FORNIEL

THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

YADIRA I. FORNIEL

CIVIL ACTION

v.

No. 25-0117

TROOPER PETER G. HAMATI-

ATTIEH, et al.

Henry, J. September 1, 2026

MEMORANDUM

A driver alleged that she was violently ripped from her car for no good reason by a state

trooper and pepper-sprayed in the face, dangerously close to her eyes. She sued not only the trooper

who sprayed her but also Pennsylvania State Police (PSP) leadership, alleging that the commis-

sioner and his predecessor effectively allowed an assault like this to proceed. The commissioners

and the troopers moved to partially dismiss the complaint, a motion I previously granted in part

and denied in part. Forniel has since amended her complaint, and I here review a motion to dismiss

counts VII to X of the second amended complaint.

I. Background1

Yadira I. Forniel was driving just after midnight on U.S. Route 22 when she observed cars

ahead of her merging toward the right. She was driving at the speed limit in the middle lane, but

1 At this level, I accept the factual content of the amended complaint as true. See infra § II.

Where I refer to “the complaint,” I mean the operative complaint, i.e., the second amended com-

plaint (ECF 17).

The operative complaint was filed about an hour and a half after a very slightly different

amended complaint was filed (ECF 16). The modifications between that first amendment and the

second are minimal. As far as I can tell, they are no more than the deletion of the state constitu-

tional violations count that had been Count X and then the characterization of the new filing as a

second amended complaint. The deleted count had been dismissed by agreement after Forniel’s

concession.

she saw that her lane was blocked ahead due to an apparent traffic accident. She was unable to

merge rightward, however, because of traffic already in that lane. Eventually, she came to a com-

plete stop to avoid the accident scene. Pennsylvania State Police (PSP) Troopers Hamati-Attieh

and Limoli were on scene as part of the response to the accident. As Forniel neared the scene,

Hamati-Attieh flashed his flashlight at her. She could not see Hamati-Attieh prior to that alert,

since he was wearing a dark uniform and no high visibility clothing. Receiving no communication

beyond the alert, Forniel waited until she had the opportunity to safely merge into the open lane

and then continued driving down the highway.

Shortly after Forniel passed the accident scene, Hamati-Attieh got into a police vehicle and

pursued her using emergency lights and sirens. Forniel pulled over immediately, at which time

Hamati-Attieh approached her vehicle on foot and began yelling profanely at her to get out. Forniel

did not understand the reason for being pulled over.2 Hamati-Attieh grabbed her door handle and

attempted to remove her forcibly from the car by her hair. Forniel placed both hands on her steering

wheel. Quickly and without warning, Hamati-Attieh fired a chemical pepper spray into Forniel’s

face and eyes. The trooper was allegedly aware of a “Hydraulic Needle Effect” of pepper spray

used at close quarters that can cause tissue damage to a sprayed subject’s eyeballs. He nevertheless

deployed his pepper spray within that effect’s three-foot radius, then forcibly removed her from

the car. Hamati-Attieh threw Forniel onto the hood of his car and put her in handcuffs.

Hamati-Attieh took Forniel into custody and swore out a criminal complaint against her

for resisting arrest, reckless endangerment, careless driving, reckless driving, passing closely to an

This background section repeats nearly all facts recited in my order on the previous motion to

dismiss, with changes to discuss the amendments in the (operative) complaint.

2 Forniel’s description of the initial encounter does not discuss whether she attempted to or did

comply with the Trooper’s orders, but it does allege that the entire encounter from Hamati-At-

tieh’s stopping his vehicle to pepper spraying Forniel lasted “17 seconds.” Compl. ¶ 48.

emergency response, disorderly conduct, and disregarding traffic lane. She was unable to post bail

until the following day, March 12, 2023, after about 20 hours in custody. During her time in jail,

she learned that her brother had passed away. She was unable immediately to grieve with family.

Forniel was acquitted of all charges at trial. She alleges in her complaint, filed January 8,

2025, that she suffered physical and mental pain and suffering and deprivations of her constitu-

tional rights, among other harms. She includes counts against Hamati-Attieh as well as Trooper

Limoli, who was nearby during the incident but made no effort to intervene to stop Hamati-Attieh

and whom she accuses of joining a civil conspiracy with Hamati-Attieh; and against Former Penn-

sylvania State Police Commissioner Colonel Robert Evanchick3 and other unknown supervisors

as supervisors and policymakers.

The defendants brought a motion to dismiss several counts, which I granted in part and

denied in part. Dismissal order and memorandum of January 20, 2026 (ECF 10–11). Forniel

amended the complaint, principally but not entirely through adding allegations relating to Evanch-

ick’s awareness of alleged policies or lapses that could have contributed to the harms Forniel al-

leges. The defendants now bring a motion to dismiss partially the amended complaint as to Com-

missioner Evanchick and newly numbered counts IX and X.

II. Framework

To survive a motion to dismiss under Rule 12(b)(6), a complaint must set forth facts that

raise a plausible inference that the defendant inflicted a legally cognizable harm upon the plaintiff.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[S]tating . . . a claim requires a complaint with

3 The plaintiff spells Evanchick without the ‘c,’ but the defendant’s materials include it. There is

no suggested ambiguity as to the intended defendant, so I will adopt his spelling. The plaintiff

also refers to Evanchick interchangeably with his former titles as Commissioner and as Colonel,

but Evanchick generally refers to himself in briefing as a former Colonel. I adopt the Commis-

sioner title here principally because it more obviously refers to his leadership role atop PSP.

enough factual matter (taken as true) to suggest the required element. This does not impose a prob-

ability requirement at the pleading stage, but instead simply calls for enough facts to raise a rea-

sonable expectation that discovery will reveal evidence of the necessary element.” Phillips v. Cnty.

of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quotation marks and citations omitted). The rule

“does not permit dismissal of a well-pleaded complaint simply because it strikes a savvy judge

that actual proof of those facts is improbable.” Id. (quotation marks omitted). It requires, more,

however, than reciting “mere elements of a cause of action; instead, a complaint must allege facts

suggestive of the proscribed conduct.” Id.

III. Discussion

I follow the organization in the defendants’ memorandum, proceeding from the putative

liability of Commissioner Evanchick to the issues of state civil conspiracy and state sovereign

immunity. Because I have already addressed the heft of the complaint through my decision on the

first motion to dismiss, I focus here on whether the amendments in the operative complaint in any

way modify my previous analysis.

A. COMMISSIONER LIABILITY: SUPERVISORY LIABILITY, POLICYMAKER

LIABILITY, AND FAILURE TO TRAIN (COUNTS VII & VIII)

Forniel sues Evanchick (and other unnamed PSP supervisors) under theories of deficient

supervision and policymaking (count VII) and failure to properly train (count VIII). She cites 42

U.S.C. § 1983, a statute that creates a cause of action for plaintiffs whose rights were deprived by

any “person” acting under color of law. Evanchick moves to dismiss because the complaint does

not adequately allege his own personal involvement.

The question is whether the complaint adequately pleads facts showing that the supervisory

defendants were each themselves liable as individuals. Higher-ups may not be sued for merely

vicarious liability or under a theory of respondeat superior. Jutrowski v. Twp. of Riverdale, 904

F.3d 280, 289 (3d Cir. 2018). They are liable only insofar as they are alleged to have been person-

ally involved in wrongful conduct or a wrongful omission. Iqbal, 556 U.S. at 676 (requiring a

plaintiff to “plead that each Government-official defendant, through the official's own individual

actions, has violated the Constitution” (emphasis added)).

Supervisory liability may attach only if the supervisor personally “participated in violating

the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of

and acquiesced” in a subordinate’s unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne Cnty.

Juv. Det. Ctr, 372 F.3d 572, 586 (3d Cir. 2004). Forniel does not claim that any defendant other

than Limoli was present with Hamati-Attieh at the time of the pepper spray. There is no suggestion

that the events surrounding Forniel’s arrest were actively directed in any way by any of the other

defendants. She claims instead that Evanchick is liable, even from atop the PSP, even shortly after

his retirement from that position, by dint of his supervisory practices or procedures, or the lack

thereof. Under the Third Circuit’s test from Brown v. Muhlenberg Twp., to show supervisory lia-

bility for such disregard, a complaint must

(1) identify the specific supervisory practice or procedure that the supervisor failed

to employ, and show that (2) the existing custom and practice without the identified,

absent custom or procedure created an unreasonable risk of the ultimate injury (3)

the supervisor was aware that the unreasonable risk existed (4) the supervisor was

indifferent to the risk; and (5) the underlying violation resulted from the supervi-

sor’s failure to employ that supervisory practice or procedure.

269 F.3d 205, 216 (3d Cir. 2001).

Evanchick argues that supervisory liability requires that a plaintiff show that either 1) the

supervisor had contemporaneous knowledge of the subordinate’s offending incident or 2) the su-

pervisor knew of a pattern of similar incidents, alongside “circumstances under which the super-

visor’s actions or inaction could have been found to have communicated a message of approval to

the offending subordinate.” Montgomery v. Simone, 159 F.3d 120, 127 (3d Cir. 1998). The

supervisory defendants relate this to the theory of “knowledge and acquiescence,” a term men-

tioned once in the complaint, ¶ 178. How, they ask, can they have had knowledge of or acquiesced

to behavior by troopers they probably never knew against a woman they never heard of? How,

Evanchick asks, could he have had knowledge and acquiesced to an incident that occurred months

after his retirement?

I previously dismissed the counts against Evanchick because I found insufficient factual

content to support inferences that any necessary supervisory practices or policies were lacking,

failing the first two elements of supervisory liability under Brown. In response to Forniel’s argu-

ment that she had adhered to the pleading requirements as exactingly as was possible, I proposed

a purely hypothetical scenario that would offer a more exacting adherence: One in which the troop-

ers were known to have admitted outright the causal impact of deficient supervision on the alleged

violation. Dismissal order (ECF 10) 12 n.9.

The complaint was then amended to contain new allegations relevant to Counts VII and

VIII. These principally include the addition of information regarding two civil rights lawsuits pre-

dating the Forniel arrest in which Evanchick was a defendant and deponent. Compl. ¶¶ 150–66. In

these two prior civil rights cases, Evanchick provided deposition testimony that in some aspects

related not only to the cases at hand but also his supervision over PSP. In particular, the complaint

alleges that Evanchick acknowledged that “as head of the PSP, he had little interest in these matters

or in seeing to it that proper training was given to his troopers in making decisions concerning the

propriety of vehicle pursuits and maneuvers to stop vehicles.” Id. ¶ 154 (emphasis added). In con-

text, “these matters” appears to relate to vehicle pursuits generally. See id. ¶ 152–54. The complaint

goes on to allege Evanchick’s admitted knowing non-participation in the review of each of the two

civil rights cases. It also contains conclusions of two reports prepared by putative experts who

reviewed the depositions of Evanchick and others and described “a culture of disdain for oversight

among the leadership.” Id. ¶ 163.

Considering the complaint anew, with the benefit of the amendments, I now believe the

factual content to be narrowly sufficient to state a claim under Brown. Certainly the factual content

is not as robust as imagined by my previous hypothetical—there is no direct, recorded admission

of causation and overall liability—but that is not what is required at this level. Instead, I must look

to whether the allegations are sufficient to “suggest the required element” and “raise a reasonable

expectation that discovery will reveal evidence of the necessary element.” Phillips v. Cnty. of Al-

legheny, 515 F.3d 224, 234 (3d Cir. 2008). The combined allegations, including Evanchick’s ad-

mitting in mid-2022 to his disinterest in ensuring proper training for his troopers, compl. ¶ 154,

are enough to raise the reasonable expectation that Evanchick had still failed to make provisions

by early 2023 for the training of his troopers on safe vehicle stops and that he was aware of the

risks therein involved and remained perhaps explicitly indifferent. As to whether the risk of the

violation Forniel alleges was related causally to the lacking procedures she lists in ¶ 180, I rely on

my own common sense appreciation for the value of supervision on avoiding especially needless

violence.4 And it would not be unreasonable at this level to infer that Evanchick knew of a pattern

of incidents and communicated his lack of interest in closer supervision or greater training to avoid

them. Montgomery v. Simone, 159 F.3d 120, 127 (3d Cir. 1998).

4 I previously criticized ¶ 180 (in its previous form in the original complaint at ¶ 165) as reciting

different possible legal theories that might be insufficient legally even if sufficient factual matter

were alleged. Although Evanchick discusses this paragraph in the present motion to dismiss, he

argues only that the paragraph demonstrates “tension or inconsistency” without drawing any dis-

tinction between its several theories of lacking “practices or procedures (or policies).” These

were winnowed by the amendment to shelve theories I had dismissed, but Evanchick does not

offer any distinction between the legal merit of what theories remain.

Although I ultimately ruled in favor of Evanchick in my previous order, I did so having

rejected some arguments that he raises again here nearly verbatim. In these issues, neither my

reasoning nor my rulings have been disturbed by the amendments here. For instance, despite

Evanchick’s claim that he could not be liable for failing to train where the actual violation is alleged

to have occurred shortly after his retirement, I ruled that it was neither legally nor factually certain

that he could not be liable for the conduct of inferiors merely because the conduct came shortly

after his retirement.5 Additionally, I distinguished Evanchick’s objections that Forniel does not

allege concurrent knowledge as based on an irrelevant theory of concurrent supervisory liability,

whereas Forniel’s claims rely on a theory of his having caused the final incident through a

longstanding run-up of managerial wrongdoing. Finally, despite Evanchick’s argument that For-

niel’s theory is inconsistent, I explicitly ruled that these inconsistent theories are permissible at this

stage under Fed. R. Civ. P. 8(d). Dismissal mem. 12 n.10; 14 n.15. Evanchick does not offer argu-

ment as to why these prior rulings should not continue to control, so I decline to reconsider them.

B. MONELL (COUNTS VII & VIII)

Evanchick characterizes the claims against him as coming under, or approximating, Monell

v. New York City Dep’t of Social Serv., 436 U.S. 658, 694 (1978), in which the Supreme Court

permitted plaintiffs to sue municipalities as “persons” under Section 1983. Monell overturned pre-

vious precedent that had held that neither municipalities nor states were “persons,” but left unclear

whether a state agency or its officials might also be “persons.” Will v. Michigan Dep’t of State

Police, 491 U.S. 58, 62 (1989) (characterizing progression since Monroe v. Pape, 365 U.S. 167

(1961)). The Supreme Court clarified that a state is not a person under Section 1983. Id. at 64.

5 Evanchick removed in this motion to dismiss a previous argument made without citation that

“[a]t an absolute minimum, due to his January 2023 retirement, former Colonel Evanchick must

be dismissed as a party to this action.” Compare ECF 8 at 10 with ECF 21-2 at 13.

But there is no question about whether Commissioner Evanchick is a person. He is alleged

to be “an adult individual.” Compl. ¶ 7. He is not, and was not, a municipality. See 53 Pa. C.S.

§ 5602 (defining “municipality” for purposes of the Pennsylvania Municipal Authorities Act as “A

county, city, town, borough, township or school district of the Commonwealth.”) He is not and

was not even a municipal actor in his role at the Pennsylvania State Police.

Whereas Monell held that municipalities can be treated like individuals, it is not so instruc-

tive about how individuals can be treated. Evanchick argues that Forniel cannot rely on Canton v.

Harris, 489 U.S. 378, 388–89 (1989), in which the Supreme Court held that municipalities may

be liable for their failures to train, because Evanchick is not a municipality. But Canton does noth-

ing to limit suits on failure to train theory to only those against municipalities; it permits them

against municipalities by analogy to suits against a person. Id. at 389–92. If an individual defendant

otherwise amenable to Section 1983 liability allegedly caused harm by his failure to train subor-

dinates, nothing requires the federal plaintiff to find a municipal actor instead. But c.f. Silver Jews,

People on American Water (Vinyl Record, Drag City Oct. 20, 1998) (“A federal woman needs a

municipal man.”).

C. STATE CIVIL CONSPIRACY (COUNT X)

Forniel alleges one count of state civil conspiracy against the troopers at Count X. The

allegations specific to Count X are unchanged (other than numbering) from their previous state as

Count XI in the original complaint. The troopers’ argument, however, is new: Under Pennsylvania

law, “[a] single entity cannot conspire with itself and, similarly, agents of a single entity cannot

conspire among themselves.” Grose v. Procter & Gamble Paper Prods., 866 A.2d 437, 441 (Pa.

Super 2005). Evanchick argues that, as Hamati-Attieh and Limoli were both “troopers in the Penn-

sylvania State Police,” they could not legally conspire among themselves. Forniel responds that

the argument is unavailable at this stage because the question requires an inquiry into whether the

troopers really were acting as agents of a single entity. Forniel has the better argument, but I need

not reach it, since I consider Evanchick’s failure to argue this concern previously upon identical

allegations to have forfeited the argument at this level. Painadath v. Lattanzio, No. CV 22-3604,

2024 WL 1836500, at *1 n.1 (E.D. Pa. Apr. 26, 2024) (denying motion in part because defendant

advanced arguments in a second motion to dismiss that could have been made in the first motion

but were not).

D. STATE SOVEREIGN IMMUNITY (COUNTS IX & X)

Finally, the troopers move to dismiss state law claims of assault and battery (Count IX,

only trooper Attieh-Hamati) and civil conspiracy (Count X, both troopers together) under state

immunity. These counts are functionally unchanged by the amendments, other than the latter’s

numbering. The troopers move to dismiss as a matter of jurisdiction, as they did in their previous

motion. The argument in this motion is essentially unchanged as well, with only minor typograph-

ical and numbering changes.

As a preliminary matter, this argument asks me to revisit a ruling I have already squarely

addressed, but without suggesting any change in fact or law to motivate a different outcome. The

motion does not indicate it did so only to take care to preserve the issue, but neither did it contend

with my prior ruling or its reasoning.6

6 The present motion did quote the previous decision as having “observed in its Memorandum

that motions to dismiss based on state law sovereign immunity are made ‘under Rule 12(b)(1) for

lack of subject matter jurisdiction rather than (and not in addition to) under Rule 12(b)(6).’” ECF

21-2 at 5 n.3. This misreads my reasoning, which explicitly denied the motion on its own stated

grounds and declined to address it on alternative Rule 12(b)(6) grounds upon which it might

have stood a chance. To the extent that I was at all unclear, I regret it.

Nor have the troopers changed their argument, despite language in my previous opinion

offering guidance thereon. The troopers make their motion attacking subject matter jurisdiction

rather than by asking the Court to determine that there is a claim upon which relief can be granted

under Rule 12(b)(6). As I discussed in my prior opinion, a motion under Rule 12(b)(6) could have

allowed me to “proceed to consider whether the facts alleged support an inference that the troopers

were acting outside the scope of their duties, therefore leaving them liable to the intentional torts

of which they are accused.” Dismissal mem. 16. “However,” I continued, “the troopers did not

make that motion, and I typically decline to make Rule 12 motions on parties’ behalf.” Id.

The troopers still have not made that motion, and I decline to make it on their behalf.7 The

troopers’ motion to dismiss for want of jurisdiction fails for the same reason it failed previously,

and because it offers no grounds for my disturbing the prior ruling or suggesting the prior ruling

does not control.

IV. Conclusion

For the reasons given above, I will issue an order denying the motion to dismiss partially

the second amended complaint. The discovery plan should be modified to accommodate the counts

upon which I now rule, so I will order a joint status report and proposal to that effect.

7 My previous opinion may have evinced some curiosity regarding a motion properly made under

Rule 12(b)(6). Yet, as I ruled in the previous section on conspiracy, I may have rejected a new

argument about old allegations as forfeited. I make no such ruling, since no new argument was

made.