MILLER v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAMONT MILLER,

Plaintiff,

CIVIL ACTION

v. NO. 18-1443

CITY OF PHILADELPHIA, et al.,

Defendants.

Pappert, J. August 7, 2024

MEMORANDUM

Lamont Miller sued the City of Philadelphia as well as officers Michael Spicer,

Perry Betts, Thomas Liciardello, Linwood Norman, Brian Reynolds, John Speiser1 and

Lieutenant Robert Otto. Miller’s claims are based on allegations that the Officer

Defendants, members of the Philadelphia Police Department’s Narcotics Field Unit

(NFU), arrested him in 2010 and coerced him to plead guilty under threats of false

testimony that would have ensured Miller’s conviction and a five-year prison sentence.

In 2014, numerous NFU officers were indicted, and in 2016, Miller’s conviction was

reopened and all criminal charges against him were nolle prossed. He filed this lawsuit

in 2018.

Along with other NFU cases, Miller’s was consolidated before Judge Diamond

and placed in suspense while bellwether cases went forward. (ECF Nos. 4, 5). In

November 2023, Judge Diamond removed the case from suspense and reassigned it to

this Court. (ECF Nos. 8, 9). Otto then moved to dismiss, prompting Miller to amend

1 Spicer, Betts, Liciardello, Norman, Reynolds and Speiser are referred to as the “Officer

Defendants” throughout.

his complaint. (ECF Nos. 17, 22). In the amended complaint, Miller asserts federal

claims under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments

as well as supervisory liability, civil rights conspiracy2 and municipal liability claims.

Miller also alleges state law claims of false imprisonment, malicious prosecution,

intentional infliction of emotional distress and violations of the Pennsylvania

Constitution. Otto again moves to dismiss along with the Officer Defendants and the

City. For the reasons that follow, Otto’s motion is granted and all claims against him

are dismissed, while the Officer Defendants and the City’s motions are granted in part

and denied in part.

I

On June 16, 2020, Miller attended a barbeque with his son near 68th and Carroll

Streets in Southwest Philadelphia. (Am. Compl. ¶¶ 19–20, 31). While on his way,

Miller alleges Norman and other Officer Defendants pulled up next to him in a black

Jeep Cherokee with tinted windows. (Id. ¶¶ 28–30). Norman rolled down the window

and yelled, “We are going to get you nigger.” (Id. ¶ 29).

Later on, Spicer and other Officer Defendants went to the barbecue and

confronted Miller, demanding he empty his pockets. (Id. ¶¶ 34–35, 145). When Miller

asked why, Spicer apparently said, “Shut the fuck up, nigger” and searched Miller three

times. (Id. 36–38). Miller says those searches uncovered no contraband and Spicer

took $465 that Miller’s mother had given him to help pay his bills. (Id. ¶¶ 39–41).

Spicer did not provide a receipt for the cash nor did he mention it seized in an official

2 The conspiracy claim was also asserted under 42 U.S.C. § 1985.

report. (Id. ¶¶ 40–41). Miller was arrested and taken into custody in front of his son

and others at the barbeque. (Id. ¶ 42).

Spicer, along with other Officer Defendants, took Miller to 6844 Guyer Street,

where, earlier that day, they had conducted a raid. (Id. ¶¶ 33, 43). Once there, Spicer

violently threw Miller to the ground and accused him of possessing fourteen grams of

crack cocaine. (Id. ¶¶ 43–45). In response, Miller said, “Come on officer, what is this?

I am not stupid.” (Id. ¶ 46). Spicer responded, “I am not stupid either, nigger.” (Id. ¶

47). When Miller said, “Please don’t call me out by that name,” Spicer allegedly replied,

“I am the police and I do what I want.” (Id. ¶ 48).

Spicer and the Officer Defendants then took Miller to police headquarters, where

Miller was charged with various drug-related crimes. (Id. Ex. A). His bail was set at

$200,000 but eventually raised to $500,000. (Id. ¶¶ 50–51). He was unable to make

bail and remained incarcerated for 260 days. (Id. ¶ 52). Spicer advised Miller that he

would receive probation and be released if he pleaded guilty to the charge of

Manufacture, Delivery or Possession with Intent to Manufacture or Deliver a

Controlled Substance. (Id. ¶¶ 53–54). But if he did not accept the plea deal, the

officers would produce testimony ensuring Miller’s conviction and a likely five-year

prison sentence. (Id. ¶¶ 55, 137). Based on this threat, Miller pleaded guilty, and on

March 3, 2011, he was released from prison. (Id. ¶ 56–57).

In 2014, Spicer, Betts, Liciardello, Norman, Reynolds and Speiser were indicted

for racketeering, conspiracy, civil rights violations, robbery and extortion. (Id. ¶ 59).

Based on the federal criminal case, the Defender Association of Philadelphia filed

petitions to reopen more than 1,400 convictions—including Miller’s—in which those

officers were involved. (Id. ¶ 62).

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

the 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 facially

plausible when the facts pled “allow[] the court to draw the reasonable inference that

[a] defendant is liable for the misconduct alleged.” Id. Where the well-pleaded facts do

not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged, but not shown, that the pleader is entitled to relief. Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2)).

When the complaint includes well-pleaded factual allegations, the Court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)

(quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to

those allegations for which there is sufficient ‘factual matter’ to render them ‘plausible

on [their] face.’” Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016)

(quoting Iqbal, 556 U.S. at 679). This plausibility determination is a “context-specific

task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

A court may dismiss claims based on the statute of limitations defense when the

defense appears clearly on the face of the complaint. Robinson v. Johnson, 313 F.3d

128, 135 (3d Cir. 2002).

III

Both the Officer Defendants and Otto contend Miller has not alleged their

personal involvement in the claims against them. (Mot. To Dismiss, ECF Nos. 24, 25).

To state a civil rights claim against an individual defendant, a plaintiff must

“make[] sufficient allegations of a defendant’s personal involvement by describing the

defendant’s participation in or actual knowledge of and acquiescence in the wrongful

conduct.” Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015). Liability

cannot be based “solely on the operation of respondeat superior.” Evancho v. Fisher,

423 F.3d 347, 353 (3d Cir. 2005). “Allegations of participation or actual knowledge and

acquiescence . . . must be made with appropriate particularity.” Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). Ultimately, a complaint must allege sufficient facts

to “allow the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)

(quoting Iqbal, 556 U.S. at 678).

Read in the light most favorable Miller, the complaint contains enough facts to

allege plausible claims for relief against the Officer Defendants. Miller asserts that as

he was walking to the barbecue, Norman, along with other Officer Defendants, pulled

up next to him and threatened him using a racial epithet. (Am. Compl. ¶¶ 28–29).

While at the barbecue, Miller alleges that Spicer, along with other Officer Defendants,

confronted him and demanded he empty his pockets without any justification or

probable cause. (Id. ¶ 34–35). When Miller asked why, Spicer told him to shut up, also

using a racial epithet. (Id. ¶ 36). After searching Miller three times and finding no

illegal substances or contraband, Spicer took Miller’s money and transported him to

6844 Guyer Street, where the Officer Defendants had previously conducted a raid. (Id.

¶¶ 37–38, 43). Once there, Miller was “violently” thrown to the floor and accused of

possessing cocaine. (Id. ¶¶ 40–48). Miller further alleges that Spicer said, “I am the

police and I do what I want,” (Id. ¶ 48), and along with other Officer Defendants,

arrested him and took him to police headquarters where he was charged. (Id. ¶ 49).

Miller says that Spicer, “acting in concert” with other Officer Defendants, advised him

he would receive probation and be released if he pleaded guilty; if he did not, Spicer,

along with other Officer Defendants, would produce testimony ensuring his conviction

and a longer prison sentence. (Id. ¶¶ 54–55).

Although Miller may not yet know which officers engaged in precisely what

behavior, he alleges that in 2012 the Philadelphia District Attorney’s Office barred the

Officer Defendants from being witnesses in narcotics cases due to credibility concerns.

(Id. ¶ 58). The Officer Defendants were later indicted for racketeering conspiracy, civil

rights violations, robbery and extortion stemming from their work in the NFU. (Id. ¶

59). Miller has thus put the Officer Defendants on notice of the nature and claims

against them and plausibly alleged their involvement in the events surrounding his

arrest and ultimate guilty plea. That is all he is required to do at this stage. See, e.g.,

Brookins v. City of Phila., No. 24-470, 2024 WL 1889242, at *3–5 (E.D. Pa. Apr. 30,

2024).

As to Otto, however, Miller fails to plausibly allege personal involvement. Civil

rights liability cannot be based solely on respondeat superior, Rode, 845 F.2d at 1207,

and plaintiffs have failed to allege sufficient personal involvement of a defendant

where, as here, the only factual allegations suggesting personal involvement were that

the defendant was a supervisor. See Ogrod v. City of Phila., 598 F. Supp. 3d 253, 266

(E.D. Pa. 2022).

In another NFU case, the court dismissed claims against a supervisor where the

allegations were that he approved an arrest report prepared by another officer and

otherwise “may have been within a group” who concocted a story for the report.

McGhee v. City of Phila., No. 17-832, 2024 WL 1683606, at *8 (E.D. Pa. Apr. 18, 2024).

In McGhee, the court emphasized that no allegations indicated the supervisor edited

the report, was aware of the alleged falsehoods contained therein or had any active

participation in the plaintiffs’ arrests or investigation. Id. Moreover, no factual

allegations supported the speculative assertion that the defendant “may have been

within the group of officers who acted in concert and conspired with each other to

concoct a story for the report.” Id. (internal quotation marks omitted).

Miller’s allegations against Otto are weaker than those found insufficient in

McGhee. No alleged facts suggest Otto was involved in or knew about the Officer

Defendants’ actions. Miller attempts to salvage his claims by baldly asserting Otto was

“present for some or all” of the Officer Defendants misconduct “and/or” possessed actual

or constructive knowledge of their behavior. (Am. Compl. ¶ 145). Aside from the

allegation that Otto was a supervisor, (id. ¶ 16), no facts support this speculative

assertion. See Ogrod, 598 F. Supp. 3d at 274.

Nor has Miller asserted a plausible claim for supervisory liability. Such a claim

can be asserted in two ways. First, individuals who are policymakers may be liable

under § 1983 if it is shown that “with deliberate indifference to the consequences,” they

“established and maintained a policy, practice or custom which directly caused [the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572,

586 (3d Cir. 2004) (alteration in original). Second, supervisors can be liable if they

“participated in violating plaintiff’s rights, directed others to violate them, or, as the

persons in charge, had knowledge of and acquiesced in their subordinates’ violations.”

Ogrod, 598 F. Supp. 3d at 274. To the extent Miller’s supervisory liability theory is

based on Otto’s role as a policymaker, other courts have held that a lieutenant is not a

policymaker. Davis v. City of Phila., No. 05-4571, 2009 WL 2461777, at *4 (E.D. Pa.

Aug. 11, 2009) (finding captains, lieutenants, sergeants, inspectors, and deputies do not

possess the type of authority necessary to be policymakers); Keenan v. City of Phila.,

983 F.2d 459, 468–69 (3d Cir. 1992) (holding mid-level officers do not have final,

unreviewable authority). And Miller’s “unadorned allegations” that Otto was “present

for some or all” of the Officer Defendants misconduct “and/or” possessed actual or

constructive knowledge of their behavior are “plainly insufficient to support a plausible

claim for supervisory liability” based on Otto’s participation, knowledge or acquiescence

in the Officer Defendants’ alleged misconduct. See Ogrod, 598 F. Supp. 3d at 274. As

Miller fails to allege sufficient facts indicating Otto’s personal involvement, all claims

against him are dismissed.

IV

Next, the Officer Defendants contend that all Miller’s claims—except the

malicious prosecution claims and the conspiracy claim based on malicious prosecution—

are time-barred as the events that give rise to those claims occurred in 2010 and 2011,

at least seven years prior to when he filed his complaint.3 In response, Miller

commingles the concept of equitable tolling, which governs the tolling of an already

triggered statute of limitations, with the delayed accrual based in Heck v. Humphrey,

512 U.S. 477 (1994), which provides that § 1983 claims that necessarily imply the

invalidity of a conviction or sentence do not accrue for statute of limitations purposes

until the underlying criminal case is terminated in the plaintiff’s favor. Coello v. DiLeo,

43 F.4th 346, 355 (3d Cir. 2022). First, he argues that equitable tolling saves his

otherwise time-barred claims because he was under duress to plead guilty, and once he

did, he could not sue because his claims became Heck barred.4 (Resp. To Mot. To

3 The City joins the Officer Defendants and moves to dismiss Counts I, II, III, IV, VI, VIII and

IX for all causes of action except malicious prosecution.

4 Miller does not appear to argue Pennsylvania law would toll the statute of limitations based

on duress. In any event, such an argument would not help him. See Kach v. Hose, 589 F.3d 626, 640

(3d Cir. 2009) (“[N]either the Supreme Court of Pennsylvania nor either of Pennsylvania's

intermediate appellate courts has definitively, or even circumspectly, addressed whether duress may

toll the statute of limitations.”). Nor would the duress constitute an extraordinary circumstance

warranting equitable tolling under federal law. Compare id. at 630–45 (plaintiff who failed to file

suit because she was held captive by a security guard from her middle school for ten years did not

meet her “burden of showing that this is one of those extraordinary cases warranting the application

of any federal equitable tolling provision”), Frasier-Kane v. City of Phila., 517 F. App’x 104, 106 (3d

Cir. 2013) (plaintiff was not under sufficient duress to justify equitable tolling where she was subject

to “acts of intimidation” and feared an officer would “severely injure or kill her” if she pursued legal

action), with Hilao v. Estate of Marcos, 103 F.3d 767, 771–73 (9th Cir. 1996) (tolling statute of

limitations for a class of Philippine nationals suing the former president alleging they suffered

torture and human rights violations because victims “did not report the human rights abuses they

suffered out of intimation and fear of reprisals” given the “effective dependence of the judiciary on

[the former president]” as well as his immunity from suit while in office). Any duress-based

argument Miller could make would be akin to Kach and Frazier-Kane, and though his circumstances

may be “‘extraordinary’ in the vernacular sense of that word,” Kach, 589 F.3d at 645, they are not a

basis for federal equitable tolling.

Dismiss, pp. 16–19, ECF No. 27-1). Miller then claims that the two-year statute of

limitations did not begin to run until the favorable termination of his underlying

criminal proceedings in 2016. (Id. at 19).

A

Equitable tolling is not appropriate here. State tolling principles generally apply

to § 1983 claims. Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009). But that rule is not

absolute. Id. Where the state tolling principles contradict federal law or policy, federal

tolling principles may apply. Id. (citing Bd. of Regents v. Tomanio, 446 U.S. 478, 485

(1980)). Miller appears to rely on federal equitable tolling principles, see (Resp. To Mot.

Dismiss, p. 17, ECF No. 27-1), but he does not articulate which basis for tolling he

relies upon, nor explain why Pennsylvania tolling principles are inconsistent with the

policies underlying § 1983. See Frasier-Kane v. City of Phila., 517 F. App’x 104, 106 (3d

Cir. 2013) (“[W]e are skeptical that Pennsylvania tolling principles frustrate the

policies underlying § 1983.”).

In any event, the Supreme Court declined to adopt a federal equitable tolling

rule to these circumstances. Wallace v. Kato, 549 U.S. 384, 394 (2007). In Wallace, the

Supreme Court recognized a “complication” that “arises from the fact that § 1983

actions, unlike the tort of malicious prosecution which Heck took as its model . . .

sometimes accrue before the setting aside of—indeed, even before the existence of—the

related criminal conviction.” Id. Heck’s application to such claims, the Court observed,

“raises the question whether, assuming the Heck bar takes effect when the later

conviction is obtained, the statute of limitations on the once valid cause of action is

tolled as long as the Heck bar subsists.” Id. at 385. There, as in Miller’s case, “[i]f

petitioner’s conviction . . . caused the statute of limitations on his (possibly) impugning

but yet-to-be-filed cause of action to be tolled until that conviction was set aside, his

filing [ ] would have been timely.” Id. at 394. After finding no basis for tolling in

Illinois state law, the Supreme Court declined to recognize a federal equitable tolling

rule in such circumstances. Id. Here, Miller has not identified, nor is the Court aware

of, any basis under Pennsylvania law to toll the statute of limitations under these

circumstances.

B

Accrual is deferred under Heck only where “at the time the § 1983 suit would

normally accrue, there is an existing criminal conviction.” Dique v. N.J. State Police,

603 F.3d 181, 187 (3d Cir. 2010) (discussing Wallace). Aside from his malicious

prosecution claims and conspiracy claim based on malicious prosecution, Miller’s

remaining federal and state law claims all accrued prior to his conviction in March 2011

and are not saved by the Heck delayed accrual rule.

1

The Court liberally construes Miller’s omnibus Fourth Amendment claim to be

for unlawful search,5 false arrest, false imprisonment and malicious prosecution.

Claims for an illegal search accrue when a plaintiff knew or should have known about

the search. Estate of Lagano v. Bergen Cnty. Prosecutor's Off., 769 F.3d 850, 860-61 (3d

Cir. 2014). As Miller’s unlawful search and seizure claim—to the extent he alleges

one—is based on searches that occurred in June 2010 and prior to his conviction, Heck

5 See (Am. Compl. ¶¶ 118–19, ECF No. 22).

did not defer accrual. See Gilliam v. Cavallaro, No. 22-1458, 2023 WL 2182371, at *2

(3d Cir. Feb. 23, 2023); Smith v. Travelpiece, 31 F.4th 878, 888 (4th Cir. 2022) (holding

illegal search claims were not subject to deferred accrual under Heck).

“[F]alse arrest and false imprisonment claims accrue on the earlier of two dates:

‘when the false imprisonment ends with the plaintiff's release’ or, ‘if the plaintiff

remains detained, . . . when the false imprisonment ends with the issuance of legal

process—when, for example, the plaintiff is brought before a magistrate.’” Medina v.

City of Allentown Police Dep’t, No. 23-2055, 2023 WL 7381461, at *2 (3d Cir. Nov. 8,

2023) (quoting Dibrell v. City of Knoxville, 984 F.3d 1156, 1162 (6th Cir. 2021)); see also

Wallace, 549 U.S. at 388. Though Miller’s arraignment date is not included in his

complaint, the events surrounding his arrest occurred in June 2010, prior to his

conviction on March 3, 2011. As he did not bring his claims until 2018, the claim is

time-barred.

2

Miller’s Fourteenth Amendment equal protection claim accrued at the time

Miller was detained pursuant to legal process. Dique, 603 F.3d at 188 (claim for

selective enforcement accrues at the time “the wrongful act resulting in damages

occurs”). Moreover, the amended complaint contains facts showing Miller was aware of

the facts necessary for his selective enforcement claim on the day of his arrest. See

(Am. Compl. ¶¶ 29, 36–38, 47). Because he filed his initial complaint nearly eight years

later, the claim is time-barred.6 See Bartley v. New Jersey, No. 18-16283, 2021 WL

3884289, at *3 (D.N.J. Aug. 31, 2021), aff’d, 2022 WL 1599124 (3d Cir. May 20, 2022).

3

Miller’s state law claims for false imprisonment and intentional infliction of

emotional distress are not subject to Heck’s delayed accrual rule, Coello, 43 F.4th at

356, and no Pennsylvania court has expressly adopted such a rule. See Gordon v.

Liciardello, No. 19-3761, 2024 WL 3540979, at *4 (E.D. Pa. July 25, 2024). As these

claims for false imprisonment and intentional infliction of emotional distress do not

“resemble the malicious prosecution tort,” Coello, 43 F.4th at 356, they are time-barred.

4

Miller’s conspiracy claim is timely to the extent it alleges a conspiracy to commit

malicious prosecution, but, as discussed above, it is not timely as to a conspiracy to

commit unlawful searches, false imprisonment, equal protection violations or

intentional infliction of emotional distress. See Mills v. City of Phila., No. 14-593, 2023

WL 6520488, at *10 (E.D. Pa. Oct. 5, 2023).

6 The basis for Miller’s Fourteenth Amendment due process claim is not clear. As an initial

matter, Miller asserts it under § 1983 and the Fourteenth Amendment, yet then cites provisions of

the Pennsylvania Constitution. See (Am. Compl. ¶¶ 130–31, 134). In any event, the claim is ill-

defined, and in certain respects, duplicative of his claims under the Fourth Amendment (Count I).

(Id. ¶ 131). In some places, Miller alleges Defendants harmed his reputation and impacted his

ability to obtain future employment, (id. ¶ 136), but a reputational interest is neither liberty nor

property protected by the Due Process Clause. Boyanowski v. Cap. Area Intermediate Unit, 215 F.3d

396, 401 (3d Cir. 2000). In others, he discusses Defendants’ potential use of fabricated evidence to

secure a conviction against him. (Am. Compl. ¶ 137). Without knowing the basis for the claim, the

Court cannot determine if some or all of it is time-barred. See McDonough v. Smith, 588 U.S. 109,

117–18 (2019) (noting a fabrication of evidence claim did not accrue until favorable termination).

The Court will grant Miller leave to amend to more clearly present this claim.

5

Finally, Miller asserts a claim for “violation of the Pennsylvania Constitution”

seeking declaratory and injunctive relief as well as damages. (Am. Compl. ¶ 239). To

the extent this claim is based on claims not otherwise time-barred, there is no private

cause of action for damages arising from violations of the Pennsylvania Constitution.

See Glover v. Oleyn, No. 23-3688, 2024 WL 897577, at *3 (E.D. Pa. Feb. 29, 2024) (citing

Plouffe v. Cevallos, 777 F. App'x 594, 601 (3d Cir. 2019)); Jones v. City of Phila., 890

A.2d 1188, 1215–16 (Pa. Commw. Ct. 2006) (noting other remedies, such as declaratory

or injunctive relief, are available). Count IX is thus dismissed as to Miller’s claim for

money damages.

V

The City moves to dismiss the Monell claim to the extent it is premised on a

failure to train or discipline theory. In support of this assertion, it attaches the

summary judgment decision from McIntyre v. Liciardello, No. 13-2733, 2020 WL

605717 (E.D. Pa. Feb. 7, 2020), where the court granted summary judgment for the City

to the extent the plaintiff’s Monell claim was based on a failure to train, supervise, or

discipline. The City contends that Miller’s Monell claim has already been litigated and

should be dismissed pursuant to the law of the case doctrine.

The law of the case doctrine applies only to prior decisions made in the same

case. Home Depot USA, Inc. v. Lafarge North America, Inc., 59 F.4th 55, 58 (3d Cir.

2023). And consolidation “does not merge the suits into a single cause, or change the

rights of the parties, or make those who are parties in one suit parties in another.” In

re TMI Litig., 193 F.3d 613 (3d Cir. 1999), amended, 199 F.3d 158 (3d Cir. 2000)

(quoting Johnson v. Manhattan R. Co., 289 U.S. 479, 497 (1933)). Consolidating

“multiple cases brought by multiple parties against multiple defendants for the purpose

of streamlining discovery and trial does not transform those cases into one case” such

that the law of the case doctrine would apply. West v. Warden, 869 F.3d 1289, 1296

(11th Cir. 2017) (internal quotation marks omitted).

VI

Leave to amend may be denied if amendment would be futile. See Foman v.

Davis, 371 U.S. 178, 182 (1962). As to the claims against Otto, Miller has had ample

opportunity to gather facts surrounding Otto’s involvement in the Officer Defendants’

alleged misconduct. He has already amended his complaint and offered no factual

allegations beyond that Otto was a supervisor. As in McGhee, Miller’s claims against

Otto are dismissed with prejudice as further amendment would be futile.

Similarly, given there are no grounds for equitable tolling, Miller’s claims

dismissed based on the statute of limitations are also dismissed with prejudice.

An appropriate Order follows.

BY THE COURT:

/s/ Gerald J. Pappert

Gerald J. Pappert, J.