The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUSTIN T. ASHLEY, : Civil No. 1:22-CV-00982
:
Plaintiff, :
:
v. :
:
ADAM R. KOSHEBA, JR., et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is a motion filed by Defendant Dauphin County (the
“County”) to dismiss Count V of the second amended complaint filed by Plaintiff
Justin T. Ashley (“Ashley”). (Doc. 51.) This case involves allegations of Lower
Paxton Police Department officers using excessive force against Ashley. Ashley
brings his claims under 42 U.S.C. § 1983, alleging various constitutional violations
against Defendants Officer Chad W. Miller (“Officer Miller”), Officer Adam R.
Kosheba, Jr. (“Officer Kosehba”), Officer Daniel M. Smeck (“Officer Smeck”),
Officer Andrew R. Brady (“Officer Brady”), Lower Paxton Township (“the
Township”), and the County.
The County’s motion to dismiss argues that Count V, alleging Monell
liability against the County, should be dismissed pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
(Doc. 51.) Upon reviewing the second amended complaint and the parties’ briefs
regarding the County’s motion to dismiss, the court concludes that Ashley again
fails to plead a claim against the County and will therefore grant the motion to
dismiss.
BACKGROUND
Ashley initiated this action by filing a complaint on June 21, 2022. (Doc. 1.)
Thereafter, both the Township and County filed a motion to dismiss for failure to
state a claim. (Docs. 9, 12.) Ashley then filed an amended complaint as matter of
right on September 29, 2022, alleging the following claims: excessive force against
Officer Miller (Count I), duty to intervene against Officers Kosheba, Smeck, and
Brady (Count II), supervisor liability against Officers Kosheba, Miller, and Brady
(Count III), Monell liability against the Township (Count IV), and Monell liability
against the County (Count V). (Doc. 18.)
The Township and County filed motions to dismiss the amended complaint.
(Docs. 22, 23.) On September 22, 2023, the court denied the Township’s motion
insofar as it sought to dismiss the complaint, but granted it in part insofar as it
sought to strike portions of the complaint. (Doc. 48.) In the same order, the court
granted the County’s motion to dismiss without prejudice to Ashley filing a second
amended complaint. (Id.) On October 13, 2023, Ashley filed a second amended
complaint raising the same claims against the same Defendants. (Doc. 50.)
On October 27, 2023, the County filed the instant motion to dismiss. (Doc.
51.) The parties briefed the motion. (Docs. 53, 55, 56.) Thus, the motion is ripe
for review. On March 4, 2024, following a status conference with the parties, the
court stayed case management deadlines pending resolution of the motion to
dismiss. (Doc. 61.)
The second amended complaint alleges the following facts. Francis Chardo
(“Chardo”) became the elected District Attorney (“DA”) for the County in January
2018. (Doc. 50, ¶ 20.) As DA, Chardo was a policymaker for the County DA’s
office. (Id. ¶ 21.) DA Chardo’s policymaking role extended to the Criminal
Investigation Division (“CID”). (Id. ¶¶ 22–23.) DA Chardo authorized Officer
Kosheba to be sworn in as a law enforcement officer under DA Chardo’s
supervision, gave Officer Kosheba the title of “Special Detective,” and assigned
him to the CID.1 (Id. ¶¶ 24–25.) Under the portion of Pennsylvania statute called
the County Code (the “Code”), county detectives “shall be general police officers
and shall have the powers conferred on constables by the laws of this
Commonwealth.” 16 Pa. Stat. § 1440(d).
1 Kosheba also acted as the Township’s Director of Public Safety. (Doc. 51, ¶¶ 16–17, 27.) But
because the instant motion concerns only his role with the County, the court omits allegations
related to the Township and other Defendants except insofar as they are relevant to the County’s
motion.
Officer Kosheba was named the Township’s Director of Public safety on
April 17, 2018. (Id. ¶ 17.) The Township delegated policymaking authority to
Officer Kosheba for the Lower Paxton Township Police Department. (Id. ¶ 19.)
The second amended complaint alleges that Officer Kosheba took all relevant
conduct mentioned herein in his dual roles as Township’s Director of Public Safety
and as a Special Detective for the County. (Id. ¶ 27.)
During his time as Director of Public Safety, Officer Kosheba allegedly
sought to “police the community pursuant to a policy of excessive force and
intimidation.” (Id. ¶ 31.) Officer Kosheba allegedly changed the reporting
requirements of use of force incidents in order for it to appear that injuries only
occurred in a small fraction of situations, and he also changed the vehicle pursuit
policy, which led to an increased number of vehicle pursuits in the Township. (Id.
¶¶ 31, 36–37.)
Ashley alleges that DA Chardo provided Officer Kosheba with countywide
police authority. (Id. 152.) DA Chardo provided Officer Kosheba with no
supervision “despite knowing that [Officer] Kosheba was a County policymaker in
charge of the [Community Engagement Team “CET”] and was traveling around
the County using the CET [] to engage in police use of force incidents.” (Id. ¶¶ 58,
153.) The CET was a team with the mission “to provide the residents of Lower
Paxton Township the best possible police services through aggressive
enforcements of the Laws and Statutes of the Commonwealth of Pennsylvania.”
(Id. ¶ 59 (emphasis removed).)
Finally, Ashley alleges that Officers Kosheba, Miller, Brady, and Smeck
served an arrest warrant at his home on June 24, 2020. (Id. ¶ 65.) All Defendants
involved in this incident knew that Ashley had been suffering from mental illness
and was working with a mental health case worker at the time. (Id. ¶ 73.) The
named Defendants and the CET surrounded Ashley’s home with law enforcement
vehicles, armed officers, and a police K-9. (Id. ¶ 78.) The officers pounded on
Ashley’s door, threatening to break the door the down and threatening to send the
K-9 into the home. (Id. ¶¶ 79, 81.) As Ashley was heading for the door, he heard
it being broken down and hid in a closet behind a desk so that the K-9 would not
bite him. (Id. ¶¶ 80–82, 84–85.) The officers warned Ashley that if he did come
out, the K-9 would be sent in to bite him. (Id. ¶ 87.)
Officers Kosheba, Brady, and Smeck found Ashley in the storage closet and
commanded him to show his hands. (Id. ¶¶ 89–91.) Ashley complied, but then
froze when he saw the K-9. (Id. ¶¶ 92–96.) Officer Miller then commanded the K-
9 to bite Ashley, causing him to suffer injuries on his arm. (Id. ¶¶ 97, 100–01.)
Officers Kosheba, Miller, Brady, and Smeck then attempted to pull Ashley over
the desk he was hiding behind by the hood of his sweatshirt, causing injury to
Ashley’s neck. (Id. ¶ 102.) Ashley then proceeded to lie in the fetal position on
the floor, during which Officer Miller instructed the K-9 to bite Ashley’s leg. (Id.
¶¶ 105–07.) The K-9 was permitted to chew Ashley’s leg, causing significant
injuries. (Id. ¶¶ 108, 110–11.) This encounter forms the basis of Ashley’s lawsuit.
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
The County argues that Count V fails for two reasons. First, Officer
Kosheba lacked final policymaking authority. (Doc. 53, pp. 10–12.)2 Therefore,
his actions did not represent official County policy. (Id.) Second, Officer
Kosheba’s actions cannot be otherwise attributed to the County through a failure to
supervise theory. (Id. at 12–14.) Ashley counters that the County is wrong on
both arguments and that he has sufficiently pleaded Count V.
Under Supreme Court precedent, 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). To bring a so-called Monell claim, 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)).
2 For ease of reference, the court uses the page numbers from the CM/ECF header.
A policy or custom can be proven in multiple ways. First, a plaintiff may
point to “a formal policy officially promulgated or endorsed by the municipality
. . . .” Id. at 351. The policy must be “an official proclamation, policy or edict”
made by “a decisionmaker possessing final authority to establish municipal policy
with respect to the action . . . .” Estate of Roman v. City of Newark, 914 F.3d 789,
798 (3d. Cir. 2019).
Second, absent a formal policy, a “specific injury-causing action[] taken by a
government official who is responsible for establishing municipal polices” may
establish a municipal policy or custom. Schlaybach, 434 F. Supp. 3d at 351. In this
scenario, “the conclusion that the action taken or directed by the municipality or its
authorized decisionmaker itself violates federal law will also determine that the
municipal action was the moving force behind the injury of which the plaintiff
complains.” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 405
(1997).
Third, absent a formal policy, the plaintiff may allege a municipality’s
custom, which is “a practice so consistent and widespread that, although not
expressly authorized, constitutes a custom or usage of which a policymaker must
have been aware[,]” caused the violation of their rights. Id. (see also Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d. Cir. 1990)). The custom must be “so well-settled
and permanent as virtually to constitute law.” Watson v. Abington Twp., 478 F.3d
144, 156 (3d Cir. 2007).
Finally, absent a formal policy, “a widespread failure by policymakers to
provide adequate training or supervision to subordinates” which amounts to
deliberate indifference towards the rights of citizens can also support municipal
liability. Id. (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)); see also
Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d. Cir. 2003). In any of
the above scenarios, “a plaintiff must show that an official who has the power to
make policy is responsible for either the affirmative proclamation of policy or
acquiescence in a well-settled custom.” Bielevicz, 915 F.2d at 850.
Establishing that a municipality was deliberately indifferent requires
showing that “(1) municipal policymakers know that employees will confront a
particular situation, (2) the situation involves a difficult choice or a history of
employees mishandling, and (3) the wrong choice by an employee will frequently
cause deprivation of constitutional rights.” Forrest v. Parry, 930 F.3d 93, 106 (3d
Cir. 2019) (citation omitted).
The arguments of Ashley and the County relate to the second and fourth
bases for a Monell claim: actions by policymakers and deliberate indifference. The
court will take them in turn.
A. Ashley has not established that Kosheba had final policymaking
authority.
There are two steps to determining whether an official has “final policy-
making authority[] and can thus bind the municipality by his conduct.” Hill v.
Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006). First, a court must
determine whether, “as a matter of state law, the official is responsible for making
policy in the particular area of municipal business in question.” Id. (citing
McMillian v. Monroe Cty., 520 U.S. 781, 785 (1997). Second, the court must
determine “whether the official’s authority to make policy in that area is final and
unreviewable.” Id. (emphasis in original) (citing City of St. Louis v. Praprotnik,
485 U.S. 112 (1988)).
The County argues that, under state and local law, Officer Kosheba was not
a policymaker. (Doc. 53, pp. 11–12.) It points out that “the identification of those
officials whose decisions represent the official policy of a local government unit is
. . . a legal question to be resolved by the trial judge before the case is submitted to
a jury.” (Id. at 11 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989) (emphasis in original)).)
The County points out that, under state law, although a DA may appoint a
special detective with court approval, doing so provides that special detective with
no policymaking powers. (Id.) Rather, the Code states the following:
The district attorney of any county may, with the approval of the salary
board, whenever the court of common pleas and district attorney may
deem it necessary for a particular and temporary assignment, appoint a
special detective, whose duty it shall be to assist in obtaining such
evidence as shall be directed by the district attorney for the
Commonwealth, and perform such other duties as the court may direct.
The special detective shall be allowed expenses necessarily and
actually incurred in the performance of duties.
The special detective officer shall be a general police officer and shall
have all the powers that are conferred on constables by the existing laws
of this Commonwealth, so far as they relate to crimes or criminal
procedure.
§ 1441. Therefore, as is true for all County detectives, special detectives are “at all
times, [] subject to the orders of the district attorney.” § 1440(c). The County
argues that the Code makes clear that Officer Kosheba is not a final policymaker,
because at all times he was subordinate to Chardo and subject to DA Chardo’s
orders. (Doc. 53, pp. 11–12.) Therefore, even if he could make policy, it would
not be final and unreviewable.
Ashley does not dispute the law. Instead, he argues that the facts he has
alleged show that Kosheba was a final policymaker. (Doc. 55, pp. 3–6.)
Specifically, Ashley alleges in the second amended complaint that “Kosheba was a
decisionmaker possessing final authority to establish policy with respect to the
operation of the Township and County’s CET.” (Doc. 5, p. 5 (cleaned up).)
Ashley does not explain how this legal conclusion in his second amended
complaint can overcome the plain language of the Code. The Code makes clear
that Officer Kosheba was at all times subject to the orders of DA Chardo. As such,
even if Officer Kosheba was responsible for making County policy in some
manner, his policy decisions were never final and unreviewable. They would be
subject to review by DA Chardo. Because Officer Kosheba’s decisions were at all
times reviewable, Ashley cannot pursue Monell liability against the County on the
basis that Officer Kosheba was a final policymaker.
B. Ashley has not adequately pleaded a failure to supervise theory.
The County argues that Ashley’s Monell claim also fails under a deliberate
indifference theory because Ashley has failed to plead that the “failure alleged has
caused a pattern of violations.” (Doc. 53, p. 12 (quoting Small v. Lower Paxton
Twp., No. 1:22-cv-01146, 2023 WL 4631575, at *10 (M.D. Pa. July 19, 2023)).)
Ashley has not identified a “‘particular situation’ and ‘difficult choices concerning
or a history of employees mishandling’ the situation.” (Id. (quoting Forrest, 930
F.3d at 106).) Instead, Ashley solely alleges generally that Officer Kosheba “was
traveling around the County using the CET Team to engage in police use of force
incidents.” (Id. at 13–14 (quoting Doc. 50, ¶ 153).)
Ashley responds that the second amended complaint does provide a
particular situation. (Doc. 55, p. 7.) He asserts that Officer Kosheba changed
Township policy related to vehicular pursuits and that DA Chardo allowed him to
do so despite the risks. (Doc. 50, ¶¶ 34, 37–39; Doc. 55, p. 7.) Ashley alleges that,
in so allowing, DA Chardo acted with deliberate indifference. (Doc. 50, ¶¶ 34, 37–
39; Doc. 55, p. 7.) Ashley asserts that Officer Kosheba’s policy decision led to
deaths from vehicular pursuits and Ashley’s injuries. (Doc. 50, ¶ 39.)
Seemingly, Ashley argues that DA Chardo, by failing to supervise Officer
Kosheba’s alleged vehicular pursuit policy, led to Ashley’s K-9 excessive force
claim. Ashley’s claim is unrelated to vehicular pursuits.3 And Ashley presents no
authority to suggest that he can bring a failure to supervise claim based upon an
unrelated policy.
The court finds that Ashley does not specify what difficult situation DA
Chardo knew that Officer Kosheba would confront. Nor does he allege the
difficult choices related to or the history of mishandling the particular excessive
force situation at issue in this case. Ashley has failed to point to a particular
situation and difficult choices concerning or a history of employees mishandling
excessive force situations. Therefore, he fails to plead a failure to supervise
theory.
C. The court will dismiss Count V with prejudice.
The County argues that Count V should be dismissed with prejudice. (Doc.
53, pp. 7, 12, 14.) Ashley does not respond to this argument. Therefore, the court
3 Ashley does allege changes in use of force policy, but only addresses it when arguing that
Kosheba had final policymaking authority. (See Doc. 55, pp. 4–5.) And nowhere in his brief
does he address a particular situation or difficult choices concerning an excessive force situation.
deems him to have waived it. Moreover, Ashley has twice had the opportunity to
amend his complaint. His second amended complaint still fails to plead the
requirements of Count V. The court concludes that to allow further amendment
would be futile. As a matter of law, Officer Kosheba was not a final policymaker.
Furthermore, despite repeatedly amending his complaint, Ashley has failed to point
to any sufficient facts to raise a failure to supervise claim. For these reasons, the
court will dismiss Count V with prejudice.
CONCLUSION
For the reasons described herein, the court finds that Ashley fails to plead
Count V and will dismiss it with prejudice. An appropriate order will follow.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: April 1, 2024