Six days later, on August
9, 2023, and in accordance with the timeframe set forth in the Court’s July 19, 2023 Order,
Plaintiff filed a Third Amended Complaint reasserting Section 1983 and negligence claims
against the Township. (Doc. No. 41.) Five days after that, on August 14, 2023, Plaintiff,

apparently recognizing the non-final nature of the Court’s July 19, 2023 Order and his inability
to appeal it absent permission from this Court pursuant to 28 U.S.C. § 1292(b), filed the pending
“Motion for Leave to Appeal Interlocutory Order and Stay Proceedings.”5 (Doc. No. 43.)
Plaintiff filed a brief in support of his motion the next day. (Doc. No. 44.)
Meanwhile, in light of Plaintiff’s filing of a Third Amended Complaint, Defendant filed
the pending motion to dismiss the Third Amended Complaint (Doc. No. 45), on August 23,
2023, followed fourteen (14) days later by a brief in support of the motion (Doc. No. 46). On
September 20, 2023, Plaintiff filed a response (Doc. No. 48), as well as a brief in opposition to
Defendant’s motion to dismiss (Doc. No. 47). Accordingly, both pending motions are ripe for
disposition.

4 Plaintiff’s appeal of this Court’s July 19, 2023 Order permitting Plaintiff to file an amended
complaint did not divest the Court of jurisdiction over this case. See Bensalem Township v.
Intl. Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1984) (quoting Mondrow v. Fountain
House, 867 F.3d 798, 800 (3d Cir. 1989) (holding that a “premature notice of appeal does not
divest the district court of jurisdiction”)). Subject to limited exceptions not applicable here, an
appeal can only be taken from a final order of a district court. See 28 U.S.C. § 1291. “Only if
the plaintiff cannot amend or declares [his] intention to stand on [his] complaint does [an] order
become final and appealable.” See Borelli v. City of Reading, 532 F.2d 950, 951–52 (3d Cir.
1976) (per curiam). Accordingly, this Court retains jurisdiction over this action.

5 Upon review of the Third Circuit’s docket relating to Plaintiff’s appeal of this Court’s July 19,
2023 Order, see Small v. Township of Lower Paxton, et al., No. 23-2408 (3d Cir. filed August
10, 2023), the Court notes that, on the same date that Plaintiff’s appeal was docketed by the
Third Circuit, the clerk of that court issued an order advising that the case was listed for possible
dismissal due to a jurisdictional defect, see id., ECF No. 4. In response to the Third Circuit’s
order, Plaintiff filed a copy of his “Motion for Leave to File Interlocutory Appeal” filed in this
Court. See Small v. Township of Lower Paxton, No. 23-2408 (3d Cir. Aug. 23, 2023), ECF No.
II. LEGAL STANDARDS
A. Motion for Certification of Interlocutory Appeal
28 U.S.C. § 1292(b) provides for the immediate appeal of an interlocutory order of a
district court under the following circumstances:

When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order involves a
controlling question of law as to which there is substantial ground for difference
of opinion and that an immediate appeal from the order may materially advance
the ultimate termination of the litigation, he shall so state in writing in such order.
The Court of Appeals which would have jurisdiction of an appeal of such action
may thereupon, in its discretion, permit an appeal to be taken from such order.

See 28 U.S.C. § 1292(b). Accordingly, the “three criteria for the district court’s exercise of
discretion to grant a § 1292(b) certificate” consist of the Court’s determination that an order “(1)
involve a ‘controlling question of law,’ (2) offer ‘substantial ground for difference of opinion’ as
to its correctness, and (3) if appealed immediately ‘materially advance the ultimate termination
of the litigation.’” See Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (quoting
28 U.S.C. § 1292(b)). Even if the three statutory criteria are satisfied, a district court retains
“discretion to deny certification of an [interlocutory] appeal.” See In re Chocolate
Confectionary Antitrust Litig., 607 F. Supp. 2d 701, 708 (M.D. Pa. 2009) (citing Bachowski v.
Usery, 545 F.2d 363, 368 (3d Cir. 1976)). Certification under 28 U.S.C. § 1292(b) is
appropriate only under “exceptional circumstances.” See Knopick v. Downey, 963 F. Supp. 2d
378, 398 (M.D. Pa. 2013) (quoting Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 (1996)).
The first requirement for certification is that an order involve a “controlling question of
law.” “A question of law is controlling if: (1) an incorrect disposition would constitute
reversible error, or (2) it is serious to the litigation, either practically or legally.” Sayles v.

5.
Allstate Ins. Co., No. 3:16-cv-01534, 2017 WL 2985402, at *2 (M.D. Pa. July 13, 2017) (citing
Katz, 419 F.2d at 755). The Third Circuit has noted that “on the practical level, saving of time
of the district court and of expense to the litigants . . . [are] highly relevant factor[s].” See Katz,
496 F.2d at 755; see also 19 James Wm. Moore, et al., MOORE’S FEDERAL PRACTICE §

203.319[3] (3d ed. 2013) (stating that a controlling question of law is one that “has the potential
of substantially accelerating disposition of the litigation”).
As to the second requirement for certification, it is clear that a party’s disagreement with
the district court’s ruling does not constitute a “substantial ground for difference of opinion”
within the meaning of the statute. See In re Chocolate Confectionary Antitrust Litig., 607 F.
Supp. 2d at 706. Rather, a “substantial ground for difference of opinion exists when there is a
genuine doubt or conflicting precedent as to the correct legal standard” to be applied in the order
at issue. See Juice Entm’t, LLC v. Live Nation Entm’t, Inc., 353 F. Supp. 3d 309, 313 (D.N.J.
2018) (quotation omitted); Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 599 (E.D. Pa.
2008). The difference of opinion must involve “one or more difficult and pivotal questions of

law not settled by controlling authority.” See Sayles, 2017 WL 2985402, at *2 (quotations and
citations omitted); Knipe, 583 F. Supp. 2d at 599. The moving party may meet its burden to
demonstrate a “substantial ground for difference of opinion” by showing that “different courts
have issued conflicting and contradictory opinions when interpreting a particular question of
law,” see Vares-Ebert v. Township of Hamilton, No. 15-cv-07331, 2020 WL 948774, at *2–3
(D.N.J. Feb. 27, 2020), or by demonstrating the absence of controlling law on a particular issue,
see Sayles, 2017 Wl 2985402, at *2; Knipe, 583 F. Supp. 2d at 600.
With regard to the third requirement, the statute requires the moving party to demonstrate
that an interlocutory appeal may “materially advance the ultimate termination of the litigation.”
See 28 U.S.C. § 1292(b). “Several factors are pertinent in determining whether an immediate
appeal would materially advance the ultimate termination of the litigation, including: (1) whether
the need for trial would be eliminated; (2) whether the trial would be simplified by the
elimination of complex issues; and (3) whether discovery could be conducted more expeditiously

and at less expense to the parties.” Patrick v. Dell Fin. Servs., 366 B.R. 378, 387 (M.D. Pa.
2007) (citing Interwave Tech., Inc. v. Rockwell Automation, Inc., No. 05-cv-00398, 2006 WL
401843, at *6 (E.D. Pa. Feb. 16, 2008).
B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)
Federal notice and pleading rules require the complaint to provide the defendant notice of
the claim and the grounds upon which it rests. See Phillips v. County of Allegheny, 515 F.3d
224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a
plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure
8(a)(2) requires “only a short and plain statement of the claim showing that the pleader is entitled
to relief,” a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure

12(b)(6) for “failure to state a claim upon which relief can be granted.” See Fed. R. Civ. P.
12(b)(6).
When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all
factual allegations in the complaint and all reasonable inferences that can be drawn from them,
viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618
F.3d 300, 312 (3d Cir. 2010). The Court’s inquiry is guided by the standards of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under
Twombly and Iqbal, pleading requirements have shifted to a “more heightened form of
pleading.” See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent
dismissal, all civil complaints must set out “sufficient factual matter” to show that the claim is
facially plausible. See id. The plausibility standard requires more than a mere possibility that
the defendant is liable for the alleged misconduct. As the Supreme Court instructed in Iqbal,
“where the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” See Iqbal, 556 U.S. at 679 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).
Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the
United States Court of Appeals for the Third Circuit has identified the following steps a district
court must take under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a
claim; (2) identify any conclusory allegations contained in the complaint “not entitled” to the
assumption of truth; and (3) determine whether any “well-pleaded factual allegations” contained
in the complaint “plausibly give rise to an entitlement to relief.” See Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a court must

consider only the complaint, exhibits attached to the complaint, matters of public record, as well
as undisputedly authentic documents if the complainant’s claims are based upon these
documents.” See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
III. DISCUSSION
The Court first addresses Plaintiff’s motion for leave to file an interlocutory appeal
before addressing Defendant’s motion to dismiss Plaintiff’s Third Amended Complaint.
A. Plaintiff’s Motion for Leave to File Interlocutory Appeal
In his motion, Plaintiff asserts that the Court’s July 19, 2023 Order:
involves a controlling question of law to which there is a substantial ground for
difference of opinion regarding when Amendments should relate back to original
pleadings, especially where, as here, there has been evidence of concealment
preventing Plaintiff to properly plead in the first instance, and no prejudice upon
the Defendants. An immediate Appeal from that Order may materially advance
the ultimate termination of the litigation.

(Doc. No. 43 at 3 ¶ 5.)
The Court will deny Plaintiff’s motion seeking to certify the Court’s July 19, 2023 Order
for interlocutory appeal due to his complete failure to demonstrate an entitlement to such
certification, a procedural vehicle appropriate only under “exceptional circumstances.” See
Knopick, 963 F. Supp. 2d at 398 (quotation omitted). Plaintiff’s motion and supporting brief do
not even mention 28 U.S.C. § 1292(b), much less persuasively demonstrate that its three criteria
governing the Court’s discretion to grant a Section 1292(b) certificate support the Court’s
certification of its July 19, 2023 Order for interlocutory appeal. For example, with regard to the
second requirement for certification, and as noted above, a party’s disagreement with the district
court’s ruling does not constitute a “substantial ground for difference of opinion” within the
meaning of the statute. See In re Chocolate Confectionary Antitrust Litig., 607 F. Supp. 2d at
706. Plaintiff’s arguments in favor of certification, as expressed in his brief in support of his
motion, consist of nothing more than disagreement with this Court’s determination that Federal
Rule of Civil Procedure 15(c)’s relation back provision did not apply to the Second Amended
Complaint’s asserted Section 1983 claim against Officer Elezovic so as to render the claim
timely. Plaintiff argues that:
[w]here, as here, Plaintiff’s failure to timely name Officer Michael Elezovic, as a
party Defendant was based, in whole or in part on Defendant’s active
concealment of Officer Elezovic’s role as it relates to this incident, it is
respectfully submitted that the Court should have applied Rule 15(c)1(C) to allow
Plaintiff’s addition of Officer Elezovic as a party Defendant to relate back to the
date of original filing.
(Doc. No. 44 at 1.) Plaintiff cites no relevant authority in his filings, much less authority
demonstrating “a genuine doubt or conflicting precedent as to the correct legal standard” to be
applied by the Court. See Juice Entm’t, LLC, 353 F. Supp. 2d at 599. Because Plaintiff has
failed to demonstrate that the three criteria governing interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b) are met here, the Court will deny Plaintiff’s motion for leave to file interlocutory
appeal. The Court turns to Defendant’s motion to dismiss Plaintiff’s Third Amended
Complaint.
B. Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint
Plaintiff’s Third Amended Complaint asserts four claims against the Township: (1)
municipal liability pursuant to 42 U.S.C. § 1983 (Count I); (2) negligence (Count II); (3)
wrongful death (Count III); and (4) survival (Count IV). As noted supra at note 2, while the
Third Amended Complaint, like the Second Amended Complaint, seeks a remedy pursuant to
Pennsylvania’s wrongful death statute, 42 Pa. C.S.A. § 8301, and survival statute, id. § 8302,
under Pennsylvania law, “wrongful death and survival actions are not substantive causes of

action; rather they provide a vehicle through which plaintiffs can recover for unlawful conduct
that results in death.” See Sullivan, 765 F. Supp. 2d at 707. Accordingly, Plaintiff’s Third
Amended Complaint asserts essentially two claims—a Section 1983 municipal liability claim
against the Township (Count I) and a negligence claim against the Township (Count II). The
Court first addresses Plaintiff’s Section 1983 municipal liability claim.
1. Plaintiff’s Section 1983 Municipal Liability Claim
Section 1983 is the vehicle by which private citizens can seek redress for violations of
federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute
provides, in relevant part,
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 . . . .

See id. Section 1983 “does not . . . create substantive rights; it provides only remedies for
deprivations of rights established elsewhere in the Constitution or federal laws.” See Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim for relief under § 1983, a plaintiff
“must allege the violation of a right secured by the Constitution and laws of the United States”
and “show that the alleged deprivation was committed by a person acting under color of state
law.” See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West
v. Atkins, 487 U.S. 42, 48 (1988)).
Municipalities such as the Township are considered “persons” under § 1983 and may be
held liable for injuries caused by violations of constitutional rights. See Monell v. N.Y.C. Dep’t
of Soc. Servs., 436 U.S. 658, 690 (1978). They can only be held liable, however, “for their own
illegal acts.” See Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986). It is only when a
municipality’s “execution of [a] policy or custom . . . inflicts the injury” that the municipality “as
an entity is responsible under § 1983.” See Monell, 436 U.S. at 694. To plead a Section 1983
claim against a municipality, a plaintiff must allege (1) an underlying constitutional violation (2)
caused by the municipality’s execution of a municipal policy or custom. See Natale v. Camden
Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
A municipal policy is a “statement, ordinance, regulation, or decision officially adopted
and promulgated by [a local governing] body’s officers.” See City of Canton v. Harris, 489
U.S. 378, 385 (1989). A custom is “an act ‘that has not been formally approved by an
appropriate decision maker,’ but is ‘so widespread as to have the force of law.’” See Natale,
318 F.3d at 584 (quoting Bd. of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997)).
In order to recover from a municipality under this theory of liability, a plaintiff must show “a
direct causal link between the municipal policy or custom and the alleged constitutional
deprivation.” See City of Canton, 489 U.S. at 385. Complaints alleging municipal liability

under Section 1983 are not subject to heightened pleading standards. See Leatherman v. Tarrant
Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). However, a
plaintiff attempting to establish a Monell claim must “identify a custom or policy, and specify
what exactly that custom or policy was.” See McTernan v. City of York, 564 F.3d 636, 658 (3d
Cir. 2009).
In the alternative, a municipality may be liable under Section 1983 for a failure to train,
monitor, or supervise—however, the failure alleged in such a circumstance must amount to
“deliberate indifference to the constitutional rights of persons with whom the police come in
contact.” See City of Canton, 489 U.S. at 388. To establish deliberate indifference in this
context, a plaintiff must generally show the failure alleged “has caused a pattern of violations.”

See Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). Where a failure to train
claim is alleged based on a single incident, the complaint must contain allegations that
policymakers “kn[e]w to a moral certainty” that the alleged constitutional deprivation would
occur and the need for further training “must have been plainly obvious.” See City of Canton,
489 U.S. at 390 n.10. Further, “[l]iability cannot rest only on a showing that the employees
‘could have been better trained or that additional training was available that would have reduced
the overall risk of continued injury.’” See Thomas v. Cumberland County, 749 F.3d 217, 226
(3d Cir. 2014) (citing Colburn v. Upper Darby Township, 946 F.2d 1017, 1029–30 (3d Cir.
1991)).
In arguing that Plaintiff’s Section 1983 claim against it is subject to dismissal, Defendant
first contends that Plaintiff’s Third Amended Complaint fails to plead sufficient facts to sustain a
municipal liability claim under either a “municipal policy or custom” or “failure to train” theory
of liability. (Doc. No. 46 at 8–11.) Defendant asserts that “[t]he death knell to Plaintiff’s

Monell claim based upon an unconstitutional policy lies in Plaintiff’s concession that the
Township, through Corporal Pachalski, directed the pursuit to be terminated immediately upon
learning of the pursuit and its justification.” (Id. at 11 (citing Doc. No. 41 at 2 ¶ 9).) Defendant
argues that “[t]his allegation severs the causal link between the conduct of the Township and the
[a]ccident at issue” because, according to the allegations of the Third Amended Complaint,
“upon learning of the chase the Township ordered its termination.” (Id. at 11–12.)
Further, Defendant argues that Plaintiff relies on an improper legal standard in
connection with his municipal liability claim, noting that “Plaintiff pleads that a traffic violation
and unusual driving behavior were ‘insufficient’ to warrant the initiation of the pursuit, and then
alleges in a conclusory fashion that if the pursuing officer had been ‘properly hired, trained, and

supervised he would not have initiated a high-speed chase after Plaintiff’s Decedent without
justification or probable cause . . .’” (Id. at 12.) Defendant maintains that “[i]n so pleading,
Plaintiff ignores the decades of case law making Plaintiff’s Decedent responsible for his
unwarranted and illegal flight from the officer and instead focuses exclusively upon the existence
of probable cause to arrest.” (Id.) However, Defendant argues that “[t]his is not the standard
for imposition of constitutional liability in the context of a police pursuit” and “[i]nstead, such
claims are regularly assessed under a substantive Due Process analysis.” (Id.) Pursuant to the
relevant standard, Defendant asserts that Plaintiff “has failed to plead facts indicating the pursuit
lacked a legitimate government interest much less that the pursuit reflected an intent to harm”
and argues that “[t]he contrary is established by [Plaintiff’s] pleading that acknowledges a traffic
violation and Plaintiff’s Decedent’s decision to flee.” (Id. at 14–15.)
In general, Defendant argues that Plaintiff’s Third Amended Complaint contains
conclusory allegations as opposed to facts related to the existence of a specific governmental

policy or how that policy caused Plaintiff’s Decedent’s injuries. (Id. at 15–16.) Defendant
asserts that “Plaintiff has failed to cure the defects that this Court found fatal to his prior
pleading,” instead parroting the relevant legal standard but failing to “plead any facts to support a
pattern of similar constitutional violations that could arguably place [Defendant] on notice of a
practice that was giving rise to constitutional injuries” or to “demonstrate[s] proof of knowledge
and acquiescence by the policymaker of a custom that occurs with sufficient frequency to have
the force of law.” (Id. at 16.) Defendant asserts that “[o]n the contrary, Plaintiff continues to
plead in conclusory fashion that had Officer Elezovic been properly hired, trained and
supervised, and if Lower Paxton Township has [sic] proper policies and procedures, in place that
were enforce[d], a high speed chase . . . would not have taken place . . . .” (Id. at 16 (quoting

Doc. No. 41 at 4 ¶ 18).) Defendant maintains that because “it is the Plaintiff’s fourth attempt to
state such a claim, this claim should be dismissed with prejudice.” (Id. at 17.)
In response, Plaintiff asserts that his Third Amended Complaint sets forth a municipal
liability claim “premised upon negligent hiring, training, supervision and discipline as it relates
to Office Elezovic, and a failure to implement and enforce procedural policies to prevent
foreseeable accidents as it relates to a high speed chases initiated without probable cause,” and
argues that “[w]hile it is believed and therefore averred that Defendant had policies in place
relating to the circumstances under which a police officer in Lower Paxton Township should
initiate a high speed chase, Plaintiff is simply unable to specifically set forth those policies until
same are produced by Defendant.” (Doc. No. 48 at 6.) Plaintiff further states that “[i]f the
Court finds Plaintiff’s Third Amended Complaint lacking in requisite specificity, it is
respectfully requested that Defendant’s Motion to Dismiss this Count be denied without
prejudice, and Defendant be compelled to produce all relevant policies, procedures, customs and

practices as it relates to the facts of this case, as well as the personnel file of Officer Elezovic.”
(Id. at 7.)
Upon careful consideration of the Third Amended Complaint, the parties’ briefing, and
relevant authority, the Court concludes that Plaintiff has failed to plausibly allege a Section 1983
municipal liability claim against the Township. As an initial matter, the Court notes, as it did in
its July 19, 2023 Memorandum, that a deprivation of a constitutional right related to a vehicular
police pursuit is analyzed pursuant to the Due Process Clause of the Fourteenth Amendment.
See County of Sacramento v. Lewis, 525 U.S. 833 (1998). In Lewis, the Supreme Court stated
that “the substantive component of the Due Process Clause is violated by executive action only
when it ‘can properly be characterized as arbitrary, or conscience shocking, in a constitutional

sense.’” See id. at 847 (quoting Collins v. Harker Heights, 503 U.S. 115, 128 (1992)); see also
Kneipp, 95 F.3d at 1207 (“The appropriate standard to be applied in police pursuit cases
involving an alleged violation of substantive due process is the ‘shocks the conscience’ test”).
In accordance with this standard, the Supreme Court held in Lewis that “high-speed chases with
no intent to harm suspects physically or to worsen their legal plight do not give rise to liability
under the Fourteenth Amendment.” See Lewis, 525 U.S. at 854. Under this standard, a
plaintiff must allege facts showing an “intent to harm” on the part of a pursuing police officer to
plausibly allege a constitutional violation.
In this regard, Plaintiff’s Third Amended Complaint avers as follows:
It is believed and therefore averred that the “justification” to engage in a high
speed chase here was pretext, and not capable of being rationalized to serve any
legitimate governmental interest. As a result, the initiation and continuation [of]
this high speed chase under the circumstances evidenced an intent to harm or at
least worsen the plight of Plaintiff’s [D]ecedent.

(Doc. No. 41 at 3–4 ¶ 15.)
Having previously alleged that Decedent “was lawfully operating a vehicle” (Doc. No. 41
at 2 ¶ 6), and then that Officer Elezovic “allegedly observed [Decedent’s] vehicle ‘not utilizing
his turn signal 100 feet prior to commencing a turn, and stopping for 4-6 seconds at a stop sign’”
before beginning a “high speed chase” of Decedent, who “fled” from Officer Elezovic (id. at ¶¶
7–8), the above allegations of the Third Amended Complaint fail to plead facts showing an
“intent to harm” on the part of Officer Elezovic, as required to plausibly allege a substantive due
process violation. In Lewis, the Supreme Court stated that “conduct deliberately intended to
injure in some way unjustifiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level.” See Lewis, 523 U.S. at 834 (emphasis added).
Here, as alleged by Plaintiff in the Third Amended Complaint, the high-speed chase that led to
Decedent’s death began when Officer Elezovic allegedly observed Decedent’s vehicle in
violation of traffic laws, and Plaintiff’s Decedent fled from Officer Elezovic rather than stop his
vehicle. Even taken as true, these facts do not reflect a deliberate intent to injure “unjustifiable
by any government interest.” See id. While Plaintiff asserts in a conclusory fashion that the
pursuit was “not capable of being rationalized to serve any legitimate governmental interest” and
therefore the pursuit “evidenced an intent to harm or at least worsen the plight of Plaintiff’s
[D]ecedent,” that statement parrots the relevant legal standard instead of asserting facts showing
an intent to harm on the part of the pursuing police officer, as required by Lewis.
As in the Second Amended Complaint, Plaintiff in the Third Amended Complaint
appears to suggest that Officer Elezovic should not have pursued Plaintiff’s Decedent as an
initial matter because Plaintiff was “lawfully operating [his] vehicle.” (Doc. No. 41 at 2 ¶ 6.)
As previously noted by the Court, this argument is unavailing because “[t]he Supreme Court has
held on multiple occasions that the decision to engage in flight and to ignore police warnings to

stop causing risk to innocent bystanders results, not from the pursuit by law enforcement, but
from the fleeing suspect intentionally placing himself and others in danger by unlawfully
engaging in reckless flight.” See Koreny v. Smith, No. 17-cv-00371, 2018 WL 1141513, at *8
(W.D. Pa. Mar. 2, 2018).
As the Court previously held, Plaintiff’s allegation that Officer Elezovic’s “initiation and
continuation of this high speed chase” potentially “in violation of yet to be disclosed policies and
procedures, as confirmed by Corporal Pachalski’s order to terminate the chase,” see (Doc. No. 41
at 4 ¶¶ 15–16), does not change the analysis. Indeed, in Davis v. Township of Hillside, 190
F.3d 167 (1999), the Third Circuit addressed a similar substantive due process claim alleging that
a police officer involved in a vehicular pursuit “willfully violated applicable police department

regulations” in connection with the pursuit. See id. at 170. In so doing, the Third Circuit noted
that Lewis “squarely refutes plaintiff’s contention that the officers’ violation of police
department regulations, which might be probative of recklessness or conscious disregard of
plaintiff’s safety, suffices to meet the shocks-the-conscience test under the due process clause.”
See id. Accordingly, even assuming the truth of Plaintiff’s allegation that Officer Elezovic
continued the chase in violation of a superior’s order (and potentially violated Township policies
in doing so), the Third Amended Complaint fails to plausibly allege a substantive due process
violation and therefore fails to allege a Section 1983 claim against Officer Elezovic.
Despite Plaintiff’s failure to plausibly allege a substantive due process violation against
Officer Elezovic, however, Third Circuit precedent pertaining to police pursuit “requires the
district court to review the plaintiff[’s] municipal liability claim[] independently of the section
1983 claim[] against [an] individual police officer[], as the [Township’s] liability for a
substantive due process violation does not depend upon the liability of any police officer.” See

Kneipp, 95 F.3d at 1213. Under the Third Circuit’s decision in Fagan v. City of Vineland, 22
F.3d 1283 (3d Cir. 1994), “a municipality can be liable under section 1983 and the Fourteenth
Amendment for a failure to train its police officers with respect to high-speed automobile chases,
even if no individual officer participating in the chase violated the Constitution.” See id. at
1294; see also Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 n.5 (3d Cir. 2003)
(noting that the Third Circuit “carefully confined Fagan to its facts: a substantive due process
claim resulting from a police pursuit”).
The relevant allegations of Plaintiff’s Third Amended Complaint are as follows:
13. It is believed and therefore averred that the Lower Paxton Township at all
relevant times had maintained a policy, custom or practice of deliberate
indifference to the hiring, training, supervision, and discipline of its police
officers, despite knowing that those police officers would come into contact with
citizens such as Plaintiff’s decedent.

14. In accordance with this municipal policy of deliberate indifference, police
officer Michael Elezovic was improperly hired, trained, supervised, and
disciplined, and, if properly hired, trained and supervised, he would not have
initiated a high speed chase after Plaintiff’s decedent without justification or
probable cause, and continue that chase outside of his jurisdiction, likely in
violation of policies and procedures yet to be disclosed.

15. It is believed and therefore averred that the “justification” to engage in a high
speed chase here was pretext, and not capable of being rationalized to serve any
legitimate governmental interest. As a result, the initiation and continuation [of]
this high speed chase under the circumstances evidenced an intent to harm or at
least worsen the plight of Plaintiff’s decedent.

16. The initiation of this high speed chase was without probable cause, in
violation of the constitution, and likely in violation of yet to be disclosed policies
and procedures, as confirmed by Corporal Pachalski’s order to terminate the
chase.

17. It is believed and therefore averred, that there had been previous incidents of
high speed chases initiated by police officers of Lower Paxton Township without
probable cause leading to injuries and deaths, and therefore making it a morale
certainty that greater supervision and training was necessary.

18. It is believed and therefore averred that if Officer Elezovic had been properly
hired, trained and supervised, and if Lower Paxton Township has [sic] proper
policies and procedures in place that were enforced, a high speed chase through
two jurisdictions without probable cause would not have taken place, and this
accident would not have occurred and Plaintiff’s decedent would be alive today.

19. The aforesaid Lower Paxton policy, custom or practice of deliberate
indifference to the hiring, training, supervision, or discipline of its police officers
who would come into contact with citizens was the direct and proximate cause of
the death of decedent.

20. It is believed and therefore averred that Lower Paxton Township, at all
relevant times, had, or should have had, policies in place to ensure that high speed
chases are only initiated in truly emergent circumstances not existing here, and
only with sufficient probable cause, confirmed by Corporal Pachalski as not
existing here, to prevent foreseeable accidents and injuries to members of the
public, like that involving Plaintiff’s decedent.

21. If policies restricting the initiation and continuation of high speed chases
absent truly emergent circumstances and without probable cause were not in place
at the time of this accident, Lower Paxton Township would be effectively
condoning the violation of the decedent’s constitutional rights of due process of
law under the Fourteenth Amendment, and to be free from unreasonable search
and seizure, by effectively encouraging their officers to engage in high speed
chases for any reason or no reason at all, in violation of the constitution.

22. In accordance with a municipal policy or indifference, Lower Paxton
Township failed to implement and/or enforce appropriate policies and procedures
to limit high speed chases to only emergent circumstances, which, if properly
implemented and/or enforced, would have prevented this accident from having
occurred.

23. The aforementioned policy, custom or practice of Lower Paxton Township
of deliberate indifference to the danger associated with their officers engaging in
high speed chases without probable cause, and their failure to implement and/or
enforce appropriate policies and procedures regulating high speed chases, “shocks
the conscious” in this day and age, and was the direct and proximate cause of the
injuries and death of the decedent.
(Doc. No. 41 at 4–5, ¶¶ 13–23.)

Even accepting these sweeping allegations in the Third Amended Complaint as true, and
drawing all inferences from them in Plaintiff’s favor, Plaintiff’s “allegations related to the
claimed custom or policy” remain “too vague and conclusory to show evidence of an actionable
custom or policy on the part of the [Township].” See Garcia v. Phila. Dist. Att’y’s Off., No.
23-01224, 2023 WL 3750604, at *2 (3d Cir. June 1, 2023) (unpublished), petition for cert.
pending, No. 23-6327 (filed Aug. 4, 2023) (citing Reitz v. County of Bucks, 125 F.3d 139, 145
(3d Cir. 1997) and then citing McTernan, 564 F.3d at 659); see also id. at 658 (noting that to
plead a Monell claim, a plaintiff “must identify a custom or policy, and specify what exactly that

custom or policy was”)). The Third Amended Complaint fails to allege any facts related to the
existence of a municipal policy or custom or how the alleged policy or custom allowed the
alleged constitutional violation to occur, or to identify a policymaker or decisionmaker
responsible for a policy or custom. Not only do Plaintiff’s allegations consist of conclusory
assertions that parrot the relevant legal standard rather than pleading specific facts, but they are
internally inconsistent—on the one hand asserting that Officer Elezovic initiated the pursuit
“likely in violation of yet to be disclosed policies and procedures,” (Doc. No. 41 ¶ 16), while
also alleging that the Township “failed to implement and/or enforce appropriate policies and
procedures to limit high speed chases” and that failure caused the fatal accident (id. ¶ 22).
Furthermore, with regard to a failure to train Monell claim, “[a] pattern of similar

constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” See Connick v. Thompson, 563 U.S. 51,
62 (2011). Given Plaintiff’s reliance on this single incident to support his claim, and as
previously stated by the Court, Plaintiff must allege that policymakers “knew to a moral
certainty” that the alleged deprivation would occur and that the need for further training was
accordingly “plainly obvious.” See City of Canton, 489 U.S. at 390 n.10. Plaintiff attempts to
bolster his generalized allegations with “factual” representations regarding other incidents that
are completely without support in the Third Amended Complaint. For example, while the Third

Amended Complaint states in a conclusory manner that “[i]t is believed and therefore averred
that there had been previous incidents of high speed chases initiated by police officers of Lower
Paxton Township without probable cause leading to injuries and deaths, and therefore making it
a morale [sic] certainty that greater supervision and training was necessary,” see (Doc. No. 41 at
4 ¶ 17), Plaintiff’s belief in this regard does not equate to an assertion of facts showing a
plausible failure to train claim. Instead, Plaintiff’s allegations in the Third Amended Complaint
are consistent with an assertion that “the employees ‘could have been better trained or that
additional training was available that would have reduced the overall risk of continued injury,’”
which is insufficient to plausibly allege a failure to train Monell claim. See Thomas, 749 F.2d
at 226 (citation omitted). In addition, Plaintiff has not identified a “failure to provide specific

training that has a causal nexus with [his claim]” and has not pleaded facts indicating “that the
absence of that specific training can reasonably be said to reflect a deliberate indifference to
whether the alleged constitutional deprivation[] occurred.” See Reitz, 125 F.3d at 145 (citing
Colburn, 946 F.2d at 1030); see also, e.g., Pahler v. City of Wilkes-Barre, 207 F. Supp. 2d 341,
353 (M.D. Pa. 2001) (dismissing failure to train claim where the plaintiff pleaded no facts to
support the contention that his injuries were caused by a failure to train, failed to identify the
specific training the city should have offered, and failed to plausibly allege that training was not
provided). Claims of failures to supervise, discipline, and monitor cannot be pleaded in a
conclusory manner. See, e.g., Moresi v. City of Philadelphia, No. 15-cv-00038, 2015 WL
4111724, at *4 (E.D. Pa. July 8, 2015) (dismissing Monell claims asserting “failure to
investigate, supervise, or discipline [] police officers” where, “[a]part from the single incidence
of alleged police misconduct against [the plaintiff], [the plaintiff] plead[ed] no other facts
necessary to establish a municipal liability claim”).

Accordingly, because Plaintiff’s Third Amended Complaint fails to plead facts plausibly
alleging a substantive due process violation caused by the Township’s policy, custom, or failure
to train, as required to state a claim for Section 1983 municipal liability under Monell, the Court
will grant Defendant’s motion to dismiss Plaintiff’s Section 1983 municipal liability claim
(Count I). Defendant requests that the Court dismiss Plaintiff’s Section 1983 claim against it
with prejudice and without further leave to amend. (Doc. No. 46 at 17.) Plaintiff, on the other
hand, asks that any dismissal of this claim be without prejudice to his ability to file a fourth
amended complaint after Defendant is “compelled to produce all relevant policies, procedures,
customs and practices as it relates to the facts of this case.” (Doc. No. 48 at 7.) Plaintiff cites
no authority in support of his request for additional discovery and another opportunity to plead

his claims. The Court notes that Plaintiff had the opportunity to file two amended versions of
his complaint after receiving some discovery from the Township and a third amended version of
his complaint after receiving guidance from the Court as to the pleading requirements of a
Section 1983 municipal liability claim. As previously stated by the Court, Plaintiff must first
allege a plausible claim for relief before he is entitled to discovery. See Connelly v. Lane
Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (noting that, to survive a motion to dismiss (and
proceed to discovery), a plaintiff must “allege sufficient facts to raise a reasonable expectation
that discovery will uncover proof of [his] claims”); Tieman v. City of Newburgh, No.
13-cv-04178, 2015 WL 1379652, at *21–*23 (S.D.N.Y. Mar. 26, 2015) (stating that plaintiff
asserting Section 1983 failure to train claim must meet Twombly and Iqbal pleading standard
despite limited information available to plaintiff pre-discovery). Accordingly, at this point the
Court concludes that granting Plaintiff further leave to amend would be futile, and therefore the
Court will dismiss Plaintiff’s Section 1983 claim against the Township (Count I) with prejudice.

2. Plaintiff’s Negligence/Wrongful Death/Survival Claims
In light of the Court’s resolution of Defendant’s motion to dismiss Plaintiff’s Section
1983 claim (Count I), there is currently no viable federal claim before the Court supporting the
exercise of supplemental jurisdiction over Plaintiff’s state law claims (Counts II, III, and IV).
See Plasko v. City of Pottsville, 852 F. Supp. 1258, 1267 (E.D. Pa. 1994) (first citing United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); and then citing Weaver v. Marine Bank, 683
F.2d 744, 746 (3d Cir. 1982)) (“[c]ourts should ordinarily decline to exercise supplemental
jurisdiction over state law claims when the federal claims are dismissed”). Accordingly, the
Court will decline to exercise supplemental jurisdiction over Plaintiff’s state law claims and will
remand those claims to the Dauphin County Court of Common Pleas.

IV. CONCLUSION
For all of the foregoing reasons, the Court will deny Plaintiff’s motion for leave to file
interlocutory appeal and grant in part Defendant’s motion to dismiss, insofar as Plaintiff’s
Section 1983 claim against Defendant will be dismissed with prejudice. The Court will decline
to exercise supplemental jurisdiction over Plaintiff’s state law claims and remand those claims to
the Dauphin County Court of Common Pleas. An appropriate Order follows.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414358. Public record. Not legal advice.