The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HEATHER LONG, individually and as : Civil No. 1:24-CV-00128
parent and natural guardian of L.B., a :
minor :
:
Plaintiffs, :
:
v. :
:
KELLEE ROGERS, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court are motions to dismiss filed by Defendants Kellee Rogers,
Ryan Ramsey, James Sourbier, Andrew Zeigler, and Borough Waynesboro.
(Docs. 37, 39, and 52.) Plaintiff Heather Long (“Long”) alleges a state-created
danger claim, a Fourteenth Amendment claim, a malicious prosecution claim, an
abuse of abuse process claim, and Monell claims against the Defendants, all arising
from an incident in which Defendant Kellee Rogers (“Rogers”) hit her car while
driving at an excessive speed and allegedly under the influence of substances, and
then Defendant Ryan Ramsey (“Ramsey”) prosecuted a traffic citation arising from
this incident. For the reasons that follow, the motions will be granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
As alleged in the amended complaint, sometime in early January 2022,
Defendants Andrew Zeigler (“Ziegler”), a sergeant in the Waynesboro Police
Department, and James Sourbier (“Sourbier”), police chief, (collectively “Police
Command”) became aware that Defendant Kellee Rogers (“Rogers”), a
Waynesboro Borough police officer, “was using his position as a police officer to
commit illegal acts of official oppression in violation of Pennsylvania law which
also amounted to violations of federal constitutional rights[,]” as well as “using
illegal substances, such as marijuana[,] with community members
and . . . operat[ing] a motor vehicle owned, leased, and/or controlled by [the]
Borough of Waynesboro and Waynesboro Police Department while still under said
intoxicating effects.” (Doc. 35, ¶¶ 4, 5, 12, 13.)
On January 23, 2022, Rogers and Defendant Ryan Ramsey (“Ramsey”), a
corporal, left the police station in separate vehicles in order to respond to a call
relating to improperly parked vehicles. (Id. ¶¶ 14, 15.) Both officers drove down
an alley aware that there were cars parked in the alley, individuals used the alley
when entering and exiting their homes, and “they needed to drive with caution in
1 Plaintiff argues that Defendants proffer their own factual allegations in their respective
motions. (Doc. 44, pp. 5, 6; Doc. 45, pp. 5, 6; Doc. 54, pp. 5, 6.) In reciting the facts alleged in
the complaint and deciding the instant motions, the court will assume all well-pleaded allegations
in the amended complaint are true and base any factual determinations only on the allegations in
the complaint. Ashcroft v. Iqbal, 566 U.S. 662, 679 (2009).
order to avoid collision[.]” (Id. ¶¶ 18, 19.) Plaintiff Heather Long (“Long”) and
her minor child L.B. live along this alley. (Id. ¶¶ 1, 16, 23.) Despite Rogers’
awareness of some risk associated with driving down the alley, Rogers did not
activate his lights or sirens and travelled at “an excessive speed[.]” (Id. ¶ 20.)
Rogers allegedly “had marijuana in his system and his reaction times were slowed
due to impairment.” (Id. ¶ 21.) As Rogers was driving down the alley, he
“recklessly ignored the potential risk of impact with another vehicle” and “failed to
yield to [Long’s] vehicle” as a result of illegal substance use, thus, hitting Long,
who was backing out into the alley, resulting in the vehicle spinning and striking
her home. (Id. ¶¶ 22, 25, 26.) Long had no notice that Rogers was driving down
the alley because Rogers did not activate the vehicles lights or sirens. (Id. ¶ 24.)
After the crash, Rogers alerted Ramsey, who returned to the alley, but
neither officer activated the lights on their vehicles because they knew it would
activate a dash camera. (Id. ¶¶ 28, 30.) Rogers was not sent for a blood test and no
other law enforcement agency was alerted of the crash in order to investigate it.
(Id. ¶¶ 31, 32.) On January 31, 2022, Plaintiff’s counsel sent a litigation hold
notice to the Borough and Police Department. (Id. ¶ 34.) As a direct result of
receiving this correspondence, on February 2, 2022, Ramsey filed a citation against
Long in the magisterial district court, although he backdated the citation to reflect
the date of January 27, 2022. (Id. ¶¶ 37, 38.)
Long pleaded not guilty to the citation, and a trial was held before a
magisterial district judge. (Id. ¶ 39.) At the trial, Rogers appeared as a witness,
although he was no longer an employee of the Borough at that time. (Id. ¶¶ 40,
41.) At the hearing, Rogers gave statements that contradicted the facts stated in the
citation, “however, despite the glaring contradiction, Ramsey aggressively pursued
the charge against Heather Long and rigorously opposed a Motion for Directed
Verdict[.]” (Id. ¶¶ 44–46.) The magisterial district judge found Long not guilty of
the charge against her. (Id. ¶ 48.) After this hearing, the Waynesboro Police
Department continued to try to interview L.B., despite notice from Plaintiff’s
counsel that the police did not have permission to speak with either Long or L.B.
(Id. ¶ 49–56.)
Long initiated the instant lawsuit on January 23, 2024. (Doc. 1.) After the
court approved limited discovery, Plaintiff filed an amended complaint on July 15,
2024. (Doc. 35.) In the amended complaint, Plaintiff brings one § 1983 claim for
violation of a constitutional right on a theory of state created danger against all
Defendants (Count I), one § 1983 claim for violation of the Fourteenth
Amendment against Defendant Rogers only (Count II), one § 1983 malicious
prosecution claim against Defendants Rogers and Ramsey (Count III), one § 1983
abuse of process claim against Defendant Ramsey only (Count IV), one § 1983
violation of the Fourteenth Amendment claim on a Monell theory of liability
against Defendants Borough of Waynesboro and Waynesboro Police Department2
(Count V), one § 1983 failure to supervise claim against Defendants Sourbier and
Ziegler (Count VI), and one § 1983 failure to train claim against Defendants
Sourbier and Ziegler (Count VII). (Id. ¶¶ 58–165.)
Defendants Kellee Rogers and Borough of Waynesboro filed a motion to
dismiss on July 29, 2024. (Doc. 37.) Defendants Ramsey and Sourbier filed a
motion to dismiss on July 29, 2024. (Doc. 39.) Defendant Zeigler, who was
named for the first time in the amended complaint, filed a motion to dismiss on
October 11, 2024, after waiving service. (Doc. 43, 52.) Long filed a brief in
opposition to each motion. (Docs. 50, 51, 55.) All motions are fully briefed and
ripe for disposition.
JURISDICTION AND VENUE
The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343 because Long alleges violations of her constitutional rights under 42 U.S.C.
§ 1983. Venue is appropriate pursuant to 28 U.S.C.§ 1391 because all parties are
located within the Middle District of Pennsylvania and all acts or omissions
alleged in the amended complaint occurred within the Middle District.
2 The court notes that Waynesboro Police Department is not listed as a Defendant in the case
caption, however, the Waynesboro Police Department is listed under the section heading
“Parties.” (Doc. 35, ¶ 7.)
STANDARD OF REVIEW3
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) abrogated on other
grounds as recognized in Mack v. Yost, 968 F.3d 311, 319 n. 7 (3rd Cir. 2020).
3 The court notes that Plaintiff’s briefs in opposition all recite a standard of review applicable to
a motion to dismiss brought under Federal Rule of Procedure 12(b)(1), asking for dismissal due
to lack of subject matter jurisdiction. (Doc. 44, pp. 6, 7; Doc. 45, p. 7; Doc. 54, pp. 6, 7.) As
requested by Defendants Ramsey and Sourbier, the court will disregard the standard of review
proffered by Plaintiff and apply the standard of review for a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted. (Doc. 51, p. 5.)
DISCUSSION
Each defendant has argued that Long has failed to state a claim in each count
of the amended complaint. The court will address each count and the parties’
arguments with respect thereto.
A. State-Created Danger Claim
Rogers and Waynesboro make two arguments regarding the state-created
danger claim. First, they argue that Long has failed to state a state-created danger
claim by failing to establish that she is a member of a discrete class because she
has defined the class in terms of location, rather than in reference to the harm
alleged. (Doc. 38, pp. 9, 10, 12.) Second, Rogers and Waynesboro argue that
Long has failed to plead that Rogers acted with the requisite level of culpability to
shock the conscience. (Id. at 10–13.) Rogers and Waynesboro conclude their
argument on this claim by noting that the claim relies upon common law tort
principles, and the Supreme Court has “unequivocally condemned efforts to cloak
traditional tort law claims in the guise of constitutional violations[.]” (Id. at 13.)
Defendants Ramsey, Sourbier, and Ziegler4 argue that Long cannot meet the
culpability and foreseeable victim elements of a state-created danger claim.
4 Although Defendant Ziegler filed a separate motion and brief, it largely mimics the brief filed
by Ramsey and Sourbier. (Compare Docs. 40 & 53.) The court will thus consider both motions
together. Long’s response to the Ziegler’s brief varies in rhetoric, but the law relied upon is
virtually the same. To the extent there is a meaningful difference, the court will include it. For
ease of reference, the court will cite to Ramsey and Sourbier’s brief in support.
Regarding the culpability element, Ramsey, Sourbier, and Ziegler analogize this
case to a high speed police pursuit, which are “‘hyperpressurized situations’
requiring an intent to harm[,]” and that Long has failed to allege an intent to harm
(Doc. 40, pp. 9, 10) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 835
(1998)). Ramsey, Sourbier, and Ziegler further argue that Long has not alleged the
culpability required in a situation involving “unhurried judgments” because the
amended complaint “does not state Defendant Rogers’s speed, Plaintiff’s speed,
the speed limit of the alleyway, how or to what extent Defendant Rogers was
allegedly impacted by marijuana, how much and when Defendant Rogers allegedly
used marijuana, and/or the weather and traffic conditions at the time.” (Id.)
Ramsey, Sourbier, and Ziegler point to cases in which courts found the appropriate
level of culpability had been alleged and note the facts in those cases are markedly
different than the facts here. (Id. at 11, n.2, 3.) Turning to the second element,
Ramsey, Sourbier, and Ziegler argue Long has not shown she is a foreseeable
victim or a member of a discrete class because she has not alleged any contact with
Rogers leading up to the accident and the class alleged is more akin to the general
public. (Id. at 11, 12.)
Ramsey, Sourbier, and Ziegler also argue that Long has not alleged the
personal involvement of Defendants Ramsey, Sourbier, and Ziegler in the accident
beyond generic knowledge that Defendant Rogers had used his office to commit
illegal acts and was using illegal substances. (Id. at 13–15.)
In opposition, Long first notes that Rogers and Waynesboro do not argue
that she has failed to plead that the harm was foreseeable and direct and that the
state actor affirmatively used his authority. (Doc. 45, p. 9.) Additionally, Long
decries Rogers and Waynesboro’s description of the accident as fortuitous as
“arrogant” and “mind-boggling,” and indicative of the attitude of the police
department as a whole.5 (Id.)
Turning to the issues relevant to this case, Long argues that she has alleged
the appropriate degree of culpability to show that Rogers’s conduct shocks the
conscience. (Id. at 11–13.) Long contends that Rogers had time to make
“unhurried judgments” because he was responding to a call about parked cars and
not involved in an active police chase. (Id. at 12.) Thus, his conduct should be
analyzed under a deliberate indifference standard, and “the averments are sufficient
to support ‘unhurried judgment’ with time for ‘careful deliberation’ followed by
actions done with deliberate indifference.” (Id.)
5 Long also spends time refuting an argument that Long “failed to exercise sound judgment” or
that she failed to comply “with the rules of the road.” (Id.) However, upon reading Rogers and
Waynesboro’s briefing, this language was used to describe how the amended complaint
described the conduct which caused the harm, i.e. Rogers’s conduct. (Doc. 3, p. 12) (“The
conduct critical to the harm alleged by Plaintiff’s Amended Complaint focuses upon an alleged
failure to exercise sound judgment, and upon compliance with the rules of the road. This
conduct fortuitously occurred in an alley near Plaintiff’s residence.”)
Next, Long argues that “[p]ersons who live along the alley and must use the
alley to enter and exit their property are clearly foreseeable victims and/or
members of a discrete class of persons.” (Id. at 13.) Long distinguishes the case
law provided by Rogers and Waynesboro by noting that “those cases involved
general drivers and passengers traveling along a highway, not a limited number of
people who lived along the alley[,]” and that “[t]he special danger in this case was
created by the police using the alley at a high rate of speed without police lights
and police sirens and while in an altered state.” (Id. at 14, 15.)
Regarding Ramsey and Sourbier’s personal involvement, Long argues the
amended complaint alleges that “Ramsey knew Rogers was in an altered state
before they left for the call but did not nothing [sic] to intervene[.] As a law
enforcement officer, Ramsey had an affirmative duty to intervene in criminal
conduct (driving in altered state) whether he was Rogers’s supervisor or not.”
(Doc. 44, p. 15.) The court notes that Long provides no case law to support her
conclusion that Ramsey had an affirmative duty to intervene. Long also argues
that Sourbier knew Rogers had been driving in an altered state and that officers
drove down the alley too fast. (Id.)
Under the state-created danger theory of liability, a State and state actors can
be liable “when state authority is affirmatively employed in a manner that injures a
citizen or renders him ‘more vulnerable to injury from another source than he or
she would have been in the absence of state intervention.’” Bright v. Westmoreland
Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (quoting Schieber v. City of Phila., 320
F.3d 409, 416 (3d Cir. 2003)).
To establish a state-created danger claim, a plaintiff must demonstrate that:
(1) “the harm ultimately caused was foreseeable and fairly direct;” (2) “a state
actor acted with a degree of culpability that shocks the conscience;” (3) “a
relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a member of a discrete class of
persons subjected to the potential harm brought about by the state’s actions, as
opposed to a member of the public in general;” and (4) “a state actor affirmatively
used his or her authority in a way that created a danger to the citizen or that
rendered the citizen more vulnerable to danger than had the state not acted at all.”
L.R. ex rel. N.R. v. School Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016) (citing
Bright, 443 F.3d at 281).
Because it is dispositive of the motions, the court will address the third
element. Satisfying this element requires “some contact such that the plaintiff was
a foreseeable victim of a defendant’s acts in a tort sense.” Kneipp v. Tedder, 95
F.3d 1199, 1209 n.22 (3d Cir. 1996). A sufficiently close relationship exists when
either “(1) ‘a specific individual has been placed in harm’s way’ or (2) the plaintiff
‘[is] part of an identifiable and discrete class of persons subject to the harm the
state allegedly has created.’” Hopkins v. Yesser, 412 F.Supp.3d517, 524 (E.D. Pa.
2019) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d Cir.
1997)). The focus in this analysis is on foreseeability. Id. Thus, when alleging
that plaintiff is part of a discrete class, “the group must be limited enough to
remain separate from the general public.” Id. “Where the state actor has allegedly
created a danger towards the public generally, rather than an individual or group of
individuals, holding a state actor liable for the injuries of foreseeable plaintiffs
would expand the scope of the state-created danger theory beyond its useful and
intended limits.” Morse, 132 F.3d at 913 n.12.
Long has not pleaded that she is a foreseeable victim of the harm alleged
separate from the general public. The harm here—injury due to reckless and
impaired driving of a police officer—is a harm faced by the whole jurisdiction of
Waynesboro, not just those living along the alley. Thus, this case is similar to
Watson v. Methacton, in which the Eastern District of Pennsylvania held that
naming “travelers within the vicinity of Methacton High School after the Party
ended” as a discrete class would “extend the state-create danger doctrine beyond
‘its useful and intended limits.’” 513 F. Supp. 2d. 360, 377 (E.D. Pa. 2007). As
the district court in Long v. Armstrong County explained, basing a discrete class on
geography is “unavailing because the ‘public in general’ rule already internalizes
the argument that those living closer to an alleged state-created danger face a
higher probability of harm than those living elsewhere.” 189 F. Supp. 3d. 502, 511
(W.D. Pa. 2016). Thus, the court in Long held:
while it might be more foreseeable that those residing around some
danger allegedly created by the state might be victims of harm (that is,
more likely to be injured from a probability perspective), without some
specific relationship or other indication that they are especially likely
to be harmed by the government’s act, they are not sufficiently discrete
or foreseeable to warrant state-created danger liability.
Long v. Armstrong Cnty., 189 F. Supp. 3d 502, 512 (W.D. Pa. 2016), aff’d sub
nom. Long v. Cnty. of Armstrong, 679 F. App’x 221 (3d Cir. 2017). Therefore,
Long has failed to allege that she is part of a discrete class that is sufficiently
distinguishable from the general public. Thus, the court will grant Defendants’
motions to dismiss and dismiss count I without prejudice.6
B. Fourteenth Amendment
Rogers argues that he is entitled to qualified immunity from Long’s
Fourteenth Amendment claim because Long has not pointed to authority which
stands “for the proposition that the Fourteenth Amendment is implicated in the
context of a fortuitous motor vehicle accident without an active pursuit.” (Doc. 38,
6The Supreme Court has held that amendment should be freely given, absent “undue delay, bad
faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of amendment, etc.’” Foman v. Davis, 371 U.S. 178, 182 (1962).
Further, in civil rights cases, “courts must offer amendment irrespective of whether it is
requested when dismissing a case for failure to state a claim unless doing so would be
inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247,
251 (3d Cir. 2007). Here, it is not sufficiently clear that giving leave to amend would be futile.
p. 15.) Long points to case law from the Fourth, Third, and Tenth Circuits which
Long argues establish that police officers driving recklessly can result in a
constitutional injury. (Id. at 15, 16) (citing Dean v. McKinney, 976 F.3d 407, 418
(4th Cir. 2020); Sauers v. Nesquehoning, 905 F.3d 711, 718 (3d Cir. 2018);
Browder v. City of Albuquerque, 787 F.3d 1076, 1081 (10th Cir. 2015)). Further,
Long maintains that Sauers establishes that Rogers’s conduct is a constitutional
violation.
Qualified immunity “protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818). The doctrine “protects all but the plainly incompetent or those who
knowingly violate the law.” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (quoting
White v. Pauly, 580 U.S. 73, 79 (2017)). Courts follow a two-pronged test to
determine whether qualified immunity applies. Pearson, 555 U.S. at 232. First,
the court must determine whether the defendants violated the plaintiff’s statutory
or constitutional right. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)
(citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). Second, the court must
determine whether the right at issue was clearly established at the time of the
violation. Id. (citing Reichle, 566 U.S. at 664).
The court may exercise its discretion in deciding “which of the two prongs
of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
Defendants asserting that they are entitled to qualified immunity have the burden
to prove that the doctrine applies. Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cir.
2014). Finally, because “the ‘driving force’ behind the creation of the qualified
immunity doctrine was a desire to ensure that ‘insubstantial claims’ against
government officials [will] be resolved prior to discovery[,]” the Supreme court
has “stressed the importance of resolving immunity questions at the earliest
possible stage in litigation.” Pearson, 555 U.S. at 231–32.
The court will begin by deciding whether Long has established that she
suffered from a constitutional violation. She has not. Long pleads that she “has a
clearly established right to bodily integrity under the Fourteenth Amendment.
Civilian injury during an inherently dangerous police vehicle movement has been
established as a violation of the Fourteenth Amendment.” (Doc. 35, ¶ 98.) As
discussed above, Long has failed to allege a constitutional violation under the
state-created danger theory. To the extent that Count II alleges a Fourteenth
Amendment substantive due process violation under a different theory, it is unclear
what that theory is. The remaining allegations in count II reference reckless
driving on behalf of Defendant Rogers and conclude that he acted with deliberate
indifference. (Id. ¶¶ 99–102.) However, there are no allegations of behavior
which shocks the conscience, which are necessary to state a claim for a violation of
substantive due process. See Lewis, 523 U.S. at 846. Therefore, because “liability
for negligently inflicted harm is categorically beneath the threshold of
constitutional due process,” the motion to dismiss regarding the count II claim will
be granted. Id. Long will be given leave to amend.
C. Malicious Prosecution
All Defendants argue that Long has failed to plead facts showing she
suffered a deprivation of liberty in connection with the traffic citation. (Doc. 38,
pp. 16, 17; Doc. 40, pp. 16, 17.) Long’s argument on the malicious prosecution
claim consists of quoting the elements of a malicious prosecution claim and
concluding that she has “averred facts consistent with these elements.” (Doc. 46,
p.19.)
The elements of a malicious prosecution claim under § 1983 are as follows:
(1) the defendants initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff's favor; (3) the proceeding was initiated
without probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5) the plaintiff
suffered deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.
Est. of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003). The Third Circuit has
held that a plaintiff fails to establish the fifth element when a plaintiff is only
issued a summons, not arrested, not required to post bail, is free to travel, and is
not required to report to any kind of pretrial supervision. DiBella v. Borough of
Beachwood, 407 F.3d 599, 603 (3d Cir. 2005). If a plaintiff’s liberty is only
restricted by means of appearing for trial, the Fourth Amendment is not implicated
because it “does not extend beyond the period of pretrial restrictions.” Id.
There is no allegation of a deprivation of liberty consistent with the concept
of a seizure in the amended complaint at all. There are only allegations that Long
was issued a citation and that she appeared for trial before the magisterial district
court. (Doc. 35, ¶¶ 37, 39.) Accordingly, the motion to dismiss will be granted as
to count III. This count will be dismissed with prejudice because amendment is
futile. Fletcher-Harlee Corp., 482 F.3d at 251. Amendment would be futile here
because case law specifically excludes circumstances such as here, where Long
cannot allege that her freedom was restricted pre-trial because she was not arrested
and was only issued a summons.
D. Abuse of Process
Ramsey argues that the abuse of process claim against him fails because the
amended complaint alleges that the “citation was initiated and prosecuted for an
allegedly improper purpose[,]” rather than the citation was properly initiated and
the subsequent process was abused. (Doc. 40, pp. 17, 18.) Long argues her abuse
of process claim is adequately pleaded because “there is also Third Circuit
precedent finding abuse of process is broader than those claims where the initial
prosecution is initiated legitimately[.]” (Doc. 44, p. 17) (citing Zvonek v. Walters,
No. 3:20-CV-1185, 2024 WL 759865, at * 14–16 (M.D. Pa. Feb. 23, 2024)).
Under § 1983, an abuse of process claim “lies where ‘prosecution is initiated
legitimately and thereafter is used for a purpose other than that intended by the
law.’” Rose v. Bartle, 871 F.3d 331, 350 n.17 (3d Cir. 1989) (quoting Jennings v.
Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977)). To recover under this theory, “a
plaintiff must show that the defendant used legal process against the plaintiff in a
way that constituted a perversion of that process and caused harm to the plaintiff.”
Gen. Refractories Co. v. Fireman’s Fund Ins. Co., 337 F.3d 287, 304 (3d Cir.
2003).
As alleged in the amended complaint, the event that triggered the alleged
abuse of process was Rogers’s inconsistent testimony. (Doc. 35, ¶ 117.) It is
unclear from the amended complaint what further process occurred after this
moment, besides Long being acquitted of the traffic citation. Long provides no
case law supporting the argument that arguing a case through to verdict is an abuse
of process. Therefore, the motion to dismiss will be granted as to count IV. Long
will be given leave to amend.
E. Monell Claims
Waynesboro argues that the amended complaint does not identify a “specific
formal policy nor does Plaintiff state ‘exactly what that custom or policy was[,]’”
and challenges the averments in the complaint as conclusory. (Doc. 38, p. 19)
(citing McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).) Long argues
that she has sufficiently pleaded “specific customs that caused the constitutional
deprivations, who the persons responsible for the deprivation of constitutional
rights were, and that the conduct was deliberate and condoned (ratified) by
Defendants.” (Doc. 45, p. 18.)
A municipality can be liable for constitutional violations committed by its
employees only when “the action that is alleged to be unconstitutional implements
or executes a policy, statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658, 690 (1978). Accordingly, a plaintiff must
“plead that the complained-of injury was caused directly by a local government’s
‘policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy.’” Schlaybach v. Berks Heim
Nursing & Rehab, 434 F. Supp. 3d. 342, 350–51 (E.D. Pa. 2020) (quoting Harris v.
City of Phila., 171 F. Supp. 3d 395, 400 (E.D. Pa. 2016)).
A policy or custom can be proven in multiple ways. 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). 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).
The court finds that the allegations regarding Waynesboro’s policies are
conclusory. Long has not provided a specific official policy, and she has also not
provided anything other than conclusory recitals of the elements of a Monell claim
that the alleged policies are consistent and widespread. (Doc. 35, ¶¶ 128, 129,
130.) Therefore, the Monell claim against Waynesboro, count V, will be dismissed
without prejudice and with leave to amend.
F. Failure to Supervise and Train Claims
Sourbier and Ziegler argue that Long has not plausibly alleged a claim
against them because they were not “the moving force behind any alleged violation
of Plaintiff’s rights.” (Doc. 40, p. 19.) Sourbier and Ziegler further argue there is
no causal connection between the policy alleged to have deprived Long of a
constitutional right, and there is no policy alleged at all regarding the prosecution.
(Id. at 19, 20.) Sourbier and Ziegler also argue that Long failed to allege deliberate
indifference in both the failure to supervise and failure to train claims, because she
has failed to allege any other incidents regarding the same situations such that the
defendants would be on notice that the police department’s policies were
inadequate. (Id. at 19–21.)
Long argues that she has alleged personal involvement by Sourbier and
Ziegler including “deliberate indifference to Rogers’s drug and alcohol use, Rogers
and Ramsey lying about the accident, committing and/or suborning perjury and a
basic failure to train Rogers regarding safe use of the police vehicle and
equipment.” (Doc. 44, p. 18.)
Supervisory liability under § 1983 utilizes the same standard as municipal
liability. See Carter v. City of Philadelphia, 181 F.3d 339, 356 (3d Cir. 1999).
Under either a failure to supervise or failure to train theory, a supervisor will only
be liable for the acts of a subordinate if he fosters a policy or custom that amounts
to deliberate indifference towards an individual’s constitutional rights. See id. at
357; see also Reitz v. Cnty. of Bucks, 125 F.3d 138, 145 (3d Cir. 1997). Further,
“[a]s in any action under § 1983, the first step is to identify the exact contours of
the underlying right said to have been violated.” Lewis, 523 U.S. at 841 n.5.
Because, as discussed above, the amended complaint fails to adequately allege a
constitutional violation, the court will not determine whether the amended
complaint has adequately alleged liability for a constitutional violation.
Accordingly, the motion to dismiss will be granted and Counts VI and VII will be
dismissed without prejudice.
CONCLUSION
Based on the foregoing, the motions to dismiss will be granted. An Order
follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: January 3, 2025