# PENA v. CITY OF LANCASTER

> District Court, E.D. Pennsylvania · August 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11114295

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** August 4, 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 EASTERN DISTRICT OF PENNSYLVANIA

MIGUELINA PENA, INDIVIDUALLY
AND AS INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF
RICARDO MUNOZ, DECEASED,

Plaintiff, CIVIL ACTION
NO. 5:21-cv-00590-JLS
v.

CITY OF LANCASTER, et al.,

Defendants.

MEMORANDUM OPINION

SCHMEHL, J. /s/ JLS AUGUST 4, 2025
Plaintiff Miguelina Peña filed this civil-rights and tort action after an officer from the City
of Lancaster Bureau of Police fatally shot her son, Ricardo Muñoz, on September 13, 2020. Her
complaint asserted twelve federal and state claims against a variety of individual and municipal
defendants. Following rulings on a motion to dismiss, Pena v. City of Lancaster, No. 21-cv-590-
JLS, 2022 WL 44005, at *3 (E.D. Pa. Jan. 5, 2022), and a motion for judgment on the pleadings,
Pena v. City of Lancaster, 690 F. Supp. 3d 494, 520 (E.D. Pa. 2023), only eight claims advanced
through discovery. And with that period now complete, the remaining named defendants have
moved for summary judgment. For the reasons set forth below, their motion for summary
judgment is granted in part and denied in part.
I
A
This action commenced on February 8, 2021, when Miguelina Peña filed a complaint
against the City of Lancaster, Jarrad Berkihiser (in his individual and official capacity as Chief of
Police for the City of Lancaster), Karson Arnold (in his individual and official capacity as a police
officer for the City of Lancaster), Lancaster County, and “unknown police officers.” The
complaint alleged that on September 13, 2020, Ms. Peña’s son, Ricardo Muñoz, experienced a
mental‑health crisis at her home in Lancaster, prompting one of Muñoz’s sisters to call 911.

Compl. ¶¶ 37-38, ECF No. 1. Officer Karson Arnold responded to the call and arrived at the
residence shortly after 4:00 p.m. Id. ¶ 23. As Officer Arnold approached, Mr. Muñoz retrieved a
knife from inside the home, rushed from the front porch toward the officer, and was then shot four
times. Id. ¶¶ 24-27, 29, 44. Additional officers arrived moments later and then decided to cancel
the ambulance originally dispatched, thereby delaying medical care. Id. ¶¶ 63-64. Mr. Muñoz
received medical attention only at 6:20 p.m., more than two hours after the shooting, and was
pronounced dead at 6:35 p.m. Id. ¶¶ 66-67.
From these alleged facts, Ms. Peña—acting as the personal representative of her son’s
estate—brought five counts under 42 U.S.C. § 1983, a claim under the Americans with Disabilities
Act of 1990, 42 U.S.C. §§ 12101-12213, state‑law claims for battery and wrongful death, and a

Pennsylvania civil‑rights claim under 42 Pa. Cons. Stat. § 8309. Simultaneously, proceeding in
her individual capacity, Ms. Peña further pleaded a claim for intentional infliction of emotional
distress, and an additional § 1983 and state‑law battery claim—those latter two generally alleging
that, in the chaos following the shooting, officers slammed Ms. Peña against a patrol car and
unlawfully detained her at the police station until she secured counsel.
B
On April 9, 2021, in response to the complaint, Lancaster County alone moved to dismiss.
See Mot. to Dismiss, ECF No. 18. While that motion was under advisement, the “City
Defendants”—consisting of Officer Arnold, Chief Berkihiser, and the City of Lancaster—filed
their answer, ECF No. 19, and the Court held an initial Rule 16 conference. By Memorandum
Opinion and Order dated January 4, 2022, the Court granted the county’s motion and terminated
it as a party, leaving only the City Defendants as the remaining named defendants. See Pena v.
City of Lancaster, No. 21-CV-590-JLS, 2022 WL 44005, at *3 (E.D. Pa. Jan. 5, 2022).

The City Defendants then moved for judgment on the pleadings pursuant to Rule 12(c) on
February 10, 2022. See Mot. for J. on the Pleadings, ECF No. 55. The Court resolved that motion
on September 7, 2023, granting it in part and denying it in part. See generally Pena v. City of
Lancaster, 690 F. Supp. 3d 494, 520 (E.D. Pa. 2023). The remaining eight counts, set forth in the
chart below, then continued through discovery.
Count Cause of Action Defendant(s)

Count II 42 U.S.C. § 1983 City of Lancaster

Count IV 42 U.S.C. § 1983 City of Lancaster
Officer Arnold
Chief Berkihiser
Count V 42 U.S.C. § 1983 City of Lancaster
Chief Berkihiser

Count VI Battery Officer Arnold

Count VII Wrongful Death City of Lancaster
Officer Arnold
Chief Berkihiser
Count IX 42 U.S.C. §§ 12101-12213 City of Lancaster

Count X Intentional Infliction of Emotional Distress City of Lancaster
Officer Arnold

Count XI 42 U.S.C. § 1983 City of Lancaster
Throughout the discovery period, the Court held a series of status conferences and issued
various orders extending fact and expert discovery into 2024 and fixing October 15, 2024, as the
dispositive‑motion deadline. See, e.g., Case‑Mgmt. Order, ECF No. 105. Thereafter, the City
Defendants timely filed the present Rule 56 motion for summary judgment against many of the

claims remaining against them, see Mot. for Summ. J., ECF No. 112, together with a document
titled “Partial Joint Statement of Undisputed Material Facts,” ECF No. 111. On January 13, 2025,
Ms. Peña responded to the motion for summary judgment, filed a 352‑paragraph counterstatement
of facts, more than two hundred exhibits, and a motion to strike the City Defendants’ “statement,”
claiming that was not truly “joint.” See ECF Nos. 120-27. The City Defendants then opposed that
motion to strike and filed their own motion to strike Ms. Peña’s counterstatement.1 The summary-
judgment and related briefing eventually completed on February 3, 2025.
II
Against this procedural backdrop, the Court turns to the sufficiency of the record under
Rule 56, which allows the Court to enter summary judgment when “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Before analyzing each surviving count, the Court observes that the moving party bears the
initial burden of “identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).

1 Because the parties were unable to produce an uncontested joint statement of facts, the
Court will treat each submission as the product of the filing party alone. Accordingly, both motions
to strike are denied.
Once that initial showing is made, the burden then shifts to the non-moving party to go
beyond the pleadings and come forward with specific, material facts that present “a genuine issue
for trial.” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (internal citations omitted). A
dispute is “genuine” only if the evidence is such that a reasonable jury could return a verdict for

the non‑moving party, and it is “material” only if it might affect the outcome under the applicable
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In conducting this analysis,
the Court must review the record as a whole and draw all reasonable inferences in favor of the
non‑movant. Hugh v. Butler Cnty Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (internal
citations omitted). Applying this standard, the Court now considers each challenged claim in turn.
III
A
Count II seeks to impose municipal liability on the City of Lancaster under 42 U.S.C. §
1983. Read in tandem with Ms. Peña’s opposition to summary judgment, Count II advances two
theories of municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 690

(1978). First, Ms. Peña contends that an official policy or custom “contributed to the excessive
force used against Mr. Muñoz.” Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. at 8, ECF
No. 124. Second, and in the alternative, Ms. Peña maintains that the City’s failure to both
supervise and train its officers to meet the needs of persons in mental‑health crises amounted to
deliberate indifference that itself supports liability under § 1983. See id. at 8-12.
1
The City Defendants’ opening brief attacks both theories of liability on a single point. They
argue that because Officer Arnold’s underlying conduct did not violate the Fourth Amendment, no
municipal liability may attach. See Johnson v. City of Phila., 837 F.3d 343, 354 n.58 (3d Cir.
2016) (“[A] municipality cannot be held liable on a Monell claim absent an underlying
constitutional violation.” (citing Grazier ex rel. White v. City of Phila., 328 F.3d 120, 124 (3d Cir.
2003))). More specifically, they maintain that, on the present record, and especially given Officer
Arnold’s body-camera footage, Officer Arnold’s use of deadly force fits squarely within

reasonableness calculus expressed in City of San Francisco v. Sheehan, 575 U.S. 600, 613 (2015)
and mirrors the circumstances in Johnson v. City of Philadelphia, where the Third Circuit held that
a violent, unforeseen assault “severed any causal connection between [the officer’s] initial actions
and his subsequent use of deadly force.” 837 F.3d 343, 352 (3d Cir. 2016). Ms. Peña offers only
a limited rebuttal in response: that the “totality of the circumstances” presents a genuine dispute
of material fact as to the reasonableness of the force employed. Pl.’s Mem. of L. in Opp’n to Defs.’
Mot. for Summ. J. at 5 n.1, ECF No. 124. Ms. Peña does not directly address the City Defendants’
proximate-cause argument.
The standard governing excessive-force claims under the Fourth Amendment, as
incorporated, is well settled. A plaintiff must demonstrate that a “seizure” occurred and that it was

objectively unreasonable. See Barnes v. Felix, 145 S. Ct. 1353, 1357 (2025). The “inquiry into
the reasonableness of police force requires analyzing the ‘totality of the circumstances.’” Id.
(citing County of Los Angeles v. Mendez, 581 U.S. 420, 428 (2017)). Pertinent factors include “the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight,”
Graham v. Connor, 490 U.S. 386, 396 (1989), and also “the physical injury to the plaintiff, the
possibility that the persons subject to the police action are themselves violent or dangerous, 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.” El v. City of Pittsburgh, 975 F.3d 327, 336 (3d Cir. 2020) (internal
quotation marks and quoted source omitted). Here, no one disputes that Officer Arnold “seized”
Mr. Muñoz when he fatally shot him. See Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“[T]here
can be no question that apprehension by the use of deadly force is a seizure subject to the

reasonableness requirement of the Fourth Amendment.”). The twin questions thus presented then
are whether the officer’s force was reasonable and whether any unconstitutional conduct
proximately caused Mr. Muñoz’s death. See Johnson v. City of Phila., 837 F.3d 343, 351-54 (3d
Cir. 2016).
On “reasonableness,” Ms. Peña’s claim fails. Ms. Peña concedes that Officer Arnold “did
not know anything about Mr. Munoz’s prior encounters with LCBP.” Plaintiff’s Statement of
Facts (“PSOF”) ¶ 58, ECF No. 120. She also concedes that while Officer Arnold was initially
dispatched in response to a domestic disturbance call with a mention of mental-health concerns,
the situation rapidly escalated into one of extreme danger. See id. ¶¶ 56-57, 72. Further, Ms. Peña
does not contest the fact that Muñoz, armed with a raised knife, rapidly charged at Officer

Arnold—who was simply standing on the sidewalk—from the residence and closed to within five
to seven feet. See Officer Arnold’s Body-Worn Camera Footage, ECF 121-2. There is, moreover,
no reasonable dispute that as Officer Arnold attempted to retreat, Muñoz ran closer, and Arnold
responded with four shots clearly in defense of his life. These facts weigh in favor of a finding of
reasonableness.
Ms. Peña’s implicit argument that Officer Arnold’s use of deadly force was unreasonable
insofar as Arnold approached the residence alone, without a plan, without backup, and without any
effort to de-escalate is, simply put, unpersuasive. Whatever tactical decisions preceded the
encounter, they do not weigh so heavily as to render the use of deadly force unreasonable in the
face of an immediate threat of serious harm. So, viewing all the circumstances in the light most
favorable to the plaintiff, the Court concludes that Officer Arnold’s use of force was reasonable.
The death of Mr. Munoz, while unquestionably tragic, was not, under the circumstances presented,
a product of excessive force. Accordingly, as there is no constitutional violation in the first

instance, Ms. Peña’s derivative claims necessarily fail. See Los Angeles v. Heller, 475 U.S. 796,
799 (1986).
2
But even if the Court were to deem Officer Arnold’s conduct unreasonable, Ms. Peña has
also failed to establish the other independent elements of derivative liability. Resisting this
conclusion, Ms. Peña asserts that triable Monell issues exist under both a “policy or custom” theory
and a “failure to train or supervise” theory. Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ.
J. at 6-12, ECF No. 124; see generally Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (“Plaintiffs
that proceed under a municipal policy or custom theory must make showings that are not required
of those who proceed under a failure or inadequacy theory, and vice versa.”). But the Court

disagrees.
With respect to policy-or-custom theory, Ms. Peña catalogues several asserted “deficient
policies, practices, and disciplinary failures” by the Lancaster City Bureau of Police (“LCBP”).
Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. at 8, ECF No. 124 (emphasis added). The
LCBP, the Court is told, had no policy obligating officers to acquaint themselves with the mental-
health histories of subjects encountered on crisis calls, id. at 6 (citing PSOF ¶ 191); no requirement
that patrol officers develop advance strategies for known individuals struggling with mental
illness, id. (citing PSOF ¶ 192); no proper method of investigating and adjudicating officer
misconduct, id. at 6-7 (citing PSOF ¶¶ 134, 136, 203, 221, 231-39, 249, 250, 259, 317-21, 335);
and a use-of-force policy that gave little attention to less-lethal alternatives, de-escalation, or other
protocols tailored to mental-health emergencies, id. at 6 (citing PSOF ¶ 202).
Such evidence, even when construed in the light most favorable to Ms. Peña, does not alone
sustain a claim for Monell liability under a policy-or-custom theory. For a “policy,” under Monell,

is an “official proclamation, policy, or edict” issued by a final policymaker. Forrest v. Parry, 930
F.3d 93, 105 (3d Cir. 2019). And “custom” is a “course of conduct so well-settled and permanent
as to virtually constitute law.” Id. (citations omitted). Either way, to be actionable without
proving deliberate indifference, the policy or custom must be facially unconstitutional. See Berg
v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (“If, as here, the policy or custom does not
facially violate federal law, causation can be established only by ‘demonstrat[ing] that the
municipal action was taken with ‘deliberate indifference.’” (citing Bd. of Cnty. Comm’rs. v. Brown,
520 U.S. 397, 407 (1997))).
Here, the actions that Ms. Peña deems as “deficiencies” and “inadequacies” are otherwise
facially lawful. See Hightower v. City of Phila., 130 F.4th 352, 356 (3d Cir. 2025) (“Lack of a

policy is not a policy.”); see also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 407 (1997) (noting
that “a plaintiff seeking to establish municipal liability on the theory that a facially lawful
municipal action has led an employee to violate a plaintiff’s rights must demonstrate that the
municipal action was taken with ‘deliberate indifference’ as to its known or obvious
consequences” (citations omitted) (emphasis added)). Therefore, to prevail on her theory, Ms.
Peña must put forward some additional evidence and argument demonstrating that the alleged
shortcomings constitute deliberate indifference. However, she can not. Instead, Ms. Peña simply
labels the LCBP’s practices “deficient.” See Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ.
J. at 6-8, ECF No. 124. That, without more, cannot sustain her theory. Her policy-or-custom
theory therefore fails.
Still, Ms. Peña advances an alternative theory related to the LCBP’s failure “to properly
supervise and train the officers responding to the call involving Mr. Muñoz.” Under the Third

Circuit’s “failure-or-inadequacy” framework, see Forrest v. Parry, 930 F.3d 93, 105-06 (3d Cir.
2019), a municipality’s omission is potentially actionable when it is, in fact, supported by evidence
of “deliberate indifference.” See City of Canton v. Harris, 489 U.S. 378, 388 (1989). The Third
Circuit articulates the elements of deliberate indifference as: (1) the government actor knew that
employees would confront a particular situation; (2) the situation involved a matter that employees
had a history of mishandling; and (3) the wrong choice by an employee in that situation will
frequently cause a deprivation of an underlying constitutional right. See Forrest, 930 F.3d at 106
(citing Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)); see also Model Jury Instructions
for Civil Rights Claims Under Section 1983 § 4.6.7 (3d Cir. 2025).
Importantly, to satisfy the second element of deliberate indifference, the Supreme Court

has emphasized that, ordinarily, a plaintiff must show “a pattern of similar constitutional
violations.” Connick v. Thompson, 563 U.S. 51, 70 (2011) (citing Bd. of Cnty. Comm’rs. v. Brown,
520 U.S. 397, 409 (1997)). Here, Ms. Peña attempts to prove a pattern by offering a litany of prior
civil actions involving the LCBP that spans roughly two decades. Pl.’s Mem. of L. in Opp’n to
Defs.’ Mot. for Summ. J. at 11, ECF No. 124 (citing PSOF ¶¶ 203-30). There are more than twenty
suits, each alleging excessive force or denial of medical care. The suits describe disparate fact
patterns: a taser used on an individual seated on a sidewalk, a suspect thrown to the pavement
during a traffic stop, pepper spray employed on someone apparently trespassing in a parking lot,
and so on. Id. After reviewing them though, and as Justice Thomas said in Connick v. Thompson,
the Court concludes that “[t]hose incidents are not similar to the violation at issue here.” 563 U.S.
at 63.
Again, here, Ms. Peña claims that the City of Lancaster’s failure was in its training and
supervision of its officers handling situations with persons experiencing mental-health crises, and

that this failure would obviously result in a violation of the Fourth Amendment. See Pl.’s Mem.
of L. in Opp’n to Defs.’ Mot. for Summ. J. at 10, ECF No. 124. Under Connick, Ms. Peña must
therefore present some evidence that LCBP had a history of mishandling mental-health crises
through the use of excessive force. See Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 175 (3d
Cir. 2017). Yet Ms. Peña offers no evidence of any such prior incident. She presents no evidence
suggesting that Officer Arnold—or, for that matter, any officer of the LCBP—has ever previously
mishandled a mental-health crisis with or without excessive force. See Pl.’s Mem. of L. in Opp’n
to Defs.’ Mot. for Summ. J. at 10, ECF No. 124. So, viewing LCBP’s litigation history, combined
with the remainder of the record, in the light most favorable to Ms. Peña, the Court concludes that
the record fails to demonstrate a “pattern of similar constitutional violations” under Connick and

her theory, as such, cannot proceed. Connick, 563 U.S. at 70 (citations omitted).
Perhaps recognizing this flaw, Ms. Peña attempts to salvage Count II by arguing that the
“single-incident” theory of liability hypothesized in City of Canton v. Harris, 489 U.S. 378, 390
n.10 (1989), exists. In Canton, the Supreme Court suggested that, “in a narrow range of
circumstances,” a municipality’s training deficiency may be so obvious that no prior pattern of
misconduct is required. See Bd. of Cty. Comm’rs. v. Brown, 520 U.S. 397, 409 (1997). The Court
hypothesized that such a liability may exist where a city arms officers and sends them on patrol
without any instruction on the constitutional limits of deadly force. See Connick v. Thompson, 563
U.S. 51, 63 (2011) (citing Brown, 520 U.S. 490). Because arrests of fleeing felons are
commonplace, the Court reasoned, the “highly predictable” consequence of such an omission
would be recurrent constitutional violations. Id.
In Connick v. Thompson, the Supreme Court tested the Canton’s hypothesis. There, a
wrongfully convicted plaintiff sought to impose § 1983 liability on the New Orleans District

Attorney for failing to train prosecutors on their Brady obligations with respect to specific types
of evidence. The Court rejected the claim, holding that this failure did “not fall within the narrow
range of Canton’s hypothesized single-incident liability.” Id. at 64. That was because the District
Attorney’s prosecutors already understood Brady’s general rule and the alleged deficiencies
concerned merely Brady’s application to “the specific scenario related to the violation.” Id. at 67.
That degree of “nuance,” the Court concluded, “simply cannot support an inference of deliberate
indifference.” Id.
Like Connick, Ms. Peña’s single-incident theory suffers from the same flaw. For Ms. Peña
does not contend that LCBP officers are devoid of baseline training concerning the use of force or
otherwise interacting with civilians. Rather, Ms. Peña faults the City for not providing an

additional block of training addressing the intersection of mental-health crises and police
encounters. This should-have-done-better argument mirrors the “nuanced” training gap rejected
in Connick. So, like the Connick court, this Court will reject that argument here. The Court
concludes that the record does not support a finding that LCBP officers had, as described in
Connick, an “utter lack of an ability to cope with constitutional situations” involving persons
experiencing mental-health crises. See id. Ms. Peña’s single-incident theory cannot proceed. The
Court will enter judgment on Count II for the City Defendants.
B
Turning to Count IV, Ms. Peña alleges that Officer Arnold, directly, and the City of
Lancaster and Chief Berkihiser, derivatively, are liable under § 1983 for denying Mr. Muñoz
medical care following the shooting. See generally City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 244 (1983). To survive summary judgment on such a claim, the record must sufficiently
demonstrate an underlying Fourteenth Amendment denial-of-medical-care claim, i.e., (1) the
existence of a serious medical need; (2) conduct by City officials—whether acts or omissions—
constituting deliberate indifference to that need; and (3) a causal relationship between the
indifference and the resulting harm. See Smith v. Gransden, 553 Fed. Appx. 173, 177 (3d Cir.
2014) (unpublished) (citing Natale v. Camden Cnty. Correctional Facility, 318 F.3d 575, 582 (3d
Cir. 2003); Miller v. City of Phila., 174 F.3d 368, 374 n. 5 (3d Cir.1999)). After so demonstrating,
and to advance her derivative claims, Ms. Peña must adduce sufficient evidence showing the City’s
liability under Monell and the Chief’s independent “supervisory liability,” see A.M. ex rel. J.M.K.
v. Luzerne Cnty. Juv. Detention Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

1
To begin, the City Defendants—similar to their attack on Count II—first contest the
existence of any underlying constitutional violation. They maintain that Officer Arnold cannot be
held liable for an unconstitutional denial of medical care because no reasonable jury could find
that he acted with deliberate indifference with respect to Mr. Muñoz’s medical needs. See Br. in
Supp. Of City Defs.’ Mot. for Summ. J. at 19-20, ECF No. 112-2. Importantly, deliberate
indifference, in this context, exists where an official, aware of a serious medical need, delays or
denies access to medical care for non-medical reasons. Smith v. Gransden, 553 F. App’x 173, 177
(3d Cir. 2014) (citing Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)).
In further support of their argument, and relying on Officer Arnold’s body-worn-camera
footage, the City Defendants emphasize that Officer Arnold summoned emergency medical
services within one minute of the shooting and was then “taken” from the scene roughly a minute
later. See Br. in Supp. Of City Defs.’ Mot. for Summ. J. at 19-20, ECF No. 112-2. Ms. Peña, in

response, counters with the testimony of her medical expert, Dr. David Friedman, who opines that
Mr. Muñoz remained alive for several minutes after the shooting and that prompt first aid from
Officer Arnold or other first responders could have prolonged his life. See Pl.’s Mem. of L. in
Opp’n to Defs.’ Mot. for Summ. J. at 13-14, ECF No. 124 (citing PSOF ¶¶ 106-11). From this
evidence, Ms. Peña contends that a jury could reasonably conclude that a radio call for EMS,
without more, does not preclude a finding of deliberate indifference.
The question thus presented to the Court then is whether the mere act of requesting
professional medical assistance necessarily precludes denial-of-medical-care liability, or whether
a jury may deem an officer deliberately indifferent when he requests medical support but declines
to render even minimal first aid that might prolong life. The Court concludes that a prompt request

for medical aid, while relevant, does not foreclose a finding of deliberate indifference as a matter
of law, see Heeter v. Bowers, 99 F.4th 900, 917 (6th Cir. 2024) (recognizing that an officer’s
prompt request for medical aid does not automatically defeat a deliberate-indifference claim when
additional lifesaving measures were practicable), and that the adequacy of Officer Arnold’s
response is clearly a question for trial.
2
So, with a potentially viable underlying constitutional violation, the Court must analyze
City’s liability for the alleged denial of medical care under the Monell framework previously
discussed. Like her approach to Count II, Ms. Peña invokes both a policy-and-custom theory and
a failure-to-train and failure-to-supervise theory. First, and as to the policy-and-custom theory,
Ms. Peña finds fault with LCBP’s emergency-response policy, which apparently demands no more
than for providing first aid and requesting emergency services. See Pl.’s Mem. of L. in Opp’n to
Defs.’ Mot. for Summ. J. at 14-15, ECF No. 124. The policy, the Court is told, prescribes no

standards for the nature, timing, or supervision of care and is silent on how to handle a mental-
health crisis. Id. Even accepting these shortcomings as true, however, the Court concludes that
the policy is clearly facially lawful, and that the absence of more detailed guidance in the
emergency-response policy is not, without more, unconstitutional. See Hightower v. City of Phila.,
130 F.4th 352, 356 (3d Cir. 2025) (“Lack of a policy is not a policy.”); see also Bd. of Cnty.
Comm’rs v. Brown, 520 U.S. 397, 407 (1997). Consequently, Ms. Peña must also prove deliberate
indifference to sustain this theory.
Anticipating this, the City Defendants—through a unified challenge to both Ms. Peña’s
policy-and-custom theory and failure-and-inadequacy theory—maintain that no evidence of
deliberate indifference exists. More specifically, they insist that no evidence exists supporting a

pattern of similar constitutional violations. Ms. Peña, in response, counters with four prior federal
suits accusing LCBP officers of both causing injuries through excessive force—arm-twisting,
kicking, and face-first takedowns—and then withholding obvious medical care. See Pl.’s Mem.
of L. in Opp’n to Defs.’ Mot. for Summ. J. at 16, ECF No. 124 (citing PSOF ¶¶ 227-30). Although
close, when viewed in the light most favorable to Ms. Peña, such evidence could sustain a finding
of a similar pattern of mishandling post-force medical treatment, thus satisfying the pattern
requirement of the deliberate-indifference standard. See Forrest v. Parry, 930 F.3d 93, 106 (3d
Cir. 2019). The City Defendants’ argument, at this stage, fails. Count IV will proceed to trial.2
C
The Court now turns to Count V, which initially asserted a claim for “negligent hiring,

training, supervision, and monitoring” against the City of Lancaster, Lancaster County (who has
since been dismissed from this action), and Chief Jarrad Berkihiser. See Compl. at 16, ECF No.
1. At the Rule 12(c) stage, the Court construed the count as asserting a § 1983 claim and dismissed
the “hiring” theory for failure to state a claim. See Pena v. City of Lancaster, 690 F. Supp. 3d 494,
502 (E.D. Pa. 2023). The Court then allowed the remaining portion of the claim against the City
of Lancaster and Chief Berkihiser to proceed. Id. Importantly, in her opposition brief, Ms. Peña
now concedes that Count V’s Monell theory duplicates the excessive-force theory already
presented in Count II. See Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. at 19, ECF No.
124. So, the Court’s holding as to the City in Count II also applies to Count V. And the derivative
liability claim against Chief Berkihiser also necessarily fails. Judgment on Count V will therefore

be entered in favor of Chief Berkihiser and the City.

2 Count IV also seeks to impose supervisory liability on Chief Berkihiser for the alleged
denial of medical care. The City Defendants have not moved for summary judgment on Count IV
as to Chief Berkihiser. They assert that the Court previously “dismissed” the claim against the
Chief at the motion for judgment on the pleadings stage. See Br. in Supp. of City Defs.’ Mot. for
Summ. J. at 19 n.13, ECF No. 112-2. The Plaintiff responds that the Court made no such ruling.
Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. at 16, ECF No. 124. The City Defendants
do not address the Plaintiff’s point in their reply brief. After reviewing the Court’s previous
rulings, the Court clearly did not dismiss the denial-of-medical-care claim against Chief Berkihiser
or otherwise enter a judgment on that claim at any prior stage. Because the City Defendants do
not currently challenge this aspect of the denial-of-medical-care claim in the present motion, the
supervisory-liability theory against the Chief will also proceed to trial.
D
The Court next considers the City Defendants’ argument against Count VI, which asserts
battery claim against Officer Arnold. They contend that the claim fails because any “battery” was
privileged because, under Pennsylvania law, “[p]olice officers are privileged to commit a battery

pursuant to a lawful arrest.” Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (citing
Edwards v. City of Phila., 860 F.2d 568, 572 (3d Cir.1988)). To this, Ms. Peña responds by
pointing out that “privilege is negated by the use of excessive force.” See id. Yet since the Court
previously concluded that Officer Arnold’s use of force was not unreasonable, her argument
clearly fails. See also O’Keefe v. Lehigh Univ., No. 23-1235, 2024 WL 138578, at *1 (3d Cir. Jan.
12, 2024) (“The test for determining whether that force is excessive is the same as in the Fourth
Amendment context.”). The Court will therefore enter judgment on Count VI.
E
At issue next is the City Defendants challenge to Count VII, which advances a wrongful-
death cause of action under 42 Pa. Cons. Stat. § 8301 against Officer Arnold and Chief Berkihiser.

In Pennsylvania, such an action is derivative of a cognizable underlying tort that produced the
decedent’s fatal injury. See Simmons v. Simpson House, Inc., 259 F. Supp. 3d 200, 209 (E.D. Pa.
2017) (citing Bright v. Westmoreland Cnty., 380 F.3d 729, 741 (3d Cir. 2004)). Here, the Court
observes that the operative complaint alleges no state-law tort attributable to Chief Berkihiser.
Lacking that predicate, the claim against him cannot proceed. Accordingly, the Court will enter
judgment in Chief Berkihiser’s favor on Count VII. Relatedly, since Court has concluded that the
underlying battery claim against Officer Arnold cannot proceed, the Court will also enter judgment
in his favor on the wrongful-death claim.
F
Count IX, a failure-to-accommodate claim brought under Title II of the Americans with
Disabilities Act (“ADA”), is the next target of the City Defendants’ motion. To sustain a claim
under the ADA, Ms. Peña must offer evidence satisfying four elements: (1) Mr. Muñoz was a

qualified individual; (2) who had a disability; (3) who was excluded from participation in, or
denied the benefits of, the services, programs, or activities of a public entity—or was otherwise
subjected to discrimination by that entity; and (4) such exclusion or discrimination occurred by
reason of his disability. See Haberle v. Troxell, 885 F.3d 170, 178 (3d Cir. 2018) (quoting Bowers
v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir. 2007)). The City Defendants
advance several arguments attacking each of the different elements in turn.
1
First, the City Defendants assert that Ms. Peña has failed to establish the third element
because Officer Arnold faced an “on-the-street” exigency that, in their view, categorically exempts
the entire encounter from the ADA. See Br. in Supp. of Mot. for Summ. J. at 29, ECF No. 112-2.

This argument lacks merit. The Third Circuit has expressly declined to recognize such a blanket
exemption in the case of Haberle v. Troxell, 885 F.3d 170, 181 n.11 (3d Cir. 2018) ([“I]n the
future, we may need to consider whether and under what circumstances it is reasonable to require
police officers to make accommodations during an arrest when they face an exigent threat.”)
(emphasis added). Following that guidance, this Court declines to create such an exemption today.
2
Second, the City Defendants argue that Mr. Muñoz’s assault is an intervening cause that
breaks the causal chain required to establish the fourth element. But that argument also lacks
merit. For the Third Circuit has already rejected this “superseding cause” defense under the ADA.
See Furgess v. Penn. Dep’t of Corrections, 933 F.3d 285, 291 (3d Cir. 2019). To satisfy the fourth
element, a plaintiff need only produce evidence that permits a reasonable jury to conclude that the
disability was a “but-for cause” of the alleged harm. See Durham v. Kelley, 82 F.4th 217, 226 (3d
Cir. 2023). The record clearly supplies such evidence here.

3
Finally, the City Defendants argue that Ms. Peña failed to offer evidence sufficient to
sustain an award of compensatory damages under the ADA. As to this argument, they are
supported by the law. To collect compensatory damages under the ADA, a plaintiff must show
“intentional discrimination.” See Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir. 2018) (citing S.H.
ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013)). To prove intentional
discrimination, a plaintiff must in turn show at least “deliberate indifference,” which, in this
context, requires both “‘(1) knowledge that a federally protected right is substantially likely to be
violated . . . and (2) failure to act despite that knowledge.’” Haberle, 885 F.3d at 181 (quoting S.H.
ex rel. Durrell, 729 F.3d at 265) (emphasis added).

Here, Ms. Peña has failed to offer evidence proving knowledge, which, as the Third Circuit
has recognized, may be show either by “a failure to adequately respond to a pattern of past
occurrences of [like] injuries,” or by showing that the risk of “cognizable harm was so great and
so obvious.” Haberle, 885 F.3d at 181 (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 136-37 (3d
Cir. 2001)). To start, Ms. Peña has offered no evidence to suggest that the LCBP has ever
mishandled a prior mental-health crisis producing a comparable injury. So, she has no pattern.
Cf., e.g., Haberle v. Borough of Nazareth, 936 F.3d 138, 141-42 (3d Cir. 2019).
Second, the remainder of Ms. Peña’s proof comes down to these three sources: (1) the fact
that Chief Berkihiser, an International Association of Chiefs of Police member, was generally
aware of the existence of the Association’s 2018 model policy on mental-health crises; (2) Dr.
Bazzi’s opinion that individuals in crisis often carry knives for perceived self-defense; and (3) Mr.
Dubin’s opinion that police shootings of persons with mental illness are “common and well-
documented.” Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. for Summ. J. at 30-31, ECF No. 124. But

viewing all of the evidence in the light most favorable to Ms. Peña, it still does not sustain an
inference that Lancaster City officials actually knew that their policies posed a substantial risk of
violating federally protected rights. See Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.
2001) (recognizing that the “knowledge element of deliberate indifference is subjective, not
objective knowledge, meaning that the official must actually be aware of the existence of the
excessive risk; it is not sufficient that the official should have been aware”).
Indeed, the Third Circuit has already rejected an almost identical theory in Haberle v.
Troxell, 885 F.3d 171, 182 (3d Cir. 2018). There, the plaintiff cited unadopted guidelines that the
municipality itself drafted for encounters with mentally distressed persons to prove obviousness,
i.e., to impute knowledge. See id. The Third Circuit, however, deemed such evidence insufficient,

holding that “a municipality cannot be found deliberately indifferent merely for considering but
not yet adopting new policies or amendments to old ones.” Id. The Court went on to conclude
that merely falling below “nationally recognized standards” does render the risk of an ADA
violation “so patently obvious” that liability may attach in the absence of a prior pattern. Id. at
182-83.
Here, Ms. Peña’s evidence likewise attempts to do just that. She relies on the Chief’s
general awareness of national model policies, Dr. Bazzi’s testimony that such individuals may
often carry knives, and Mr. Dubin’s assertion that more appropriate standards exist at the national
level, to establish obviousness. But such evidence—at most—simply proves that the LCBP’s
policies fell below national standards. The Court in Haberle made it clear that such below-
national-standards evidence, without more, does not amount to deliberate indifference. Id. at 182.
Therefore, Ms. Peña’s claim for compensatory damages under Count IX cannot survive.
G

So, that brings the Court to Count X, which asserts Ms. Peña’s intentional-infliction-of-
emotional-distress claim against Officer Arnold for the shooting death of her son. To prevail, Ms.
Peña must establish four elements: (1) conduct that is extreme and outrageous; (2) conduct
committed intentionally or with reckless disregard; (3) a causal connection between that conduct
and the plaintiff’s emotional distress; and (4) distress so severe that no reasonable person could be
expected to endure it. See Suero v. Watkins, No. 5:13-CV-7181, 2016 WL 8716667, at *11 (E.D.
Pa. Feb. 12, 2016) (quoting Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir.
1979)). The City Defendants contend that, to the extent Officer Arnold employed force in self-
defense, such conduct does not meet the extreme and outrageous standard as a matter of law. The
Court agrees. Nothing about the lawful conduct of Officer Arnold in the present case could be

characterized as sufficiently “extreme and outrageous” to support a claim for intentional infliction
of emotional distress under Pennsylvania law. See also Mills v. City of Harrisburg, 350 Fed. Appx.
770, 774 (3d Cir. 2009); Estate of Paone v. Plymouth Twp., No. 2:22-CV-02178-JDW, 2024 WL
5107592, at *7 (E.D. Pa. Dec. 13, 2024). The Court will enter judgment in favor of the City
Defendants on Count X.
H
Finally, Count XI asserts Ms. Peña’s wrongful-detention claim under 42 U.S.C. § 1983.
The City Defendants contend that the record lacks evidence supporting either an underlying
constitutional violation or any municipal policy or custom cognizable under Monell v. Department
of Social Services, 436 U.S. 658 (1978). The Court disagrees. First, a credibility question clearly
exists as to whether Ms. Peña was seized without probable cause in violation of the Fourth
Amendment. See generally Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)
(“[W]here the police lack probable cause to make an arrest, the arrestee has a claim under § 1983

for false imprisonment based on a detention pursuant to that arrest.”). On the one hand, the City
Defendants rely on Officer Windlebleck’s testimony that Ms. Peña “grabbed [his] rifle” and struck
him—an account that, if credited, could establish probable cause. Windlebleck Dep. 235-36, ECF
No. 125-6. But contrary to that, there is Officer Mazzante’s testimony that Ms. Peña was merely
“invited” to accompany the officers to the station, that no probable cause existed, and that she was
not detained, but willingly present. See Mazzante Dep. 36-41, ECF No. 122-7. Clearly, whether
Ms. Peña was wrongfully detained, accompanied the officers voluntarily, or arrested with probable
cause, based on this evidence, cannot be resolved as a matter of law and must be resolved by the
trier of fact.
Likewise, Ms. Peña has provided sufficient evidence from which a reasonable jury could

find an entrenched municipal custom of detaining witnesses, without probable cause, solely to
secure their statements. Officer Ruiz, in fact, testified that transporting witnesses to the police
station and holding them until detectives arrive is LCBP’s “custom or … practice.” Ruiz Dep. at
98, ECF No. 125-4. Furthermore, Ms. Peña offers several prior lawsuits, each similarly alleging
that several LCBP officers detained individuals without probable cause. See PSOF at 94, ECF No.
120. Against that backdrop, the Court concludes that genuine disputes of material fact remain as
to both the constitutionality of Ms. Peña’s detention and the existence of the municipal custom
underpinning it. So, the City Defendants’ motion for summary judgment on Count XI is therefore
denied.
III
For the reasons set forth above, the City Defendants’ motion is granted with respect to
Counts II, V, VI, VII, and X. Compensatory damages under Count IX are barred. As to all other
counts—Counts IV and XI—the motion is denied. The City Defendants may renew their objection

to a punitive-damages instruction at trial. An appropriate order shall follow.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11114295. Public record. Not legal advice.