# PENASCINO

> District Court, W.D. Pennsylvania · November 12, 2025

URL: https://www.frixlaw.com/law-library/cases/11202857

## Case

- **Full name:** Isaac Steven Penascino v. Trent Cope, et al
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** November 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11202857

## How later opinions describe it (automated extraction)

- holding that a court may consider an “undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document”
- holding that a court may consider a “document integral to or explicitly relied upon in the complaint”

## Opinion text

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

ISAAC STEVEN PENASCINO,
Plaintiff, Civil Action No. 2:25-cv-632
v. Hon. William S. Stickman IV
TRENT COPE, et al,
Defendants.

MEMORANDUM OPINION
WILLIAM S. STICKMAN IV, United States District Judge
Pro se Plaintiff Isaac Penascino (“Penascino”) brought this action alleging that two City
of Pittsburgh (“the City”) employees, Pittsburgh Bureau of Police (“PBP”) officers Benjamin
Gery (“Officer Gery”) and Faith Musselwhite (“Officer Musselwhite”), violated his rights under
the United States Constitution and Pennsylvania state law by arresting him after his roommate
and former paramour, Trent Cope (“Cope”), reported that he was assaulted by Penascino. (ECF
No. 1). Penascino’s “First Cause of Action” is brought under 42 U.S.C. § 1983, and it is
“Unlawful search/seizure, wrongful arrest, in violation of the Fourth Amendment (As to
Defendants Cope, Musselwhite, Gery, and The City of Pittsburgh).” (ECF No. 1, p. 27). His
“Second Cause of Action,” is brought under § 1983, and it is “Deprivation of right to due process
of law, in violation of the Fifth Amendment (As to Defendant the Commonwealth of
Pennsylvania).” (Ud. at 29). His “Third Cause of Action,” is brought under § 1983, and it is
‘Deprivation of right to trial by jury, in violation of the Sixth Amendment (As to Defendant the
Commonwealth of Pennsylvania).” (d. at 31). His “Fourth Cause of Action” is “Tort Law of
Pennsylvania: Negligence ~ Intentional infliction of emotional distress, defamation, loss of

wages/earning potential, and false imprisonment (As to Defendants Cope, Musselwhite, Gery,
the City of Pittsburgh).” (/d. at 32). His “Fifth Cause of Action,” is “Violation of Manual of
Procedural Order and Code of Ethics of Police (As to Defendants, Musselwhite, Gery, and the
City of Pittsburgh).” (/d. at 34). His “Sixth Cause of Action,” is “Violation of Commonwealth
of Pennsylvania State Law (As to Defendants, Faith Musselwhite, Benjamin Gery, City of
Pittsburgh, and the Commonwealth of Pennsylvania).” (Ud. at 34). The City filed a motion to
dismiss all claims against it (ECF No. 12), and Officers Gery and Musselwhite filed a motion to
dismiss Penascino’s claims against them (ECF No. 14). For the following reasons, the motions
will be granted and all federal claims against these defendants will be dismissed.
I. STANDARD OF REVIEW
A. Rule 12(b)(6)
A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests
the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A
plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on
its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual allegations as true and
view them in the light most favorable to a plaintiff. See Doe v. Princeton Univ., 30 F.4th 335,
340 (3d Cir. 2022); see also Fowler vy. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Although a court must accept the allegations in the complaint as true, it is “not compelled to
accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a
factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
The “plausibility” standard required for a complaint to survive a motion to dismiss is not
akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must
be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is
present when a plaintiff pleads factual content that allows the court to draw the reasonable
inference that a defendant is liable for the misconduct alleged. Jgbal, 556 U.S. at 678. Even if
the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not
entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to
plausibly justify that inferential leap. Jd.
Generally, a court may not consider an extraneous document when reviewing a motion to
dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 3d Cir. 1997). If
parties present matters outside the pleadings and the court does not exclude them, the motion
must be converted to a motion for summary judgment. See Fed. R. Civ. P. 12(d). When
reviewing the sufficiency of a complaint, however, a court may consider attachments to it
without converting the motion into one for summary judgment if they are integral to the
allegations in the complaint and are authentic. See Jn re Burlington, 114 F.3d at 1426 (holding
that a court may consider a “document integral to or explicitly relied upon in the complaint”);
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (same); Fallon v. Mercy Cath. Med.
Ctr. of Se. Pa., 877 F.3d 487, 493 (3d Cir. 2017) (same); Fed. R. Civ. P. 10(c) (A copy of a
written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”); see
also Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
(holding that a court may consider an “undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document”).

Here, the Court will consider the criminal complaint (ECF Nos. 13-1; 15-1), the
magisterial district court docket sheet (ECF No. 15-2), and the petition for nolle prosse submitted
by the Allegheny County District Attorney’s Office (ECF Nos. 13-2, 15-3), which are matters of
public record from Penascino’s criminal case in the Allegheny County Court of Common Pleas,
Pennsylvania at CC No. 3837-2025 (OTN R879582-4). See Buck v. Hampton Twp. Sch. Dist.,
452 F.3d 256, 260 (3d Cir. 2006) (courts may consider “matters of public record” in determining
whether a pleading has stated a claim (quoting 5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1357 (3d ed. 2004))); see also Pension Ben., 998 F.2d at 1197
(defining public record to include criminal case dispositions, such as convictions or mistrials.).
B. Pro se pleadings
Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In
practice, this liberal pleading standard works as “an embellishment of the notice-pleading
standard set forth in the Federal Rules of Civil Procedure.” Castro v. United States, 540 U.S.
375, 386 (2003) (Scalia, J., concurring). If a court can reasonably read the pleadings to state a
valid claim on which a plaintiff could prevail, it should do so despite the plaintiffs failure to cite
proper legal authority, confusion of legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364, 365 (1982);
United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969). “Pro se litigants
still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
In keeping with its duty to “construe pro se complaints liberally ... [the Court] will
consider” additional facts included in Penascino’s filings that came after the amended complaint,

to the extent that they are consistent with the allegations in the amended complaint. Bush v. City
of Philadelphia, 367 F. Supp. 2d 722, 725 (E.D. Pa. 2005).
I. FACTUAL BACKGROUND
Penascino and Cope resided at Cope’s residence at 245 Edith Street in May 2024 (ECF
No. 1, {§ 44, 80). On May 19, 2024, they got into a dispute over the use of the dryer.! (id. at 35,
68-75). Penascino claims that Cope sustained a laceration on his hand while attempting to
unplug the dryer during the dispute. (/d. at 73). Cope called 911 and “request[ed] Emergency
Response for a Domestic Abuse incident.” (/d. at 76). Officers Gery and Musselwhite responded
to the call and arrived at approximately 8:26 p.m. (/d. at 80). Cope told the officers that
Penascino assaulted him. (/d. at 81). Officer Gery observed that Cope had a small bleeding
laceration on his arm. (/d. at 83; ECF No. 13-1). Cope explained to Officer Gery that Penascino
“slammed” his hand in the dryer causing “lacerations,” and “rocked” him around the laundry
room “a little bit.” (ECF No. 1, Jf 95, 103). When Officer Gery asked why the laundry room
was undisturbed, Cope said that Penascino “picked everything up” before the officers arrived.
(Id. at 94-111). Cope also told Officer Gery that he and Penascino previously dated and had an
intimate relationship. (/d. at 90-91).
The officers arrested Penascino. (/d. at 117). According to Penascino, the officers were
“neglectful” after he was detained by leaving him unattended in a police vehicle for an
unspecified period of time and not reading him his Miranda rights. (Ud. at 128, 129). The
officers transported Penascino to the Allegheny County Jail, where he was detained for

The police had been summoned to the residence in the prior days due to disputes between the
two men. (/d. at 58-65).

approximately fifteen hours. (/d. at 130). While in a holding cell at the jail, Cope served
Penascino with a temporary Protection From Abuse Order (PFA). (dd. at 131)?
Penascino was charged with one count of simple assault, a second-degree misdemeanor,
by criminal complaint in the Commonwealth of Pennsylvania. (/d. at 125; ECF No. 13-1). His
preliminary hearing was held on June 4, 2024. (ECF No. 1, § 151). Penascino claims that Officer
Musselwhite gave “false testimony” by stating she was employed with the PBP for three (3)
months instead of six (6) weeks. (/d. at 153). At the conclusion of the preliminary hearing, the
simple assault charge was held for trial by Magistrate Judge James J. Hanley. (ECF No. 15-2).
In the Allegheny County Court of Common Pleas, Penascino accepted an agreement from the
Allegheny County District Attorney’s Office whereby he completed anger management classes
in exchange for the withdrawal of the criminal charges. On March 31, 2025, Penascino’s
criminal case was nolle prossed. (ECF Nos. 13-2, 15-1—15-3).
UI. ANALYSIS
Penascino brings one federal claim under § 1983 against the officers alleging a violation
of his Fourth Amendment rights due to an unlawful arrest. He also brings a Monell claim against
the City. As will be explained below, the Court holds that Penascino has failed to state a federal
claim for relief. The Court will dismiss all federal claims, and declines to exercise federal
jurisdiction over the state-law claims.

* According to Penascino, this PFA, which was put in place until December 18, 2024, led to his
eviction from Cope’s residence. (/d. at 135, 143, 156). Pennsylvania constables escorted
Penascino into Cope’s residence on May 21, 2024, to gather his belongings, which he alleges
were damaged or missing. (/d. at 144-45). He returned, as scheduled, on June 29, 2024, to
gather the remainder of his belongings. (/d. at 159). Penascino claims he had to stay for “91
nights at Red Roof Inn, and he expended “tens of thousands of dollars of undue out of pocket
expenses.” (/d. at 150).

A. The § 1983 claims
By its terms, § 1983 does not create a substantive right; it merely provides a method for
vindicating federal rights conferred by the United States Constitution and the federal statutes that
it describes. Baker v. McCollan, 443 U.S. 137 (1979). In order to establish a claim under §
1983, a plaintiff must demonstrate (1) a violation of a right secured by the Constitution and the
laws of the United States and that (2) the alleged deprivation was committed by a person acting
under color of state law. American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S: 40, 50 (1999); see
also West v. Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state law.”
(citation omitted)). Penascino has failed to state a claim under § 1983 against the officers and
the City.
1. Fourth Amendment false arrest claim against Officers Gery and
Musselwhite
The Fourth Amendment provides that people are “to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, ... and no Warrants shall issue,
but upon probable cause.” U.S. Const. amend. IV. An arrest by a law enforcement officer
without a warrant “is reasonable under the Fourth Amendment where there is probable cause to
believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S.
146, 152 (2004) (citation omitted). To sustain a claim for false arrest, a plaintiff must
demonstrate “‘(1) that there was an arrest; and (2) that the arrest was made without probable
cause.” Harvard v. Cesnalis, 973 F.3d 190, 199 (3d Cir. 2020) (quoting James v. City of
Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012)). In other words, lack of probable cause is an
essential element of a false arrest claim. “[P]robable cause to arrest exists when the facts and

circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a
reasonable person to believe that an offense has been or is being committed by the person to be
arrested.” Dempsey v. Bucknell Univ., 834 F.3d 457, 467 (3d Cir. 2016) (citing Orsatti v. □□□
State Police, 71 F.3d 480, 483 (3d Cir. 1995)). The issue is not actual innocence or guilt, but
rather whether the arrest was supported by probable cause. See Wright v. City of Phila., 409 F.3d
595, 602 (3d Cir. 2005). The constitutional validity of the arrest does not depend on whether the
suspect actually committed any crime. Johnson y. Campbell, 332 F.3d 199, 211 Gd Cir. 2003).
Additionally, it is irrelevant to the probable cause analysis what crime a suspect is eventually
charged with, Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir. 1994) (“Probable cause
need only exist as to any offense that could be charged under the circumstances.”), or whether a
person is later acquitted of the crime for which they were arrested, Michigan v. DeFillippo, 443
USS. 31, 36 (1979).
Although the existence of probable cause in a § 1983 action is typically a question of
fact, ‘the district court may conclude in the appropriate case ... that probable cause did exist as a
matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a
contrary factual finding.’” Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997). Here, the
record is sufficiently developed as to the facts and circumstances known to the officers at the
time they initiated the arrest of Penascino. The Court finds that the officers had probable cause
for the arrest of Penascino on May 19, 2024.
The affidavit of probable cause states:

#2 POLICE CRIMINAL COMPLAINT
Docket Number: Date Filed: | OTN/LiveScan Number Complaint/ncident Number
R 879582-4 ASAP-989958/24069145
First: Middle: Last:
On 5/19/24 at approximately 2026hrs, Officer Gery and [, Officer Musselwhite, responded to a domestic violence call at 245 Edith
St. Pittsburgh, PA 15211. The actor in this call was described as wearing a tan polo shirt and green shorts.
On arrival, we saw a man matching the given description standing on the front porch of 245 Edith St. This man was later identified
as lsaac Penascino 07/29/1996, Trent Cope 01/08/4996 was standing In the doorway and asked if we could talk somewhere more
private. Cope led me upstairs and told me what happened. Cope stated he had texted Penascino this morning, his former intimate
partner and current roommate, letting him know that all the bills had been paid for (by Cope) and to not worry, but to please not
use any appliances. Cope stated Penascino then came home later and started turning on all the lights and using all the
appliances and was attempting to use the dryer. Cope then stated he unplugged the dryer so Penascino could not use it. Cope
stated Penascino plugged the dryer back in and emptied the dryer of Cope's clothes, throwing his items on the floor. Cape stated
he did not want to go back and forth so he put his hand fn front of the dryer so Penascino could not close the door to the dryer.
Following this, Cope stated Penascino slammed the dryer door on Cope's hand, Cope stated this caused a smail chunk of skin to
come off of his wrist and bleed,
Let it be known, officers witnessed Cope's small laceration bleeding down his arm. At the time we arrived, Cope was holding a
paper towel to his wrist to stop bleeding. Cope stated he fell back in pain, and Penascino grabbed his shoulders and “tossed him
around" in the laundry room between the wall and dryer. That was when Cope called police.
When asked if Penascino and him were intimate, Cope stated not right now, but they were in the past and most recently, last
summer, Cope stated Penascino stayed for around 2 months last summer at this residence. Cope stated it was a similar
situation, he paid for everything and Penascino stayed without having paid utilities.
Officer Gery spoke with Penascino to gather his side of the story. Penascino stated he was attempting to use the dryer when
Cope unplugged it. So Penascino plugged It back in. Penascino stated when Cape tried to unplug it again, he had cut his hand on
the dryer somewhere and that is what caused the small laceration.
Cope requested Medics for his own records. Medic 8 responded and evaluated with no further action necessary.
Officers gathered both parties’ information, Penascino was placed in custody, handcuffs double-locked and checked for tightness.
Penascino was transported to the ACJ without issue. Cope was screened with the LAP and scored an 7/11. ‘Cope daclined to
speak with an advocate. BWC was activated,
Page 2 of 3

(ECF No. 13-1, p. 5). Furthermore, Penascino pleads the following additional facts in his
complaint. Cope called 911 and “request[ed] Emergency Response for a Domestic Abuse
incident.” (ECF No. 1, § 76). When the officers responded, Cope told Officers Gery and
Musselwhite that Penascino assaulted him. Cd. at 81). Cope told Officer Gery that Penascino
“slammed [his] hand” in the dryer door and “rocked [him] around the Laundry Room, a little
bit,” which caused Cope to sustain “lacerations.” (/d. at 94-103). When Officer Gery asked why
the laundry room was undisturbed, Cope said that Penascino “picked everything up” before the
officers arrived. (/d. at 94-111). Cope also told Officer Gery that he and Penascino previously
dated and had an intimate relationship. (/d. at 90-91). While Penascino claims that Cope
actually sustained the injury while attempting to unplug the dryer, Penascino does dispute that
Cope suffered a laceration to his hand. (/d. at 73).
Under Pennsylvania law, 18 Pa. C.S. § 2711 permits a warrantless arrest when an officer
“has probable cause to believe the defendant has violated . . . section 2701 [simple assault] .. .
against a family or household member although the offense did not take place in the presence of
the police officer.” 18 Pa. C.S. § 2711. A “family or household member” includes “current or
former sexual or intimate partners.” 23 Pa. C.S. § 6102. A simple assault occurs when one
“attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]”
18 Pa. C.S. § 2701(a)(1). Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa. C.S. § 2301. The officers charged Penascino with one count of simple
assault under 18 Pa. C.S. § 2701(a)(1), graded as a second-degree misdemeanor. (ECF No. 1, J
125; ECF No. 13-1).
The Court holds that the information before the officers was sufficient to “warrant a
reasonable person to believe” that a simple assault of Cope had been committed by Penascino.

10

The men, who were once in an intimate relationship, still lived together in the same household.
See Orsatti, 71 F.3d at 482. To the extent that Officer Gery may have questioned Cope’s
rendition of what occurred (see ECF No. 1 §§ 84, 104-05), that did not negate the existence of
probable cause. There is a presumption that information provided by an alleged victim of a
crime carries an indicia of reliability. Greene v. City of Philadelphia, No. 97-4264, 1998 WL
254062, at *7 (E.D. Pa. May 8, 1998) (citations omitted); see also Sharrar v. Felsing, 128 F.3d
810, 818 (3d Cir. 1997) (noting that when police receive reliable identification by a victim of an
attacker there is probable cause to arrest), abrogated on other grounds. Furthermore, the
probable cause inquiry looks to the totality of the circumstances; the standard does not require
that officers correctly resolve conflicting evidence or that their determinations of credibility,
were, in retrospect, accurate. Thus, Penascino cannot rely on information unknown to the
officers at the time of his arrest (see ECF No 26, pp. 3-6 and 9-20) as the probable cause analysis
relies only on information known to the officers at the time of the arrest. See Wright, 409 F.3d
595 (probable cause is evaluated as of the time of the arrest), abrogated on other grounds.
Penascino seemingly acknowledges that he cannot rely on information unknown to the officers
as he claims that officers inappropriately relied “solely, upon Trent Cope’s . . . unproven
accounts of Hearsay].]” (ECF No 26, p. 6).
The evidence of record and the facts pleaded by Penascino show that the arrest was
permitted under Pennsylvania law as the probable cause standard was met.? Nothing before the

3 To the extent Penascino is alleging that the officers violated the PBP Code of Ethics and
approximately twelve policies that cover an array of topics from “Recruit Training” to “Body
Worn Camera Recording” (ECF No. 1 § 204), he does not explain how alleged policy violations
equate to a violation of his Fourth Amendment rights. And he cannot do so as any violation of
an internal PBP policy is not a basis for a separate Fourth Amendment false arrest claim.

1]

Court indicates that the officers lacked probable cause to arrest. Thus, Penascino cannot show
that he was falsely imprisoned. Therefore, the officers are entitled to qualified immunity.*
2. Monell claim against the City
The first consideration with a Monell claim is whether a plaintiff has “identif[ied] the
exact contours of the underlying right said to have been violated” and “whether the plaintiff has
alleged a deprivation of a constitutional right at all.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.
2000) (en banc) (quoting County of Sacramento vy. Lewis, 523 U.S. 833, 841 n. 5 (1998)). Ifa
constitutional violation has been properly alleged, a municipal entity may be liable for it under §
1983 if the violation was a direct result of the entity’s policy, custom or practice.’ Monell vy.

4 The doctrine of qualified immunity insulates government officials who are performing
discretionary functions “from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has established a
two-part analysis that governs whether an official is entitled to qualified immunity: (1) whether
the facts alleged by the plaintiff show the violation of a constitutional right; and (2) whether the
right at issue was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001); Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Courts
may address the two Saucier prongs in any order, at their discretion. Pearson v. Callahan, 555
U.S. 223, 236 (2009). If the plaintiff fails to satisfy either prong, the defendant is entitled to
judgment as a matter of law. See id. at 232.
A police officer is entitled to qualified immunity from a false arrest charge “if a
reasonable officer could have believed [the] arrest to be lawful,” given “the information the
[arresting] officers possessed.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (quoting Anderson v.
Creighton, 483 U.S. 635, 641 (1987)). Here, as the complaint fails to allege facts that give rise
to a false arrest, Penascino has failed to show a violation of a constitutional right. The Court need
not reach the question of whether the right was clearly established. Bennett v. Murphy, 274 F.3d
133, 136 (3d Cir. 2002) (“If the plaintiff fails to make out a constitutional violation, the qualified
immunity inquiry is at an end; the officer is entitled to immunity.”). The Court holds that the
officers are entitled to qualified immunity.
> “Policy is made when a ‘decisionmaker possess[ing] final authority to establish a municipal
policy with respect to the action’ issues an official proclamation, policy, or edict.” Berg v. Cnty.
of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996)). It also can be made where an official with authority has ratified the
unconstitutional actions of a subordinate, rendering such behavior official for liability purposes,”
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (citing City of St. Louis v. Praprotnik, 485
12

Dep’t of Social Servs. of City of New York, 436 U.S. 658, 695 (1978). However, an entity may
not be held liable “solely because injuries were inflicted by its agents or employees.” Jiminez v.
All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather, a plaintiff must
demonstrate a “direct causal link” between the alleged constitutional violation and the municipal
policy or custom. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). A plaintiff may
show that either an official policy of the municipality was the moving force behind the violation,
or that the municipality had an informal custom such that it operated as the municipality’s policy.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986); Monell, 436 U.S. at 690. In either
scenario, the plaintiff has the burden to show that the policy or custom was implemented or
acquiesced in by a policymaker. Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990).
“[M|unicipal liability may be imposed for a single decision by municipal policymakers ... where
the decisionmaker possesses final authority to establish municipal policy with respect to the
action ordered.” Pembaur, 475 U.S. at 480-83.
Further, if the alleged policy or custom at issue is a failure to train or supervise, the
plaintiff must show that this failure “amounts to ‘deliberate indifference’ to the rights of persons
with whom [the municipality’s] employees will come into contact.” Thomas v. Cumberland
Cty., 749 F.3d 217, 222 (3d Cir. 2014) (quoting Carter v. City of Phila., 181 F.3d 339, 357 (3d
Cir. 1999)). “Ordinarily,” this requires a plaintiff to identify a “pattern of similar constitutional
violations by untrained employees’” that “puts municipal decisionmakers on notice that a new
program is necessary ....” Id. at 223 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011)).
Otherwise, the plaintiff needs to show that failure to provide the identified training would “likely

U.S. 112, 127 (1988)). Customs are “practices of state officials ... so permanent and well settled’
as to virtually constitute law.” Berg, 219 F.3d at 275 (citations omitted).
13

... result in the violation of constitutional rights’—i.e., to show that “the need for more or
different training [was] so obvious.” City of Canton, 489 U.S. at 390.
The Monell inquiry asks whether a municipality, like the City, was deliberately
indifferent to the risk of a constitutional violation. As noted, to sufficiently state a Monell claim,
a plaintiff must identify the constitutional right at issue, identify the policy or custom at issue,
identify the policymaker, demonstrate deliberate indifference or evidence of knowledge and
acquiescence by the policymaker, and demonstrate causation. Monell claims are based on an
underlying constitutional violation, and no such claim against the City exists.
Even if Penascino had come forth with a constitutional violation, he failed to plead an
adequate factual basis that it was the direct result of the City’s policy, custom or practice. None
of Penascino’s allegations in his complaint contain specific information regarding any policy,
practice, custom or affirmative act taken by a policy-making official of the City against him.
While Penascino lists twelve (12) PBP policies in Count 5 (violation of PBP internal policies), he
does not allege that the City had a role in creating these policies or that they are unconstitutional.
He simply alleges that the officers violated these policies. (ECF No. 1, 9 202-06). In his
response to the City’s motion, Penascino vaguely references a consent decree that the City was
apparently once subjected to, and argues that one could construe that the City has a “custom, or
practice of deprivation of rights.” (ECF No. 26, p. 8). This is an insufficient allegation. It
certainly does not serve as a hook for the City’s liability. It is nothing more than a recitation of
boilerplate language alleging a policy existed, without specification. The complaint contains no
allegations that this unspecified consent decree caused Penascino’s constitutional injury, and has
not pleaded any facts to infer such a causal connection.

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3. Futility of Amendment
The Court holds that amendment of the federal claims would be futile. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (a court may decide to
deny leave to amend for reasons such as undue delay, bad faith, dilatory motive, prejudice, and
futility); see also 3 James Wm. Moore et al., Moore’s Federal Practice { 15.15 (3d ed. 2024)
(“An amendment is futile if it merely restates the same facts as the original complaint in different
terms, reasserts a claim on which the court previously ruled, fails to state a legal theory, or could
not withstand a motion to dismiss.”). Hence, all of Williams’ federal claims will be dismissed
with prejudice.
B. The Court will not exercise jurisdiction over the state-law claims.
A district court “may decline to exercise supplemental jurisdiction” over state-law claims
if it “has dismissed all claims over which it has original jurisdiction[,]” 28 U.S.C. § 1367(c)(3),
unless considerations of judicial economy, convenience, or fairness to the parties provide an
affirmative justification for exercising supplemental jurisdiction. See Hedges v. Musco, 204 F.3d
109, 123 Gd Cir. 2000). The Court finds that no factors or extraordinary circumstances exist
that would warrant it exercising supplemental jurisdiction over Penascino’s state-law claims (i.e.,
negligence; intentional infliction of emotional distress; defamation; false imprisonment; false
arrest; equal protection; perjury; violations of PBP policies; and violations of state law). It will
dismiss such claims without prejudice for Penascino to assert them in state court.

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IV. CONCLUSION
For these reasons, the Court will grant the motions to dismiss by Order of Court to
follow.
BY THE COURT:
DLS sez
WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE
lied Zs
Date

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11202857. Public record. Not legal advice.