Eiswerth v. Lackawanna County Sheriff's Department

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH EISWERTH JR.,

Plaintiff, CIVIL ACTION NO. 3:24-CV-01214

v.

(MEHALCHICK, J.)

LACKAWANNA COUNTY SHERIFF’S

DEPARTMENT, et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss filed by Defendants Lackawanna County (“the

County”) and Lackawanna County Sheriff's Department (“Sheriff’s Department”)

(collectively, “County Defendants”) on July 29, 2024. (Doc. 3). On June 28, 2024, Plaintiff

Kenneth Eiswerth Jr. (“Eiswerth”) commenced this action by filing a complaint against

County Defendants and John P. Ehnot (“Ehnot”) (collectively, “Defendants”) in the

Lackawanna Court of Common Pleas for violations of the Fourth and Fourteenth

Amendments, 42 U.S.C § 1985, and 42 U.S.C § 1983, based upon alleged discrimination and

excessive force civil rights claims. (Doc. 1-3). On July 22, 2024, County Defendants removed

this action to the United States District Court for the Middle District of Pennsylvania,

pursuant to 28 U.S.C. § 1446. (Doc. 1).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from Eiswerth’s complaint. (Doc. 1-3, at 5-29). On

or about March 11, 2023, Scranton police arrested Eiswerth for public intoxication and placed

Eiswerth in a holding cell in downtown Scranton. (Doc. 1-3, ¶ 8). While Eiswerth was in the

holding cell, Ehnot, who was at the time employed as a sheriff at the Scranton office of the

Lackawanna County Sheriff’s Department, entered the holding cell and began verbally, and

eventually physically, assaulting Eiswerth based on Eiswerth’s sexuality. (Doc. 1-3, ¶¶ 6, 9).

Eiswerth avers that Ehnot was unprovoked when this occurred. (Doc. 1-3, ¶ 9). After

assaulting Eiswerth, Ehnot left the cell. (Doc. 1-3, ¶ 10). Shortly thereafter, Eiswerth was

released both from the holding cell and the custody of the Sheriff’s Department. (Doc. 1-3, ¶¶

10-11). Eiswerth alleges that his release was predicated upon Defendants’ knowledge that

Ehnot’s actions were “wrong and illegal.” (Doc. 1-3, ¶¶ 10-11). Eiswerth further submits that

“Ehnot has a history of excessive force and assault and battery known to all Defendants.”

(Doc. 1-3, ¶ 12).

Eiswerth sets forth seventeen causes of action in his complaint. (Doc. 1-3, at 7-28).

Eiswerth asserts Counts I through VI against the County, including claims of sexual

orientation discrimination (Count I); violations of the Equal Protection Clause (Count II);

conspiracy (Count III); failure to train (Count IV); excessive force Monell claim (Count V);

and assault/battery (Count VI). (Doc. 1-3, at 7-15). Eiswerth asserts identical causes of action

in Counts VII through XII against the Sheriff’s Department. (Doc. 1-3, at 16-24). In Counts

XIII through XVII, Eiswerth asserts claims against Ehnot, including claims of sexual

orientation discrimination (Count XIII); violations of the Equal Protection Clause (Count

XIV); conspiracy (Count XV); intentional infliction of emotional distress (Count XVI); and

assault/battery (Count XVII). (Doc. 1-3, at 24-28). As relief, Eiswerth seeks an award of

monetary damages. (Doc, 1-3, at 28).

On July 29, 2024, County Defendants filed a motion to dismiss. (Doc. 3). On August

12, 2024, County Defendants filed a brief in support of their motion. (Doc. 4). On September

6, 2024, Eiswerth filed a brief in opposition, incorrectly labeled as a reply brief. (Doc. 5). On

September 9, 2024, Eiswerth refiled his brief in opposition, correctly labeled as such. (Doc. 6-

2). On September 19, 2024, County Defendants filed a reply brief. (Doc. 8). County

Defendants’ motion to dismiss has been fully briefed and is now ripe for disposition. (Doc. 3;

Doc. 4; Doc. 6; Doc. 6-2; Doc. 8).

II. LEGAL STANDARDS

A. MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

that are not entitled to the assumption of truth, and finally determine whether the complaint’s

factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch

v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion,

the court may consider the facts alleged on the face of the complaint, as well as “documents

incorporated into the complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements that make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’. . . ”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a

plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v.

Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). 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) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

B. 42 U.S.C. SECTION 1983

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

“Section 1983 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color of state law; and

(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

County Defendants move to dismiss the Complaint, setting forth a multitude of

reasons as to why the complaint fails to state a claim upon which relief may be granted. (Doc.

4). County Defendants first argue, as a threshold matter, that all claims in Counts VII – XII

should be dismissed because the Sheriff’s Department is not a proper defendant.1 (Doc. 4, at

5-6). County Defendants next contend that Counts XIII – XVII asserted against Mr. Ehnot in

his official capacity are redundant to the claims asserted against the County and should thus

be dismissed. (Doc. 4, at 6-7). Finally, County Defendants submit that Eiswerth has failed to

state a claim against the County in Counts I – VI because Eiswerth does not allege facts that

support an equal protection claim, a conspiracy claim, or an excessive force claim based upon

1 Eiswerth does not object to the dismissal of all claims against the Sheriff’s

Department, as Eiswerth concedes that the Sheriff’s Department and the County are a single

entity. (Doc. 6-2, at 4). Accordingly, Counts VII – XII are DISMISSED with prejudice. (Doc.

1-3, at 16-24). The Sheriff’s Department is DISMISSED from this action.

a police or custom theory of liability. (Doc. 4, at 7-21). Eiswerth responds that his claims

against Ehnot are not redundant and that he has alleged facts sufficient to support his claims

against the County. (Doc. 6-2, at 4-15).

A. CLAIMS ASSERTED AGAINST THE COUNTY (COUNTS I – VI)

1. Sexual Orientation Discrimination (Count I)

In Count I of the complaint, Eiswerth asserts a claim for “sexual orientation

discrimination.” (Doc. 1-3, at 7). County Defendants correctly point out that Eiswerth fails

to identify the statute or Constitutional provision he aims to proceed under as a cause of action

for Count I. (Doc. 4, at 7-9; Doc. 1-3, at 7). County Defendants further contend that Count I

should be dismissed, as a sexual orientation discrimination claim is only cognizable through

the Equal Protection Clause, or in the employment context, through Title VII. (Doc. 4, at 7-

8). Eiswerth responds that Count I is a supervisory liability claim for sexual orientation

discrimination, and without citing any caselaw, argues that “Eiswerth’s sexual orientation

claim is not only cognizable through the Equal Protection Clause.” (Doc. 6-2, at 6).

First and foremost, the Court agrees with County Defendants that Eiswerth has not

adequately identified the statutory or Constitutional source of its claim in Count I. (Doc. 1-3,

at 7). Second, Title VII cannot be the source of the right at stake because this case is not an

employment matter and Title VII is inapplicable. See Benoit v. State, No. CIV. A. 94-6951,

1995 WL 170031, at *1 (E.D. Pa. Apr. 10, 1995) (dismissing Title VII claim, as “Eiswerth

has neither alleged the existence of an employment relationship with the defendants nor has

she followed the procedures outlined in Title VII for bringing such a claim.”); 42 U.S.C. §

2000e et seq. Further, this Court, like County Defendants, was also unable to verify a source

outside of Title VII or the Equal Protection Clause for Eiswerth’s sexual orientation

discrimination charge. See Doe ex rel. Doe v. Lower Merion Sch. Dist., 665 F.3d 524 (3d Cir. 2011)

(analyzing intentional discrimination outside of the Title VII employment context under the

Equal Protection Clause); Pinkney v. Meadville, Pennsylvania, No. 1:19-CV-00167, 2021 WL

37664 (W.D. Pa. Jan. 5, 2021) (identifying no source for a non-employment based

discrimination claim outside of Title VI, which is applicable in race discrimination cases only,

and the Equal Protection Clause). Thus, having found no source for Eiswerth’s discrimination

claim outside of the Equal Protection Clause, Count I is repetitive of Eiswerth’s Equal

Protection claim in Count II. (Doc. 1-3, at 7-8). Third, Eiswerth’s argument that Count I is a

supervisory liability claim also fails. A claim for supervisory municipal liability must be

predicated on an underlying Constitutional violation. See Leonard v. City of Pittsburgh, No.

2:13-CV-455, 2013 WL 4541727, at *6 (W.D. Pa. Aug. 27, 2013), aff'd, 570 F. App'x 241 (3d

Cir. 2014) (holding that it is well-established that a supervisory liability claim against a

municipality must be based upon an underlying Constitutional tort). As discussed infra,

Eiswerth has not alleged facts to support an Equal Protection violation and thus, a failure to

supervise claim predicated on an Equal Protection claim must also fail. County Defendants’

motion to dismiss Count I shall be GRANTED. (Doc. 3).

2. Equal Protection Clause Violation (Count II)

Eiswerth asserts an Equal Protection violation in Count II of the complaint. (Doc. 1-

3, at 8). County Defendants submit that Eiswerth has not alleged sufficient facts to support

an Equal Protection violation. (Doc. 4, at 13). Eiswerth responds that he has indeed stated an

Equal Protection claim, as he argues, without citing any allegations made to support the

argument, that Ehnot has a history of discriminating based upon sexuality. (Doc. 6-2, at 7).

The Equal Protection Clause of the Fourteenth Amendment prohibits state officials

from exercising their discretionary authority for an intentionally discriminatory purpose. See

Johnson v. Anhorn, 416 F. Supp. 2d 338, 375 (E.D. Pa. 2006). There are two theories by which

a plaintiff may establish an equal protection claim: the traditional theory and the class-of-one

theory. Keslosky v. Borough of Old Forge, 66 F. Supp. 3d 592, 614 (M.D. Pa. 2014). Under the

traditional theory, a “plaintiff must allege: (1) that he or she is a member of a protected class;

and (2) that the government treated similarly situated individuals outside of the protected class

differently.” Reed v. Chambersburg Area Sch. Dist., 951 F. Supp. 2d 706, 716 (M.D. Pa. 2013).

Alternatively, to state a claim under the class-of-one theory, “a plaintiff must allege that: ‘(1)

defendant treated him differently from others similarly situated, (2) the defendant did so

intentionally, and (3) there was no rational basis for the difference in treatment.’” Reed, 951

F. Supp. 2d at 716 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006)). It

is not entirely clear the theory under which Eiswerth proceeds. (Doc. 1-3, at 8).

Eiswerth has failed to state a claim under the traditional analysis. In a traditional case

brought under the Equal Protection Clause, a plaintiff asserts that a defendant treated him

differently from other similarly situated individuals because of his membership in an

identifiable or protected class, such as race, religion, sex, or national origin. Mack v. Warden

Loretto FCI, 839 F.3d 286, 305 n. 112 (3d Cir. 2016). The Third Circuit has not explicitly held

that sexual orientation constitutes a protected class under the Equal Protection Clause. See

Izzard v. Cnty. of Montgomery, Pennsylvania, No. CV 21-418, 2021 WL 5639817, at *10 (E.D.

Pa. Nov. 29, 2021) (“While race and gender are protected classes under the Equal Protection

Clause, neither the Supreme Court nor the Third Circuit Court of Appeals have explicitly

held sexual orientation to be a ‘suspect’ or ‘quasi-suspect’ class deserving heightened

scrutiny.”). However, the Supreme Court has, on several occasions, analyzed sexual

orientation under an impermissible animus standard, or rational basis review. Izzard, 2021

WL 5639817, at *10 (citing Bostock v. Clayton Cnty., 590 U.S. 644 (2020)) (Romer v. Evans, 517

U.S. 620 (1996)) (citing United States v. Windsor, 570 U.S. 744 (2013)) (citing Obergefell v.

Hodges, 576 U.S. 644 (2015)). Thus, “it is appropriate for this court to assume that a claim for

sexual orientation discrimination sounds in the Equal Protection Clause.” Izzard, 2021 WL

5639817, at *10 (citing Whitewood v. Wolf, 992 F. Supp. 2d 410, 426 (M.D. Pa. 2014) (analyzing

sexual orientation as a quasi-suspect class).

If Eiswerth asserts a “traditional” Equal Protection claim, he begins to do so by

alleging that he was assaulted based on his sexual orientation, a protected class. See Mack, 839

F.3d at 305 n.112; see also Bostock, 590 U.S. at 656-666. However, he does not allege any facts

which show detainees or individuals of other sexual orientations were treated differently

based on their sexual orientation with respect to their being detained for public intoxication

or their treatment by Ehnot. (Doc. 1-3, at 6-9). While Eiswerth does allege that Ehnot had a

history of excessive force, he makes no allegations regarding the identities of those individuals

on whom he purportedly used excessive force. (Doc. 1-3, at 6-9). As such, Eiswerth has failed

to provide particular allegations to satisfy the pleading standards of a traditional Equal

Protection claim.

Eiswerth also fails to state a claim for a class-of-one Equal Protection Clause violation.

“As to the first element, ‘[a]t the motion to dismiss stage, [the plaintiff] must allege facts

sufficient to make plausible the existence of ... similarly situated parties.’” Borrell v. Bloomsburg

Univ., 955 F. Supp. 2d 390, 405 (M.D. Pa. 2013) (citing Perano v. Twp. of Tilden, 423 F. App'x

234, 238 (3d Cir. 2011)). “[T]he law in the Third Circuit does not require [the plaintiff] to

show that the [comparators] are identical in all relevant respects but only that they are alike.”

Borrell, 955 F. Supp. 2d at 405; see also Southersby Dev. Corp. v. Borough of Jefferson Hills, 852 F.

Supp. 2d 616, 628 (W.D. Pa. 2012) (citing Startzell v. City of Phila, Pa, 533 F.3d 183, 203 (3d

Cir. 2008)); Simmermon v. Gabbianelli, 932 F. Supp. 2d 626, 632–33 (D.N.J. 2013); Thomas v.

Coopersmith, No. 11–7578, 2012 WL 3599415, at *5 (E.D. Pa. Aug. 21, 2012). Eiswerth has

failed to allege how he was treated differently from others similarly situated to him. See Reed,

951 F. Supp. 2d at 716. In order to demonstrate that he was treated differently than others in

his situation, Eiswerth must allege that others who are similarly situated exist. See Hill, 455

F.3d at 239 (“[plaintiff’s] claim must fail because he does not allege the existence of similarly

situated individuals.”).

Eiswerth argues in his brief in opposition that he was treated differently than any other

intoxicated parade-goer by being unnecessarily singled out for public intoxication. (Doc. 6-2,

at 6-7). However, he makes no reference to such individuals in his complaint. (Doc. 1-3, at 6-

9). In the complaint, Eiswerth alleges in a vague fashion that “Ehnot, though unprovoked,

went into the holding cell and began verbally assaulted Eiswerth based upon Eiswerth’s

sexuality and ultimately began physically assaulting Eiswerth based upon his sexuality.”

(Doc. 1-6, at 6). While abhorrent allegations, Eiswerth does not mention any other individual

in his complaint other than Ehnot, and his statement that he was treated differently than

others “is entirely conclusory absent corresponding facts to provide proper context[. . .]”

(Doc. 1-3); see Danielson v. Chester Tp., No. 13-5427, 2013 WL 6094578, at *6 (D.N.J. Nov.

19, 2013) (finding that a plaintiff’s allegation that he “was prevented by [d]efendants from

using his 3 minutes [in a council meeting] unlike others similarly situated” was too conclusory

to allege discrimination as a class-of-one). Again, Eiswerth makes allegations that Ehnot had

a history of excessive force, but he does not provide facts alleging whether the individuals on

whom he purportedly used excessive force, and those on whom he did not, were similarly

situated. (Doc. 1-3, at 6-9). Cf. Danielson v. Chester Tp., No. 13-5427, 2014 WL 3362435, at *6

(D.N.J. July 9, 2014) (finding that a plaintiff who alleged that he attempted to critically

contribute to discussion in a council meeting and was asked to stop speaking while others

who spoke during the same period and whose statements were similarly critical were not

asked to stop speaking, along with allegations of prior communications between the

defendants about the plaintiff had asserted sufficient facts to support an equal protection claim

under a class-of-one theory at the motion to dismiss stage). Eiswerth fails to demonstrate with

enough particularity that he was discriminated against as a class-of-one, as he does not

sufficiently allege that he was treated differently than others who were similarly situated to

him. See Hill, 455 F.3d at 239. Accordingly, County Defendants’ motion to dismiss Eiswerth’s

Equal Protection claims shall be GRANTED. (Doc. 3).2

3. Conspiracy Claim (Count III)3

In Count III, Eiswerth alleges conspiracy claims. (Doc. 1-3, at 9). County Defendants

argue that Eiswerth has not adequately alleged a conspiratorial agreement and thus, this claim

2 As mentioned supra, because Eiswerth has failed to state an Equal Protection

violation, to the extent that his Monell claims in Counts IV – VI are predicated upon an Equal

Protection violation, those claims must also fail. See Leonard, 2013 WL 4541727, at *6 (“a

Monell claim still must be predicated on an underlying constitutional violation”); Ash v. Twp.

of Willingboro, No. CIV. 10-1900 RMB/JS, 2012 WL 6623986, at *4 (D.N.J. Dec. 18, 2012)

(holding that municipal liability claims that sound in Monell require an underlying

constitutional violation and finding that when no underlying violation is found, the Monell

claim must fail).

3 Eiswerth appears to assert its conspiracy claim in Count III under both § 1985 and §

1983. (Doc. 1-3, at 9). However, to reiterate, “[s]ection 1983 is not a source of substantive

rights,” but is merely a means through which “to vindicate violations of federal law

should be dismissed. (Doc. 4, at 16-17). Alternatively, County Defendants contend that Count

III fails because Ehnot is an agent of the County and under the intra-corporate conspiracy

doctrine, an entity cannot conspire with its agents. (Doc. 4, at 17-18). Eiswerth, in response,

argues that it has alleged facts to support a conspiracy claim, but does not respond to County

Defendants’ intra-corporate conspiracy doctrine argument. (Doc. 6-2, at 11).

First, the doctrine that County Defendants rely upon in their motion to dismiss is the

intra-corporate conspiracy doctrine. (Doc. 4, at 18). This Court recently explained that

although “the United States Supreme Court has never held that the intra-corporate conspiracy

doctrine does not apply to constitutional claims, the United States Court of Appeals for the

Third Circuit more than four decades ago first held that such a defense does not apply to civil

rights actions, particularly when an individual is not acting in his or her official capacity.”

Thomas v. Duvall, No. 3:16-CV-00451, 2019 WL 6769324, at *2 (M.D. Pa. Dec. 12, 2019).

Furthermore, “‘the intra-corporate conspiracy doctrine [is] inappropriate to determine at the

motion to dismiss stage, as it is “a defense and requires a factual inquiry.”’” Page-Jones v.

Berfield, No. 1:20-CV-1042, 2020 WL 7480649, at *5 n.2 (M.D. Pa. Dec. 18, 2020) (quoting

Cole v. Encapera, No. 15-104, 2015 WL 8528449, at *8 (W.D. Pa. Dec. 11, 2015)). For these

reasons, County Defendants’ motion to dismiss will not be granted on these grounds.

The allegations in Eiswerth’s complaint, however, do not form the basis of a

conspiracy claim. (Doc. 1-3). To state a cause of action under both § 1985(2) and § 1985(3),

the plaintiff must adequately plead an unconstitutional conspiracy. Bakhtiari v. Spaulding, No.

1:17-CV-00016, 2017 WL 2778524, at *9 (M.D. Pa. June 27, 2017). “The essence of a

committed by state actors.” See Pappas, 331 F. Supp. 2d at 315 (quoting Gonzaga Univ., 536

U.S. at 284-85). Therefore, Eiswerth may only proceed under § 1985 for its conspiracy claim.

conspiracy is an agreement.” United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989); Startzell

v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 2015 (3d Cir. 2008) (providing that to

constitute a conspiracy, there must be a meeting of the minds). Nonetheless, “[w]ithout more,

parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at

some unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S.

at 556-57.

Here, even with all reasonable inferences drawn in favor of Eiswerth, his pleading a

conspiracy under § 1985(2) against the County amounts to nothing more than conclusory

allegations. Indeed, Eiswerth generally claims that Defendants “conspired to deprive

Eiswerth of his rights[,]” and as a result, “Eiswerth suffered substantial injuries and damages.”

(Doc. 1-3, ¶¶ 24-25). However, “[i]t is not enough that the end result of the parties'

independent conduct caused Eiswerth harm or even that the alleged perpetrators of the harm

acted in conscious parallelism.” Tarapchak v. Lackawanna Cty., 173 F. Supp. 3d 57, 73 (M.D.

Pa. 2016), appeal dismissed (Aug. 16, 2016), reconsideration denied, No. CV 15-2078, 2016 WL

9738115 (M.D. Pa. Apr. 6, 2016); see also Great Western Mining & Mineral Co. v. Fox Rothschild

LLP, 615 F.3d 159, 178 (3d Cir. 2010). (“To properly plead such an agreement, ‘a bare

assertion of conspiracy will not suffice.’”) (citing Twombly, 550 U.S. at 556). Additionally,

Eiswerth has not articulated how Defendants conspired with one another due to a

discriminatory animus. Thus, Eiswerth’s § 1985(2) claims fail to state a claim for relief.

Eiswerth’s cause of action against the County under § 1985(3) also fails to state a claim

upon which relief can be granted. 42 U.S.C. § 1985(3) “permits an action to be brought by

one injured by a conspiracy formed ‘for the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws.’” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006)

(quoting 42 U.S.C. § 1985(3)). Here, when liberally construed, Eiswerth appears to claim that

the County and Mr. Ehnot conspired to violate her constitutional right to be free from

discriminatory animus based upon his sexuality by the County’s failure to put a stop to

Ehnot’s known misconduct. (Doc. 1-3, at 9). Specifically, Eiswerth contends that Ehnot

verbally and physically assaulted Eiswerth based upon his sexual orientation. (Doc. 1-3, at 6).

However, even when taken as true, this allegation is inadequate for a conspiracy claim.

Notably, Eiswerth does not plead with particularity the period of the alleged conspiracy

between Ehnot and the County. Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa.

2000). Further, Eiswerth fails to sufficiently establish that Ehnot and the County had “a

meeting of the minds” so as to facilitate or engage in the particular misconduct averred.

Startzell, 533 F.3d 183 at 205. Accordingly, Eiswerth’s complaint fails to meet the pleading

standard under § 1985(3). (Doc. 1-3, at 6-9). As such, County Defendants’ motion to dismiss

Count III of the complaint shall be GRANTED. (Doc. 3; Doc. 1-3, at 9).

4. Policy-or-Custom Monell Claims Based Upon Excessive Force

(Counts IV – VI)

Eiswerth asserts municipal liability claims for failure to train and failure to supervise

in Counts IV – VI, predicated upon unlaw use of excessive force. (Doc. 1-3, at 9-15). County

Defendants move to dismiss all claims sounding in a policy-or-custom theory of municipal

liability because Eiswerth “has failed to adequately identify an unlawful policy-or-custom or

a link with a County decisionmaker that resulted in use of excessive force.” (Doc. 4, at 19).

According to Eiswerth, Ehnot’s history of excessive force and the County’s failure to respond

to such misconduct amounts to a policy or custom, or alternatively, a failure to

train/supervise. (Doc. 6-2, at 13-15).

Municipal employers cannot be held vicariously liable for the constitutional violations

committed by their employees. Monell v. NYC Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

Instead, “[m]unicipal liability only attaches when a plaintiff demonstrates that an official

policy or custom caused the asserted constitutional deprivation.” Moeck v. Plesant Valley School

Dist., 983 F.Supp.2d 516, 524 (M.D. Pa. 2013) (citing Watson v. Abington Twp., 478 F.3d 144,

155 (3d Cir. 2007)). To establish liability under Monell, a plaintiff must identify the challenged

policy or custom, demonstrate proper attribution to the public entity, and show a causal link

between the execution of the policy or custom and the injury suffered. See Natale v. Camden

Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003).

A policy exists when a decisionmaker possessing final authority to establish public

policy with respect to the disputed action issues an official proclamation, policy, or edict.

Natale, 318 F.3d at 584 (quoting Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)). By

contrast, a custom is an act that is not formally approved but is nonetheless “so widespread

as to have the force of law.” Natale, 318 F.3d at 584 (quoting Bryan Cty., 520 U.S. at 404). A

plaintiff may also establish municipal liability by demonstrating that a policymaker failed to

take affirmative action despite an obvious need to correct the “inadequacy of existing practice

[which is] so likely to result in the violation of constitutional rights” that inaction exhibits

“deliberate indifference” to the need. Natale, 318 F.3d at 584 (quoting Bryan Cty., 520 U.S. at

417-18). Stated differently, a policy of inaction can give rise to municipal liability under §

1983 when the government's failure to act amounts to deliberate indifference towards the

plaintiff's constitutional rights. However, “a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident includes proof that it

was caused by an existing, unconstitutional municipal policy, which policy can be attributed

to a municipal policymaker.” Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985); see also

Brown v. City of Pittsburgh, 586 F.3d 263, 292–93 (3d Cir. 2009) (recognizing that where no

explicit policy is identified, “‘more proof than the single incident will be necessary’ to establish

a causal connection between the incident and some municipal policy”); Losch v. Borough of

Parkesburg, Pa., 736 F.2d 903, 911 (3d Cir. 1984) (“A policy cannot ordinarily be inferred from

a single instance of illegality....”). Thus, a showing that a well-established practice exists, and

that the municipality has done nothing to end or change the practice, supports a finding of

custom attributable to the municipality. In addition, a “policy may be established ... [by] a

municipality's failure to train its employees.” Moeck, 983 F.Supp.2d at 524 (citing Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). But even in those circumstances,

“[a] course of conduct is considered to be a ‘custom’ when, though not authorized by law,

‘such practices of state officials [are] so permanent and well settled’ as to virtually constitute

law.” Monell, 436 U.S. at 691-92.

Once a plaintiff identifies a municipal policy or custom, “he must ‘demonstrate that,

through its deliberate conduct, the municipality was the ‘moving force’ behind the injury

alleged.’” Berg v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (quoting Bd. of Cty. Comm'rs

of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)). Deliberate indifference, requires a 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.”

Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999).

Here, Eiswerth alleges that the County “permitted, tolerated and ratified a pattern and

practice of unjustified, unreasonable, use of force that was excessive.” (Doc. 1-3, ¶ 38).

Eiswerth continues to make several broad allegations, including in relevant part, that the

County failed to implement policies governing use of force with detainees or investigation

procedures for incidents involving excessive force and that the County’s policies failed to

“prevent, deter, report, intervene, or take action against unlawful conduct of other officers.”

(Doc. 1-3, ¶¶ 38-39). Eiswerth fails to identify a written formal policy or any policymaker or

final decisionmaker in his complaint to support his claim on a theory of custom liability. (Doc.

1-3). Thus, Eiswerth has not pled facts sufficient to state a municipal liability claim, as the

complaint alleges only general statements relating to the County’s failure to supervise and

train its employees. (Doc. 1-3, at 6-15). As mentioned above, Counts IV – VI all make

allegations regarding a failure to implement policies regarding proper use of force with

detainees. (Doc. 1-3, ¶¶ 29-50). The allegations do not provide or point to any facts that would

establish deliberate indifference, but instead makes broad, conclusory statements that simply

serve to list elements of the relevant legal claim. See Hadesty v. Rush Twp. Police Dep't, No. 3:14-

CV-2319, 2016 WL 1039063, at *13 (M.D. Pa. Mar. 15, 2016) (finding that a plaintiff failed

to allege municipal liability against city and city police department). Specifically, Eiswerth

does not provide any factual allegations to demonstrate that the County policymakers knew

that Ehnot was likely to confront a situation like the one at issue. Eiswerth only mentions that

there is a “history” of Ehnot engaging in excessive force violations of this kind in a non-

specific, generalized manner, without referencing specifics of those incidences or the degree

to which the County knew or responded. (Doc. 1-3, at 6).

When deciding a motion to dismiss, the Court is only bound to take into consideration

factual allegations, and need not consider those that are conclusory. “[A] formulaic recitation

of the elements of a cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. at

554-55). Because Eiswerth solely provided broad generalizations and sweeping conclusory

statements with regard to any policy or custom theory of municipal liability in Counts IV –

VI, the Court finds that he failed to provide sufficient facts to support a plausible policy or

custom Monell claim against the County. See Hadesty, 2016 WL 1039063, at *13. Accordingly,

County Defendants’ motion to dismiss the claims in Counts IV – VI of the complaint shall be

GRANTED.

B. CLAIMS ASSERTED AGAINST EHNOT (COUNTS XIII – XVII)

The Court notes that Ehnot has not moved to dismiss any claims asserted against him,

specifically Counts XIII – XVII. However, both parties make arguments regarding the

redundancy of claims against Ehnot in his official capacity with respect to claims against the

County. (Doc. 4, at 6-7; Doc. 6-2, at 4-6). Further, “[T]he District Court has the power to

dismiss claims sua sponte under Rule 12(b)(6).” Gaffney v. United States, No. 3:14-CV-00643,

2015 WL 1409674, at *6 (M.D. Pa. Mar. 26, 2015) (quoting Bintliff–Ritchie v. Am. Reinsurance

Co., 285 Fed. App'x 940, 943 (3d Cir. 2008); see also Bryson v. Brand Insulations, Inc., 621 F.2d

556, 559 (3d Cir. 1980)). Therefore, the Court will consider the parties’ arguments regarding

claims asserted against Ehnot.

In Counts XIII – XVII, Eiswerth asserts claims of sexual orientation discrimination

(Count XIII); violations of the Equal Protection Clause (Count XIV); conspiracy (Count XV);

intentional infliction of emotional distress (Count XVI); and assault/battery (Count XVII)

against Ehnot. (Doc. 1-3, at 24-28). In the complaint, it is not clear whether Eiswerth asserts

his claims against Ehnot in his individual or official capacity. (Doc. 1-3, at 24-28). In fact, the

complaint makes no reference to either an individual or official capacity suit whatsoever.

(Doc. 1-3, at 24-28). However, Eiswerth argues in his brief in opposition that he has asserted

claims against Ehnot in both capacities. (Doc. 6-2, at 4-6).

The Court agrees that any claims against Ehnot in his official capacity amount to

claims against the County. Official-capacity suits are “only another way of pleading an action

against an entity of which an officer is an agent.” Monell, 436 U.S. at 690, n.55. In an official-

capacity suit, the entity of which the officer is an agent is the real party in interest. Kentucky v.

Graham, 473 U.S. 159, 165-6 (1985). As such, claims against state officials in their official

capacities for damages are treated as suits against the entity itself. See Kentucky, 473 U.S. at

166. Accordingly, Eiswerth’s claims against Ehnot in his official capacity are redundant to

his claims against the County. To the extent that Eiswerth intended to plead claims against

Ehnot in his individual capacity, he must clearly do so in his complaint. Therefore, the claims

against Ehnot are DISMISSED without prejudice. Eiswerth may amend his complaint to

clarify his claims against Ehnot.

C. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave

to amend.’” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d

Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In

this case, the Court will grant Eiswerth leave to file an amended complaint in an attempt to

cure the deficiencies outlined herein with regard to all claims, excluding Counts VII – XII,

which are dismissed with prejudice. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Grayson, 293

F.3d at 108.

IV. CONCLUSION

For the foregoing reasons, County Defendants’ motion to dismiss is GRANTED.

(Doc. 3). Counts I – VI and Counts XIII – XVII are DISMISSED without prejudice. (Doc.

1-3). Counts VII – XII are DISMISSED with prejudice. (Doc. 1-3).

An appropriate Order follows.

BY THE COURT:

Dated: February 14, 2025 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge