DEEMER v. CITY OF OIL CITY

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES M. DEEMER, )

Plaintiff, ) C.A. No. 1:19-CV-380

)

vs. )

)

CITY OF OIL CITY, et al., ) RE: Motion to dismiss [17]

Defendants. )

)

MEMORANDUM OPINION

U.S. District Judge Susan Paradise Baxter

Introduction

Plaintiff James M. Deemer filed this lawsuit pursuant to 42 U.S.C. § 1983 alleging

violations of his civil rights. ECF No. 1. Deemer alleges that his rights under the Fourth and

Fourteenth Amendments were violated. Id., ¶ 2. Pending before the Court is a motion to dismiss

filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants City of Oil City, Oil

City Police Department, Officer Tim Karns, Officer Thomas Lawton, and Police Chief Robert

Wenner (collectively, “Defendants”). Deemer filed a Response in Opposition to the motion (ECF

No. 38). The matter is fully briefed and is ripe for disposition.

Standard of Review

The standard governing the Court’s resolution of a motion to dismiss is well known. See,

e.g., Larson Texts, Inc. v. O'Neil, 2020 WL 5203617 (W.D. Pa. Sept. 1, 2020). Rule 12(b)(6)

recognizes a defense based on the Plaintiff's failure to state a claim upon which relief can be

granted. Id. at *4. When considering a Rule 12(b)(6) motion, courts “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and

determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled

to relief.” Wayne Land & Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509,

526–27 (3d Cir. 2018) (internal quotation marks and citations omitted). In order to survive

dismissal, “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). “As a general matter, a district court ruling on

a motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). “However an exception to the general

rule is that a document integral to or explicitly relied upon in the complaint may be considered

without converting the motion to dismiss into one for summary judgment.” Id. (quotation marks

and alterations omitted).

With this standard in mind, the Court now turns the factual allegations and claims as

pleaded in Deemer’s Complaint.

Background and Factual Allegations

Accepting the factual allegations of the Complaint as true, the foundation of Mr.

Deemer’s claims are based on an incident that took place on New Year’s Day, 2018, the day he

was arrested. ECF No. 1, ¶¶ 10-11. In the early morning hours that day, Mr. Deemer was

awakened by his doorbell ringing. Id., ¶ 13. When he answered the door, no one was there. Id., ¶

14. Mr. Deemer was not concerned, however, believing the interruption to the shenanigans of

neighborhood children or an attempted visit from a friend. Id., ¶ 14. Mr. Deemer sat on his porch

for a few moments and then started to walk up Wyllis Street, intending to visit that same friend

who lived nearby. Id., ¶ 15. As he was walking on Wyllis Street, a car approached from the

opposite direction and Mr. Deemer stepped onto the sidewalk to avoid the vehicle. Id., ¶ 16. The

car passed him, but stopped and the driver exited the vehicle. Id. ¶ 17. The driver, identified in

the Complaint as Kenneth Lowrie, then proceeded to confront Mr. Deemer. Id. Mr. Deemer

remained silent while the car’s passenger, one Jordan Ritchie, exited the vehicle and also

confronted the Plaintiff. Id., ¶ 21. The driver then went to a nearby residence (322 Wyllis Street)

and began “pounding wildly on the door.” Id., ¶ 22. Mr. Deemer was acquainted with the

occupants of that residence—Kait O’Brien, her boyfriend Scotty Peterson, and O’Brien’s small

children. Id., ¶¶ 23-24.

According to the Complaint, Peterson had invited the vehicle’s occupants to the address

to fight another man who had gone out with O’Brien that evening. Id., ¶ 25. This other man had

an “identical” physical resemblance to Mr. Deemer. Id., ¶ 26.

Mr. Deemer alleges that out of concern for Peterson and the other residents of the home,

he inquired several times whether they “were going to be okay.” Id., ¶¶ 31-32. But Peterson

responded angrily and told Mr. Deemer to leave. Id., ¶ 32. When Mr. Deemer attempted to leave

the scene, walking toward West 4th Street, he was placed in a chokehold by Ritchie and

subsequently attacked by all three men. Id., ¶¶ 40-43. Mr. Deemer began to black out and feared

for his life. Id., ¶¶ 44-45.

Mr. Deemer’s wife, Lisa, arrived on the scene and announced that she was calling the

police. Id., ¶ 48. Things then went from bad to worse when Mr. Deemer, who had managed to

break free, grabbed a gun he was carrying in his pocket. Id., ¶ 50. Peterson then attempted to

wrestle the gun from his hands. Mr. Deemer overpowered Peterson, and then “chambered a

bullet in his gun and kept it pointed toward the ground.” Id., ¶ 52.

Patrolman Larry Drake soon arrived and Mr. Deemer told him that he was carrying a gun.

Id., ¶ 57. Next to arrive on the scene was Defendant Officer Karns, who questioned Lowrie and

Peterson. Id., ¶ 58. Defendant Karns then turned his attention to Mr. Deemer, telling the Plaintiff

to “sit down,” that his “policing of the neighborhood was over” and that he should “stop

whispering.” Id., ¶ 61. Defendant Karns then prepared an investigatory report, the accuracy of

which Mr. Deemer challenges in several respects. See id., ¶¶ 64-103. Based on the findings

contained in Karns’ report, Mr. Deemer was arrested and jailed. Id., ¶¶ 104, 106. He remained in

custody for two days, which he alleges interfered with his recovery from undisclosed injuries.

Id., ¶ 107.

Mr. Deemer was charged with seven offenses: aggravated assault, reckless

endangerment, simple assault, criminal trespass, disorderly conduct, public drunkenness, and

making terroristic threats. Id., ¶ 110(a)-(g). The other individuals involved in the January 1st

incident were not arrested. Id., ¶ 112. Mr. Deemer additionally alleges that, subsequent to his

arrest, he was subjected to unfavorable media coverage and continued harassment from members

of the Defendant Oil City Police Department. Id., ¶ 115-116. The charges against him were

dropped and ultimately expunged from his record. Id., ¶ 130. Mr. Deemer alleges that this

incident caused him physical and emotional damages in the form of embarrassment, humiliation,

alienation from his neighbors, depression, and pecuniary loss stemming from the cancelation of a

pre-planned vacation to the Bahamas. Id., ¶¶ 122-131.

Mr. Deemer filed his Complaint on December 19, 2019. ECF No. 1. He raises six counts:

unlawful seizure (Count I), intentional infliction of emotional distress (Count II), supervisory

liability (Count III), inadequate training or supervision (Count IV), inadequate screening (Count

V) and loss of consortium (Count VI). He seeks monetary damages in excess of $75,000.00, as

well as attorney’s fees.

Discussion and Analysis

Mr. Deemer’s Complaint brings claims under both federal and state law. Before turning

to the Defendants’ arguments in favor of dismissal of those claims on the merits, they contend

that the Complaint should be dismissed in its entirety as a sanction based on Mr. Deemer’s

alleged destruction of evidence. The Court will address that contention first.

Destruction of Evidence

Defendants have filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The Court will

begin its analysis of the motion, however, with Defendants’ argument that Mr. Deemer’s

Complaint should be dismissed as a sanction because he had his record expunged, which resulted

in the destruction of all evidence related to the underlying dispute by the Venango County

District Attorney’s Office. See ECF No. 18, p. 6. Defendants fault Deemer for using “the state

criminal court to obtain an order which directed Defendants to destroy all the evidence in the

case.” Id., p. 8.

This argument presents the Court with a legal conundrum. On the one hand, in order to

bring a § 1983 case related to an alleged unlawful arrest, the plaintiff must establish that “the

conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

invalid …”. Shears v. Clem-Johnston, 2021 WL 3549333, at *5 (W.D. Pa. Aug. 11, 2021)

quoting Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, in order to bring his civil rights

case based on his allegedly unconstitutional arrest, Mr. Deemer must first have had his arrest

record expunged. However, the expungement of criminal records can involve the destruction of

any evidence relating to the now defunct charge. This, of course, makes it difficult for

Defendants to defend themselves against Mr. Deemer’s claims. Upon closer inspection, however,

Defendants’ argument is disingenuous.

First, the Court rejects the Defendants’ request to dismiss the Plaintiff’s Complaint as a

sanction. Mr. Deemer cannot be punished for pursuing the expungement of his criminal record,

which he must do in order to bring a civil rights claim. See Heck, supra.

Second, in arguing Mr. Deemer’s actions in having his criminal record expunged resulted

in the destruction of evidence that might assist Defendants in this case, they raise an evidentiary

issue more suited for later resolution, in the event Mr. Deemer’s claims survive the motion to

dismiss. At this stage of the litigation, Defendants have made no formal requests for discovery. It

would be not only premature, but excessively harsh, to dismiss a case on this basis before

discovery can demonstrate the significance, if any, of the potential loss. See, e.g., Positran Mfg.,

Inc. v. Diebold, Inc., 2003 WL 21104954, at *4 (D. Del. May 15, 2003) (denying dismissal of

case prior to trial where the defendant had not established that the destroyed documents “are the

only evidence available to prove its claims and adequately defend itself”).

Third, Mr. Deemer himself has indicated that all of the evidence from his arrest “is still

readily available in its pristine original form.” ECF No. 38, p. 1. He explains:

The Venango County District Attorney’s Office electronically

mailed all discovery evidence to plaintiff’s counsel … [who] has

assured Mr. Deemer that all evidence against Mr. Deemer is still in

its pristine form as delivered to him by the Venango County

District Attorney’s Office.

Id. Additionally, the Court observes that Mr. Deemer attached both a copy of an incident report

authored by Defendant Karns (see ECF No. 1-1) and what appears to be a witness statement (see

ECF No. 1-2) to his Complaint. Thus, it appears as if any information Defendants would need

regarding the arrest would be available to them as part of the discovery process.

And finally, information concerning any relevant evidence—including written

investigatory reports or arrest records—not in Mr. Deemer’s possession owing to its destruction

by the District Attorney’s office in compliance with an expungement order, would still be

discoverable through other means. The Federal Rule of Evidence provides that “[a]n original

writing, recording, or photograph is required in order to prove its contents unless these rules or a

federal statute provide otherwise.” Fed. R. Evid. 1002. However, “[i]f a witnesses’ testimony is

based on [their] first-hand knowledge of an event as opposed to [their] knowledge of the

document … then Rule 1002 does not apply.” See Waterloo Furniture Components Ltd., v.

Haworth, Inc., 467 F.3d 641, 648 (7th Cir. 2006); see also 31 Fed. Prac. & Proc. Evid. § 7183 (1st

ed.). And, “an event may be proved by nondocumentary evidence, even though a written record

of it was made.” Fed. R. Evid. 1002, Advisory Committee Notes.

Thus, the drastic sanction of dismissing the complaint based on the alleged spoliation of

evidence is unwarranted. The Court will now address the Defendants’ arguments for dismissal on

the merits, starting with the federal claims.

Lack of Personal Involvement of Defendants Lawton and Wenner

To state a claim under § 1983, a plaintiff must meet two threshold requirements. He must

allege: 1) that the alleged misconduct was committed by a person acting under color of state law;

and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the

Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor,

451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S.

327, 330-331 (1986). “A defendant in a civil rights action must have personal involvement in the

alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.”

Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v. Rasheed, 323

F.3d 236, 249 (3d Cir. 2003) citing Rode. “Personal involvement can be shown through

allegations of personal direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at

1207. See also Lahovski v. Rush Twp., 441 F. Supp. 3d 43, 51 (M.D. Pa. 2020).

At Count I, Mr. Deemer brings a claim alleging violations of his Fourth Amendment right

to be free from unreasonable searches and seizures against Defendant Lawton. ECF No. 1, ¶¶

137-153. The allegations against this Defendant are sparsely stated. The Complaint identifies

him as an employee of the Oil City Police Department (id., ¶ 8), as the officer who arrested

Deemer at the hospital after the incident on New Year’s Day (id., ¶ 105), and that Lawton failed

to explain why he was arresting Deemer (id., ¶ 149). But in no way does the Complaint allege

that Defendant Lawton was personally involved in his alleged constitutional violation. See, e.g.,

Taylor v. Dist. Att’ys Off., 802 Fed. Appx 701, 706 (3d Cir.) (affirming dismissal of claim

against arresting officer where complaint did not identify how officer personally violated

plaintiff’s constitutional rights), cert. denied sub nom. Taylor v. Pennsylvania, 141 S. Ct. 121

(2020).1 Therefore, the claims against Defendant Lawton, as stated in Count I of the Complaint,

will be dismissed.

Count I also attempts to state a Fourth Amendment claim against Defendant Wenner, the

Oil City Chief of Police. See ECF No. 1, ¶¶ 137-153. Again, the Complaint’s allegations against

Defendant Wenner are thin. Wenner is identified as an employee of the Oil City Police

1 The Complaint does allege that Defendant Lawton “did not explain why he was arresting

Plaintiff after Plaintiff had received medical treatment but did so only subject to Karn’s orders

and/or false report.” ECF No. 1, ¶ 149. There is no allegation that Lawton authored the false

report or knew it to be false; instead that action in imputed to Defendant Karns. Thus, even this

does not allege the personal involvement of Defendant Lawton.

Department, namely the Police Chief (id., ¶ 9), and that based on a “personal relationship,”

Wenner “sanctioned” Defendant Karns’ alleged false police report (id., ¶¶ 100-101). This claim

is construed as an attempt to allege supervisory liability against Defendant Wenner for the

actions of Defendant Karns. The claim fails.

Again, “[an individual government] defendant in a civil rights action must have personal

involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of

respondeat superior. Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d

Cir. 2005). For Chief Wenner, although Plaintiff claims that Wenner was the final decisionmaker

for the police department, he does not provide any factual substance to support that conclusory

allegation. A supervisor, such as a chief of police, may be held liable under § 1983 if that

supervisor was “involved personally, meaning through personal direction or actual knowledge

and acquiescence, in the wrongs alleged.” McKenna v. City of Philadelphia, 582 F.3d 447, 460

(3d Cir.2009). That Defendant Karns allegedly arrested Mr. Deemer based on a false report does

not automatically impute liability for those failures to the police chief, absent some basic factual

basis for the chief's personal involvement. Here, the Complaint lacks any specific allegations

implicating Defendant Wenner personally. Accordingly, the claims against Defendant Wenner

will be dismissed.

Claims Against Defendant City of Oil City and Oil City Police Department

Next, at Count III, the Complaint alleges a claim of supervisory liability related to the

alleged violations of Mr. Deemer’s Fourth Amendment rights. See ECF No. 1, ¶¶ 159-168.

Specifically, the Complaint alleges that the City and the Police Department “directed officers and

the Defendant Officers sub judice to falsify incident reports or knew/should have known their

policy or practice with regard to such would lead to falsified reports and a violation of Plaintiff’s

rights.” Id., ¶ 162. At the outset, the claim against Defendant Oil City Police Department will be

dismissed. Police Departments cannot be sued in conjunction with municipalities because “police

departments are administrative arms of local municipalities, not separate entities.” Padilla v.

Twp. of Cherry Hill, 110 Fed. Appx. 272, 278 (3d Cir. 2004). See Chandler v. Sharon PD, 2021

WL 753043, at *1 (W.D. Pa. Feb. 26, 2021).

The claim against the City of Oil City will likewise be dismissed. To the extent that Mr.

Deemer wishes to hold the City liable under Section 1983, his Complaint must allege facts that

plausibly establish that an official policy, practice, or custom of the City was the “moving force”

behind the alleged violations of his constitutional rights. See City of Canton, Ohio v. Harris, 489

U.S. 378, 388-390 (1989); Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691

(1978). Specifically, to state a claim, the Complaint must

(1) identify an allegedly unconstitutional policy or custom; (2)

demonstrate that the municipality, through its deliberate and

culpable conduct, was the “moving force” behind the injury

alleged; and (3) demonstrate a direct causal link between the

municipal action and the alleged deprivation of federal rights.

Board of the Cty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997). Here, Mr. Deemer’s allegations

fall short.

As noted above, the Complaint alleges that Defendants involved in the New Year’s Day

incident “received instructions/directions from a supervisory official and that this conduct, in

part, led to the violation of Plaintiff’s rights.” ECF No. 1, ¶ 160. It is also alleged that the City

“directed officers and the Defendant Officers … to falsify incident reports or knew/should have

known their policy or practice with regard to such would lead to falsified reports and a violation

of Plaintiff’s rights.” Id., ¶ 162. Finally, Mr. Deemer alleges that the City “acquiesced in the

violation and/or maintained a policy, practice, or custom which directly caused” a violation of

his rights. Id., ¶ 163.

While the Complaint does allege that the City “directed officers … to falsify incident

reports,” it does not identify the specific City policy, edict, or directive mandating officers to file

false police reports. Instead, the Complaint only alleges a single instance of an arrest based on a

false report which is insufficient to state a claim of municipal liability. See, e.g., Donahue v. City

of Hazleton, 2020 WL 4445988, at *8 (M.D. Pa. Aug. 3, 2020). What the Complaint does allege

then are rather vague and conclusory allegations of a City policy, practice, or custom concerning

the filing of an allegedly false police report in his case. Such “conclusory and general” averments

are “insufficient” and “fail[ ] to satisfy the ‘rigorous standards of culpability and causation’

required to state a claim for municipal liability.” Wood v. Williams, 568 Fed. Appx 100, 102-04

(3d Cir. 2014) quoting McTernan v. City of York, 564 F.3d 636, 658-59 (3d Cir. 2009) and

affirming dismissal of Monell claim because plaintiff set forth series of conclusory allegations

that “simply paraphrased” elements of Monell liability). Finally, to hold the City liable,

Deemer’s Complaint must also reference “the conduct, time, place, and persons responsible for

any official municipal policy or custom endorsing the police officers’ conduct.” Toms v. City of

Allentown, 2008 WL 2600314, at *5 (E.D. Pa. June 30, 2008) citing Evancho v. Fisher, 423 F.3d

347, 353 (3d Cir. 2005). It does not. Accordingly, Mr. Deemer’s attempt to hold the City of Oil

City liable for the events of January 1, 2018, fails and the claims brought against the City will be

dismissed.

Inadequate Training or Supervision and Inadequate Screening

The last two federal claims (at Counts IV and V) raised in the Complaint are against the

City and the Police Department for their alleged failure to adequately train, supervise, and/or

screen their employee officers. See ECF No. 1, ¶¶ 169-187. These claims will also be dismissed.

First, and as noted above, any claims against the Police Department will be dismissed

because they cannot be sued in conjunction with municipalities because “police departments are

administrative arms of local municipalities, not separate entities.” Padilla, 110 Fed. Appx. at 278

(3d Cir. 2004).

As to his claims against the City alleging it failed to train, supervise, and/or properly

screen its police officers, the Supreme Court has held that the failure to train may serve as a basis

for municipal liability “only where [it] … amounts to deliberate indifference to the rights of

persons with whim the police come into contact.” City of Canton, 489 U.S. at 388. To

sufficiently plead deliberate indifference, a plaintiff must establish 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.” Doe v. Luzerne Cty., 660

F.3d 169, 180 (3d Cir. 2011). “A pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure

to train,” Connick v. Thompson, 563 U.S. 51, 62 (2011), but in rare cases deliberate indifference

can be shown if “in light of the duties assigned to specific officers or employees the need for

more or different training is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can reasonably be said to have been

deliberately indifferent to the need.” City of Canton, 489 U.S. at 390.

Here again, the Complaint will be dismissed because Mr. Deemer simply parrots the legal

standard for municipal liability under § 1983 without pleading sufficient supporting facts. See,

e.g., Aponte v. City of Philadelphia, 2021 WL 816931, at *4 (E.D. Pa. Mar. 3, 2021). The

Complaint alleges no facts that would support an inference that the City was on notice of a risk

of police officers committing constitutional violations and deliberately ignored that risk. See

Wood v. Williams, 568 Fed. Appx 100, 105 (3d Cir. 2014). In fact, it does not allege any facts

about City police officer training or supervision at all. See Freedman v. City of Allentown, 853

F.2d 1111, 1117 (3d Cir. 1988) (“Mere conclusory allegations ... that the defendants deliberately

elected not to train are not enough to support a constitutional claim.”); Cooper v. Chester, 810 F.

Supp. 618, 623 (E.D. Pa. 1992) (pleading insufficient where plaintiff alleged a city “as a matter

of policy and practice, has, with deliberate indifference failed to adequately discipline, train or

otherwise direct police officers concerning the rights of citizens, thereby causing the defendant

officers in this case to engage in the unlawful conduct”); McCall v. City of Phila., 396 F. Supp.

3d 549, 560 (E.D. Pa. 2019) (allegations devoid of specific factual support for assertions that

City failed to train, supervise and discipline employees insufficient to plead deliberate

indifference). Nor does Deemer’s Complaint contain any allegations of prior misconduct caused

by the allegedly inadequate supervision, training, or screening of the City’s police officers.

As to the claim of inadequate screening of potential police officers (Count V), the

Supreme Court has instructed that such a claim arises “[o]nly where adequate scrutiny of an

applicant’s background would lead a reasonable policymaker to conclude that the plainly

obvious consequences of the decision to hire the applicant would be the deprivation of a third

party’s federally protected right.” Bd. of Cnty. Comm’rs of Bryan County, Ok. v. Brown, 520

U.S. 397, 411 (1997). Here, Mr. Deemer has identified nothing in the background of any of the

Defendant officers that should have lead the City to conclude that hiring them would deprive a

citizen of constitutional rights. See, e.g., Hicks v. Camden County, 2017 WL 68620, at *4 (D.N.J.

Jan. 6, 2017). Accordingly, both Counts IV and V will be dismissed.

The Remaining State Law Claims

Having determined the Complaint fails to sufficiently allege any federal causes of action,

the Court will decline to exercise supplemental jurisdiction over the remaining state law claims.

These claims are an intentional infliction of emotional distress claim against Defendants Karns,

Lawton, and Wenner (Count II) and a loss of consortium claim against all Defendants (Count

VI).

“[W]here the claim over which the district court has original jurisdiction is dismissed

before trial, the district court must decline to decide the pendant state law claims unless

considerations of judicial economy, convenience, and fairness to the parties provide an

affirmative jurisdiction for do so.” Chvala v. Harmony Fire District, 2021 WL 3666479, at *6

(W.D. Pa. Aug. 18, 2021) quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000). As no

federal claim remains in this case, and because considerations of judicial economy, convenience,

and fairness weigh in favor, the Court declines to exercise supplemental jurisdiction over Counts

II and VI.

Conclusion and Amendment

The claims against Defendant Oil City Police Department will be dismissed with

prejudice as any attempt at amendment would be futile. However, it is conceivable that Mr.

Deemer may be able to supplement his other claims with facts sufficient to overcome the

deficiencies noted herein. Therefore, the dismissal of his Complaint is without prejudice as to the

claims against the remaining Defendants.

Because this is a civil rights case, the Court is required to extend Deemer an opportunity

to amend his deficient pleading, irrespective of whether he has requested to do so and

irrespective of whether he is counseled, unless it would be futile or inequitable.2 Although it is

unlikely that many of the deficiencies in the Complaint can be cured, the Court finds that under

the circumstances Mr. Deemer should be afforded the chance to amend his pleading. When filing

the Amended Complaint, Mr. Deemer, as a pro se litigant, must adhere to the following

directives:

Plaintiffs must indicate in separate Counts each constitutional right

violated or state tort committed, indicating the specific

Defendant(s) against whom that claim is asserted, and referencing

in separately numbered paragraphs under each count, any factual

statements showing that Plaintiffs are entitled to relief. Plaintiff

must also include in each Count the specific relief sought against

the Defendant(s) named in that Count.

Moreover, the Court will not consider any arguments made by

Plaintiffs in briefs in opposition about legal theories or allegations

that have not been pled in accordance with the directives in the

preceding sentence. In responding to the second amended

complaint, Defendants may reassert any applicable arguments that

they have raised in connection with the pending motions.

Bracken v. Cty. of Allegheny, 2017 WL 5593451, at *1–2 (W.D. Pa. Nov. 21, 2017), aff’d, 760

Fed. Appx 81 (3d Cir. 2019). Mr. Deemer will be afforded an additional fourteen days from

2 The docket in this case reflects that Mr. Deemer was originally represented by Tyler S.

Setcavage, Esq., who drafted and filed the instant Complaint on his behalf. See ECF No. 1, p. 26.

Attorney Setcavage asked for leave to withdraw from this case given a disagreement with his

client concerning his advice that Mr. Deemer should voluntarily dismiss this action and counsel’s

concern that he could be sanctioned by the Court for bringing this case in the first place. See

ECF No. 25, ¶¶ 5-6. The Court granted counsel’s motion (ECF No. 26) and this matter was

administratively closed for a period of time while Mr. Deemer attempted to secure other

representation. Having failed to do so, the case was reopened on January 5, 2021 (ECF No. 33)

and Mr. Deemer is now proceeding pro se. Defendants’ previously-filed Motion to Dismiss was

reactivated on March 16, 2021. ECF No. 36.

today to file an Amended Complaint. The failure to do so may result in the conversion of the

without prejudice dismissal of his claims to one of dismissal with prejudice.

An appropriate order follows this Memorandum Opinion.