Brown v. Waters

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

DWAYNE BROWN,

Plaintiffs,

Vv. Civil Action No. 21-1493-RGA

PATROLMAN SAMUEL WATERS, in his

official and individual capacity, and CITY

OF WILMINGTON,

Defendants.

MEMORANDUM ORDER

Before me is Defendant City of Wilmington’s (“the City’s”) motion to dismiss. (D.I. 56).

I have considered the parties’ briefing. (D.I. 57, 65, 69). For the reasons set forth below, the

City’s motion is GRANTED and Count V of the Third Amended Complaint (D.I. 56) is

DISMISSED WITH PREJUDICE.

I. BACKGROUND

I summarized the factual background in my previous order:

On September 21, 2021, Plaintiff Dwayne Brown went to a convenience store in

Wilmington, Delaware. (D.I. 27 | 17). [] While Plaintiff was inside the store,

Defendant Samuel Waters entered, grabbed Plaintiffs right wrist and put Plaintiff's

right hand on the plexiglass by the cashier. □□□ 20). Waters then grabbed the

back of Plaintiff's head and “banged it twice into the plexiglass,” called Plaintiff

the N—word, “took [Plaintiff] down to the floor,” and “pulled [Plaintiff] out of the

building and on to the sidewalk where he continued to use unnecessary and

excessive force.” (id. JJ 20-21). Plaintiff is a black man. Waters is a white man.

(id. § 2).

Plaintiff sued Waters, asserting excessive force, equal protection, assault, battery,

and reckless/wanton conduct claims. (id. J{ 46-73). The case was stayed on April

18, 2022, during the pendency of criminal proceedings against Waters. (D.I. 18).

The Second Amended Complaint added the City as a Defendant, asserting a Monell

claim under 42 U.S.C. § 1983 against it. (D.I. 27 J] 74-86).

(D.I. 51 at 1). The City filed a motion to dismiss Plaintiff's Monell claim (D.I. 38), which I granted

without prejudice. (D.I. 51 at 10).

Plaintiff has since filed a Third Amended Complaint (D.I. 56) (“Complaint”), which again

asserts a Monell claim under 42 U.S.C. § 1983 against the City. (id. J] 69-97). The City has filed

another motion to dismiss. (D.I. 56).

Il. LEGAL STANDARD

Rule 8 requires a complainant to provide “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) allows the accused

party to bring a motion to dismiss the claim for failing to meet this standard. A Rule 12(b)(6)

motion may be granted only if, accepting the well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the complainant, a court concludes that those

allegations “could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 558 (2007).

The factual allegations do not have to be detailed, but they must provide more than labels,

conclusions, or a “formulaic recitation” of the claim elements. /d. at 555 (“Factual allegations

must be enough to raise a right to relief above the speculative level . . . on the assumption that all

the allegations in the complaint are true (even if doubtful in fact).”). Moreover, there must be

sufficient factual matter to state a facially plausible claim to relief. Ashcroft v. Igbal, 556 U.S.

662, 678 (2009). The facial plausibility standard is satisfied when the complaint’s factual content

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

alleged.” Jd. (“Where a complaint pleads facts that are merely consistent with a defendant’s

liability, it stops short of the line between possibility and plausibility of entitlement to relief.”

(internal quotation marks omitted)).

DISCUSSION

Section 1983 provides a cause of action for constitutional violations committed under color

of state law. A municipality may itself be held liable under § 1983 when a municipal policy or

custom caused the constitutional violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694—

95 (1978). “To establish liability based on a municipal policy or custom, the plaintiff must

demonstrate the municipality was ‘the moving force behind the injury alleged’ by showing that

there was a ‘direct causal link between the municipal action and the deprivation of federal rights.’”

Stanley v. City of Pittsburgh, 467 F. App’x 132, 133 (3d Cir. 2012) (cleaned up) (quoting Bd. of

Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997)). “A plaintiff must also establish that the

municipal decision ‘reflects deliberate indifference to the risk that a violation of a particular

constitutional or statutory right will follow the decision.’” Jd. (quoting Brown, 520 U.S. at 411).

This is a “stringent standard of fault... Jd. (quoting Brown, 520 U.S. at 410).

Here, Plaintiff's Monel/ claim rests on several theories, including (i) respondeat superior,

(ii) breach of duty, (iii) municipal policy, (iv) failure to train, (v) ratification, and (vi) municipal

custom or practice. (D.I. §{] 69-97). I find that none of Plaintiffs theories state a Monell claim.!

A. Respondeat Superior Does Not Apply to Monell Claims.

Plaintiff's Complaint states, “The City is responsible for the actions of Patrolman Waters

at all times relevant to this complaint under the doctrine of respondeat superior.” (D.I. 53 4 70).

The City’s reply brief argues that Plaintiff fails to state a Monell claim because he has not

plausibly identified a constitutional violation. (DI. 69 at 4-6, 9-10). Because the City raises this

argument for the first time in this round of briefing in its reply brief, it is likely forfeited. See In

re Niaspan Antitrust Litig., 67 F Ath 118, 135 (3d Cir. 2023) (“Arguments raised for the first time

before a district court in a reply brief are deemed forfeited.”). On the other hand, the City has

made this argument before, albeit in response to a previous version of the Complaint. (D.I. 39 at

5-9). Determining whether this argument is forfeited is unnecessary, however, as the City’s

remaining arguments are enough to decide the motion.

However, “[a] municipality cannot be held liable sofely because it employs a tortfeasor—or, in

other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”

Robinson v. Fair Acres Geriatric Ctr., 722 F. App’x 194, 197 (3d Cir. 2018) (quoting Monell, 436

US. at 691). Instead, to be held liable under Moneil, the municipality must be the “moving force

behind the injury alleged... .” Stanley, 467 F. App’x at 133. To the extent that Plaintiff's Monell

claim relies on a respondeat superior theory, it is dismissed.

B. Plaintiff Has Forfeited His Breach-of-Duty Argument.

The Complaint alleges, “The City of Wilmington is liable to Plaintiff because it breached

its duty to provide officers who comply with the constitutions and laws of the United States of

America and the State of Delaware.” (D.I. 53 995). The City responds that a breach-of-duty claim

is not cognizable under Monell. (D.I. 57 at 17). Plaintiff's brief does not respond to this argument,

so I consider it forfeited. To the extent that Plaintiff's Monell claim relies on a breach-of-duty

theory, it is dismissed.

C. The Complaint Does Not Plausibly Plead Monell Liability Under a Policy

Theory.

Plaintiff argues that the City is subject to Monel liability because its municipal policy or

policies caused a constitutional violation. (D.I. 65 at 21-25). I disagree.

Monell “created a two-path track to municipal liability, depending on whether a § 1983

claim is premised on a municipal policy or custom.” McTernan v. City of York, PA, 564 F.3d 636,

657 (3d Cir. 2009) (cleaned up). A municipal “[p]olicy is made when a decisionmaker possessing

final authority to establish a municipal policy with respect to the action issues an official

proclamation, policy, or edict.” Jd. at 658.

In my previous order granting the City’s motion to dismiss the Monell claim in the Second

Amended Complaint, I agreed with the City that the Second Amended Complaint “lack[ed] factual

support for Plaintiff's policy theory.” (D.I. 51 at 8). In making that decision, I noted two facts:

the Second Amended Complaint “[did] not refer to any specific policy language,” and it “[did] not

plead any facts about policymakers either.” (/d.). The same considerations hold here. Nowhere

in the Complaint does Plaintiff cite to specific policy language or identify an “official

proclamation, policy, or edict.” McTernan, 564 F.3d at 658. The only “policymaker” the

Complaint identifies is “the Mayor of the City[,]” who passed a policy “which does not address

the use of excessive force by police officers.” (D.I. 53 § 81). It is not clear what policy the

Complaint is referring to—there are many policies that do not address use of excessive force by

police officers—and the Complaint itself refers to an earlier investigation of Patrolman Waters due

to his use of excessive force. (/d. {§ 77-78). Furthermore, Plaintiff does not allege that the Mayor

is a final policymaker for the purposes of Plaintiff's Monell claim. “The fact that a particular

official . . . has discretion in the exercise of particular functions does not, without more, give rise

to municipal liability. The official must also be responsible for establishing final government

policy respecting such activity before the municipality can be held liable.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 481-83 (1986) (citations omitted). As the City points out, “the Mayor

of the City of Wilmington does not have final policymaking authority as to WPD policies and

directives as these must be approved by the City’s Administrative Board.” (D.I. 57 at 10) (citing

1 Wilm. C. § 4-200(1)). Plaintiff does not respond to this argument. I find that the Complaint

does not plausibly plead Moneil liability under a policy theory. Plaintiff's Monell claim is

dismissed to the extent it relies on that theory.

D. The Complaint Does Not Plausibly Plead Monell Liability Under a Failure-to-

Train Theory.

Plaintiff argues that the City is subject to Moneil liability because it “failed to discipline its

officers regarding the use of force, internal affairs procedures, and arrest procedures.” (D.I. 65 at

24) (cleaned up) (citing D.I. 53 93). I disagree.

Failure-to-train theories are a form of the “policy” path to Monell liability. “Only where a

failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality—a ‘policy’ as defined

by [the Supreme Court’s] prior cases—can a city be liable for such a failure under § 1983.” City

of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). The same “deliberate indifference” standard

applies, as the Third Circuit explained in Thomas v. Cumberland County:

Where the policy concerns a failure to train or supervise municipal employees,

liability under section 1983 requires a showing that the failure amounts to

‘deliberate indifference’ to the rights of persons with whom those employees will

come into contact. Additionally, the identified deficiency in a city’s training

program must be closely related to the ultimate injury; or in other words, the

deficiency in training must have actually caused the constitutional violation.

749 F.3d 217, 222 (3d Cir. 2014) (cleaned up). In determining whether the “deficiency in training

[] actually caused the constitutional violation[,]” the inquiry must “focus[] on whether the injury

could have been avoided had the employee been trained under a program that was not deficient in

the identified respect.” /d. at 226.

Here, the Complaint does not identify any deficiencies in the City’s training policy that

would amount to deliberate indifference or that would be closely related to Plaintiff's injury. The

allegations in the Complaint regarding those deficiencies merely restate claim elements and are

therefore conclusory. (D.I. 53 { 88 (“The City of Wilmington failed to train and supervise police

officers adequately regarding proper arrest procedures and techniques, use of force, and internal

affairs procedures, and such failure to train had [the] consequence of leading to constitutional

violations amounting to deliberate indifference and reckless disregard of the welfare of the public

at large, including Plaintiff.”); | 89 (“Defendant, City failed to train Defendant, Waters in the

proper manner in which to investigate and arrest an individual absent using excessive force.”); J

92 (“The City of Wilmington failed to monitor and evaluate adequately the performance of its

officers . . ., amounting to deliberate indifference to and reckless disregard of the welfare of the

public at large, including Plaintiff.”)). None of these allegations identify what exactly the

deficiencies in the City’s policies were, let alone reasonably support the inference that any

deficiencies in the City’s policy were the result of deliberate indifference. I find that the Complaint

does not plausibly plead Monell liability under a failure-to-train theory. Plaintiff's Monell claim

is dismissed to the extent it relies on that theory.

E. The Complaint Does Not Plausibly Plead Monell Liability Under a Ratification

Theory.

Plaintiff argues that the City is subject to Monell liability because it “allow[ed] . . . its

police officers to maliciously prosecute innocent individuals” and “exonerat[ed] rogue police

officers without cause... .” (D.I. 65 at 23-24) (citing D.I. 53 § 85). The Complaint alleges, “The

City of Wilmington allowed its officers to engage in conduct that violates the constitutional rights

of persons subject to arrest . . ., creating an atmosphere where such unconstitutional behavior is

ratified, tolerated and condoned... .” (D.I. 53 § 94). To the extent that Plaintiff asserts Monell

liability under a ratification theory, however, I disagree.

Like failure-to-train, ratification is another form of “policy” liability under Monell. See

Biondino v. Bucks Cnty. Tech. Sch. Auth., 765 F. Supp. 3d 454, 460 (E.D. Pa. 2025) (citing

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)). Ratification “occurs only ‘when a

subordinate’s decision is subject to review by the municipality’s authorized policymakers

[because] they have retained the authority to measure the official’s conduct for conformance with

their policies.” Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir. 2010) (quoting City of St.

Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)).

Here, the Complaint offers no factual support for the proposition that one of the City’s

authorized policymakers approved of Defendant Waters’ conduct. The Complaint’s assertion that

“the authorized policy maker of Defendant, City approved of Defendant Waters’ actions” (D.I. 53

{ 73) only recites the elements of a ratification claim and is therefore conclusory. In fact, the

Complaint alleges that Patrolman Waters was placed “under investigation for excessive force

against another individual” (id. 77), which would contradict the claim that the City ratified his

conduct. I find that the Complaint does not plausibly plead Moneil liability under a ratification

theory. Plaintiff's Monell claim is dismissed to the extent it relies on that theory.

F. The Complaint Does Not Plausibly Plead Monell Liability Under a Custom or

Practice Theory.

Plaintiff argues that the City is subject to Monell liability under the theory that it had a

“custom or practice” that caused a constitutional violation. (D.I. 65 at 23). Under Monell, a

“custom” is “[a] course of conduct” that is “so permanently and well-settled as to virtually

constitute law.” McTernan, 564 F.3d at 658.

My previous order found that the Second Amended Complaint “lack[ed] factual support

for Plaintiff's custom or practice theory.” (D.I. 51 at 9). Relying on City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823-24 (1985) and Growman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d

Cir. 1995), I concluded that the two arrests cited by the Second Amended Complaint were

“insufficient to establish a custom or practice for the purpose of a Monell claim.” (D.I. 51 at 9).

The same considerations hold here. Apart from those two arrests (D.I. 53 f{ 78), the Complaint

contains only one new allegation: that “excessive force [] has been routinely exacted by Defendant,

Waters as was well as other members of the Wilmington Police Department in effectuating arrests,

including . . . a force-wide epidemic of using excessive force to effectuate arrests beyond that

which is reasonably required.” (D.I. 53 § 87). But the Complaint offers no facts supporting this

allegation, rendering it conclusory. See Ashcroft, 556 U.S. at 680-681. I find that the Complaint

does not plausibly plead Monell liability under a custom or practice theory. Plaintiff's Monell

claim is dismissed to the extent it relies on that theory.

G. Plaintiff May Not Amend His Complaint.

Plaintiff has not sought leave to amend. I also find, based on the similarity between the

Second and Third Amended Complaint, that further amendment would be futile. Therefore, the

City’s motion is granted with prejudice. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114

(3d Cir. 2002).

IV. CONCLUSION □

For the foregoing reasons, Defendants’ motion (D.I. 56) is GRANTED. Plaintiff's Monell

claim (Count V) is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

qa,

Entered this A ay of July, 2025

United Lp District □□