DUNCAN v. CITY OF PATERSON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHAQUANA D. DUNCAN as general

administrator and administrator

No. 20-cv-08471 (MEF)(AME)

ad prosequendum of the estate of

JAMEEK LOWERY,

OPINION and ORDER

Plaintiff,

v.

CITY OF PATERSON, NEW JERSEY, et

al.,

Defendants.

Table of Contents

I. Background

A. The Facts

B. Procedural History

C. The Motions

D. The Court’s Approach

II. The City

A. Supervision

1. Public Complaints

2. The Junior Officers

3. Paperwork

4. The Veteran Officer

5. The Evidence as a Whole

B. Training

1. The Junior Officers

2. The Veteran Officer

3. The Evidence as a Whole

C. Conclusion

III. The Officers

A. The Legal Standard

B. The Administrator’s Cases

IV. State Claims

V. Conclusion

* * *

A man was having a medical emergency, and police officers aided

him; he then lashed out physically, and the officers restrained

him. Two days later, the man died.

The administrator of the deceased man’s estate sued. She named,

among others, the police officers and their employer, the City

of Paterson.

The officers and the City now move for summary judgment.

The motions are mainly granted.

* * *

I. Background

A. The Facts

As relevant for now, the undisputed facts are as follows.

Early on the morning of January 5, 2019, a man had a medical

episode after using drugs. See Def.’s Statement of Undisputed

Material Facts Pursuant to F.R.C.P. 56.1(a) in Supp. of its Mot.

for Summ. J. (“City’s Facts”) (ECF 103–1) ¶ 1–2; Pl.’s Resp. to

Def. City of Paterson’s Statement of Undisputed Material Facts

(“Resp. to City’s Facts”) (ECF 104-2) ¶ 1–2.

He came to the Paterson Police Department headquarters in

distress, foaming from the mouth and “‘delirious.’” See City’s

Facts ¶¶ 55, 59; Resp. to City’s Facts ¶¶ 55, 59.1

1 Earlier that morning, an ambulance had taken the man to a

local hospital. He ran back and forth in the waiting room and

jumped on the registration desk. Hospital security escorted him

to a taxi; the taxi was driving the man home when, at a red

Police called an ambulance. See City’s Facts ¶ 69; Resp. to

City’s Facts ¶ 69.

But when it arrived, the man ignored a direction to go towards

it. See City’s Facts ¶ 71; Resp. to City’s Facts ¶ 71.

Three police officers2 then started escorting the man toward the

ambulance; at that point, he began walking in the right

direction and got in. See City’s Facts ¶ 72; Resp. to City’s

Facts ¶ 72.

Inside the ambulance, the man’s demeanor changed. See City’s

Facts ¶ 75; Resp. to City’s Facts ¶ 75. He began hitting and

kicking the officers. See City’s Facts ¶¶ 75–76; Resp. to

City’s Facts ¶¶ 75–76.

The officers restrained the man; they pinned him3 on a stretcher

in the ambulance. See id. City’s Facts ¶¶ 78–79; Resp. to

City’s Facts ¶¶ 78–79.

The ambulance took the man to a hospital; two days later, he

died. See City’s Facts ¶¶ 2, 107; Resp. to City’s Facts ¶¶ 2,

107.

B. Procedural History

As to the man who passed away, the woman who is the

administrator of his estate4 filed a lawsuit. See First Amended

Complaint (“Complaint”) (ECF 31) ¶ 5.

From here, she is called “the Administrator.” And the man who

died is called “the Plaintiff.”

The lawsuit named two sets of defendants.

light, he got out of the car and ran toward police headquarters.

See City’s Facts ¶¶ 9, 12, 18, 21, 25, 37, 40–41, 48; Resp. to

City’s Facts ¶¶ 9, 12, 18, 21, 25, 37, 40–41, 48.

2 Michael Avila, Mucio Lucero, and Kyle Wanamaker.

3 Seemingly using handcuffs, though the record on this point is

not crystal clear. See City’s Facts ¶¶ 78–79; Resp. to City’s

Facts ¶¶ 78–79.

4 Shaquana D. Duncan.

* * *

First, the Administrator sued the three police officers involved

in the above-described events. These officers are the main

focus here, so they are called “the Defendants.”5

As to the Defendants, the lawsuit includes (a) a federal claim

and (b) four claims under New Jersey law.6

The federal claim (Count I) alleges use of excessive force in

violation of the Fourth Amendment to the United States

Constitution. See Complaint ¶¶ 36–42. The cause of action

comes from 42 U.S.C. § 1983. See id. ¶ 42.

One state claim (Count VII) is for wrongful death under N.J.S.A.

2A:31–1 et seq. See id. ¶¶ 80–85. Another is for survival

damages (Count VIII) under N.J.S.A. 2A:15–3. See id. ¶¶ 86–88.

And then there are common-law claims --- for excessive force,

see id. ¶¶ 57–61 (Count III), and assault and battery, see id.

¶¶ 62–67 (Count IV).

* * *

Second, the Administrator sued the Defendants’ employer, the

City of Paterson (“the City”).7

As to the City, the complaint includes (a) a federal claim and

(b) three claims under New Jersey law.

The federal claim (Count II) is for municipal liability related

to alleged underlying Fourth Amendment violations. See id.

5 Recall: Michael Avila, Mucio Lucero, and Kyle Wanamaker.

6 From reading the complaint, it is hard to tell which counts

run against which defendants. But the Administrator’s briefs

clear things up. See Br. in Opp. to Def. Officer Mucio Lucero’s

Mot. for Summ. J. (“Opp. to Officer Lucero”) (ECF 105) at 1; Br.

in Opp. to Def. Officer Kyle Wanamaker[’s] Mot. for Summ. J.

(“Opp. to Officer Wanamaker”) (ECF 106) at 1; Br. in Opp. to

Def. Officer Michael Avila’s Mot. for Summ. J. (“Opp. to Officer

Avila”) (ECF 107) at 1.

7 The Administrator sued other defendants, too. This Opinion

and Order does not concern them.

¶¶ 43–56. The cause of action is again provided by 42 U.S.C.

§ 1983. See id. ¶ 56.

The New Jersey law claims against the City: one (Count VII) for

wrongful death under N.J.S.A. 2A:31–1 et seq, see id. ¶¶ 80–85;

another (Count VIII) for survival damages under N.J.S.A. 2A:15–

3, see id. ¶¶ 86–88; and a third (Count V) for negligent

retention and supervision. See id. ¶¶ 68–74.

C. The Motions

Four motions for summary judgment are before the Court.

One from each of the three Defendants, and one from the City.

See Mem. of Law in Supp. of the Defs.’ Mot. for Summ. J.

(“Officer Lucero’s Br.”) (ECF 99-1); Br. in Supp. of Def.’s Mot.

for Summ. J. (“Officer Avila’s Br.”) (ECF 100); Def. Kyle

Wanamaker’s Br. in Supp. of His Mot. for Summ. J. Pursuant to

Fed. R. Civ. P. 56 (“Officer Wanamaker’s Br.”) (ECF 101-2); City

of Paterson’s Mem. of Law in Supp. of Its Mot. for Summ. J.

(“City’s Br.”) (ECF 103).

D. The Court’s Approach

In Part II, the Court takes up the City’s summary judgment

motion8 as to the federal claim against it.

8 The normal rules for working through a summary judgment motion

are in play throughout this Opinion and Order. “[A] district

court may not make credibility determinations or engage in any

weighing of the evidence[.]” Marino v. Indus. Crating Co., 358

F.3d 241, 247 (3d Cir. 2004). And a district court must “view

the facts in the light most favorable to the non-moving party

and draw all reasonable inferences in that party’s favor.”

Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 345 (3d Cir.

2022) (cleaned up); accord Tolan v. Cotton, 572 U.S. 650, 660

(2014). To win on summary judgment, a party must show two

things: first, “that there is no genuine dispute as to any

material fact”; and second, that it “is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a); see also Dupree v.

Younger, 598 U.S. 729, 737 (2023); Cellco P’ship v. White Deer

Twp. Zoning Hearing Bd., 74 F.4th 96, 100 (3d Cir. 2023).

The Court’s conclusion: the motion must be granted, because the

evidence does not support either a viable failure-to-supervise

claim or a viable failure-to-train claim.

In Part III, the Court assesses the Defendants’ motions as to

the federal claims against them.

The Court’s conclusion: the motions must be granted, because the

Defendants have qualified immunity.9

In Part IV, the Court considers the various New Jersey law

claims against the City and the Defendants. As to those, the

Court declines to exercise jurisdiction.

II. The City

As to the City’s summary judgment motion on the federal claim

against it, start with some legal background.

A damages claim can generally get off the ground only when two

things are put on the table --- (a) a relevant substantive body

of law, and (b) a cause of action that allows for a lawsuit

under that body of law. See Rxeed LLC v. Caremark LLC, 771 F.

Supp. 3d 495, 498 (D.N.J. 2025).

9 In a bread-and-butter tort suit in which the key events are an

agent’s actions, the fact that the agent is not liable typically

means that the principal cannot be liable. See, e.g., Morales

v. Town of Johnston, 895 A.2d 721, 728 (R.I. 2006); Hatcher v.

Bellevue Volunteer Fire Dep’t, 262 Neb. 23, 36 (2001); Lincoln

v. Gupta, 142 Mich. App. 615, 622 (1985); 2A C.J.S. Agency

§ 452. But that is not how things generally work when then it

comes to Section 1983 and constitutional torts. A municipality

(the principal) can potentially be liable under Section 1983

even if its employees (the agents) have immunity (here,

qualified immunity), and therefore are not themselves liable for

that reason. See Owen v. City of Independence, 445 U.S. 622,

638 (1980); Collins v. City of Harker Heights, 503 U.S. 115, 122

(1992); Mervilus v. Union County, 73 F.4th 185, 196 (3d Cir.

2023); In re City of Phila. Litig., 49 F.3d 945, 975 (3d Cir.

1995) (Scirica, J., concurring); Bittner v. Snyder County, 345

F. App’x 790, 792 (3d Cir. 2009); First Midwest Bank Guardian of

Est. of LaPorta v. City of Chicago, 988 F.3d 978, 992 (7th Cir.

2021). That is why the Court (in Part II) takes up the City’s

possible liability --- even though the Court concludes (in Part

III) that the City’s agents, the Defendant-police officers, are

not liable, because they have qualified immunity.

In this case, as noted, the Administrator points to the Fourth

Amendment as the source of the substantive law that is said to

be in play. See Part I.B; see also Complaint ¶ 55 (invoking the

“Fourth Amendment [r]ight[] to be free from excessive force at

the hands of the police”).

And the Administrator invokes Section 1983 as her cause of

action. See id. ¶ 56.

That cause of action carries with it certain limits on who can

be sued and in what circumstances. And some of those limits are

central to the analysis here.

Take them up now.

* * *

Employers are often liable for the on-the-job torts of their

employees. See 1 American Law of Torts § 4:3; 1 Modern Tort

Law: Liability and Litigation § 7:15 (2d ed. 2025)

But Section 1983 shifts this background rule to an extent.

Under Section 1983, a municipality is not held to account for

everything its employees do. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 691–92 (1978).

Rather, a municipality is typically responsible for its

employees’ actions only in two main circumstances.

First, if the employees’ conduct was tied in a tight enough way

to an affirmative (and improper) municipal policy or custom.

See Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019).

And second, if the municipal employees’ conduct was linked to a

passive failure on the part of the municipality --- like a

failure by the municipality to properly train or supervise its

employees. See id.

Here, the Administrator invokes the second theory.

She argues: the City is liable for the actions of the

Defendants, its employees, because it did not do enough in the

way of police supervision or training. See Complaint ¶¶ 53–55.

Consider, first, the Administrator’s failure-to-supervise claim,

see Part II.A, and then her failure-to-train claim. See Part

II.B.

A. Supervision

To establish municipal liability on a Section 1983 failure-to-

supervise theory, the Administrator must show that the asserted

failure amounted to “a deliberate or conscious choice,” Forrest,

930 F.3d at 105 (cleaned up), the “functional equivalent of a

decision by the city itself to violate the Constitution.”

Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (cleaned up).

To clear this bar, the Administrator offers four failure-to-

supervise arguments.

These are discussed below --- each in turn, and then together.

1. Public Complaints

The Plaintiff’s first failure-to-supervise argument: the City

did not properly work through complaints made by members of the

general public against its officers. See Br. in Opp. to Def.

City of Paterson’s Mot. for Summ. J. (“Opp. to City”) (ECF 104)

at 9, 14–15.10

To support this argument, the Administrator mainly points to a

statistic: the City did not sustain11 any of the 27 use-of-force

complaints it received during 2013 to 2019. See Opp. to City at

9; Officer Lucero’s Mot. for Summ. J., Ex. 11 (“Ex. 11”) (ECF

99-11), at 106–12.12

10 Like many municipalities, the City has a system in place for

(a) receiving public complaints about police officers’ conduct;

(b) adjudicating the complaints to see if they hold up; and, if

they do, (c) disciplining officers as may be appropriate. See

City’s Facts ¶¶ 125, 129, 133; Resp. to City’s Facts ¶¶ 125,

129, 133.

11 A “sustained” complaint is one that has been investigated and

has been found to be well-enough grounded in the facts of what

happened.

12 Two things. First, at one point the Administrator suggests

the City did not have any process for reviewing officers’ use-

of-force incidents. See Opp. to City at 9. But the record

includes a seven-page chart that lists out complaints received

in 2013–19, along with the outcome of the review of each. See

Ex. 11 at 106–12. Second, the Administrator asserts that the

City failed to “sustain,” see footnote 11, any excessive-force

complaints. See Opp. to City at 9. But this glides over

Under Third Circuit law, statistics like this can matter.

To see how, look to three key cases.

* * *

The stepping off point is Beck v. City of Pittsburgh, 89 F.3d

966 (3d Cir. 1996).

There, the Third Circuit suggested that a police force’s low

sustained rate can help to make out the case for municipal

liability. See id. at 975.

But Beck also implies that “mere statistics” are generally not

enough, by themselves, to establish that a city has not properly

supervised its officers. See id. at 973, 975.

Per the Third Circuit in Beck, the city in question had a

“sterile and shallow” way of doing its investigative work. That

hived off complaints one from the next, and made it hard to see

whether complaints might be best understood as part of a broader

pattern. See id. at 973.

The city also disregarded witness testimony “merely because the

witnesses had accompanied the complainant at the time of the

incident,” id., while accepting an officer’s response at face

value. See id.

And the city did not have a “formal system in place for tracking

complaints.” See id. at 975.

In the end, all of this added up. A reasonable jury, the court

of appeals held, could find that the city was liable. See id.

at 975-76.

Not, it seems, just because of the numerical data the plaintiff

came forward with. But because the plaintiff had gone further.

He “presented considerably more than mere statistics.” Id. at

975.

evidence that pushes the other way. The report from the

Administrator’s expert shows two partly sustained force-related

complaints. One for an incorrect use-of-force report in 2013

and another for similar reasons in 2014. See Ex. 11 at 112.

And in 2014, a third excessive-force complaint resulted in a

referral to prosecutors. See id. at 111.

Move now to Estate of Roman v. City of Newark, 914 F.3d 789 (3d

Cir. 2019).

In Roman, the Third Circuit threw a disapproving spotlight on

the city’s sustained-complaint rate. It was “troubling,” the

court of appeals indicated, that city investigators sustained

“only one complaint out of 261 filed.” Id. at 801.

It is not perfectly clear that the 1/261 ratio made a bottom-

line difference. The court of appeals held that a plausible

claim for municipal liability had been made out before it got to

the city’s low sustained rate. See id. at 800.

But assuming that the 1/261 sustained rate provided a basis for

city liability, it was hardly the only basis.

The allegations the Third Circuit dwelled on in Roman were,

among others, that the city in question failed to train its

officers on the law of search and seizure. See id. at 800–02.

That it conducted a significant number of searches “without

legal justification.” See id. at 800 (cleaned up). That its

investigative reports were untruthful. See id. That it

fostered “a culture in which officers ‘knew there would be no

professional consequences for their actions.’” Id. at 801

(cleaned up). And that it had entered into a recent consent

decree with federal authorities in light of serious policing

failures. See id. at 797.

In Roman, in short, overall numbers may have been a piece of the

story. But they did not sit out on an island, alone. The

numbers were paired up with other allegations, which pushed in

the same rough direction, toward municipal liability.

In Roman as in Beck, there was “considerably more than mere

statistics,” Beck, 89 F.3d at 975 --- and the court of appeals

held that the plaintiff’s claim stood up against the city.

Look, finally, to Forrest v. Parry, 930 F.3d 93 (3d Cir. 2019).

For a four-year period, seven of a city’s 622 complaints of

serious misconduct were sustained, a rate of around 1%. See id.

at 102.

This mattered.

The Third Circuit seemed to refer to this statistical evidence,

see id. at 108, in holding that that a reasonable jury could

find that the city was liable for failing to supervise its

officers. See id. at 108-09.

But again, the sustained-rate number did not, alone, seal the

deal for the plaintiff. It was “combined,” id. at 108, with

other evidence, that the Third Circuit walked through at length.

See id. at 101–04.

Evidence that investigations never took place because of “an

extensive, recurring backlog.” See id. at 101–02. That those

investigations “that were conducted were seriously deficient.”

Id. at 102. That investigators based their conclusions “solely”

on what police officers had to say. See id. That the

department did not conduct performance reviews. See id. That

it did not track officers’ whereabouts. See id. And that it

maintained an off-kilter sergeant-to-officer ratio. See id.

* * *

Beck, Roman, and Forrest point in the same direction.

Namely:

When it comes to handling complaints from the general public, a

low sustained rate can help to establish a city’s failure-to-

supervise liability under Section 1983, but typically as a part

of a broader mix of “troubling”13 information --- as to subpar

policing practices (as in Roman) or as to the way complaint

investigations tend to unfold (as in Beck, Roman, and Forrest).

In a nutshell, the Third Circuit’s approach is holistic.

Accord, e.g., Strauss v. City of Chicago, 760 F.2d 765, 768–69

(7th Cir. 1985).

“[M]ere statistics,” Beck, 89 F.3d at 973, 975, do not generally

do it. The focus is zoomed out, on the fuller body of

information. The quantitative evidence, including a low

sustained rate as to public complaints. And also the

qualitative evidence --- as to how, for example, investigations

of public complaints are generally conducted.14

13 Roman, 914 F.3d at 801.

14 Why look beyond statistics? One reason: without kicking the

tires by looking to qualitative information, it can be tricky to

know whether a low rate is or is not a surface indication of

potentially improper practices. Think of a police department

that aims to pull down barriers to entry for complaints from the

* * *

Come back now to this case.

All of the above suggests this: the City’s low-seeming sustained

rate for public complaints moves the needle in the

Administrator’s direction on her failure-to-supervise claim; but

it does so only to a limited extent.

That is consistent with the Third Circuit’s approach in Beck,

Roman, and Forrest.

* * *

And another point.

general public. It might decide to intake complaints not just

in station houses, but also via text messages or social media.

To accept complaints in English and also in other languages.

And to say yes to complaints that have names attached --- and

also to those that come in anonymously. Cf. Joanna C. Schwartz,

What Police Learn from Lawsuits, 33 Cardozo L. Rev. 841, 865–67

& nn.143–44 (2012) (describing police efforts to receive more

complaints). All of this would likely push up on the number of

complaints received. See John L. Worrall, If You Build It, They

Will Come: Consequences of Improved Citizen Complaint Review

Procedures, 48 Crime & Delinquency 355, 375 (2002) (so finding,

based on a study of hundreds of police departments). But all of

this might also change the mix of incoming complaints --- so

that while the denominator (of total incoming complaints) gets

larger, the numerator (of sustained claims) does not grow in

precise lock-step. Anonymous complaints, for example, may

potentially be less reliable. (Our law presumes this in a range

of contexts. See, e.g., Wu v. GSX Techedu Inc., 738 F. Supp. 3d

527, 541 (D.N.J. 2024) and id. n.12.) Therefore, such

complaints may be less likely to be sustained. Or, to stick

with the example, anonymous complaints may be plenty reliable --

- but harder to sustain as a practical matter because, without

an easy-to-locate complaining witness to talk to, they are

especially challenging to investigate. In short: to know what

to make of a low-seeming sustained rate, more information may

well be needed to thoughtfully interpret the top-line number.

And this implies the need to range more broadly --- to look for

more than “mere statistics,” to fold qualitative evidence into

the mix.

In this case, there are two additional reasons to think that the

sustained rate, standing alone, is not especially telling.

* * *

To see the first reason, note that when a statistic is expressed

as a percentage (as in the case of a sustained rate), it is

formed by dividing a denominator (number of total complaints) by

a numerator (number of sustained complaints). The reliability

of the percentage depends in part on how big the denominator is.

A smaller denominator is generally less reliable. See

generally, e.g., Charity J. Morgan, Use of Proper Statistical

Techniques for Research Studies with Small Sample Sizes, 313 Am.

J. Physiology L873 (2017); cf. Honda Motor Co. v. Oberg, 512

U.S. 415, 433 n.11 (1994) (“It is well known that one cannot

draw valid statistical inferences from such a small number of

observations.”).

In Roman, the sustained rate was based on a denominator of 261.

See 914 F.3d at 801. In Forrest, the sample size was 622. See

930 F.3d at 102. In Beck, there were 188 total complaints. See

Beck, 89 F.3d at 975.

Here, the number is much smaller --- 27 use-of-force complaints.

See Ex. 11 at 106–12.

If, in general, “mere statistics,” Beck, 89 F.3d at 973, 975,

are meaningfully clarifying only when they are paired up with

qualitative evidence, then there is special reason to look to

qualitative back-up where, as here, there is relatively less to

go on, when the denominator is much smaller.

After all, in small-sample-size cases like this one, the top-

line sustained-rate number starts off on its back foot. It can

bear less weight by itself because it is less reliable than it

would be if the sample size were large --- as it was in Roman,

Forrest, and Beck.

* * *

And there is a second reliability issue here, too.

Looking to “mere statistics” can be precarious not just when

there is a small denominator, but also when there may be issues

with the numerator --- bona fide questions as to how to classify

data on the road to generating a reasonably accurate (and

therefore useful) sustained rate.

A 1 percent sustained rate (as in Forrest, see 930 F.3d at 102)

seems low. A .38 percent rate (as in is Roman, see 914 F.3d at

801) is lower yet.

And here, the Administrator says, the sustained rate is rock-

bottom, 0 percent. See Opp. to City at 9.

But is 0 percent the right way to think about things?

What to make of the complaint investigation that led to a

criminal referral, to the case being sent to prosecutors? See

footnote 12. If that counts as sustained (and why would it

not?) the sustained rate here is suddenly a good deal higher ---

nearly 4 percent.

And how to count the two partly sustained complaints? See id.

Are they to be chalked up as sustained? (In which case the

overall sustained rate is 11 percent.) Or maybe each partially

sustained complaint should count as half sustained? (For a rate

of 7 percent.)

On a harder look, is the sustained rate here 0 percent, as the

Administrator suggests? Or is it better understood as running

at a higher clip --- at 4 percent or a bit more?

These questions, which the Administrator does not take on, make

it that much more difficult to analyze the data, and therefore

to draw reliable enough inferences based on it.

And that is another reason why, in this case, there is an added

basis for looking to qualitative evidence, as a supplement to

the sustained rate statistic.

* * *

Where things stand:

The Administrator has put forward data as to the City’s

sustained rate. See Opp. to City at 9.

But these are “mere statistics.” Beck, 89 F.3d at 973, 975.

They largely stand alone.

The top-line number is not accompanied by telling qualitative

evidence. There are no indications, for example, that City

investigators generally based their conclusions just on an

officer’s word, see Forrest, 930 F.3d at 102, or did not

investigate most complaints, see id., or failed to track the

complaints that came in. See Beck, 89 F.3d at 974.

And in this case, there are particular reasons not to lean too

heavily on just the sustained rate.

First, the sample size here is relatively small. And second,

the sustained rate may not, in fact, be as straightforward to

calculate (or as low) as the Administrator suggests.

Given all this, while the low-seeming sustained rate tilts the

scale a bit in the Administrator’s direction, it does not do so

very far --- and certainly not far enough to make out a

potentially viable failure-to-supervise claim.

2. The Junior Officers

Move away now from the sustained rate, and take up the second

asserted basis for the Administrator’s failure-to-supervise

claim.

Namely, the Administrator emphasizes that the City paired

together for patrol two of the Defendant-officers,15 each of whom

had less than six months on the force.16 See Opp. to City at 13–

14.

* * *

But the Administrator does not explain how this might veer near

the “functional equivalent of a decision by the city itself to

violate the Constitution.” Connick, 563 U.S. at 61–62 (cleaned

up).17

15 Mucio Lucero and Kyle Wanamaker.

16 How did the junior officers become involved here? They were

patrolling City streets when a dispatcher summoned them to

police headquarters to help with the Plaintiff. See City’s Mot.

for Summ. J., Ex. H (“Wanamaker Dep.”) (ECF 103-8) at 22–24; see

also City’s Facts ¶ 57; Resp. to City’s Facts ¶ 57.

17 For its part, the City argues that the two-person pair-up was

a good thing, that it shows that the officers were “eased into

patrol and not ‘set loose’ onto the streets” by themselves.

Def., City of Paterson’s Reply Mem. of Law in Further Supp. of

its Mot. for Summ. J. (ECF 109) at 9; contrast United States v.

McGibney, 2021 WL 2411389, at *1 (N.D. Ind. June 14, 2021)

(“Despite being a probationary officer, Youpel patrolled on his

own, without a partner or supervising trooper.”).

And if there is evidence that sending out two junior officers

generally presents serious risks, then that is for the

Administrator to come forward with. See Bd. of Cnty. Comm’rs v.

Brown, 520 U.S. 397, 404 (1997).

She has not done so.

* * *

And another point: the Administrator “bears the burden of

proving that the municipal practice was the proximate cause of

the injuries suffered.” Beck, 89 F.3d at 972 n.6.

But here, too, she falls short.

The Administrator has not tried to show that sending out two

junior officers to patrol together was “the proximate cause” of

the Plaintiff’s injury --- that is, “a substantial contributing

factor in bringing about the harm alleged.” Robertson v. Allied

Signal, Inc., 914 F.2d 360, 366–67 (3d Cir. 1990).

3. Paperwork

The Administrator’s third failure-to-supervise argument: the

Defendants submitted erroneous use-of-force reports after the

incident involving the Plaintiff, and their superiors approved

the reports. See Opp. to City at 13.

But again: to establish municipal liability a causal chain must

run from the asserted supervisory failure (here, related to

subpar paperwork) to the resulting injury (to the Plaintiff).

See A.A. by Alcis v. Sch. Dist., 2020 WL 6822963, at *6 (E.D.

Pa. Nov. 19, 2020) (citing Reitz v. County of Bucks, 125 F.3d

139, 145 (3d Cir. 1997)); Moore v. City of Desloge, 647 F.3d

841, 849 (8th Cir. 2011); cf. Lujan v. Defs. of Wildlife, 504

U.S. 555, 560 (1992).

But the incident reports here were put together after the

incident. How they might have caused the incident in the first

place is not explained by the Administrator.18

18 In some circumstances, failure to complete post-incident

paperwork by a particular set of officers might be taken as

proof of a preexisting failure to properly fill out reports.

Time 1 paperwork gaps can make supervision more difficult at

Time 2 --- maybe to the point of helping to establish a failure-

to-supervise claim based on Time 3 officer actions. See Beck,

4. The Veteran Officer

The Administrator’s final argument: the City, she argues, failed

to properly supervise one of the Defendants here --- Michael

Avila, who had been the subject of complaints from members of

the public, and had been disciplined. See Opp. to City at 14.

To evaluate this argument, start with the facts then look to the

law.

* * *

Officer Avila had served 14 years on the City’s police force at

the time of the incident. See City’s Mot. for Summ. J., Ex. J

(“Avila Dep.”) (ECF 103-10) at 16:17–24.

During those years, he was the subject of around 30

investigations. See City’s Br. at 10 (citing City’s Mot. for

Summ. J., Ex. V (“Ex. V”) (ECF 103-23)). Eight of these

involved allegations of excessive force. See id. Of the eight,

one was sustained. See id; Ex. V at 56.

The details as to what happened in that incident are sparse.

But it appears undisputed that Officer Avila pushed someone to

the ground after she scratched his eye. See Avila Dep. at

123:14–16; see also Opp. to Officer Avila at 7 (adopting this

version of events).

For that violation, the City suspended Officer Avila for 90

days. See Opp. to Officer Avila at 7. After the suspension, it

appears that Officer Avila was taken off the beat and

transferred to the radio room for about one year. See Avila

Dep. (ECF 103-10) at 20:18–24. And after that, Officer Avila

was switched to the property room, where, to stay out of the

public eye, he worked for “[a]bout two and a half years.” Id.

at 22:12–23:11.

* * *

A city may be liable for failing to supervise an officer with a

poor disciplinary record. See, e.g., Vann v. City of New York,

72 F.3d 1040, 1051 (2d Cir. 1995).

89 F.3d at 974. The Administrator briefly suggests that this

may be what she is driving at. See Opp. to City at 9. But she

develops no meaningful argument along these lines.

But the test is difficult to pass.

The Second Circuit has long held that “deliberate indifference

may be inferred if the complaints are followed by no meaningful

attempt on the part of the municipality to investigate or to

forestall further incidents.” Vann, 72 F.3d at 1049 (emphasis

added).

And the Second Circuit’s Vann formulation, or a variant on it,

has been widely adopted.

Some circuits follow Vann expressly. See Baez v. Town of

Brookline, 44 F.4th 79, 83 (1st Cir. 2022); Johnson v. Halstead,

916 F.3d 410, 418 (5th Cir. 2019).

Others follow what is closely akin to the Vann rule ---

including the Eighth Circuit, see Harris v. City of Pagedale,

821 F.2d 499, 508 (8th Cir. 1987), and, in a series of

unreported cases, the Third Circuit. See Slaughter v. Rogers,

408 F. App’x 510, 512 (3d Cir. 2010); Panton v. Nash, 317 F.

App’x 257, 259 (3d Cir. 2009); Heggenmiller v. Edna Mahan Corr.

Inst. for Women, 128 F. App’x 240, 247 (3d Cir. 2005).

Vann’s “no meaningful attempt” is a hard mark for a plaintiff to

hit.

And applying the Vann standard, or something closely similar to

it, courts routinely hold that there is no “deliberate

indifference” when a city has attempted “to forestall further

incidents” by “meaningful[ly]” investigating or discipling a

violator. See, e.g., Slaughter, 408 F. App’x at 512; Panton,

317 F. App’x at 259; Heggenmiller, 128 F. App’x at 247; Keyes v.

Chamberlin, 2011 WL 113445, at *5 (W.D. Pa. Jan. 13, 2011);

Brown v. Easton, 2001 WL 722144, at *5 (E.D. Pa. June 25, 2001);

Poole v. City of Shreveport, 2020 WL 11025910, at *9 (W.D. La.

Dec. 30, 2020), aff’d, 13 F.4th 420 (5th Cir. 2021); Jackson v.

Vill. of Just., 2020 WL 1530734, at *4 (N.D. Ill. Mar. 31,

2020); cf. Jauquet v. Green Bay Area Cath. Educ., Inc., 996 F.3d

802, 808–09 (7th Cir. 2021).

* * *

The Administrator’s argument as to Officer Avila runs aground on

Vann.

Over a 14-year career, Officer Avila, as noted, was the object

of one sustained excessive-force complaint, for which he was

punished. See Ex. V at 56.

Was the punishment a “meaningful” attempt “to forestall further

incidents”? Vann, 72 F.3d at 1049.

As noted, Officer Avila was punished for pushing someone to the

ground after she scratched his eye. And he was punished with a

90-day suspension, seemingly followed by around three and a half

years of assignment to non-patrol duties.

The Administrator, who bears the burden, see King v. County of

Gloucester, 302 F. App’x 92, 99 (3d Cir. 2008), does not try to

show that this punishment was insufficiently “meaningful.”

Vann, 72 F.3d at 1049.

And winning on such an argument might well have been an uphill

climb for the Administrator. Courts have determined that lesser

punishments are enough to show that a city was not indifferent

to an officer’s prior use of excessive force. See, e.g., Poole,

2020 WL 11025910, at *8 (“‘3 day fine’” for unspecified incident

and “‘5 day fine’” for punching a suspect); Fonseca v. Alterio,

2006 WL 8446735, at *8 (D. Conn. Aug. 16, 2006) (three-month

suspension for excessive force); Brown, 2001 WL 722144, at *4–5

(two-month suspension for battering girlfriend followed by five-

week suspension for contacting her again).19

19 Two things. First, the Administrator’s brief alludes at one

point to a more modest argument. Namely, that the City’s

supervisory failure was not that Officer Avila was allowed to

patrol, but that he was allowed to do so unsupervised and

without a partner. See Opp. to City at 14. But this argument

is not developed. And the burden here is the Administrator’s.

Second, as indicated in the text, Officer Avila was the subject

of 8 excessive force complaints, one of which was substantiated.

In Beck, the Third Circuit seemed to reason from a flurry of

unsubstantiated complaints against an officer --- suggesting

that a large number of similar complaints in a “narrow” time

frame may itself be telling. See Beck, 89 F.3d at 973. But as

to that point, Beck was concerned with a period during which

there was one complaint every 5 or 6 weeks. See id. at 974.

Here, the frequency of complaints is greatly different. A

complaint every 10 or so months, 8 over 14 years. Moreover,

Beck focused on a situation in which complaints were not being

assessed in a fair or even-handed manner. See id. at 974-75.

Beck does not seem to hold that courts should reason from the

bare number of unsubstantiated accusations made against an

5. The Evidence as a Whole

To this point, the Court has explained why the Administrator’s

four arguments, taken individually, cannot form the basis for a

potentially winning Section 1983 failure-to-supervise claim.

Step back now to see the evidence as a whole. See Forrest, 930

F.3d at 107.

It is this:

The City received 27 excessive-force complaints in 2013 to 2018

and at least partly sustained a small number of them. See Part

II.A.1. The City allowed two junior officers to patrol

together, see Part II.A.2, and allowed a veteran officer with

one sustained use-of-force complaint to go out on the beat,

after he had been disciplined. See Part II.A.4. And it did not

ensure that certain officers accurately filled out incident

reports. See Part II.A.3.

Viewed all together, this evidence falls short of what it takes

to make out a municipal failure-to-supervise claim.

To see the point, compare the overall weight of the

Administrator’s evidence to what was on the table in Forrest,

where a failure-to-supervise claim survived summary judgment.

In Forrest, the plaintiff sued the City of Camden after an

officer admitted to having lied about the events leading up to a

drug raid. See 930 F.3d at 100. The plaintiff argued that

Camden failed to supervise its officers. See id. at 107.

The court of appeals agreed that the plaintiff’s evidence could

have convinced a reasonable jury of that, and so it reversed the

district court’s grant of summary judgment. See id. at 108–09.

What was the failure-to-supervise evidence? The Third Circuit

split it up into six parts. See id. at 101.

First, New Jersey’s attorney general had conducted five reviews

into Camden’s policing, each one warning that the city was

inadequately handling police misconduct. One report cautioned

that a failure to clear a 350-complaint backlog could count as

deliberate indifference. See id. at 101–02.

officer in cases like this one --- where no evidence has been

put forward of flaws in the complaints-investigation process.

Second, Camden did not clear the backlog. It investigated few

complaints. See id. at 102.

Third, the investigations that did occur “were seriously

deficient.” Id. Investigators failed to interview witnesses

and based conclusions “solely” on officers’ reports. See id.

Fourth, senior police officials testified that the department

struggled to track its officers’ whereabouts, failed to carry

out performance reviews (contrary to the attorney general’s

recommendation), and maintained a too-high sergeant-to-officer

ratio. See id. at 102–03.

Fifth, evidence showed that supervisors “had no concern” for

officers’ misconduct. Id. at 103. One officer testified that

his supervisor “‘most likely’” knowingly accepted false reports.

See id. at 103–04.

Sixth, officers engaged in egregious misconduct, such as

planting drugs or misappropriating narcotics, openly and without

consequence. See id. at 104.

In short, in Forrest the failure-to-supervise evidence was (a)

strong and (b) systematic.

But not here.

* * *

The evidence in this case is weakened by serious gaps.

The Administrator has come forward with “mere statistics,” Beck,

89 F.3d at 973, 975, as to City’s sustained rate. But the

numbers are not yeasted with qualitative evidence. See Part

II.A.1.

The Administrator has not explained why allowing two junior

officers to patrol together fell below appropriate standards.

See Part II.A.2.

She has not tied incident-report deficiencies to the cause of

the incident here. See Part II.A.3.

And the Administrator has not shown how the City’s punishment of

the veteran officer for a separate, earlier incident was not a

“meaningful attempt,” Vann, 72 F.3d at 1049, to ensure that the

officer conducted himself appropriately. See Part II.A.4.

In short: the component parts of the Administrator’s failure-to-

supervise evidence are not especially strong.

* * *

And the only substantial across-the-board evidence in this case

is of a low sustained rate. But “mere statistics” can only bear

so much weight. See Beck, 89 F.3d at 973, 975.20

And aside from that, there is simply a little here and a little

there. Nothing systematic. Three officers who did an

assertedly subpar job with their paperwork after a single

incident. See Opp. to City at 13. Two junior officers who were

allowed to patrol together. See id. at 13–14. And an officer

who had previously acted improperly --- but who was punished for

doing so. See id. at 14; Part II.A.4.

* * *

Looking at all this as a whole, the Court concludes that no

reasonable jury, see generally Mirena v. Exec. Jet Mgmt., Inc.,

760 F. Supp. 3d 224, 231-32 (D.N.J. 2024), could find that the

City can be liable here on a failure-to-supervise theory.

The undisputed evidence falls short of establishing that the

City made the “functional equivalent of a decision . . . to

violate the Constitution.” Connick, 563 U.S. at 61–62 (cleaned

up).

B. Training

Pivot away from failure to supervise, and move to the

Administrator’s second argument for why the City is liable here

--- its asserted failure to offer adequate training. See Opp.

to City at 4–15.

This, too, is an especially hard claim for a plaintiff to make

out.

Per the Supreme Court, “[a] municipality’s culpability for a

deprivation of rights is at its most tenuous where a claim turns

on a failure to train.” Connick, 563 U.S. at 61.

For the City to be liable for a training failure, the

Administrator must point to “a failure to provide specific

20 And on a closer look, accounting at least for the criminal

referral, the sustained rate is likely not as low as it first

seems. See Part II.A.1.

training that has a causal nexus with the[] [plaintiffs’]

injuries.” Reitz, 125 F.3d at 145.21

The Administrator argues that the failure-to-train was this: the

City did not adequately teach its officers a particular standard

operating procedure for dealing with an emotionally disturbed

person (“EDP”), as the Plaintiff seems to have been when the

Defendants interacted with him. See Opp. to City at 13.22

In support of this, the Administrator presses two narrower

arguments.

Take them up now.

1. The Junior Officers

First, the Administrator zeroes in on the two junior officers.23

Officer Wanamaker, the Administrator notes, was trained on the

EDP standard operating procedure. But that was at the police

academy --- where the document he signed to certify that he had

worked through the training was one of around 250 documents he

had to sign. See Opp. to City at 13 (referencing Wanamaker Dep.

at 109).

For his part, Officer Lucero also was trained on the EDP

standard operating procedure. But his training was not live; it

21 For a failure-to-train claim, there must ordinarily be a

pattern of similar constitutional violations by untrained

employees that gives decisionmakers a sense that better training

is needed. See Thomas v. Cumberland County, 749 F.3d 217, 223

(3d Cir. 2014). The City argues that there were no real-world

events that give it that sort of heads-up here. See City’s

Motion at 18. But put that aside. Because even assuming

arguendo it was on notice, the Court determines that the City is

entitled to prevail on other grounds, as set out below.

22 The Administrator assumes that training on this particular

EDP standard operating procedure was necessary. But she does

not explain why. This might well be a serious problem for the

Administrator’s argument. But there is no need to take it up

here. As set out in this Part II.B, there are other

difficulties with the Plaintiff’s failure-to-train claim, and

those alone make it non-viable.

23 That is: two of the three Defendants, Officers Lucero and

Wanamaker.

was online. See id. (referencing City’s Mot. for Summ. J., Ex.

I (“Lucero Dep.”) (ECF 103-9) at 133–35).

The Administrator does not explain why Officer Wanamaker’s

police academy training does not measure up, or why Officer

Lucero’s online training should be discounted. See Opp. to

City. at 13.

Hypothesize, though, that the argument is that these trainings

was not calculated to ensure focus. There was training fatigue,

say, at the police academy. And online training, the argument

might run, is distracted training.

But if those are the arguments, they are not self-evidently

correct.

On the one hand:

Wall-to-wall learning at a full-time police academy may

potentially mean that one lesson blurs into the other, such that

each one is quickly forgotten.

On the other hand:

Training at a dedicated academy may be especially intense and

purposive --- and therefore deeply absorbed. And a cadet’s mind

might be sharply focused while at the academy, as he works under

the inevitable pressure that comes with wanting to do well

enough to pass and become a police officer.

Which of these is right?

Hard to say. Cf. John J. Sloan III & Eugene A. Paoline III,

“They Need More Training!”: A National Level Analysis of Police

Academy Basic Training Priorities, 24 Police Q. 486, 509-10

(2021) (discussing debates about the right length of police

training).

But it is the Administrator who bears the burden, see Bd. of

Cnty. Comm’rs, 520 U.S. at 404, and she offers no reason to

choose one inference over the other. This undermines any

argument that Officer Wanamaker’s police academy EDP training

cannot be counted as EDP training.

Same point as to online training.

Online training may be less vivid and less effective.

But maybe, for some, the opposite is true. Some people may be

especially attentive when they are not in a live classroom, when

they are learning in the quiet, in front of a computer.24

It is for the Administrator, see Bd. of Cnty. Comm’rs, 520 U.S.

at 404, to explain why the first take is more persuasive than

the second --- to the point that Officer Lucero’s online EDP

training should be treated as if it did not happen.

But the Administrator does not develop any argument along these

lines.

* * *

And another problem.

The Supreme Court has said that it will not “suffice to prove

that an injury or accident could have been avoided if an officer

had had better or more training.” City of Canton v. Harris, 489

U.S. 378, 391 (1989). Otherwise, “almost any encounter

resulting in injury” could give rise to municipal liability.

See id.

This means that to prevail on a failure-to-train theory, a

plaintiff must specifically focus “on [the] adequacy of the

training program in relation to the tasks the particular

officers must perform.” Id. at 390; see also Woloszyn v. County

of Lawrence, 396 F.3d 314, 325 (3d Cir. 2005) (noting that

“broad and general” allegations of training deficiencies are

inadequate).

But here, as noted, the Administrator says nothing about what

the precise shortcoming was in the training Officer Wanamaker

and Officer Lucero received.

And therefore, the Administrator cannot (and does not) suggest

any causal link between what was missing and any injuries to the

Plaintiff.

That, too, undermines her claim --- because, “with respect to

plaintiff’s failure to train theory, the central inquiry . . .

is whether the failure to provide proper training actually

24 See Jon Marcus, With Online Learning, ‘Let’s Take a Breath

and See What Worked and Didn’t Work,’ N.Y. Times (Oct. 6, 2022)

https://www.nytimes.com/2022/10/06/education/learning/online-

learning-higher-education.html (describing the uncertain state

of research into online learning) (last visited Sept. 9, 2025).

caused [the plaintiff’s] injury.” Simmons v. City of

Philadelphia, 947 F.2d 1042, 1070 (3d Cir. 1991) (cleaned up).

As to the asserted gap between non-police-academy training

(which was not given) and the police-academy training (which

was) --- what did that gap cause?

And if there was indeed a shortfall between live EDP training

and in-person EDP training --- what real-world effect did that

missing increment of training have on how the Plaintiff was

treated?

These questions about causation are ones the Administrator does

not address.

But without doing so, her argument that there were holes in the

training of Officer Wanamaker and Officer Lucero cannot go

anywhere --- because there has been no effort to show how those

holes may have been what caused the officers to interact with

the Plaintiff as they did. See id.25

25 Causation is relatively easier to establish when a

municipality offers no training in a given area. Then, it can

be more straightforward to draw a through line from lack of

training to injury. This is because the marginal gain from

going from no training to some training is unmissably large.

But once some substantial training has been provided, the added

gain from any supposedly missing training diminishes --- and

working through the impact of the missing piece of training can

turn on complex questions. For example, did failure to train a

trucker on how to drive a large rig contribute to an accident?

Almost surely “yes” if the trucker had zero training. But if

she had a CDL plus 25 hours of supplemental training, and the

argument is that she needed five more hours --- that is plainly

a trickier causation problem. Assuming that 30 overall hours

was in fact the benchmark that needed hitting, what precisely

was lost in missing out on the last five hours? What was caused

by the missing training increment? And what if the last five

hours were spent on a simulator? Would that count? These are

potentially difficult questions, with analogues to questions

that are lurking in this case --- but that the Administrator

does not seek to work through.

2. The Veteran Officer

The Administrator’s next failure-to-train argument relates to

Officer Avila.

He testified that he had never seen the City’s standard

operating procedure for interacting with EDPs. See Opp. to City

at 5 (referencing Avila Dep. at 146–47).

But Officer Avila also testified that he received twice-yearly

training as to EDPs, though not on the standard operating

procedure the Administrator focuses on. See Avila Dep. at

155:6–8.

The Administrator (who has the burden, see Bd. of Cnty. Comm’rs,

520 U.S. at 404) does not try to show that this biannual EDP

training was inadequate --- or how its inadequacy might have

helped to cause any injuries to the Plaintiff.

What precisely was the delta between Officer Avila’s training

(as to EDPs) and the Plaintiff’s proposed alternative training

(the EDP standard operating procedure) --- and what difference

might that have made?

The Administrator does not say.

That leaves behind little more than a “broad and general,”

Woloszyn, 396 F.3d at 325, argument that Officer Avila should

have received “better or more training.” City of Canton, 489

U.S. at 391.

But that is not enough to establish either that his training was

inadequate or that any inadequacy caused a real-world impact.

See id.

* * *

There is another stumbling block, too.

Assume that Officer Avila’s training was wholly inadequate ---

that, against the evidence, he received no training about how to

interact with an EDP.

Might that be enough to establish that the City is liable here

on a failure-to-train theory?

The Supreme Court has answered: no.

“That a particular officer may be unsatisfactorily trained will

not alone suffice to fasten liability on the city, for the

officer’s shortcomings may have resulted from factors other than

a faulty training program.” City of Canton, 489 U.S. at 390–91.

Circuit courts around the Nation have routinely ruled

accordingly --- even when it was the untrained officer himself

who caused the plaintiff’s injury. See Benavidez v. County of

San Diego, 993 F.3d 1134, 1154 (9th Cir. 2021); Lapre v. City of

Chicago, 911 F.3d 424, 437–38 (7th Cir. 2018); Murphy v. City of

Tulsa, 950 F.3d 641, 651–52 (10th Cir. 2019); Alman v. Reed, 703

F.3d 887, 903 (6th Cir. 2013); Plamp v. Mitchell Sch. Dist. No.

17-2, 565 F.3d 450, 462 (8th Cir. 2009); Blankenhorn v. City of

Orange, 485 F.3d 463, 484–85 (9th Cir. 2007); Roberts v. City of

Shreveport, 397 F.3d 287, 293–94 (5th Cir. 2005); Anthony v.

City of New York, 339 F.3d 129, 140 n.6 (2d Cir. 2003) (dicta);

Alexander v. City & County of San Francisco, 29 F.3d 1355, 1367-

68 (9th Cir. 1994); Lord v. Riley, 921 F.2d 272 (4th Cir. 1990)

(unpublished table decision); Perez v. City of Sweetwater, 770

F. App’x 967, 976 (11th Cir. 2019); Carey v. Helton, 70 F. App’x

291, 294 (6th Cir. 2003).

In the Sixth Circuit, for example, a plaintiff sued a county

alleging that it failed to train its officers on handling

emotionally disturbed detainees. See Carey, 70 F. App’x at 292.

One officer had no recollection of ever receiving such training,

but the court of appeals held that one officer’s testimony is

“insufficient to defeat summary judgment.” Id. at 294.

In the Ninth Circuit, a plaintiff put forth evidence that a

certain untrained officer used excessive force against him.

Blankenhorn, 485 F.3d at 484. But the court of appeals held

that because the plaintiff “limited his proof to the City’s

failure to train only [one officer], he did not meet his burden

to withstand Defendants’ motion for summary judgment.” Id. at

485.

And the Eleventh Circuit reached roughly the same conclusion.

The plaintiff there was injured in a police car chase. See

Perez, 770 F. App’x at 969. He sued the city, claiming it had

failed to properly train an officer involved in the chase. See

id. at 969, 975–76. The court of appeals turned aside the

claim. It held that the failure to train a particular officer,

without more, was not enough. See id. at 975-76.

Each of these cases reaches the same conclusion. And each

follows from, and cites, the Supreme Court’s holding in City of

Canton.

What this means: even if (again: against the evidence) Office

Availa received no training on interacting with EDPs, the City

could still not be liable, just on that basis, on a Section 1983

failure-to-train theory.

3. The Evidence as a Whole

As before, see Part II.A.5, step back to look at things as a

whole. See Forrest, 930 F.3d at 107.

The Administrator’s failure-to-train evidence adds up to this:

Officer Avila received twice-a-year EDP training, but no

training on a specific EDP standard operating procedure, see

Part III.B.2; and Officers Lucero and Wanamaker received the

standard operating procedure EDP training, but could have

received it in a different (and presumably better) format, see

Part III.B.1.

This falls short. No reasonable jury could find this adds up to

a failure-to-train.

To see the point, compare this case to Thomas v. Cumberland

County, 749 F.3d 217 (3d Cir. 2014), in which the court of

appeals held that the plaitnff’s evidence of a failure to train

was enough to survive the defendant’s motion for summary

judgment. Id. at 227.

In Thomas, an inmate sued the county after a prison attack. See

id. at 220-21. He alleged a failure to train correctional

officers. See id. at 219. And his evidence was that “officers

had no de-escalation or intervention training as a part of their

pre-service training.” Id. at 225 (emphasis added).

In contrast to Thomas, where the officers got no relevant

training, all three officers here received some training. And

two of the three received training on the precise EDP standard

operating procedure that the Administrator suggests is

necessary.

Moreover, in Thomas, “corrections officers” did not receive the

relevant training. See id. at 225 (emphasis added).

Here, the asserted evidence of no training on the EDP standard

operating procedure zeroes in on just one officer. But the

Supreme Court has held that one officer’s failure to train

cannot “fasten liability,” City of Canton, 489 U.S. at 390–91,

on a municipality.

C. Conclusion

For the reasons laid out above in Parts II.A and II.B, the

City’s summary judgment motion as to Count II, the

Administrator’s Section 1983 claim for municipal liability, must

be granted.

Looked at as a whole, the failure-to-supervise evidence would be

insufficient for a reasonable jury, and the failure-to-train

evidence would be, too.

III. The Officers

Turn now to the claims that run against the three Defendants.26

The Administrator presses a federal claim against each of them,

citing the Fourth Amendment and 42 U.S.C. § 1983 (Count I).

Plus she makes state claims, for excessive force (Count III),

assault and battery (Count IV), wrongful death (Count VII), and

survival damages (Count VIII).

Consider here the federal claim. The state claims are the

focus of the next part, Part IV.

A. The Legal Standard

Against the federal Section 1983 claim, the Defendants raise a

qualified immunity defense.

Officers are entitled to qualified immunity unless they violate

a clearly established right. See City of Escondido v. Emmons,

586 U.S. 38, 42 (2019). The right must be defined at a close-in

level, a specificity requirement that is “particularly important

in excessive force cases.” Id.

The burden to show that an officer violated a clearly

established right is the plaintiff’s to carry. See Dongarra v.

Smith, 27 F.4th 174, 178 (3d Cir. 2022).

And though “plaintiffs need not find a case directly on point,

they must cite existing precedent that puts the question [of

what is clearly established] beyond debate.” Id. at 178

(cleaned up); see generally Courney v. City of Englewood, 2025

WL 2170694, at *4 & n.15 (D.N.J. July 30, 2025) (holding that it

is the plaintiff’s obligation to come forward with cases that

26 Recall: “Defendants” refers, collectively, to Officers Avila,

Lucero, and Wanamaker.

“clearly establish” the governing legal principle) (collecting

cases).

B. The Administrator’s Cases

As just noted, it is for the Administrator to spotlight on-point

precedent. See Dongarra, 27 F.4th at 178.

She tries to do that here by pointing to three cases. But none

of these work.

* * *

The Administrator’s first case: Rivas v. City of Passaic, 365

F.3d 181 (3d Cir. 2004).

There, officers responded to a man who was having a seizure.

See Opp. to Office Wanamaker at 5 (citing id. at 199–200). The

officers pressed down on his back until he lost consciousness.

See Rivas, 365 F.3d at 199. The court held that “a reasonable

jury could find that the continued use of force against [the

man] was excessive.” Id. at 200.

But that case is not a close match for this one.

The most notable difference: evidence in Rivas suggested that

the man “did not present a threat to anyone’s safety.” Id. His

hands were cuffed behind his back and he was also bound by cloth

restraints, all as he lay on the ground in an enclosed space.

See id. at 187, 199–200.

That is not analogous to the undisputed evidence here, of the

Plaintiff kicking, striking, and spitting on officers and EMTs

as they tried to get him to a hospital. See Def. Kyle

Wanamaker’s Statement of Undisputed Material Facts (ECF 101-1)

¶¶ 16-17; Pl.’s Resp. to Def. Wanamaker’s Statement of

Undisputed Material Facts (ECF 120) ¶¶ 16-17; City’s Facts ¶ 76,

79–82; Resp. to City’s Facts ¶ 76, 79–82.

* * *

Next, the Administrator cites Giles v. Kearney, 571 F.3d 318 (3d

Cir. 2009), for the proposition that “‘an officer may not kick

or otherwise use gratuitous force against an inmate who ha[s]

been subdued.’” Resp. to Officer Wanamaker at 6 (quoting Giles,

571 F.3d at 326).

But here, the undisputed evidence is that the Plaintiff, far

from being “subdued,” was struggling with the officers. And so

Giles, like Rivas, is not on point.

* * *

Finally, the Administrator points to Couden v. Duffy, 446 F.3d

483 (3d Cir. 2006). See Resp. to Office Wanamaker at 5 (citing

Couden, 446 F.3d at 497).

But Couden is also off the mark.

The evidence there showed that four plainclothes officers

pointed guns at a boy’s head, handcuffed him, and sprayed him

with mace --- even though he was cooperative and unarmed. See

446 F.3d at 489, 497.

The Administrator does not say how Couden bears on this case,

and the cases do not seem to have much in common factually.

* * *

Not having pointed to a case that shows the Defendants violated

clearly established law, the Administrator has not carried her

burden. See Courney, 2025 WL 2170694, at *4 n.15.27

* * *

This said, the Court has itself looked for on-point cases.

The closest one it has found, Aldaba v. Pickens, 844 F.3d 870

(10th Cir. 2016), favors the Defendants.

27 The Administrator also points to two unreported opinions by

district courts. See Opp. to Officer Avila at 5–6 (citing

Marshall v. Keansburg Borough, 2013 WL 6095475 (D.N.J. Nov. 20,

2013); Hurt v. City of Atl. City, 2010 WL 703193 (D.N.J. Feb.

24, 2010)). But it is not clear that a district court’s opinion

can clearly establish the law. See Courney, 2025 WL 2170694, at

*3 n.14. (And it may be that unpublished district court

opinions bear less weight yet. See White v. Lucero, 135 F.4th

1213, 1220 (10th Cir. 2025) (unpublished district court cases

“provide little support for the notion that the law is clearly

established”); cf. Pinho v. Gonzales, 432 F.3d 193, 214 (3d Cir.

2005).) In any event, neither of the cited district court cases

is telling here. Each involved an arrestee who was handcuffed

and subdued when allegedly assaulted by police. See Marshall,

2013 WL 6095475, at *7; Hurt, 2010 WL 703193, at *8. As noted,

that is not this case.

In Aldaba, a man sought to leave a hospital against a doctor’s

warning. See id. at 875. When officers tried to keep the man

from leaving, he became “very angry” and refused officers’

orders to get on his knees. See id. at 875–76. After repeated

disobedience, the officers tased him. See id. at 876.

To determine whether the officers might have violated a clearly

established right for qualified immunity purposes, the Tenth

Circuit looked to the cited cases. See id. at 877–80. It found

that none of them “would advise ‘every reasonable official’ that

[t]asering [the man] to hasten life-saving care would amount to

excessive force under the Fourth Amendment.” Id. at 879.

Qualified immunity was granted. See id. at 880.

Here, as in Aldaba, police officers struggled with an impaired

man to ensure he would receive medical care. And if anything,

this case is an easier one for applying qualified immunity. In

Aldaba, the man who needed medical help did not physically

strike officers or medical professionals. Here, he did.

* * *

The Defendants are entitled to qualified immunity as to the

federal claim (Count I) against them.

The Administrator has not carried her burden of coming forward

with “clearly established” law. And the Tenth Circuit’s Aldaba

decision provides an affirmative reason to think the Defendants

get qualified immunity here.28

28 An important qualifier. The Administrator’s legal brief

asserts that the Defendants “suffocat[ed]” or “choked” the

Plaintiff in the ambulance. Opp. to Officer Lucero at 6, 9–11;

Opp. to Officer Wanamaker at 5–6; Opp. to Officer Avila at 5–6.

If there was evidence here that, say, the Defendants

intentionally worked to choke the Plaintiff --- the qualified

immunity analysis would run along a different track. But what

counts on summary judgment is evidence, not argument. See

Bennett v. Spear, 520 U.S. 154, 168 (1997) (“a plaintiff must

‘set forth’ by affidavit or other evidence ‘specific facts’ to

survive a motion for summary judgment”); Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (on summary judgment “the

plaintiff . . . must ‘set forth’ by affidavit or other evidence

‘specific facts’); Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (summary judgment “requires the nonmoving party to go

beyond the pleadings and by her own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on

IV. State Claims

In addition to the above, the Defendants also move for summary

judgment on the claims against them under New Jersey law --- for

wrongful death (Count VII), survival damages, (Count VIII),

excessive force (Count III), and assault and battery (Count IV).

See Part I.B.

And the City takes the same tack.

It moves for summary judgment on the various state claims

against it. See City’s Br. at 21-25. These are for wrongful

death (Count VII), survival damages (Count VIII), and negligent

retention and supervision (Count V). See Part I.B.

* * *

file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’”); Dawson v. Wash. Gas Light Co., 2021 WL

2935326, at *6 (4th Cir. July 13, 2021) (“[A]t the summary

judgment stage, we are concerned with evidence rather than

arguments.”). The Administrator’s legal brief alludes to

choking and suffocation, but it does so without citing evidence.

And while the Rule 56.1 filings refer to an autopsy that found

indications of “compressive choking,” the materials put before

the Court do not (a) define that presumably medical term; (b)

describe the range of things that might later cause indications

of “compressive choking;” or (c) explain what the autopsy

finding might imply about what the Defendants or others may have

done. See Pl.’s Suppl. Statement of Undisputed Facts (ECF 104-

1) ¶ 83. It is for the Administrator to point to evidence, see

Bennett, 520 U.S. at 168, and then to explain its arguable

implications. She has not done so, and the Court cannot leap

from an unexplained medical term in an autopsy report to a sense

of what happened here. It is at least possible that there is

record evidence on all of this that was erroneously not brought

to the Court’s attention --- and if so, there may be an argument

that that evidence, and argument based on it, should now be

considered by the Court. In light of all this, the Court will

stay its decision of today until September 26 at noon. Should

the Administrator wish to make new arguments or to put forward

new evidence, it must file a motion by September 25 at noon

seeking permission to do so. The United States Magistrate Judge

would be the one to take up any such motion. And while the

Magistrate Judge does so, today’s decision would remain stayed.

While the Court had original jurisdiction over the federal

claim, see Complaint ¶ 1, it has only pendent jurisdiction over

the state claims. See id. ¶ 2.

And where, as here, see Part II and Part III, “the claim[s] over

which the district court has original jurisdiction [are]

dismissed before trial, the district court must decline to

decide the pendent state claims unless considerations of

judicial economy, convenience, and fairness to the parties

provide an affirmative justification for doing so.” Hedges v.

Musco, 204 F.3d 109, 123 (3d Cir. 2000) (cleaned up).

No party has argued that any such “considerations” apply here.

* * *

And moreover: the nature of the Administrator’s state claims

cuts in favor of dismissal.

For example, one of the Defendants argues that he is immune from

liability under New Jersey’s Good Samaritan Act. See Officer

Wanamaker’s Rep. Br. (ECF 108) at 3 (citing N.J.S.A. § 2A:62A-

1.1). How, if at all, should that background immunity be

layered onto already-existing state-law immunities that police

officers enjoy as a matter of New Jersey law?

These sorts of questions of New Jersey law are far afield from

anything that has been considered here.

Or another example.

One of the Administrator’s state-law claims against the City

concerns negligent supervision. See Complaint ¶¶ 68-74.

But that claim implicates the possibility that New Jersey law

might be taken to require more supervision than is required to

defend, as the City has here, against a federal failure-to-

supervise claim. And whether New Jersey law requires clearing a

higher workplace-supervision bar may turn on complex policy

questions --- as to how the state’s local police forces should

be staffed and managed.

Policy-laden state law questions should be taken up by state

courts, not this one. See Carrillo v. Owen, 2019 WL 4200438, at

*4 (D.N.J. Sept. 5, 2019) (declining to exercise pendent

jurisdiction over remaining state assault and battery claims

against officers); see also Rxeed LLC v. Caremark LLC, 771 F.

Supp. 3d 495, 501–02 (D.N.J. 2025); Pinkston v. City of Jersey

City, 699 F. Supp. 3d 298, 305 (D.N.J. 2023). Walsifer v.

Borough of Belmar, 2006 WL 2990364, at *16 (D.N.J. Oct. 18,

2006), aff’d, 262 F. App’x 421 (3d Cir. 2008) (“Because

important considerations of municipal governance and law are

involved, it is particularly appropriate that this aspect of the

case be decided by state courts.”).

* * *

The Court declines to exercise jurisdiction over the state law

claims here.

Ve Conclusion

As to the federal claims, the City’s motion for summary judgment

is granted and so is the Defendants’.

The Court will not retain jurisdiction over the state law

claims.

The Court stays today’s Order, as set out in footnote 28, until

September 26 at noon.

IT IS on this 10th day of September, 2025, ,SO ORDERED.

Michael E. Farbiarz, U.S.D.J.