Thomas v. Harrisburg City Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHERELLE THOMAS, :

Administrator of the Estate : No. 1:20-cv-01178

of Terelle Thomas and T.T., a minor, :

individually, as child of decedent : (Judge Kane)

Terelle Thomas and as his sole survivor, :

Plaintiffs :

:

v. :

:

OFFICER DARIL FOOSE, et al., :

Defendants :

MEMORANDUM

Before the Court is Plaintiffs’ fully briefed motion for leave to file a second amended

complaint. (Doc. No. 158.) For the reasons that follow, the Court will grant the motion in part

and deny it in part.

I. BACKGROUND1

On July 10, 2020, Plaintiffs initiated this action, arising out of the death of Terelle

Thomas (“Thomas” or the “decedent”), on December 17, 2019. (Doc. No. 1.) On March 25,

2021, Plaintiffs filed an amended complaint asserting the following claims: (1) a 42 U.S.C. §

1983 claim (“Section 1983”) for violation of Thomas’s rights under the Fourteenth Amendment

for “failures to intervene in the denial of emergency medical treatment” against defendants

Corporal Scott Johnsen (“Corporal Johnsen”), Officers Daril Foose, Adrienne Salazar, Travis

Banning, Brian Carriere, Probation Officer Dan Kinsinger (collectively the “Officer

Defendants”), John/Jane Doe Police Officers 1–5, and Primecare John/Jane Doe Medical

1 Because the parties are intimately familiar with the factual background of this case, and

because the Court previously detailed that factual background in its October 15, 2021

Memorandum and Order (Doc. Nos. 110, 111), the Court sets forth only the procedural

background relevant to the instant motion.

Employees 1–5 (Count I); (2) a Section 1983 claim for violation of Thomas’s rights under the

Fourteenth Amendment for “failure to train, discipline or supervise [] officers” against

Defendants Dauphin County, Primecare Medical (“Primecare”), Dauphin County Adult

Probation John Doe Supervisory Officers 1–5, Dauphin County John Doe Prison Officials 1–5,

and Primecare John/Jane Doe Medical Employees 1–5 (Count II); (3) a Section 1983 claim for

violation of Thomas’s rights under the Fourteenth Amendment for “failure to train, discipline or

supervise [] officers” against the City of Harrisburg and John/Jane Doe Police Officers 1–5

(Count III); (4) a Section 1983 claim for violation of Thomas’s rights under the Fourteenth

Amendment for “failure to render medical care” against Officer Defendants, Dauphin County

John Doe Prison Officials, and Primecare John/Jane Doe Medical Employees (Count IV); and

(5)–(7) state law medical negligence, wrongful death, and survival action claims against

Primecare and Primecare John/Jane Doe Medical Employees (respectively, Counts V, VI, and

VII).2 (Doc. No. 52 at 20–33.)

The Officer Defendants, the City of Harrisburg, and Primecare all filed motions to

dismiss the amended complaint. (Doc. Nos. 54–57, 87, 90.) Dauphin County filed a motion for

2 The amended complaint seeks a remedy pursuant to Pennsylvania’s wrongful death statute, 42

Pa. C.S.A. § 8301 (Count VI), and survival statute, id. § 8302 (Count VII). (Doc. No. 52 at 32,

33.) Pursuant to Pennsylvania law, “wrongful death and survival actions are not substantive

causes of action; rather, they provide a vehicle through which plaintiffs can recover for unlawful

conduct that results in death.” See Sullivan v. Warminster Twp., 765 F. Supp. 2d 687, 700 (E.D.

Pa. 2011). Accordingly, Plaintiffs’ amended complaint asserted essentially five claims: (1) a

Section 1983 claim against Corporal Johnsen, the Officer Defendants, and Primecare John/Jane

Does for failure to intervene (Count I); (2) a Section 1983 supervisor liability claim against

Dauphin County, Primecare, Dauphin County Prison John/Jane Does, Primecare John/Jane Does

(Count II); (3) a Section 1983 municipal liability claim against the City of Harrisburg and Police

John/Jane Does (Count III); (4) a Section 1983 claim against Corporal Johnsen, the Officer

Defendants, Primecare John/Jane Does, and Dauphin County Prison John/Jane Does for failure

to render medical care (Count IV); and (5) a medical negligence claim against Primecare and

Primecare John/Jane Does (Count V).

judgment on the pleadings. (Doc. No. 73.) On October 15, 2021, the Court issued an Order

denying the motion to dismiss and the motion for judgment on the pleadings. (Doc. No. 111.)

The Court’s Order also dismissed the claim against the City of Harrisburg as moot upon

Plaintiffs’ request to withdraw their Section 1983 claim against the City of Harrisburg. (Id.;

Doc. No. 110 at 10.) The Officer Defendants subsequently filed notices of appeal limited to the

issue of whether they were entitled to qualified immunity. (Doc. Nos. 112, 114, 118, 119.) The

United States Court of Appeals for the Third Circuit (“Third Circuit”) issued an opinion on

December 6, 2023, in which it affirmed the Court’s denial of qualified immunity regarding the

Officer Defendants’ failure to render medical care. (Doc. No. 122); see Thomas v. City of

Harrisburg, 88 F.4th 275, 278 (3d Cir. 2023). However, the Third Circuit reversed the Court’s

denial of qualified immunity as to the claim of failure to intervene. (Doc. No. 122); see Thomas,

88 F.4th at 278. The Court subsequently issued an Order pursuant to the Third Circuit’s opinion

dismissing Count I with prejudice and scheduling a case management conference for February

15, 2024. (Doc. No. 124.) After the Third Circuit’s decision, the following claims remain

pending: (1) a Monell3 failure to train, supervise, control, or discipline claim against Dauphin

County, Primecare, Dauphin County Prison John/Jane Does, Primecare John/Jane Does; (2) a

Monell failure to train, supervise, control, or discipline claim against Police John/Jane Does; (3)

a Section 1983 failure to render medical care claim against Corporal Johnsen, the Officer

3 The term “Monell claim” is derived from the case Monell v. Dep’t of Soc. Servs. of City of

New York, 436 U.S. 658 (1978), in which the Supreme Court held that a local government may

be held liable under Section 1983 “when execution of [that] government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury that the government as an entity is responsible.” See id. at 694–

95.

Defendants, Primecare John/Jane Does and Dauphin County Prison John/Jane Does; and (4) a

medical negligence claim against Primecare and Primecare John/Jane Does.

At the February 15, 2024 case management conference, the Officer Defendants disclosed

their intention to petition for writs of certiorari from the Supreme Court of the United States. On

June 13, 2024, the Court ordered the parties to file a status report outlining a discovery plan.

(Doc. No. 132.) On June 21, 2024, the parties filed their proposed discovery plan staying

discovery related to the Officer Defendants but allowing discovery to continue as to all other

Defendants. (Doc. No. 134.) The Court issued an Order approving the proposed discovery plan

on June 24, 2024. (Doc. No. 135.)

On October 8, 2024, the Officer Defendants informed the Court that the Supreme Court

denied their petitions for writs of certiorari. (Doc. No. 141.) The Court thereafter held a status

conference on October 23, 2024, after which it issued a Case Management Order establishing a

close of fact discovery date of March 31, 2025, as to all Defendants. (Doc. No. 144.)

On December 18, 2024, Plaintiffs filed the instant motion for leave to amend (Doc. No.

158), seeking leave to file a second amended complaint and add eight newly-identified

defendants to the existing claims. Plaintiffs filed a brief in support of the motion and the

proposed second amended complaint. (Doc. Nos. 158-2, 159.) Dauphin County filed a brief in

opposition to the motion with exhibits on January 16, 2025. (Doc. No. 167–167-5.) Dauphin

County’s exhibits include the following: (1) an initial disclosure letter detailing the names of

witnesses and preliminary documents that have been disclosed (Doc. No. 167-1) (“Exhibit A”);

(2) incident reports from LauraJo Funck, Corrections Officers Lieutenant Raelynn Parson,

Nicholas Ceresini, Matthew Brandt, Nathan McKillop, Ashley Shay, and “A. [sic] Gabriele”

related to Thomas’s death while in custody at Dauphin County Booking Center on December 17,

2019 (Doc. No. 167-2 at 2, 6, 8–10, 12, 21, 22) (“Exhibit B”); and (3) an email thread discussing

the scheduling of depositions of the above-mentioned corrections officers (Doc. No. 167-3)

(“Exhibit C”). Corporal Johnsen and Primecare filed their briefs in opposition on January 17,

2025. (Doc. Nos. 170, 172.)

On January 29 and 30, 2025, Plaintiffs filed reply briefs with exhibits responding to the

briefs in opposition filed by Dauphin County, Corporal Johnsen, and Primecare. (Doc. Nos.

173–75.) Plaintiffs’ exhibits include a July 10, 2020 online news article from PennLive and text

messages from Corrections Officer Nathan McKillop, Lieutenant Raelynn Parson, and an

unknown sender. (Id.) The July 10, 2020 PennLive news article (“Exhibit 2”) reports on the

decedent’s family filing a lawsuit against Dauphin County and the Harrisburg Police Department

seeking thirty-five million dollars. (Doc. No. 173-2 at 2.) The text messages from Corrections

Officer Nathan McKillop, Lieutenant Raelynn Parson, and the unknown sender (“Exhibit 1”) are

conversations about Thomas’s death and the PennLive news article about Plaintiffs’ lawsuit.

(Doc. No. 173-1.) After the Court granted them leave to file sur-replies, Corporal Johnsen and

Dauphin County filed sur-reply briefs on April 9, 2025. (Doc. Nos. 183–86.) Having been fully

briefed, Plaintiffs’ motion is ripe for disposition.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a) generally governs requests for amendment of

pleadings and provides, in pertinent part, that after amending a complaint once as a matter of

right, “a party may amend its pleading only with the opposing party’s written consent or the

[C]ourt’s leave. The [C]ourt should freely give leave when justice so requires.” See Fed. R. Civ.

P. 15(a)(2). As the Supreme Court has stated, “the grant or denial of an opportunity to amend is

within the discretion of the District Court . . . outright refusal to grant the leave without any

justifying reason appearing for the denial is not an exercise of discretion, it is merely an abuse of

discretion and inconsistent with the spirit of the Federal Rules.” See Foman v. Davis, 371 U.S.

178, 182 (1962).

Grounds potentially justifying denial of leave to amend are “undue delay, bad faith,

dilatory motive, prejudice, and futility.” See id. at 182; In re Burlington Coat Factory Sec.

Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). “Futility” means that the complaint, as amended,

would fail to state a claim upon which relief can be granted. See In re NAHC, Inc. Sec. Litig.,

306 F.3d 1314, 1332 (3d Cir. 2002); In re Burlington, 114 F.3d at 1434. In assessing “futility,” a

district court applies the same standard of legal sufficiency as applies under Federal Rule of Civil

Procedure 12(b)(6). See In re Burlington, 114 F.3d at 1434; 3 Moore’s Federal Practice, §

15.15[3] at 15-55 to 15-61 (3d ed. 2013). Accordingly, in assessing the potential futility of a

proposed amended complaint, the Court must accept as true the allegations in the proposed

amended complaint and construe those allegations in the light most favorable to the party

seeking leave to amend. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir.

2010).

The issue of “prejudice” focuses on hardship to the defendant if the amendment were

permitted, specifically, whether amendment “would result in additional discovery, cost, and

preparation to defend against new facts or new theories.” See Cureton v. Nat’l Collegiate

Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001). With regard to “undue delay,” the Third

Circuit has held that the mere passage of time does not require that a motion to amend a pleading

be denied; “however, at some point, the [movant’s] delay will become ‘undue,’ placing an

unwarranted burden on the court, or will become ‘prejudicial,’ placing an unfair burden on the

opposing party.” See Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). In assessing the

issue of “undue” delay, the Court’s focus is on the movant’s motives for not amending sooner.

See id.

A two-year statute of limitations is applicable to Plaintiffs’ Section 1983 and state law

negligence claims. See Sameric Corp. of Delaware v. City of Phila., 142 F.3d 582, 599 (3d Cir.

1998) (applying Pennsylvania’s two-year statute of limitations for personal injury claims to

Section 1983 claims); 42 Pa. C.S.A. § 5524 (stating that a two-year statute of limitations applies

to any “action or proceeding to recover damages for injury to person or property which is

founded on negligent, intentional, or otherwise tortious conduct”). In an action where the

plaintiff names a John Doe defendant, the statute of limitations is not tolled or stopped from

running as to that defendant. See Garvin v. City of Phila., 354 F.3d 215, 220 (3d Cir. 2003).

When a plaintiff seeks to substitute named defendants for John/Jane Doe defendants, and the

statute of limitations has run, that plaintiff must show that the substitution relates back to the

filing of his or her original complaint. See id.

Federal Rule of Civil Procedure 15(c)(1) governs relation back of complaints for the

purposes of replacing a John Doe defendant with a named party. See Fed. R. Civ. P. 15(c)(1);

Garvin, 354 F.3d at 220 (holding that replacing the name John Doe with a party’s real name

“amounts to the changing of a party or the naming of a party under Rule 15[(c)(1)]”). Federal

Rule of Civil Procedure 15(c)(1) provides that an amendment to a pleading relates back to the

date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation

back;

(B) the amendment asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out – or attempted to be set out – in the

original pleading; or

(C) the amendment changes the party or the naming of the party against whom

a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and complaint, the party to

be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced

in defending on the merits; and

(ii) knew or should have known that the action would have been

brought against it, but for a mistake concerning the proper

party’s identity.

See Fed. R. Civ. P. 15(c)(1). Rule 4(m) states that a defendant must be “served within 90 days

after the complaint is filed.” See Fed. R. Civ. P. 4(m).

Rule 15(c)(1)(C)’s notice requirement is fulfilled not only by actual service of process

but also “when a party who has some reason to expect his potential involvement as a defendant

hears of the commencement of litigation through some informal means.” See Singletary v. Pa.

Dep’t of Corr., 266 F.3d 186, 195 (3d Cir. 2001). Notice can be imputed to satisfy Rule

15(c)(1)(C)(i) via two possible methods: the “shared attorney” method and the “identity of

interest” method. See Garvin, 354 F.3d at 222–23. As to the “shared attorney” method, the

Third Circuit instructs that “a plaintiff must show that there was ‘some communication or

relationship’ between the shared attorney and the John Doe defendant prior to the expiration of

the [90]–day period in order to avail him or herself of the shared attorney method of imputing

notice.” See id. at 223 (citation omitted). The “identity of interest” method requires a plaintiff to

demonstrate that “the parties are so closely related in their business operations or other activities

that filing suit against one serves to provide notice to the other of the pending litigation.” See id.

However, the Third Circuit notes that “absent other circumstances that permit the inference that

notice was actually received, a non-management employee . . . does not share a sufficient nexus

of interests with his or her employer so that notice given to the employer can be imputed to the

employee for Rule 15(c)[(1)(C)(i)] purposes.” See id. at 227 (quoting Singletary, 266 F.3d at

200).

III. DISCUSSION

Plaintiffs’ motion for leave to amend seeks to substitute the named individuals

Corrections Officers Captain Andrew Klahr (“Captain Klahr”), Lieutenant Raelynn Parson

(“Lieutenant Parson”), Nicholas Ceresini, Matthew Brandt, Nathan McKillop (“CO McKillop”),

and Ashley Shay (collectively “Corrections Officers”) for Dauphin County John Doe Prison

Officials 1–5,4 and the named individuals Angela Barnett (“Barnett”) and LauraJo Funck

(“Funck”) for Primecare John/Jane Doe Medical Employees 1–5. Plaintiffs’ motion also seeks to

add Corporal Johnsen as a defendant to the existing Section 1983 failure to supervise claim

under Count III, formerly asserted against the City of Harrisburg. (Doc. No. 159 at 2, 5.) At the

outset, the Court notes that there is no dispute that the two-year statute of limitations applicable

to Plaintiffs’ claims ran on December 17, 2021. See (id. (omitting any argument that the statute

of limitations has not run)). Thus, Plaintiffs may only add a new party with the Court’s leave

and if the claim to be asserted relates back to the filing date of the original complaint. See Fed.

R. Civ. P. 15(a)(2), (c)(1)(C). The Court first recounts the arguments of the parties before

4 The Court notes that Plaintiffs seek to substitute six named defendants for John Doe

defendants written in the case caption as “Dauphin County John Doe Prison Officials 1–5.” See

(Doc. No. 158-2 at 1). Plaintiffs’ attempt to substitute six named defendants for five John Does

does not square with the common understanding of John Doe names as placeholders for

unknown defendants. See, e.g., Martin v. City of Reading, No. 12-cv-03665, 2015 WL 390611,

*2 (E.D. Pa. Jan. 29, 2015) (substituting four named defendants for four out of nine John Doe

defendants); Hiscock v. City of Phila., No. 12-cv-02204, 2013 WL 686350, *1 (E.D. Pa. Feb. 26,

2013) (substituting a single named defendant for one John Doe defendant). However, as the

Court will discuss below, it will deny in part Plaintiffs’ request to add all six named defendants

for the placeholder names of “Dauphin County John Doe Prison Officials 1–5.”

addressing whether the proposed second amended complaint relates back to the filing of the

original complaint and whether to grant leave to amend.

A. Arguments of the Parties

Plaintiffs assert that leave to amend is proper because their proposed second amended

complaint relates back to the filing of their initial complaint. (Doc. No. 159 at 1.) They maintain

that, because the named individuals share attorneys with the existing Defendants, they received

constructive notice sufficient to satisfy Rule 15(c)(1)(C)(i)’s notice requirement. (Id. at 3–4.)

Plaintiffs also argue that they satisfy the notice requirement because the named individuals are so

closely related to the existing Defendants that they share identities of interest sufficient to satisfy

the notice requirement. (Id. at 4–5.) As to 15(c)(1)(C)(ii)’s knowledge requirement, Plaintiffs

assert that the newly-named individuals knew or should have known that the action would have

been brought against them, but for a mistake, within the 90-day timeframe because: they were

aware of the action since its inception; they are represented by counsel already involved in

defending the claims; they have had “direct access to all pleadings, motions, and discovery in

this matter” by virtue of their shared attorneys; and they have already participated in discovery.

(Id.)

As to Rule 15(a), Plaintiffs assert that leave to amend is proper because: there was no

undue delay; leave to amend would not cause prejudice; and the second amended complaint

would not be futile. As to the issue of delay, they note that any delay in amending the amended

complaint is attributable to Defendants’ motions to dismiss and interlocutory appeals. (Id. at 2–

3.) Plaintiffs also argue that Defendants would not be prejudiced by amendment because the

proposed amendment seeks to add specific and integral individuals to the litigation and add

Corporal Johnsen to an existing claim. (Id. at 5–6.)

In response, Dauphin County contends that the proposed amendment does not relate back

to the filing of the original complaint. (Doc. No. 167 at 5.) Dauphin County asserts that

Plaintiffs fail to demonstrate that the Corrections Officers had actual or constructive notice of the

lawsuit within the Rule 4(m) 90-day time period as required by Rule 15(c)(1)(C). (Id. at 6.)

Specifically, Dauphin County argues that Plaintiffs fail to demonstrate a shared attorney between

itself and the Corrections Officers or an identity of interest between itself and the Corrections

Officers. (Id. at 7–9.)

Additionally, Dauphin County argues that Plaintiffs’ motion should be denied because

they unduly delayed adding the Corrections Officers. Dauphin County maintains that the

Corrections Officers’ names appeared in the February 8, 2024 Joint Case Management Plan and

the May 16, 2024 Initial Disclosure, yet Plaintiffs waited until December 2024 to file a motion to

amend the complaint to add them as defendants. (Id. at 10–11.) Dauphin County further asserts

that granting Plaintiffs leave to amend would cause it prejudice because Plaintiffs’ undue delay

would place an unfair burden on it and increase the cost of litigation. (Id. at 11.) Dauphin

County lastly argues that Plaintiffs’ proposed second amended complaint would be futile as to

Captain Klahr and Lieutenant Parson because it fails to allege facts to support the claim that they

were personally involved or were central participants in the events leading to decedent’s death.

(Id. at 12.)

Primecare contends that the second amended complaint fails to relate back to the filing

of the original complaint as to proposed defendants Barnett and Funck because Plaintiffs cannot

prove that they received notice within the 90-day period for service established by Rule 4(m).

(Doc. No. 170 at 4, 7.) It also argues that both Barnett and Funck were identified prior to April

1, 2024, yet Plaintiffs delayed adding them as parties for over eight months. (Id. at 9.)

Therefore, Primecare argues that granting leave to amend would prejudice Barnett, Funck, and

Primecare. (Id.)

Corporal Johnsen also opposes the motion, arguing that leave to amend should be denied

because Plaintiffs’ amendment seeking to add him as a defendant to the Section 1983 failure to

supervise claim is futile and amounts to an attempt to add a Monell claim against him. (Doc. No.

172 at 3.) Specifically, Corporal Johnsen points to additional paragraphs in the proposed second

amended complaint that state that he reinforced and perpetuated the City of Harrisburg’s

“custom and policy of . . . failing to train, instruct, supervise, control[,] and discipline the

[o]fficers of the Harrisburg Police Department in recognizing individuals in custody who require

emergency medical care.” (Id. at 3–4.) Corporal Johnsen maintains that these additions assert

no facts or plausible allegations that suggest that he was responsible for the City’s policies or

customs. (Id. at 4.)

B. Whether the Court Should Grant Plaintiffs’ Motion for Leave to Amend

Their Amended Complaint

1. Relation Back

As noted supra, Plaintiffs concede that the statute of limitations ran on their Section 1983

claims on December 17, 2021. Therefore, according to Rule 15(c)(1)(C), they must demonstrate

that their second amended complaint relates back to the original complaint. See Fed. R. Civ. P.

15(c)(1)(C). The Court first addresses whether Plaintiffs demonstrate that Captain Klahr,

Lieutenant Parson, Corrections Officers McKillop, Ceresini, Brandt, and Shay, Barnett, and

Funck received notice of the action within ninety (90) days of the initiation of the lawsuit, as

required by Rule 15(c)(1)(C), before turning to whether Plaintiffs demonstrate that the newly

named individuals knew or should have known, but for Plaintiffs’ mistake, that the action would

have been initiated against them.5 See id.

a. Notice

(1) Captain Klahr, Lieutenant Parson, and Corrections

Officers McKillop, Ceresini, Brandt, and Shay

Upon review of the briefs and exhibits6 submitted by the parties in connection with the

briefing, the Court concludes that Plaintiffs have shown that Captain Klahr, Lieutenant Parson,

and CO McKillop received constructive notice of the action but cannot demonstrate that

Corrections Officers Ceresini, Brandt, and Shay received notice of the action. First, as to

Captain Klahr and Lieutenant Parson, Captain Klahr was a shift commander on duty during the

time Thomas was brought into the Dauphin County Booking Center (“DCBC”). (Doc. No. 158-

2 ¶ 113.) Lieutenant Parson was an assistant shift commander on duty at the DCBC at the same

time. (Id. ¶ 14.) Based on the allegations of the second amended complaint that both Captain

Klahr and Lieutenant Parson were management employees of Dauphin County, the Court

concludes that Plaintiffs have demonstrated that Captain Klahr and Lieutenant Parson share

“sufficient nexus of interests” with Dauphin County “so that notice given to [Dauphin County]

5 Because the parties do not dispute whether the first requirement of Rule 15(c)(1)(B) is

satisfied, the Court focuses its analysis on the two requirements of Rule 15(c)(1)(C). (Doc. Nos.

167 at 6–9; 170 at 4–8); see Rule 15(c)(1).

6 The Court notes that, although there is no mention of what evidence can be considered in the

Rule 15(c) context, the Third Circuit has indicated that evidence may be considered in

determining the shared attorney method, the identity of interest method, and the knowledge

requirement under Rule 15(c)(1)(C). See, e.g., Garvin, 354 F.3d at 224, 226, 227 (noting the

importance of the plaintiff to “come forth with evidence,” derived from discovery, of shared

attorney representation or identity of interest so that notice may be imputed (emphasis added));

Edwards v. Middlesex Cnty., No. 08-cv-06359, 2010 WL 2516492, *4 (D.N.J. June 14, 2010)

(citing to an exhibit submitted in support of the plaintiff’s assertion that a medical director held

an identity of interest).

can be imputed” to them. See Garvin, 354 F.3d at 227; see also Ward v. Taylor, 250 F.R.D. 165,

169 (D. Del. 2008) (concluding that a lieutenant’s position as a supervisor at a correctional

facility has “sufficient identity of interests” with prison administrators to impute notice).

Second, as to CO McKillop, Plaintiffs have shown that he received constructive notice within the

Rule 4(m) time period via evidence of a news article and text messages. (Doc. Nos. 173-1 at 1;

173-2.) Plaintiffs’ Exhibit 1, the PennLive news article, attached to their reply brief reports on

the decedent’s family filing a lawsuit against Dauphin County and the Harrisburg Police

Department seeking thirty-five million dollars. (Doc. No. 173-2 at 2.) Plaintiffs’ Exhibit 2, also

attached to their reply brief, reflects that CO McKillop read the July 10, 2020 news article the

day it came out and recognized that it concerned “[his] guy” Thomas. (Doc. No. 173-1 at 1

(“[F]amily [is] asking for 35 million!! [. . .] article came out today”).) The Court also notes that

the online news article was published the same day the complaint was filed. Because the news

article and messages demonstrate that CO McKillop learned of this action within the 90-day time

period, the Court concludes that Plaintiffs have demonstrated that he received constructive

notice.

As to the remaining Corrections Officers Ceresini, Brandt, and Shay, the Court is not

convinced that notice can be imputed to them. First, as to the “shared attorney” method of

imputing notice, although Exhibit A indicates that Dauphin County’s attorney was listed as the

point of contact for these Corrections Officers on May 16, 2024 (Doc. No. 167-2 at 4–5), such

evidence is insufficient because it does not indicate a shared representation during the Rule 4(m)

90-day time period, which ended on October 8, 2020. See Garvin, 354 F.3d at 223 (affirming the

district court’s finding that there was no imputed notice without evidence of past or present

representation); see also Singletary, 266 F.3d at 197 (holding that the shared representation must

have occurred during the Rule 4(m) period). Further, Exhibit C, which is an email thread

discussing the scheduling of depositions, demonstrates that “the four Corrections Officers” are

represented by a different attorney from any of the other Defendants. (Doc. No. 167-3 at 2.)

Thus, without more, the Court cannot infer that any of the Defendants’ attorneys, within the 90-

day period that expired on October 8, 2020, “had some communication or relationship with, and

thus gave notice of the action to” Corrections Officers Ceresini, Brandt, and Shay. See

Singletary, 266 F.3d at 196–97.

Second, as to the “identity of interest” method, Plaintiffs fail to present evidence showing

that the remaining Corrections Officers share sufficient nexuses of interests with their employer

to impute notice. As staff police officers, the remaining Corrections Officers are non-

management employees who do not share sufficient nexuses of interests with their employer.

See Garvin, 354 F.3d at 227 (quoting Singletary, 266 F.3d at 199) (“[A] non-management

employee . . . does not share a sufficient nexus of interests with his or her employer so that notice

given to the employer can be imputed to the employee for Rule 15(c)(3) purposes.”). Although

Plaintiffs assert that there are sufficient nexuses of interests between the Corrections Officers and

the Officer Defendants, this Court agrees with its sister courts in the Third Circuit that “police

officers do not have an identity of interest with other police officers” without evidence showing

otherwise. See Robinson v. Deery, No. 24-cv-00364, 2025 WL 756535, at *3 (E.D. Pa. Mar. 10,

2025) (finding that a defendant detective and sergeant, who were believed to have caused the

plaintiff’s fall down the stairs, did not have a sufficient nexus of interests between one another to

impute notice); Velez v. Fuentes, No. 15-cv-06939, 2017 WL 2838461, at *4 (D.N.J. June 30,

2017) (finding that a police officer defendant and a proposed police officer defendant who both

participated in the alleged constitutionally violative action lacked a sufficient nexus of interests,

without more, to impute notice). Accordingly, the Court finds that, as to the remaining

Corrections Officers Ceresini, Brandt, and Shay, Plaintiffs failed to demonstrate that they

received notice of the action pursuant to Rule 15(c)(1)(C)(i) such that the proposed second

amended complaint could relate back to the date of the claims asserted against them in the

original complaint.

(2) Primecare Medical Employees Barnett and Funck

As to Barnett and Funck, the Court finds that Plaintiffs have sufficiently demonstrated

that notice to Defendant Primecare should be imputed to Barnett, but have not demonstrated that

Primecare’s notice should be imputed to Funck. Plaintiffs show that Barnett was the “Director of

Nursing” at the DCBC. See (Doc. No. 158-2 ¶ 30). Similar to Captain Klahr and Lieutenant

Parson, Barnett was “high enough in the [] hierarchy” for “sufficient nexus of interests” to exist

between her and Primecare. See Garvin, 354 F.3d at 227 (quoting Singletary, 266 F.3d at 199).

Funck, however, is a non-management employee like Corrections Officers Ceresini, Brandt, and

Shay. See id. (stating that a non-management employee does not share a sufficient nexus of

interests with his or her employer). Thus, Funck does not share a sufficient nexus of interests

with Primecare to impute notice.

Funck also does not share attorney representation with any of the Defendants. Although

Plaintiffs attempt to demonstrate a shared attorney between Funck and Primecare, Plaintiffs can

only demonstrate that Funck and Primecare may have shared an attorney since the year 2024.

Rule 15(c)(1)(C), however, requires Plaintiffs to demonstrate a shared attorney representation

between Funck and any of Defendants during the Rule 4(m) 90-day time period, which ended on

October 8, 2020. See id. at 223 (holding that there was no shared attorney where there was no

evidence that an attorney represented the newly-named party within the Rule 4(m) period). The

evidence that Primecare’s attorney represented Funck at a deposition, without more, does not

give rise to the inference that Primecare’s attorney had some communication or relationship with

Funck within the Rule 4(m) 90-day period approximately three years earlier. See Singletary, 266

F.3d at 196–97 (“[T]he fundamental issue here is whether the attorney’s later relationship with

the newly named defendant gives rise to the inference that the attorney, within the [90-]day

period, had some communication or relationship with, and thus gave notice of the action to the

newly named defendant.”). Accordingly, the Court concludes that Plaintiffs have shown that

Barnett received constructive notice under the “identity of interest” method but have failed to

show that notice can be imputed as to Funck. The Court next addresses whether Captain Klahr,

Lieutenant Parson, CO McKillop, and Barnett “knew or should have known that the action

would have been brought against it, but for a mistake concerning their identities,” the second

requirement for relation-back of the proposed second amended complaint. See Fed. R. Civ. P.

15(c)(1)(C)(ii).

b. Knowledge

The Court concludes that Plaintiffs have shown, through their exhibits and the facts

asserted in their initial complaint, that CO McKillop, Captain Klahr, and Lieutenant Parson knew

or should have known that, but for a “mistake” concerning the identity of the proper party, the

instant action would have been initiated against them. First, as to CO McKillop, Plaintiffs show

via his text messages that he knew or should have known that this action would have been

initiated against him. As explained supra, CO McKillop’s text messages, provided in Exhibit 1,

indicate that he read the online news article describing Plaintiffs’ lawsuit on the same day the

complaint was filed. (Doc. No. 173-1 at 1.) That July 10, 2020 news article, provided as Exhibit

2, also contains allegations from Plaintiffs’ initial complaint against “prison staff members” who

were “told . . . that Thomas may have swallowed cocaine” yet never transferred him to the

nearest hospital. (Doc. No. 173-2 at 5.) Those reported factual allegations from the initial

complaint implicate CO McKillop’s actions the night Thomas was brought into the DCBC.

Accordingly, the Court concludes that Plaintiffs have demonstrated that CO McKillop knew or

should have known, within the 90-day time period established by Rule 4(m), that the instant

action would have been initiated against him but for a “mistake” concerning his identity.

As to Captain Klahr and Lieutenant Parson, the Court also concludes that Plaintiffs have

demonstrated that they knew or should have known that, but for a “mistake” concerning the

identity of the proper party, they would have been named in the initial complaint because the

factual allegations contained in the initial complaint implicate their actions and decisions.

Similar to CO McKillop, Plaintiffs’ initial complaint “essentially advertised that [they were]

seeking correctional officers whose identity [they] did not know” regarding the decision not to

transfer Thomas to the hospital. See Ward, 250 F.R.D. at 170. Dauphin County does not

challenge that Captain Klahr and Lieutenant Parson were the supervisors at the DCBC while

Thomas was there. It also does not challenge that Captain Klahr and Lieutenant Parson

responded to Thomas’s medical emergency.7 Therefore, the Court finds that, given their

authority and involvement in the events leading up to Thomas’s death, Plaintiffs have

demonstrated that Captain Klahr and Lieutenant Parson knew or should have known that they

would have been named in the initial complaint but for Plaintiffs’ “mistake.”

7 Additionally, as to Lieutenant Parson, Plaintiffs demonstrate, through text messages obtained

from December 14, 2019, that she recognized her involvement in Thomas’s death by messaging,

“should have overrode [sic] [the medical clearance]” and “had medical check him once in there.”

(Doc. No. 173-1 at 3.)

As to Barnett, the Court similarly concludes that Plaintiffs have demonstrated that she

knew or should have known that, but for a “mistake” concerning the identity of the proper party,

she would have been named in the initial complaint because of her position and her involvement

in the events leading up to Thomas’s death. As explained supra, Barnett was the Director of

Nursing at the DCBC. Moreover, Plaintiffs’ initial complaint “advertised” that they were

looking for a Primecare supervisor who was informed that Thomas may have ingested drugs yet

decided not to send him to a hospital. See Ward, 250 F.R.D. at 170. Accordingly, “given [her]

authority and involvement in the events”, Plaintiffs have shown that Barnett should have known

that she would have been named as a defendant in the suit, but for Plaintiffs’ “mistake.” See id.

Having determined that Plaintiffs have sufficiently demonstrated that the proposed second

amended complaint relates back to the date of the filing of the original complaint as to proposed

defendants Captain Klahr, Lieutenant Parson, CO McKillop, and Barnett, such that the statute of

limitations does not bar the assertion of claims against them, the Court next considers whether to

grant leave to amend.

2. Leave to Amend

The Court first addresses whether Plaintiffs’ proposed second amended complaint is

unduly delayed before turning to whether granting leave to amend would prejudice Defendants

and whether Plaintiffs’ amendments would be futile as to the Section 1983 claims sought to be

asserted in the proposed second amended complaint.

a. Undue Delay

Defendants Dauphin County and Primecare argue that Plaintiffs unduly delayed seeking

leave to amend their amended complaint. The Court is persuaded by Plaintiffs’ explanation for

the delay in amending their amended complaint, i.e., that the delay is due to Defendants’ motions

to dismiss and interlocutory appeals. Although Primecare argues that Plaintiffs took no steps to

identify individuals before the statute of limitations expired, it provides no evidence to support

that argument or demonstrate that the delay was not occasioned by the motions to dismiss filed

by Defendants and the interlocutory appeals of the Court’s Order resolving the motions to

dismiss. The Court also finds that Primecare and Dauphin County’s other arguments—that

Plaintiffs knew of Barnett before April 1, 2024, and knew of the identities of the Corrections

Officers upon the filing of the February 14, 2024 Joint Case Management Plan—are unavailing

because even a period of ten months, without further evidence of Plaintiffs’ motive, does not

show undue delay. See Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006) (stating that

even a delay of eleven months is not, on its face, presumptively undue delay). Because Plaintiffs

adequately explain the reason for their delay in seeking to amend, and because “[t]here is [. . .]

no presumptive period in which a motion for leave to amend is deemed ‘timely’ or in which

delay becomes ‘undue[,]’” the Court finds that Plaintiffs have not acted with undue delay

justifying the denial of their request for leave to amend. See id.

b. Prejudice

The Court next addresses whether Defendants would be prejudiced by the grant of leave

to amend. Dauphin County and Primecare argue that they would be prejudiced if Plaintiffs were

allowed to amend their complaint at this point in the litigation. Dauphin County specifically

asserts that the delay of litigation has resulted in increased costs and any leave to amend would

prejudice it. The Court is unpersuaded by this argument because Dauphin County fails to

demonstrate how the addition of the Corrections Officers would result in additional costs. See

Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (“[T]he non-moving party must do more

than merely claim prejudice; it must show that it was unfairly disadvantaged or deprived of the

opportunity to present facts or evidence which it would have offered had the . . . amendments

been timely.” (internal quotations and citations omitted)). According to Exhibits A and B,

submitted in connection with its briefing and detailing Dauphin County’s initial disclosures and

containing the Corrections Officers’ incident reports, Dauphin County has already produced to

Plaintiffs documents relating to the Corrections Officers. See (Doc. Nos. 167-1 at 8; 167-2

(including incident reports written by the Corrections Officers and Funck as part of the initial

disclosure package)). The exhibits indicate to the Court that discovery costs would not

drastically increase because the discovery and disclosures to date have partially covered the

Corrections Officers sought to be added as defendants. As to Primecare, the Court finds that it

fails to show how the ten months between the start of discovery and Plaintiffs’ motion for leave

to amend have caused it hardship. See Bechtel, 886 F.2d at 652 (stating that the non-moving

party must do more than claim prejudice). The Court acknowledges that the cost of this

litigation has likely been considerable to date, but, as noted by Plaintiffs, a significant portion of

those costs are due to Defendants’ procedural strategies.

Primecare further argues that Plaintiffs’ tactical move of deposing Barnett before naming

her as a defendant prejudices her. The Court is unpersuaded by Primecare’s argument in this

regard. Although Plaintiffs previously deposed Barnett as a witness, she was represented by

Primecare’s attorneys who knew that she might be added as a party to this case. Because Barnett

was represented by an attorney during her deposition, the Court concludes that any prejudice that

may have resulted from being named as a party was mitigated. Cf Padilla v. Township of Cherry

Hill, 110 F. App’x 272, 278 (3d Cir. 2004) (unpublished) (finding that “[b]eing deposed without

the benefit of counsel and subsequently being named as a defendant constitutes undue prejudice

against the proposed defendants”).8 Accordingly, the Court concludes that Barnett would not be

prejudiced and turns to whether Plaintiffs’ amendment would be futile as to Captain Klahr,

Lieutenant Parson, Barnett, and Corporal Johnsen. 9

c. Futility

As noted above, an amendment to a complaint would be futile if the claims asserted by

way of amendment would fail to state a claim upon which relief could be granted. See In re

NAHC, Inc. Sec. Litig., 306 F.3d at 1332. “To state a claim under [Section] 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). To support a Section 1983 claim for failure

to supervise against “individual defendants who are policymakers”, a party must show that “[the]

defendants, ‘with deliberate indifference to the consequences, established and maintained a

policy, practice or custom which directly caused [the] constitutional harm.’” See A.M. ex rel.

J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). A supervisor may also be held

personally liable under Section 1983 if “he or she participated in violating the plaintiff’s rights,

8 The Third Circuit has acknowledged that its NPOs may nonetheless contain persuasive

reasoning. See New Jersey, Dep’t of Treasury, Div. of Inv. v. Fuld, 604 F.3d 816, 823 (3d Cir.

2010) (noting that an NPO is “as persuasive as its reasoning”); see also Drinker v. Colonial Sch.

Dist., 78 F.3d 859, 864 n.12 (3d Cir. 1996) (following an NPO based on “factual similarity” and

“look[ing] to the [NPO] as a paradigm of the legal analysis”).

9 Dauphin County argues that leave to amend the complaint to add CO McKillop would be futile

because the Section 1983 claims against him are barred by the statute of limitations. See (Doc.

No. 167-3 at 6). Because the Court determines supra that the Section 1983 claims against CO

McKillop relate back, the Court need not address Dauphin County’s futility argument as to him.

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in

his subordinates’ violations.” See id.

(1) Captain Klahr and Lieutenant Parson

Plaintiffs’ proposed second amended complaint provides the following allegations

against Captain Klahr and Lieutenant Parson for failure to train, supervise, control or discipline

and failure to render medical care under Section 1983:

• Andrew Klahr, a Captain with Dauphin County Prison, having a place of

business at 451 Mall Blvd. in Harrisburg, P[ennsylvania] 17111. At all

times relevant hereto, Defendant Klahr was the Shift Commander during

[the decedent’s] time at Dauphin County Prison that led to the filing of this

[c]omplaint.

• Raelynn Parson, a Lieutenant with Dauphin County Prison, having a place

of business at 451 Mall Blvd. in Harrisburg, P[ennsylvania] 17111. At all

times relevant hereto, Defendant Parson was the Assistant Shift

Commander during [the decedent’s] time at Dauphin County Prison that led

to the filing of this [c]omplaint.

• Defendants Klahr, Parson, Brandt, McKillop, Ceresini, Shay, and Funck

arrived to find [the decedent] with white powder still on his lips. [The

decedent] was unresponsive, pulseless[,] and apneic.

See (Doc. No. 158-2 ¶¶ 13–14, 113).

Dauphin County asserts that Plaintiffs’ allegations against Captain Klahr and Lieutenant

Parson regarding their alleged “central” participation in Thomas’s death in the proposed second

amended complaint fail to state a claim for failure to supervise and failure to render medical

care. (Doc. No. 167 at 12.) The Court agrees that Plaintiffs’ amendment would be futile as to

Captain Klahr and Lieutenant Parson. A review of Plaintiffs’ proposed second amended

complaint, drawing all inferences in their favor, indicates that Captain Klahr and Lieutenant

Parson were supervisors at the DCBC and were two of seven people who responded to the

decedent’s cardiac arrest while at the booking center. (Doc. No. 158-2 ¶¶ 13–14, 113.) Those

factual allegations fail to establish that Captain Klahr and Lieutenant Parson were policymakers

who were deliberately indifferent to the consequences of a policy, practice, or custom that

directly caused the constitutional harm. The factual allegations also fail to establish that Captain

Klahr and Lieutenant Parson can be held personally liable because they do not demonstrate that

Captain Klahr and Lieutenant Parson personally participated in allegedly violating Thomas’s

rights, directed others to violate them, or had knowledge of and acquiesced in the allegedly

unconstitutional conduct of their subordinates. See A.M. ex rel. J.M.K., 372 F.3d at 586 (stating

that a supervisor may not be held personally liable under Section 1983 without evidence of

participation in, directing others, or having knowledge of and acquiescing in the unconstitutional

conduct). Plaintiffs allege no other facts relating to Captain Klahr and Lieutenant Parson’s

actions related to Thomas, or how those actions implicate them in the failure to supervise and

failure to render medical care claims. See generally (Doc. No. 158-2). Therefore, Plaintiffs fail

to state a Section 1983 claim against Captain Klahr and Lieutenant Parson upon which relief may

be granted in their proposed second amended complaint, and therefore the Court concludes that

amendment to include such claims against them would be futile.

(2) Barnett

As to Barnett, the Court concludes that Plaintiffs’ allegations plausibly support a personal

liability claim against a supervisor under Section 1983. Plaintiffs’ proposed second amended

complaint provides the following allegations against Barnett for failure to train, supervise,

control or discipline and failure to render medical care under Section 1983:

• Angela Barnett [], a registered nurse employed by Defendant Primecare and

having a main place of business at 3490 Locust Lane, Harrisburg,

Pennsylvania[] 17109. At all times relevant hereto, Defendant Barnett was

Prime[c]are’s Director of Nursing assigned to work at D[auphin County

Prison][.]

• Defendant Funck reported [] Thomas’[s] blood pressure and her suspicions

of drug ingestion to Defendant Barnett.

• Upon receiving information from Defendant Funck that [the decedent] had

ingested cocaine, had cocaine on his upper lip, and had a blood pressure

reading of 177/93, Defendant Barnett decided to keep [the decedent] at

D[auphin County Prison] instead of sending him to a hospital for emergency

medical treatment.

See (Doc. No. 158-2 ¶¶ 30, 107–08).

The proposed second amended complaint alleges that Barnett, as the director of nursing,

made the medical decision to keep Thomas at the DCBC despite Funck’s reporting to her that he

may have ingested drugs and had an elevated heartrate. (Doc. No. 158-2 ¶¶ 30, 106–08.) In

other words, the allegations of the proposed second amended complaint plausibly suggest that

Barnett participated in the alleged violation of the decedent’s rights. Therefore, Plaintiffs’

proposed second amended complaint plausibly states a claim of personal liability of a supervisor

for failure to supervise and for failure to render medical care under Section 1983. See A.M. ex

rel. J.M.K., 372 F.3d at 586 (citation omitted) (recognizing participation in the violation of rights

as a way of establishing personal liability under Section 1983). Accordingly, the Court

concludes that amendment to include a Section 1983 claim against Barnett would not be futile.

(3) Corporal Johnsen

The Court lastly addresses Corporal Johnsen’s argument that amendment would be futile

as to him. Plaintiffs’ proposed second amended complaint provides the following allegations

against Corporal Johnsen for failure to train, supervise, control or discipline under Section 1983:

• [Corporal] Johnsen, a supervisory [p]olice [o]fficer with Harrisburg Police,

having a main place of business at 123 Walnut Street, Harrisburg,

P[ennsylvania][] 17110. At all times relevant hereto, [Corporal Johnsen]

participated in and was the cause of [the] decedent[’s] death.

• At approximately 6:22 p.m., [Corporal] Johnsen arrived at the location of

the traffic stop.

• Upon his arrival, Defendant Kinsinger informed [Corporal] Johnsen that he

had also reached the conclusion that [the] [d]ecedent had ingested crack

cocaine.

• [Corporal] Johnsen warn[ed] [the] decedent [] that he could possibly die

from ingesting drugs.

• In total, Defendants Foose, Kinsinger, Johnsen, Salazar, Banning, and

Carriere [] had observed the following of [Thomas]: [h]e spoke as if he had

‘cotton mouth;’ [h]e had a large amount of an unknown item inside of his

mouth; [h]e never spit out the large unknown item; cocaine rocks fells from

his shirt and were all around where he sat in the car despite his assertion

that he only had marijuana on his person; [h]e had a white substance on his

lips and shirt; and [n]o candy cigarettes or candy cigarette box were found

despite his assertion that the white substance was the result of eating candy

cigarettes.

• [T]he officers on the scene subsequently made a decision to have Defendant

Carriere transport [Thomas] to the D[CBC] for the purposes of detaining

and processing [him] as an arrestee.

See (Doc. No. 158-2 ¶¶ 20, 60–62, 74, 77). The proposed second amended complaint also

asserts that Corporal Johnsen has “exclusive management and control of the policies and

practices of the Harrisburg Police Department” and “the polices, customs, practices[,] and usages

that exist were reinforced by the behavior of [Corporal] Johnsen, a supervisor who directly

participated in the decision to send [the decedent] to the [DCBC] instead of a hospital.” See (id.

¶¶ 134, 138). Plaintiffs further allege in the proposed second amended complaint that

“[Corporal] Johnsen’s unlawful actions perpetuated the policies, customs, practices, and usages

within the Harrisburg Police Department that led to the ignoring of obvious needs for medical

attention and failing to render emergency medical care to persons in custody.” See (id. ¶ 139).

Corporal Johnsen argues that Plaintiffs’ proposed second amended complaint fails to link

his position as corporal with that of a policy or decision-making position sufficient to assert a

claim of failure to supervise. (Doc. No. 172 at 3.) He further argues that Plaintiffs are

attempting to allege a Monell claim against him instead of the City of Harrisburg, against whom

Plaintiffs voluntarily withdrew their claim. (Id. at 5.) The Court agrees that the factual

allegations in Plaintiffs’ proposed second amended complaint do not support a claim that

Corporal Johnsen is liable as a policy or decision-maker under Section 1983. Plaintiffs’

proposed second amended complaint avers that Corporal Johnsen was informed that Thomas had

likely ingested crack cocaine and he observed the decedent with a white substance on his lips and

shirt and speaking as if he had cotton mouth. It also alleges that Corporal Johnsen warned the

decedent of possible death from the ingestion of drugs yet decided to have the decedent

transported to the DCBC for arrest processing instead of seeking medical attention for the

decedent. Although those factual allegations suggest a claim against Corporal Johnsen for

personal liability as a supervisor who participated in a constitutional violation under Section

1983, the proposed second amended complaint seeks to assert that Corporal Johnson is liable as a

policymaker. (Doc. No. 158-2 ¶¶ 134, 138–39.) For the proposed second amended complaint’s

Section 1983 failure to supervise claim against Corporal Johnson to not be deemed futile as

written, it would have needed to allege facts that suggest that Corporal Johnsen “with deliberate

indifference to the consequences, [] established and maintained a policy, practice or custom

which directly caused [the] constitutional harm.” See A.M. ex rel. J.M.K., 372 F.3d at 586

(emphasis added) (quoting Stoneking, 882 F.2d at 725). Because the proposed second amended

complaint is devoid of any factual allegations that Corporal Johnsen established any policy,

practice, or custom that directly caused the constitutional harm, Plaintiffs’ proposed second

amended complaint fails to state a claim against him as a policymaker for failure to train,

supervise, or discipline under Section 1983. Accordingly, the Court finds that the amendment to

include a Section 1983 failure to supervise claim against Corporal Johnsen would be futile.

IV. CONCLUSION

Because Plaintiffs cannot overcome the statute of limitations bar to asserting claims

against Funck and Corrections Officers Shay, Ceresini, and Brandt pursuant to Federal Rule of

Civil Procedure 15(c)(1)(C), and because the proposed second amended complaint would be

futile as to Captain Klahr, Lieutenant Parson, and Corporal Johnsen, the Court will deny

Plaintiffs’ motion for leave to file a second amended complaint insofar as it seeks to add Funck,

Captain Klahr, Lieutenant Parson, and Corrections Officers Shay, Ceresini, and Brandt as

defendants and Corporal Johnsen to the failure to supervise claim formerly asserted against the

City of Harrisburg. The Court will otherwise grant Plaintiffs’ motion and permit Plaintiffs to file

a second amended complaint alleging claims against CO McKillop and Barnett. An appropriate

Order follows.