Santiago v. Warminster Township

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1294

_____________

GLORIA SANTIAGO,

Appellant

v.

WARMINSTER TOWNSHIP; POLICE CHIEF MICHAEL

MURPHY; CHRISTOPHER SPRINGFIELD, (RETIRED

DEPUTY CHIEF); LT. JAMES DONNOLLY, III; POLICE

OFFICER FREDERICK KUTZER; POLICE OFFICER

JON OGBORN, INDIVIDUALLY AND AS POLICE

OFFICER FOR CBSRT/WARWICK TOWNSHIP C/O

WARWICK TOWNSHIP C/O WARWICK POLICE

DEPARTMENT; DETECTIVE WAYNE JONES,

INDIVIDUALLY AND AS POLICE OFFICER FOR

CBRST/DOYLESTOWN BOROUGH C/O DOYLESTOWN

BOROUGH POLICE DEPARTMENT; TIM MURPHY,

INDIVIDUALLY AND AS POLICE OFFICER FOR

CBSRT

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cv-02202)

District Judge: Hon. Stewart Dalzell

_______________

Argued

October 6, 2010

Before: FUENTES, JORDAN and ALDISERT, Circuit

Judges.

(Filed: December 14, 2010)

_______________

David F. McComb [ARGUED]

Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy

1818 Market Street – 13th Fl.

Philadelphia, PA 19103

David H. Oh

Law Offices of David H. Oh

5811 Thomas Avenue

Philadelphia, PA 19143

Counsel for Appellant

Andrew J. Bellwoar [ARGUED]

Eric M. Brown

Susan L. DiGiacomo

Siana, Bellwoar & McAndrew

941 Pottstown Pike - #200

Chester Springs, PA 19425

Counsel for Warminster Township

2

Christopher P. Boyle, Sr. [ARGUED]

John P. Gonzales

Marshall, Dennehey, Warner, Coleman & Goggin

620 Freedom Business Center - #300

King of Prussia, PA 19406

Counsel for Michael Murphy, Christopher Springfield,

James Donnolly, Frederick Kutzer, Jon Ogborn,

Wayne Jones and Tim Murphy

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Gloria Santiago appeals from an order of the United

States District Court for the Eastern District of Pennsylvania

dismissing her claims under 42 U.S.C. § 1983 against

Warminster Township (“Warminster” or the “Township”) and

three of its senior police officers, including the police chief.

Santiago claims that she suffered a heart attack after being

subjected to excessive force during a raid on her home. Her

claims against the officers who conducted the raid were

earlier dismissed as untimely, and she has not appealed that

order. We thus consider only her claims against the three

senior officers, who she alleges planned or acquiesced in the

use of excessive force, and against the Township, which she

alleges is liable for the police chief’s plan because he is a

final policymaker for the Township.

We conclude that, under the pleading standard set forth

by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550

3

U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct.. 1937

(2009), Santiago has failed to plead sufficient factual matter

to give rise to a plausible claim for relief against the senior

police officers. Her claim against Warminster also must fail

because Santiago has failed to plausibly plead that the police

chief’s conduct caused her any injury. Accordingly, we will

affirm.

I. Background 1

A. Warminster Conducts the “Surround and Call

Out” Operation

On the morning of May 13, 2006, Warminster

conducted a “surround and call out” operation at the home of

Santiago, a sixty-year-old resident of Warminster. The

purpose of the operation was to apprehend Steve Miranda,

one of Santiago’s grandsons. 2 The operation was carried out

by the members of “Alpha Team,” a unit of the Central Bucks

Special Response Team (“CBSRT”). The CBSRT is a multi-

jurisdictional police agency consisting of officers

representing eighteen municipalities, including Warminster.

The members of Alpha Team were Detective Wayne Jones

and Officers Jon Ogborn, Frederick Kutzer, and Tim Murphy.

While only Officer Kutzer was employed directly by

1

The background information in this section is taken

from Santiago’s Third Amended Complaint and is set forth as

if true.

2

The arrest warrant for Steve Miranda also named two

other individuals, though the record does not state whether

they were expected to be found at Santiago’s home.

4

Warminster, all outside personnel and equipment were placed

under the temporary control of Warminster for purposes of

the May 13th operation.

At the commencement of the operation, the occupants

of Santiago’s home were awakened by police using a public

address system. Santiago and her daughter, Gloria Cotte,

looked through a window to see an armored vehicle and

officers wearing combat uniforms and carrying automatic

weapons. Upon seeing Cotte looking through the window,

one of the officers asked her who else was in the house, to

which she responded “just my family ... this is the Santiago

family.” (Third Am. Compl. at ¶ 35.) The officer then

ordered everyone to exit the house one at a time.

Santiago was the first to come out and was

commanded, at gun point, to raise her hands and walk toward

the officers. When she did not raise her hands as high as an

officer wanted, she was ordered to raise them higher or else

be shot. When Santiago reached the officers, Officer Ogborn

conducted a pat down search, which revealed no weapons but,

humiliating though it was for Santiago, included touching her

breasts and crotch. He then restrained her hands behind her

back with a plastic zip-tie and seated her on the ground next

to the police vehicle. Santiago was frightened and

complained of chest pain.

After Santiago left the house, she was followed by

Steve Miranda and Jonathan Miranda (her two grandsons),

Herminia Miranda (her granddaughter), and Cotte (her

daughter). Her two grandsons were patted down, handcuffed,

and seated on the ground near Santiago. Her daughter and

5

granddaughter were patted down but not handcuffed or

seated.

Even after the police had arrested Steve Miranda – the

only occupant for whom they had a warrant – Santiago

remained seated and restrained. The officers instructed her

and Cotte to sign a consent form allowing a search of the

home. Santiago, who speaks no English and cannot read or

write, did not sign and, of course, could not have unless they

unbound her hands. Cotte, who later said she “felt coerced,”

did sign.

Santiago sat with her hands tied for approximately

thirty minutes as her home was searched. Throughout that

time, she was unable to interfere, was not a flight risk, and

presented no danger. She continued to complain of pain and

eventually told Jonathan Miranda that she felt pain in her

heart. Jonathan Miranda told the officers that his

grandmother was having a heart attack, and an ambulance

was summoned to take her to the hospital.

B. Santiago’s Complaints are Filed and Dismissed

On May12, 2008 – one day before the expiration of

the statute of limitations – Santiago filed her initial complaint

in the District Court, citing constitutional violations and state

law tort claims and naming Warminster, Warminster’s police

department, John Doe police officers, and CBSRT as

defendants. For reasons not pertinent here, the bulk of that

complaint was dismissed, including all counts against the

Warminster police department (because it was not a separate

legal entity from Warminster) and CBSRT (for insufficient

service of process), and, after a series of amended complaints

6

and further dismissals, the operative pleading left in the case

is Santiago’s Third Amended Complaint. That complaint is

framed in two counts: (1) a §§ 1983 and 1988 claim against

Warminster and the individual defendants for violation of the

Fourth Amendment; and (2) state law claims against the

individual defendants for assault, battery, false arrest, false

imprisonment, and harm resulting from a state created danger.

Unlike earlier versions of the complaint, the Third Amended

Complaint replaced “John Does” with the names of the

officers on the scene, identifying Detective Jones and Officers

Ogborn, Kutzer, and Murphy. The Third Amended

Complaint also added, for the first time, allegations against

three Warminster police officers claimed to have been

involved in planning and supervising the operation: Chief of

Police Michael Murphy, Lieutenant Christopher Springfield,

and Lieutenant James Donnelly, III (collectively, the

“Supervising Officers”).

The entirety of the allegations against the Supervising

Officers were contained in three paragraphs:

Chief Michael Murphy is Police Chief of

Warminster Township Police Department.

Chief Murphy is a founding member and

director of the CBSRT. Although Chief

Murphy was not present at the scene on May

13, 2006, he ordered and approved the plan to

execute the arrest warrants. This early morning

“surround and call out” operation specifically

sought to have all occupants exit the Plaintiff’s

home, one at a time, with hands raised under

threat of fire, patted down for weapons, and

then handcuffed until the home had been

7

cleared and searched. Chief Murphy violated

Plaintiff’s Fourth Amendment rights in that this

plan used excessive force in restraining

Plaintiff, a non-target occupant who presented

no threat or risk, for a lengthy period of time

and used coercion in obtaining her consent to

search the premises.

Christopher Springfield was a police officer

with Warminster Township Police Department.

On May 13, 2006, he held the rank of

Lieutenant and was in [sic] placed in charge of

the “surround and call out” operation by Chief

Murphy. Lt. Springfield was responsible for all

assets including the CBSRT and Warminster

Township Police Officers. Lt. Springfield

violated Plaintiff’s Fourth Amendment rights in

that he permitted the use of excessive force in

restraining Plaintiff, a non-target occupant who

presented no threat or risk, for a lengthy period

of time and used coercion in obtaining her

consent to search the premises.

Lt. James Donnelly is an officer with the

Warminster Township Police Department. On

May 13, 2006, he was also the Tactical Team

Leader of CBSRT. Chief Murphy ordered Lt.

Donnelly to plan and help execute an early

morning “surround and call out” operation

which sought to have all occupants exit the

Plaintiff’s home, one at a time, with hands

raised under threat of fire, patted down for

weapons, and then handcuffed until the home

8

had been cleared and searched. Lt. Donnelly

violated Plaintiff’s Fourth Amendment rights in

that this plan used excessive force in restraining

Plaintiff, a non-target occupant who presented

no threat or risk, for a lengthy period of time,

and used coercion in obtaining her consent to

search the premises. As Tactical Team Leader

of CBSRT, Lt. Donnelly was responsible for the

actions of Alpha Team.

(Third Am. Compl. at ¶¶ 21-23.)

Both Warminster and the individual defendants moved

to dismiss and on December 23, 2009, the District Court

issued an opinion granting the motion. First, the Court

dismissed the claims against the officers of Alpha Team as

barred by the statute of limitations. 3 Next, the Court

3

Because the individual officers were not identified by

name until after the expiration of the statute of limitations, the

Court held that the claims against them would survive only if,

under Federal Rule of Civil Procedure 15(c), the amended

claims related back to the filing date of the original

complaint. That required the individual officers to have had

notice of the suit within 120 days of the filing of the original

complaint. The Court found that there was no evidence that

the members of Alpha Team had such notice. The Court

went on to hold, however, that notice could be imputed to the

Supervising Officers based on their “identity of interest” with

Warminster’s police department. Consequently, it dismissed

only the claims against the officers of Alpha Team under the

statute of limitations.

9

dismissed the Fourth Amendment claims against the

Supervising Officers because it held that Santiago had alleged

only respondeat superior liability as to them but that

government officials cannot be liable for constitutional

violations on that basis. The Court then dismissed the claim

against Warminster because Santiago had not alleged that

Chief Murphy was a “final policymaker,” which is a

necessary element of the claim Santiago attempted to assert

against the Township. Finally, because it had dismissed all of

Santiago’s federal claims, the Court declined to exercise

pendent jurisdiction over the state law claims and dismissed

them, without prejudice. Santiago’s timely appeal to us

followed.

II. Discussion 4

On appeal, Santiago argues that the District Court

erred by dismissing the claims against the Supervising

Officers and Warminster. Our review of the District Court’s

decision to grant the motions to dismiss is plenary. Fowler v.

UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). We

take as true all the factual allegations of the Third Amended

Complaint and the reasonable inferences that can be drawn

from them, Sheridan v. NGK Metals Corp., 609 F.3d 239, 262

n. 27 (2010), but we disregard legal conclusions and “recitals

of the elements of a cause of action, supported by mere

conclusory statements.” Iqbal, 129 S. Ct.. at 1949. “To

survive a motion to dismiss, ‘a complaint must contain

4

The District Court had jurisdiction over Santiago’s

claims pursuant to 28 U.S.C. §§ 1331 and 1343, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

10

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.’” Sheridan, 609 F.3d at 262

n.27 (quoting Iqbal, 129 S. Ct.. at 1949). “‘A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Id.

A. Santiago’s Claims Against the Supervising

Officers

We address first the dismissal of Santiago’s claims

against the Supervising Officers. The District Court

dismissed those claims because it held that Santiago had not

pled any basis of liability in the Supervising Officers’ own

acts but, instead, had alleged only a theory of respondeat

superior liability, which cannot serve as the basis of a claim

for constitutional violations. See Iqbal, 129 S. Ct.. at 1948

(“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory

of respondeat superior.”). While we conclude that the Third

Amended Complaint can be read as alleging liability based on

the Supervising Officers’ own acts, we will nevertheless

affirm the District Court’s ruling because those allegations

fail to meet the pleading requirements set forth by the

Supreme Court in Twombly and Iqbal.

1. The Nature of Santiago’s Claims

Liability based on respondeat superior arises “solely

on the basis of the existence of an employer-employee

relationship,” regardless of whether the employer had any

part in causing harm. Monell v. Dep’t of Soc. Servs. of New

York, 436 U.S. 658, 692 (1978). Contrary to the District

11

Court’s view, that is not the theory Santiago advances.

Instead, Santiago’s allegations appear to invoke a theory of

liability under which “a supervisor may be personally

liable … if he or she participated in violating the plaintiff’s

rights, directed others to violate them, or, as the person in

charge, had knowledge of and acquiesced in his subordinates’

violations.” 5 A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile

5

At oral argument, the Supervising Officers asserted

that a supervisory liability claim was unavailable to Santiago

because that claim had been dismissed from an earlier version

of the complaint. That assertion is not only inconsistent with

the briefing, in which the Supervising Officers described

supervisory liability as Santiago’s “only claim[] against the

Appellees” (Appellee’s Reply Brief at 24), it also evidences a

misunderstanding of the record and our precedents.

While a claim of “failure to train and supervise” was

asserted in and dismissed from Santiago’s Second Amended

Complaint, that claim was brought only against Warminster,

and its dismissal does not foreclose the claims brought against

the Supervising Officers. Furthermore, as we have noted

elsewhere, “[t]here are two theories of supervisory liability,”

one under which supervisors can be liable if they “established

and maintained a policy, practice or custom which directly

caused [the] constitutional harm,” and another under which

they can be liable if they “participated in violating plaintiff’s

rights, directed others to violate them, or, as the person[s] in

charge, had knowledge of and acquiesced in [their]

subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne

Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)

(second alteration in original). The claim against Warminster

that was dismissed from the Second Amended Complaint

pertained only to the first theory of supervisory liability,

12

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Specifically,

Santiago alleges that Chief Murphy and Lt. Donnelly

developed a plan that “sought to have all occupants exit the

Plaintiff’s home, one at a time, with hands raised under threat

of fire, patted down for weapons, and then handcuffed until

the home had been cleared and searched.” (Third Am.

Compl. at ¶¶ 21, 23.) The claim is thus that, through the

creation and authorization of the plan, Chief Murphy and Lt.

Donnelly “directed others to violate [Santiago’s rights].”

A.M., 372 F.3d at 586. The related allegation that Lt.

Springfield, as the person in charge of the operation,

“permitted the use of excessive force” appears to be a claim

that Lt. Springfield “acquiesced in his subordinates’

violations.” 6 A.M., 372 F.3d at 586. Consequently, although

while the claim at issue against the Supervising Officers

pertains primarily to the second. Accordingly, the dismissal

of the “failure to train and supervise” claim against

Warminster is not of significance to our review of the present

supervisory liability claim against the Supervising Officers.

6

At oral argument, Santiago stated that, like Lt.

Springfield, Lt. Donnelly’s liability was also based on

acquiescence, rather than on having directed the use of force.

The Third Amended Complaint, however, states that Lt.

Donnelly is liable because he helped plan the operation and

“the plan used excessive force,” whereas it states that Lt.

Springfield was liable because “he permitted the use of

excessive force.” Thus, we read the allegations as claiming

that Lt. Donnelly, like Chief Murphy, directed others to use

excessive force, whereas Lt. Springfield acquiesced in the use

of force. The distinction is not ultimately important,

however, as the claims fail either way.

13

the Third Amended Complaint seeks a species of supervisory

liability, it is not respondeat superior liability.

2. The Sufficiency of Santiago’s Pleadings

That Santiago has alleged supervisory liability claims

does not mean that she has supported those allegations with

“‘sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face,’” Sheridan, 609 F.3d at

262 n.27 (quoting Iqbal, 129 S. Ct.. at 1949), as is required by

the seminal Supreme Court decisions in Iqbal and Twombly.

To determine the sufficiency of a complaint under the

pleading regime established by those cases, a court must take

three steps: First, the court must “tak[e] note of the elements

a plaintiff must plead to state a claim.” Iqbal, 129 S. Ct. at

1947. 7 Second, the court should identify allegations that,

“because they are no more than conclusions, are not entitled

to the assumption of truth.” Id. at 1950. Finally, “where

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief.” Id.

7

Iqbal describes the process as only a “two-pronged

approach.” 129 S. Ct.. at 1950. It preceded that description,

however, by noting that it is often necessary to “begin by

taking note of the elements a plaintiff must plead to state a

claim.” Id. at 1947. Thus, we view Iqbal as outlining three

steps.

14

a) The elements of Santiago’s

claims

Our initial task is to “tak[e] note of the elements

[Santiago] must plead” in order to state a claim of § 1983

liability. See Iqbal, 129 S. Ct.. at 1947-48 (identifying “[t]he

factors necessary to establish a Bivens violation” in order to

determine what “the plaintiff must plead and prove”).

To state a claim of supervisory liability against Chief

Murphy and Lt. Donnelly, at least of the kind that it appears

Santiago is advancing, she must plead that they “directed

others to violate [her rights],” A.M., 372 F.3d at 586. Of

course, Chief Murphy and Lt. Donnelly could only be liable if

the people they supposedly directed to violate her rights

actually did so; otherwise, “the fact that [Chief Murphy and

Lt. Donnelly] might have [directed] the use of constitutionally

excessive force is quite beside the point.” City of Los Angeles

v. Heller, 475 U.S. 796, 799 (1986). Thus, any claim that

supervisors directed others to violate constitutional rights

necessarily includes as an element an actual violation at the

hands of subordinates. In addition, a plaintiff must allege a

causal connection between the supervisor’s direction and that

violation, or, in other words, proximate causation.

Proximate causation is established where the

supervisor gave directions that the supervisor “knew or

should reasonably have known would cause others to deprive

the plaintiff of her constitutional rights.” Conner v. Reinhard,

847 F.2d 384, 397 (7th Cir. 1988); see also Snell v. Tunnell,

920 F.2d 673, 700 (10th Cir. 1990). Particularly after Iqbal,

the connection between the supervisor’s directions and the

constitutional deprivation must be sufficient to “demonstrate

15

a ‘plausible nexus’ or ‘affirmative link’ between the

[directions] and the specific deprivation of constitutional

rights at issue.” Hedges v. Musco, 204 F.3d 109, 121 (3d Cir.

2000) (internal quotation marks and citation omitted).

Therefore, to state her claim against Chief Murphy and Lt.

Donnelly, Santiago needs to have pled facts plausibly

demonstrating that they directed Alpha Team to conduct the

operation in a manner that they “knew or should reasonably

have known would cause [Alpha Team] to deprive [Santiago]

of her constitutional rights.” Conner, 847 F.2d at 397.

As to her claim against Lt. Springfield, Santiago must

allege facts making it plausible that “he had knowledge of

[Alpha Team’s use of excessive force during the raid]” and

“acquiesced in [Alpha Team’s] violations.” 8 A.M., 372 F.3d

at 586.

8

Numerous courts, including this one, have expressed

uncertainty as to the viability and scope of supervisory

liability after Iqbal. See, e.g., Bayer v. Monroe, 577 F.3d

186, 190 n.5 (3d Cir. 2009) (“In light of the Supreme Court’s

recent decision in [Iqbal], it is uncertain whether proof of

such personal knowledge, with nothing more, would provide

a sufficient basis for holding [defendant] liable with respect to

plaintiffs’ Fourteenth Amendment claims.”); Dodds v.

Richardson, 614 F.3d 1185, 1194 (10th Cir. 2010) (noting the

“important questions about the continuing vitality of

supervisory liability under § 1983 after the Supreme Court’s

recent decision in Ashcroft v. Iqbal”); Parish v. Ball, 594 F.3d

993, 1001 (8th Cir. 2010) (“The Supreme Court’s recent

pronouncement in Iqbal may further restrict the incidents in

which the ‘failure to supervise’ will result in liability.”).

Because we hold that Santiago’s pleadings fail even under our

16

b) The allegations that are not

entitled to the assumption of truth

Having identified the elements of Santiago’s claims,

Iqbal directs that the next step is to identify allegations that,

“because they are no more than conclusions, are not entitled

to the assumption of truth.” Iqbal, 129 S. Ct.. at 1950. In

other words, “[we] must accept all of the complaint’s well-

pleaded facts as true, but may disregard any legal

conclusions.” Fowler, 578 F.3d at 210-11. We also disregard

“naked assertions devoid of further factual enhancement” and

“threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Iqbal, 129 S. Ct..

at 1949.

Santiago alleges that the plan developed and

authorized by Chief Murphy and Lt. Donnelly “specifically

sought to have all occupants exit the Plaintiff’s home, one at a

time, with hands raised under threat of fire, patted down for

weapons, and then handcuffed until the home had been

cleared and searched.” Because this is nothing more than a

recitation of what Santiago says the Alpha Team members did

to her, it amounts to a conclusory assertion that what

happened at the scene was ordered by the supervisors. While

the allegations regarding Alpha Team’s conduct are factual

and more than merely the recitation of the elements of a cause

of action, the allegation of supervisory liability is, in essence,

that “Murphy and Donnelly told Alpha team to do what they

existing supervisory liability test, we need not decide whether

Iqbal requires us to narrow the scope of that test.

17

did” and is thus a “formulaic recitation of the elements of a

[supervisory liability] claim,” Iqbal, 129 S. Ct.. at 1951

(internal quotation marks omitted) – namely that Chief

Murphy and Lt. Donnelly directed others in the violation of

Santiago’s rights. Saying that Chief Murphy and Lt.

Donnelly “specifically sought” to have happen what allegedly

happened does not alter the fundamentally conclusory

character of the allegation. 9

Our conclusion in this regard is dictated by the

Supreme Court’s decision in Iqbal. The plaintiff’s claim in

that case required proving that the defendants, Attorney

General John Ashcroft and FBI Director Robert Mueller, had

“adopted a policy because of, not merely in spite of, its

adverse effects upon an identifiable group.” 129 S. Ct.. at

1951. The Court disregarded allegations that “petitioners

knew of, condoned, and willfully and maliciously agreed to

subject [respondent] to harsh conditions of confinement as a

matter of policy, solely on account of [his] religion, race,

and/or national origin” and that “Ashcroft was the principal

9

We recognize that Santiago’s allegations against

Chief Murphy and Lt. Donnelly are not precisely of the “they

said to do it” variety because there are some distinctions

between what Santiago alleges happened and what Santiago

alleges was ordered. In particular, Santiago alleges that the

Supervising Officers ordered everyone to be handcuffed but

that certain occupants were not actually handcuffed.

Nonetheless, the breadth and conclusory nature of Santiago’s

allegations are such that they appear to us to be, in practical

effect, indistinguishable from purely “they said to do it”

allegations.

18

architect of this invidious policy, and that Mueller was

instrumental in adopting and executing it.” Id. (internal

quotation marks omitted). The Supreme Court called those

allegations “nothing more than a formulaic recitation of the

elements of a constitutional discrimination claim.” Id.

(internal quotation marks omitted). The Court emphasized

that the claims required dismissal not because they were

fanciful, but because they were conclusory. Id. Likewise, in

this case where Santiago is required to prove that the

Supervising Officers directed others to use excessive force, an

allegation that the plan “specifically sought” that use of force

is nothing more than a formulaic recitation of the elements of

a supervisory liability claim and hence is not entitled to the

assumption of truth. The same is true for Santiago’s

allegation that Lt. Springfield “permitted the use of excessive

force,” which is nothing more than a conclusory statement

that he acquiesced in his subordinates’ violations.

In short, Santiago’s allegations are “naked

assertion[s]” that Chief Murphy and Lt. Donnelly directed

Alpha Team to conduct the operation in the allegedly

excessive manner that they did and that Lt. Springfield

acquiesced in Alpha Team’s acts. As mere restatements of

the elements of her supervisory liability claims, they are not

entitled to the assumption of truth. However, it is crucial to

recognize that our determination that these particular

allegations do not deserve an assumption of truth does not

end the analysis. It may still be that Santiago’s supervisory

liability claims are plausible in light of the non-conclusory

factual allegations in the complaint. We therefore turn to

those allegations to determine whether the claims are

plausible.

19

c) The plausibility of Santiago’s

claims

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 129 S. Ct.. at 1949. Other than

the conclusory allegations just discussed, the remaining

allegations regarding the Supervising Officers are as follows:

Chief Michael Murphy is Police Chief of

Warminster Township Police Department.

Chief Murphy is a founding member and

director of the CBSRT. Although Chief

Murphy was not present at the scene on May

13, 2006, he ordered and approved the plan to

execute the arrest warrants. …

Christopher Springfield was a police officer

with Warminster Township Police Department.

On May 13, 2006, he held the rank of

Lieutenant and was in placed in [sic] charge of

the “surround and call out” operation by Chief

Murphy. Lt. Springfield was responsible for all

assets including the CBSRT and Warminster

Township Police Officers. …

Lt. James Donnelly is an officer with the

Warminster Township Police Department. On

May 13, 2006, he was also the Tactical Team

Leader of CBSRT. Chief Murphy ordered Lt.

Donnelly to plan and help execute an early

morning “surround and call out” operation … .

20

As Tactical Team Leader of CBSRT, Lt.

Donnelly was responsible for the actions of

Alpha Team. …

(Third Am. Compl. at ¶¶ 21-23.)

For purposes of analyzing the motions to dismiss, we

take those factual allegations as true and also accept as

accurate the factual allegations regarding Alpha Team’s

execution of the operation. In summary, the allegations

against Alpha Team are that the officers ordered everyone to

exit the house one at a time; that Santiago exited first under

threat of fire; that Santiago was patted down in a demeaning

fashion, found to be unarmed, and subsequently handcuffed;

that the remaining occupants of the home then exited, some of

whom were handcuffed while others were not; that Santiago’s

daughter was coerced into consenting to a search of the home;

and that Santiago was left restrained for thirty minutes while

her home was searched, during which time she had a heart

attack.

The question then becomes whether those allegations

make it plausible that Chief Murphy and Lt. Donnelly

directed Alpha Team to conduct the operation in a manner

that they “knew or should reasonably have known would

cause [Alpha Team] to deprive [Santiago] of her

constitutional rights,” Conner, 847 F.2d at 397, or that Lt.

Springfield “had knowledge [that Alpha Team was using

excessive force during the raid]” and “acquiesced in [Alpha

Team’s] violations.” A.M., 372 F.3d at 586.

21

(1) The plausibility of the

claims against Chief

Murphy and Lt. Donnelly

First, with respect to Chief Murphy and Lt. Donnelly,

we consider whether the fact that they planned the operation

coupled with the fact that the operation resulted in excessive

force against Santiago makes it plausible that the plan called

for the use of excessive force. We conclude that it does not.

Santiago has only alleged that excessive force was used

against her. The complaint does not allege that any other

occupant was threatened with fire. It specifically states that

the other women were not handcuffed. It does allege that the

two grandsons were handcuffed, but one of them was the

subject of the arrest warrant and there are no allegations

stating whether the other was found to be armed or a risk of

flight. Consequently, there is no basis in the complaint to

conclude that excessive force was used on anyone except

Santiago. Even if someone else had been subjected to

excessive force, it is clear that the occupants were not being

treated uniformly. Thus, Santiago’s allegations undercut the

notion of a plan for all occupants to be threatened with fire

and handcuffed. While it is possible that there was such a

plan, and that Alpha Team simply chose not to follow it,

“possibility” is no longer the touchstone for pleading

sufficiency after Twombly and Iqbal. Plausibility is what

matters. Allegations that are “merely consistent with a

defendant’s liability” or show the “mere possibility of

misconduct” are not enough. Iqbal, 129 S. Ct.. at 1949-50

(internal quotation marks omitted). Here, given the disparate

treatment of the occupants of the home, one plausible

explanation is that the officers simply used their own

discretion in determining how to treat each occupant. In

22

contrast with that “obvious alternative explanation” for the

allegedly excessive use of force, the inference that the force

was planned is not plausible. Id. at 1951-52 (quoting

Twombly, 550 U.S. at 567).

Where, as here, an operation results in the use of

allegedly excessive force against only one of several people,

that use of force does not, by itself, give rise to a plausible

claim for supervisory liability against those who planned the

operation. To hold otherwise would allow a plaintiff to

pursue a supervisory liability claim anytime a planned

operation resulted in excessive force, merely by describing

the force used and appending the phrase “and the Chief told

them to do it.” Iqbal requires more.

(2) The plausibility of the

claim against Lt.

Springfield

We next ask whether the allegation that Lt. Springfield

was placed in charge of the operation, coupled with what

happened during the operation, makes it plausible that Lt.

Springfield knew of and acquiesced in the use of excessive

force against Santiago. Again, we conclude that it does not.

The complaint implies but does not allege that Lt. Springfield

was present during the operation. Assuming he was present,

however, the complaint still does not aver that he knew of the

allegedly excessive force, nor does it give rise to the

reasonable inference that he was aware of the level of force

used against one individual. See McKenna v. City of

Philadelphia, 582 F.3d 447, 460 (3rd Cir. 2009) (holding that

a supervisor’s presence “in the vicinity of the arrest at some

point after [plaintiff] was handcuffed … is not a legally

23

sufficient evidentiary basis” to find knowledge and

acquiescence). Consequently, the allegations are insufficient

to “nudge [Santiago’s] claims across the line from

conceivable to plausible.” Twombly, 550 U.S. at 570.

In sum, while Santiago’s complaint contains sufficient

allegations to show that the Supervising Officers planned and

supervised the operation and that, during the operation, Alpha

Team used arguably excessive force, her allegations do

nothing more than assert the element of liability that the

Supervising Officers specifically called for or acquiesced in

that use of force. As a result, her allegations may “get[] the

complaint close to stating a claim, but without further factual

enhancement [they] stop[] short of the line between

possibility and plausibility of entitlement to relief.”

Twombly, 550 U.S. at 557 (internal quotation marks and

alterations omitted). Because the Third Amended Complaint

does not give rise to a plausible claim for relief against the

Supervising Officers, the District Court did not err in

dismissing the claims against them. 10

10

The Third Amended Complaint was filed after the

close of discovery. Consequently, there is no reason to

believe that Santiago’s conclusory allegations were simply

the result of the relevant evidence being in the hands of the

defendants. Under Iqbal, however, the result would be the

same even had no discovery been completed. We recognize

that plaintiffs may face challenges in drafting claims despite

an information asymmetry between plaintiffs and defendants.

Given that reality, reasonable minds may take issue with

Iqbal and urge a different balance between ensuring, on the

one hand, access to the courts so that victims are able to

obtain recompense and, on the other, ensuring that

24

B. Santiago’s Claim Against Warminster

We now turn to the dismissal of Santiago’s claim

against Warminster. The District Court dismissed that claim

because Santiago had failed to allege that Chief Murphy was

a final policymaker, which, under Monell, was necessary to

the survival of her claim against the Township. Santiago

offers two arguments for why the dismissal was improper.

First, she argues that, while she may not have used the words

“final policymaker,” “the factual averments of the complaint

are more than sufficient to show that Chief Murphy was the

‘final policymaker’ with respect to the tactical decisions made

here.” (Appellant’s Opening Brief at 23.) Second, she argues

that the District Court applied the wrong standard –

considering whether Chief Murphy was a final policymaker

as a factual question instead of a legal one, as required under

Supreme Court precedent. Not only are those arguments

inconsistent, they miss the point. The dispositive point is

that, whether or not Chief Murphy is a final policymaker,

Santiago has failed to plead facts showing that his plan

caused her injury.

municipalities and police officers are not unnecessarily

subjected to the burdens of litigation. See Arthur R. Miller,

From Conley to Twombly to Iqbal: A Double Play on the

Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 2 (2010)

(arguing that Twombly and Iqbal give “too much attention to

claims … of expense and possible abuse and too little on

citizen access, a level litigation playing field, and the other

values of civil litigation”). The Supreme Court has struck the

balance, however, and we abide by it.

25

Under Monell, for municipal liability to attach, any

injury must be inflicted by “execution of a government’s

policy or custom.” 436 U.S. at 694. Drawing all factual

inferences in favor of Santiago, as is required at this juncture,

we nevertheless cannot conclude that the Third Amended

Complaint alleges municipal liability. The complaint does

not allege that Chief Murphy had policymaking authority, 11

nor does it allege what action he took that could fairly be said

to be policy. The allegation that Chief Murphy ordered a plan

to execute arrest warrants does not imply the existence of an

official policy in violation of Santiago’s constitutional rights.

See McTernan v. City of York, 564 F.3d 636, 658 (3d Cir.

2009) (a claimant “must identify a custom or policy, and

11

While Santiago is correct that, whether Chief

Murphy is a final policymaker is ultimately a legal rather than

a factual question, City of St. Louis v. Praprotnik, 485 U.S.

112, 124 (1988), that does not relieve her of the obligation to

plead in some fashion that he had final policy making

authority, as that is a key element of a Monell claim. In any

event, as a matter of Pennsylvania state law, a township

Police Chief is not a final policymaker. See 53 PA. STAT.

ANN. § 66902 (vesting authority over the “organization and

supervision” of township police officers with the township

board of supervisors); Hicks v. Warminster Township, No.

Civ. A. 00-2895, 2001 WL 1159750, at *3 (E.D.Pa. July 26,

2001) (“In such townships, all of the policymaking power,

including over the local police force, is vested in the town

supervisors.”). Moreover, the Supreme Court has forbidden

courts from “assuming that municipal policymaking authority

lies somewhere other than where the applicable law purports

to put it.” Praprotnik, 485 U.S. at 125 n.1, 126.

26

specify what exactly that custom or policy was”); see also

McGreal v. Ostrov, 368 F.3d 657, 685 (7th Cir. 2004) (“[T]he

plaintiff must first allege that a defendant is a final

policymaker. Only then can a court proceed to the next

question of whether the single act or single decision of that

defendant constituted municipal policy.”) More to the point,

though, we have already held that Santiago’s pleadings fail to

plausibly allege that Chief Murphy directed others to violate

her rights. Thus, even if Chief Murphy were a final policy

maker and his plan were deemed to be official Warminster

policy, Santiago has failed to properly plead that the plan was

the source of her injury. Therefore, she has not shown that

her injury was inflicted by “execution of [Warminster’s]

policy or custom,” Monell, 436 U.S. at 694, and she has no

claim against the Township.

III. Conclusion

For the foregoing reasons, we will affirm the District

Court’s order dismissing Santiago’s claims.

27