# THE ESTATE OF BRIAN EDWARD FISHER v. CITY OF PITTSBURGH

> District Court, W.D. Pennsylvania · May 8, 2025

URL: https://www.frixlaw.com/law-library/cases/11067373

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** May 8, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THE ESTATE OF BRIAN EDWARD )
FISHER, deceased, by and through the )
ADMINISTRATRIX OF THE ) Civil Action No. 2:24-cv-1234
ESTATE JAMIE FISHER, )
) Judge J. Nicholas Ranjan
Plaintiff, ) Magistrate Judge Patricia L. Dodge
)
v. )
)
CITY OF PITTSBURGH; )
PITTSBURGH BUREAU OF )
POLICE; ROBINSON TOWNSHIP; )
ROBINSON TOWNSHIP POLICE )
DEPARTMENT; POLICE OFFICER )
JORDAN PRICE; and POLICE )
OFFICER JOSEPH TOMKO, )
)
Defendants. )

REPORT & RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that Defendants’ motions to dismiss (ECF Nos. 47, 49) be
granted in part and denied in part.
II. REPORT
A. Relevant Procedural History
Plaintiff Jamie Fisher (“Plaintiff”) commenced this action following the death of her
brother, Brian Edward Fisher. The initial Complaint named the City of Pittsburgh, Pittsburgh
Bureau of Police (collectively “Pittsburgh Defendants”), Robinson Township, Robinson Township
Police Department (collectively “Robinson Defendants”), Pittsburgh Police Officer Jordan Price
(“Price”), and Robinson Township Police Officer Joseph Tomko (“Tomko”). (ECF No. 1.)
Motions to dismiss were filed by the Robinson Defendants and Tomko (ECF No. 36), as
well as the Pittsburgh Defendants (ECF No. 29.) Price filed an Answer. (ECF No. 31.)
In response, Plaintiff amended the complaint on November 11, 2024. The Amended
Complaint asserts claims for Fourth and Fourteenth Amendment violations against all Defendants

(Count I); Monell liability–failure to train against the City of Pittsburgh (Count II); Monell
liability–failure to train against Robinson Township (Count III)1; §1983 assault and battery against
Price (Count IV)2; state-law right of survival against Price and Tomko (Count V); and state-law
wrongful death against Price and Tomko (Count VI). (ECF No. 43.)
The Robinson Defendants and Tomko collectively moved to dismiss the Amended
Complaint on November 25, 2024. (ECF Nos. 47.) That same day, the Pittsburgh Defendants filed
a separate motion to dismiss (ECF Nos. 49), and Price filed an Answer (ECF No. 51). Both motions
have now been fully briefed (ECF Nos. 48, 50, 56, 57, 61) and are ready for disposition.
B. Facts Alleged in the Amended Complaint
The events giving rise to this action occurred on September 1, 2022. Robinson Township

Police (“Robinson PD”) received a call from a woman stating that she had not seen her adult
daughter, Leah Hess (“Ms. Hess”) in about twenty-four hours. (ECF No. 43 ¶ 14.) She did not say
that Ms. Hess was in imminent danger and did not file a formal missing person report. (Id. ¶¶ 15-
16.)
Robinson PD dispatched Officer Tomko to investigate and locate Ms. Hess. (Id. ¶ 16.)
Tomko subsequently determined that Ms. Hess was at a house located on Rydal Street in

1 The caption of Count III also names the City of Pittsburgh. It is clear from the body of the claim,
however, that the allegations relate solely to Robinson Township. See ECF No. 43 ¶¶ 140-72.
2 The Amended Complaint contains two claims captioned “Count III.”
2
Pittsburgh’s Crafton Heights neighborhood (“the Rydal house”). (Id. ¶ 17.) Ms. Hess was staying
at the Rydal house with Brian Fisher (“Fisher”) freely and of her own volition. She was not in any
danger and had planned to stay with Fisher for “another week or two.” (Id. ¶¶ 21-22.)
The Rydal house is located outside of Robinson PD’s jurisdiction. As a result, Tomko

contacted the Pittsburgh Bureau of Police (“PBP”) to request assistance in conducting a wellness
check on Ms. Hess. PBP dispatched Officer Price to assist Tomko. (Id. ¶¶ 23-24.)
The Rydal house is one-story and has a front yard that slopes down towards the street. The
front door opens onto a small porch that has steps connecting down to a driveway below. (Id. ¶
25.) By the time Tomko and Price arrived, it was dark outside, the front door was closed, and
blinds on the front windows were closed. (Id. ¶ 28.) Price positioned himself in the front yard to
the right of the porch while Tomko stood on the porch and aggressively knocked on the door
without announcing that he was a police officer. (Id. ¶¶ 26-28.) Fisher opened the door and Price
fired three shots from his firearm, hitting Fisher in the chest. (Id. ¶¶ 32, 41.) The shots were fired
within three seconds of the door opening and before Fisher had fully presented himself through

the doorway. (Id. ¶ 32.) Price later said that he saw a firearm in Fisher’s right hand. (Id. ¶ 33.)
Tomko and Price immediately retreated to the end of the driveway and called for
emergency medical services. (Id. ¶¶ 42-43.) Ms. Hess, who had been in the house at the time of
the shooting, attempted to help Fisher but ultimately was unable to do so. (Id. ¶¶ 30, 44.) She went
outside to yell for help, at which point Tomko and Price removed her from the house. Until that
point, Ms. Hess had not known that police were on the scene. (Id. ¶ 45.) Neither Tomko nor Price
checked on or administer first-aid to Fisher and they remained at the end of the driveway until an
ambulance arrived approximately ten minutes after the shooting. (Id. ¶¶ 43-44.) Despite the efforts

3
of responding paramedics, Fisher died as a result of multiple gunshot wounds. (Id. ¶ 47.)3
C. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed in whole
or in part for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To decide a Rule 12(b)(6) motion, the court must “accept all factual allegations as true, construe
the complaint in the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008)). While “accept[ing] all of the complaint’s well-pleaded facts as true,” the court
“may disregard any legal conclusions.” Id. at 210-11. The court will generally consider only the
complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770 F.3d 241,
249 (3d Cir. 2014).
To overcome a Rule 12(b)(6) motion, the complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Though ‘detailed factual allegations’ are not required, a
complaint must do more than simply provide ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action.’” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir.
2014) (quoting Twombly, 550 U.S. at 555).

3 The Amended Complaint also contains two sections detailing the purported “factual histories”
of both the City of Pittsburgh (ECF No. 43 ¶¶ 48-86) and Robinson Township (Id. ¶¶ 87-96). These
will be addressed in later sections of the Court’s analysis.
4
In assessing the sufficiency of a complaint, a court must therefore: (1) outline the elements
the plaintiff must plead to state a claim for relief; (2) peel away any conclusory allegations that are
not entitled to the assumption of truth; and (3) look for well-pled factual allegations, assume their
veracity, and determine whether they plausibly give rise to an entitlement to relief. Bistrian v. Levi,

696 F.3d 352, 365 (3d Cir. 2012). This plausibility determination is “a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 US
at 679.
D. Discussion
1. Constitutional claims against Officer Tomko
Count I asserts a claim under § 1983 for violations of the Fourth and Fourteenth
Amendments.4 Section 1983 does not itself create any rights; it merely serves as a vehicle for a
plaintiff to vindicate rights that have already been secured elsewhere. See, e.g., Gonzaga Univ. v.
Doe, 536 U.S. 273, 285 (2002). “To state a claim under § 1983, a plaintiff must allege the violation
of a right secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.
42, 48 (1988).
Plaintiff’s claim at Count I can be broken down into three separate alleged constitutional
violations: excessive force; failure to intervene; and failure to provide medical care.5 Each

4 Although Plaintiff asserts Count I against all Defendants, additional elements are required to
support a § 1983 claim against a municipal defendant. The claims against the Pittsburgh and
Robinson Defendants are therefore addressed in later sections of this analysis. As Price filed an
Answer, the claim in Count I remains against him.
5 The manner in which Count I is pleaded makes it more challenging to ascertain the specific roles
and alleged liability of each of the defendants.
5
component, as related to Tomko, will be addressed in turn.
a. Excessive force
Plaintiff alleges that Tomko’s planning and execution of the door-knock was not
objectively reasonable, thereby creating the circumstances that resulted in Fisher being shot. (ECF

No. 56 ¶ at 5.) Tomko argues that he cannot be held liable for excessive force because there are no
allegations that he himself used force or even physically touched Fisher. Thus, he argues that
Plaintiff has failed to establish his personal involvement in the alleged misconduct. (ECF No. 48
at 5.)
A § 1983 plaintiff bears the burden of showing that each named defendant was personally
involved in the alleged constitutional violation. See Saisi v. Murray, 822 F. App’x 47, 48 (3d Cir.
2020); Adams v. Springmeyer, 2012 WL 1865736, at *9 (W.D. Pa. May 22, 2012) (quoting Sykes
v. Carroll, 477 F. App’x 861 (3d Cir. 2012)) (‘“[A] defendant in a civil rights action . . . cannot be
held responsible for a constitutional violation which he or she neither participated in nor
approved.’”).

The Amended Complaint alleges that Tomko was initially tasked with finding Ms. Hess
and that his investigation led to the Rydal house. The Rydal house is located within the jurisdiction
of the Pittsburgh Police, and therefore, ultimately under its control. Accordingly, Tomko requested
assistance in conducting a wellness check on Ms. Hess, resulting in both he and Price arriving at
Fisher’s house on September 1, 2022. As alleged in the Amended Complaint, the two officers
decided that Tomko would proceed to the front door and Price would position himself in the front
yard. (ECF No. 56 ¶ 26.) Tomko then initiated an aggressive door-knock while Price waited in the
front yard.

6
Plaintiff does not allege that Tomko was in a supervisory role vis-à-vis Price or had actual
knowledge about the possibility that Price might shoot Fisher, that he directed him to do so, or that
he acquiesced in Price’s actions. In fact, according to the Amended Complaint, when Fisher
opened the door, it was Price who “decided to immediately shoot to kill” him, Price who “decided

to use lethal force,” and Price who exercised an “unwarranted utilization of deadly force.” (ECF
No. 56 ¶¶ 37, 39, 40.) Plaintiff does not allege that Tomko saw a firearm, felt he was in danger,
instructed Price to shoot Fisher, or took any other action that represents the use of force. Simply
put, Tomko did not shoot Fisher.
Thus, the Amended Complaint fails to point to conduct by Tomko sufficient to support a
claim of excessive force. Even assuming that Tomko’s actions in knocking on the door were not
reasonable and led to Fisher opening the door armed with a firearm, Plaintiff alleges that it was
Price who made the decision to shoot Fisher and then proceeded to do so. See Jutrowski v. Twp. of
Riverdale, 904 F.3d 280, 289 (3d Cir. 2018) (“liability must be predicated on [defendant’s] direct
and personal involvement in the alleged violation”); Witters v. Smith, 736 F. Supp. 3d 238, 247

(M.D. Pa. June 10, 2024) (dismissing Fourth Amendment claim against parole agent who was
present when fellow agent shot plaintiffs’ dog based on lack of personal involvement).6
The excessive force claim against Tomko should therefore be dismissed. Typically, when
dismissing a claim for failure to state a claim, “a district court must permit a curative amendment,
unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236 (citing Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). “An amendment is futile if the amended

6 Notably, Plaintiff cites no authority in his brief in opposition for the proposition that based on
the facts of this case, Tomko could be liable for excessive force.
7
complaint would not survive a motion to dismiss for failure to state a claim upon which relief could
be granted.” Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). Because the allegations clearly
show that Tomko lacked sufficient personal involvement in the excessive force alleged to have
been inflicted against Fisher, the dismissal should be with prejudice.

b. Failure to intervene
Next, Plaintiff alleges that Tomko failed to take reasonable steps to protect Fisher from the
use of lethal force. Plaintiff maintains that there was ample opportunity to intervene and “a
significant window for de-escalation,” throughout Tomko’s planning and execution of the door-
knock. (ECF No. 56 at 6.) Tomko argues that because Price shot Fisher within three seconds of
him opening the front door, “no reasonable jury could conclude that Officer Tomko had a realistic
opportunity to intervene.” (ECF No. 48 at 6.)
To plead a failure to intervene claim, a plaintiff must allege: “(1) the defendant failed or
refused to intervene when a constitutional violation took place in his or her presence or with his or
her knowledge; and (2) there was a ‘realistic and reasonable opportunity to intervene.’” Knight v.

Walton, 2014 WL 1316115, at *8 (W.D. Pa. Mar. 28, 2014) (quoting Smith v. Mensinger, 293 F.3d
641, 651 (3d Cir. 2002)). “[T]he duration of the incident is key to determining whether there was
a reasonable opportunity.” El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020). But although
failure to intervene is recognized as a distinct claim, it requires that there first be a finding of
excessive force. See Lora-Pena v. Denney, 760 F. Supp. 2d 458, 468 (D. Del. 2011) (“[B]y
definition, if there was no excessive force then there can be no failure to intervene.”) (collecting
cases). Plaintiff’s ability to assert a failure to intervene claim is therefore tethered to the viability
of the excessive force claim against Price.

8
A plaintiff claiming Fourth Amendment excessive force must show: (1) that a seizure
occurred; and (2) that the seizure was unreasonable. Est. of Smith v. Marasco, 318 F.3d 497, 515
(3d Cir. 2003). The question under the Fourth Amendment is whether the officer’s actions were
“objectively reasonable.” Graham v. Connor, 490 U.S. 386, 396 (1989). Courts look at the totality

of the circumstances, including: 1) “the severity of the crime”; 2) “whether the suspect poses an
immediate threat to the safety of law enforcement officers or others”; and 3) “whether the suspect
is actively resisting arrest or attempting to evade arrest by flight.” Id. Courts in this circuit must
also consider “the duration of the action, whether the action takes place in the context of effecting
an arrest, the possibility that the suspect may be armed, and the number of persons with whom the
police officers must contend at one time.’” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997).
Because determining the reasonableness of force is such a fact-intensive endeavor, the Third
Circuit has consistently held that it is a task generally best left to the jury. Rivas v. City of Passaic,
365 F.3d 181, 198 (3d Cir. 2004) (citing Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999)).
It would therefore be premature for the Court to attempt to resolve whether the force used

by Price against Fisher was reasonable this early in the proceedings. See, e.g., Bonilla v. City of
York, 2015 WL 1525483, at *6 (M.D. Pa. Apr. 2, 2015) (denying motion to dismiss because “jury
presented with such facts may very well find that the use of deadly force in such a situation was
indeed unreasonable”); Ford v. City of Pittsburgh, 2014 WL 7338758, at *4 (W.D. Pa. Dec. 22,
2014) (“[B]efore any discovery has been completed, it is surely premature to expect the Court to
make such a resolution at the motion to dismiss stage”). Applying that same logic, it would be
similarly inappropriate to attempt to extend the analysis one step further and determine whether
there was a “realistic and reasonable opportunity” for Tomko to intervene in any excessive force

9
that may or may not have occurred. For now, it is enough that Plaintiff has alleged facts sufficient
to plausibly state a claim for excessive force against Price, and in turn, Tomko’s failure to intervene
in that use of force.
c. Failure to provide medical care

Finally, Plaintiff alleges that Tomko deprived Fisher of necessary medical care in violation
of the Fourteenth Amendment by failing to render first-aid following the shooting. (ECF No. 56
at 6-7.) Tomko argues that Plaintiff’s claim fails because an ambulance was called and arrived on
scene ten minutes after the shooting. (ECF No. 48 at 6-7.)
The Fourteenth Amendment guarantees non-incarcerated individuals rights “at least as
great as the Eighth Amendment protections available to a convicted prisoner.” Revere v. Mass.
Gen. Hosp., 463 U.S. 239, 244 (1983); see also Cooleen v. Lamanna, 248 F. App’x 357, 361 (3d
Cir. 2007) (“[S]ubstantive due process rights are invoked by pre-trial detainees and other
nonconvicted persons seeking medical care who cannot invoke the Eighth Amendment.”). To state
a claim for failure to provide medical care, a plaintiff must allege (1) that they have a serious

medical need, and (2) acts or omissions by police officers indicating deliberate indifference to that
need. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); see also Peters v.
Brown, 793 F. App’x 118, 123 (3d Cir. 2019) (“We have found it constitutionally sufficient . . . to
analyze pretrial detainees’ claims of inadequate medical care under the familiar deliberate
indifference standard.”).
A medical need is “serious” if it is “so obvious that a lay person would easily recognize
the necessity for a doctor’s attention.” Monmouth Cnty. Corr. Inst’l Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987). Plaintiff has undoubtedly alleged a serious medical need, as Fisher was

10
shot in the chest three times. Moreover, the facts set forth in the Amended Complaint show that
Ms. Hess, a layperson, recognized the seriousness of Fisher’s injuries and was the first person who
“attempted to stop his bleeding[.]” (ECF No. 43 ¶ 44.)
“Deliberate indifference is a ‘subjective standard of liability consistent with recklessness

as that term is defined in criminal law.’” Natale, 318 F.3d at 582 (quoting Nicini v. Morra, 212
F.3d 798, 811 (3d Cir. 2000)). “Deliberate indifference exists where there is ‘objective evidence
that [a] plaintiff had serious need for medical care’ and the need was ignored or delayed for non-
medical reasons.” Smith v. Gransden, 553 F. App’x 173, 177 (3d Cir. 2014) (quoting Natale, 318
F.3d at 582)).
Tomko argues that Plaintiff’s claim fails because the facts alleged show that Fisher was
shot, officers called an ambulance, paramedics arrived ten minutes later, and medical aid was
rendered. According to Tomko, he had “no special medical training beyond basic first aid in
treating gunshot wounds.” (ECF No. 48 at 7.) “Other than calling for EMS and remaining on scene,
it is unclear what else Officer Tomko, who was in shock from the incident could have done.” (Id.

at 8.)
But viewing the allegations in the light most favorable to Plaintiff, the Amended Complaint
alleges that Tomko immediately retreated from the door after Fisher was shot. He then remained
at the end of the driveway for the ten minutes it took for the ambulance to arrive. During that time,
he did not know or even attempt to find out if Fisher was still alive. Without the benefit of
discovery, it is simply too early to definitively say whether Tomko’s actions in delaying treatment
“diminished [Fisher’s] chances of survival.”7 Smith, 553 F. App’x at 177. For now, though, it is

7 Tomko further contends: “Even if Plaintiff alleges a plausible constitutional duty to provide
11
sufficient that Plaintiff alleged that Tomko made “a decision to let [Fisher] bleed to death in his
own home” (ECF No. 43 ¶ 46), thereby plausibly pleading deliberate indifference to Fisher’s
serious medical needs.
Finally, Tomko also argues that he is entitled to qualified immunity because it would not

be clear to a similarly situated officer in the same circumstances that merely calling an ambulance,
without more, was unlawful. (ECF No. 48 at 8-9.) As the Third Circuit has cautioned, “it is
generally unwise to venture into a qualified immunity analysis at the pleading stage as it is
necessary to develop the factual record in the vast majority of cases.” Newland v. Reehorst, 328 F.
App’x 788, 791 n.3 (3d Cir. 2009) (per curiam); see also Ford, 2014 WL 7338758, at *4 (citing
Debrew v. Auman, 354 F. App’x 639, 642 (3d Cir. 2009)) (“[U]nless a complaint discloses that a
police officer did not violate clearly established law when firing at a suspect, dismissal on qualified
immunity grounds is premature.”). The circumstances alleged place this case among the “vast
majority of cases” in which dismissal on qualified immunity grounds would be inappropriate at
the pleading stage.

medical care in this case, where Plaintiff was shot after brandishing a firearm, the Amended
Complaint fails to demonstrate that the Officers’ actions ‘shock the conscience,’ as required by the
Third Circuit precedent in cases involving state created danger claims and/or allegations of failure
to provide medical care.” (ECF No. 48 at 7.) This is simply not the case, as courts in our district
have recognized that officers on the scene do, in fact, have an affirmative duty to provide medical
care to individuals they have shot. See, e.g., Williams v. City of Scranton, 2013 U.S. Dist. LEXIS
46459, at *20-21 (M.D. Pa. Apr. 1, 2013) (“It is also beyond dispute that the SPD officers on the
scene had an affirmative duty to provide medical care to [plaintiff].”); Hogan v. City of
Easton, 2004 U.S. Dist. LEXIS 16189, 2004 WL 1836992, at *11 (E.D. Pa. Aug. 15, 2004)
(finding officers had affirmative duty to provide medical care to citizen they had shot). Whether
Fisher was brandishing a firearm is irrelevant to the analysis at hand, which merely asks whether
Plaintiff has plausibly stated a claim under the Fourteenth Amendment. Moreover, Plaintiff is not
required to allege that Tomko’s conduct “shocks the conscience,” as she is free to proceed under
a theory of deliberate indifference.
12
2. Monell claims
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978) (emphasis in original). Thus, Plaintiff’s

§ 1983 claims under the Fourth and Fourteenth Amendments at Count I, which allege that the City
of Pittsburgh and Robinson Township are vicariously liable for Tomko and Price’s actions, are not
viable under Monell. It is therefore recommended that such claims be dismissed with prejudice.
Instead, a city or county government, such as the City of Pittsburgh or Robinson Township,
are deemed a “person” under § 1983 and may only be found liable for their own misconduct. Id.
at 692. To state a plausible claim under Monell, a plaintiff must allege that their injury was caused
by: (1) “an unconstitutional policy or custom”; or (2) failure-to-train, supervise, or discipline
“amount[ing] to deliberate indifference to the constitutional rights of those affected.” Forrest v.
Parry, 930 F.3d 93, 105 (3d Cir. 2019). Plaintiff has also asserted failure-to-train claims against
the City of Pittsburgh (Count II) and Robinson Township (Count III).

a. City of Pittsburgh
Plaintiff alleges that the City of Pittsburgh failed to train its police officers in various ways,
including:
a. Failing to teach officers how to properly to give verbal warnings prior to using
deadly force;

b. Failing to teach officers how to properly give commands prior to using deadly
force;

c. Failing to teach officers how to properly announce themselves as police and to
use less lethal options prior to restoring [sic] to the use of deadly force.

d. Failure to properly screen, supervise, discipline, transfer, counsel or otherwise
13
control police officers, including the officers who killed Brian Fisher who are
known or should have been known to engage in improper use of excessive force
and deadly force;

e. Creating and implementing procedures that allow for and promote the use of
deadly force in unwarranted and under unjustified circumstances;

f. Training the officers to use deadly force seconds after encountering an
individual rather than less confrontational and less harmful methods such as
physical restraint or other detention techniques.

g. Otherwise violating the rights of the Decedent.

(ECF No. 43 ¶ 120(a)-(g).) Plaintiff also points to a Consent Decree between Pittsburgh and the
U.S. Department of Justice, prior lawsuits, and public records involving settlements paid by the
City of Pittsburgh to purportedly show a pattern of excessive use of force and misconduct within
the PBP. These added facts purportedly demonstrate that the City of Pittsburgh was on notice that
its training policies were “woefully inadequate, allowing a culture of excessive force and disregard
for constitutional rights to continue.”8 (ECF No. 57 at 4-5.)
The Pittsburgh Defendants argue that Plaintiff failed to show a causal connection between
any alleged training deficiencies and Fisher’s injuries, as required to sustain liability under Monell.
They also contend that the Consent Decree and prior lawsuits lack factual similarity and temporal
proximity to the events of this lawsuit. (ECF No. 50 at 6-17.)

8 Plaintiff also alleges that the “policies, customs, practices, and procedures of the City of
Pittsburgh which allow the use of deadly force without any expectation of danger are
unconstitutional per se.” (ECF No. 43 ¶ 118.) Pittsburgh Defendants argue that the specific use of
force policies Plaintiff references are facially constitutional and therefore cannot support liability.
See ECF No. 50-1, 50-2. The Court agrees, as the subject policies permit PBP officers to use only
“reasonable” force and expressly forbid officers from using “any force that is excessive.” Id. See
King v. City of Phila., 66 F. App’x 300, 305 (3d Cir. 2003) (“Instead, it is when execution of a
government’s policy or custom . . . inflicts the injury that the government as an entity is responsible
under § 1983.”) (quoting Monell, 436 U.S. at 694).
14
A claim brought under a “failure-to-train” theory requires that the plaintiff “demonstrate
that a city’s failure to train its employees ‘reflects a deliberate or conscious choice.’” Est. of Roman
v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (citing Brown v. Muhlenberg Twp., 269 F.3d
205, 215 (3d Cir. 2001)). For a claim against police officers, the Supreme Court has held that the

failure to train “serve[s] as [a] basis for § 1983 liability only where [it] . . . amounts to deliberate
indifference to the rights of persons with whom the police come into contact.” City of Canton v.
Harris, 489 U.S. 378, 388 (1989). At the motion to dismiss stage, deliberate indifference is pled
by 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.” Id. (quoting Doe v. Luzerne Cnty., 660 F.3d 169, 180 (3d Cir. 2011)).
“[C]onclusory and general claims of failure to screen, train, or supervise employees to avoid
constitutional violations” are insufficient. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. June
4, 2014).

In addition, the plaintiff must also bear the “burden of proving that the municipal practice
was the proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
1990). To satisfy this requirement, a plaintiff “must demonstrate a ‘plausible nexus’ or ‘affirmative
link’ between the municipality’s custom and the specific deprivation of constitutional rights at
issue.” Id. Causation is typically an issue for the jury. Panas v. City of Phila., 871 F. Supp. 2d 370,
378 (E.D. Pa. May 14, 2012); Ford, 2014 WL 7338758, at *7. “As long as the causal link is not
too tenuous, the question whether the municipal policy or custom proximately caused the
constitutional infringement should be left to the jury.” Bielevicz, 915 F.2d at 851.

15
At this early stage, it is the Court’s view that Plaintiff has stated a plausible Monell claim
against the City of Pittsburgh. The Consent Decree was indeed ended in 2002, and standing alone,
likely would not be enough to support Plaintiff’s position that the City of Pittsburgh was on notice
of police misconduct like that alleged to have caused Fisher’s death. When viewed together with

the other lawsuits cited by Plaintiff and the allegations of other complaints and settlements
involving PBP officers’ use of force, however, “we may fairly infer that the problems that led to
it were occurring during the time of his allegations and for some time before that.” Est. of Roman,
914 F.3d at 799.
b. Robinson Township
Unlike the claim against the City of Pittsburgh, Plaintiff does not allege that Robinson
Township has a history of similar police misconduct, prior lawsuits, or settlements. Instead,
Plaintiff merely pleads that “Robinson Township’s secretive use of force policies have
inadequately trained its police officers, including Officer Tomko, in both when its proper to use
force and in how to deescalate encounters with the public.” (ECF No. 43 ¶ 94.)

Plaintiff nonetheless alleges that Robinson Township failed to adequately train its officers
by:
a. Failing to teach officers how to properly announce themselves when knocking
on a door;

b. Failing to teach officers how to properly to give verbal warnings prior to using
deadly force;

c. Failing to teach officers how to properly give commands prior to using deadly
force;

d. Failing to teach officers how to properly announce themselves as police and to
use less lethal options prior to restoring to the use of deadly force;

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e. Faling [sic] to teach officers how to properly announce themselves when they
are knocking on a door;

f. Failure to properly screen, supervise, discipline, transfer, counsel or otherwise
control police officers, including the officers who killed Brian Fisher who are
known or should have been known to engage in improper use of excessive force
and deadly force;

g. Creating and implementing procedures that allow for and promote the use of
deadly force in unwarranted and under unjustified circumstances;

h. Training the officers to use deadly force seconds after encountering an
individual rather than less confrontational and less harmful methods such as
physical restraint or other detention techniques.

i. Failing to ensure officers understand the importance of announcing themselves
when knocking on a door;

j. Otherwise violating the rights of the Decedent.

(Id. ¶ 148(a)-(j).) Many of the other allegations in Count III involve specific actions taken by
Tomko, see, e.g., Id. ¶¶ 152-56, 165, followed by conclusory remarks regarding Robinson
Township’s alleged failure to train stemming from “an intentional, reckless, and callous disregard
to the constitutional rights and the life of [Fisher].” (Id. ¶ 172.) Without more, these generic
allegations are not enough to state a claim against Robinson Township. Wood, 568 F. App’x at
104.
It is therefore recommended that the Robinson Defendants’ motion to dismiss be granted
as to Count III and that the Monell claim against Robinson Township be dismissed. Because the
Court cannot conclude at this time that Plaintiff could never assert a plausible Monell claim against
Robinson Township, it is recommended that the dismissal be without prejudice.

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III. CONCLUSION
For these reasons, it is respectfully recommended that Defendants’ motions to dismiss
(ECF Nos. 47, 49) be granted to the extent that:
1. The excessive force claim against Tomko at Count I is dismissed with
prejudice.

2. The Fourth and Fourteenth Amendment claims against the City of
Pittsburgh and Robinson Township at Count I are dismissed with prejudice.

3. The Monell claim against Robinson Township at Count III is dismissed
without prejudice and with leave to amend.

It is further respectfully recommended that Defendants’ motions be denied in all other
respects.
IV. NOTICE
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2
of the Local Civil Rules, the parties may, within (14) days, file objections to this Report and
Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d
187, 193 n.7 (3d Cir. 2011).

Dated: May 8, 2025 /s/ Patricia L. Dodge
PATRICIA L. DODGE
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11067373. Public record. Not legal advice.