Ashley v. Kosheba

1

JUSTIN T. ASHLEY, Plaintiff, v. ADAM R. KOSHEBA, JR., et al., Defendants.

CIVIL No. 1:22-CV-00982

United States District Court, M.D. Pennsylvania

April 1, 2024

MEMORANDUM

JENNIFER P. WILSON UNITED STATES DISTRICT JUDGE

Before the court is a motion filed by Defendant Dauphin County (the “County”) to dismiss Count V of the second amended complaint filed by Plaintiff Justin T. Ashley (“Ashley”). (Doc. 51.) This case involves allegations of Lower Paxton Police Department officers using excessive force against Ashley. Ashley brings his claims under 42 U.S.C. § 1983, alleging various constitutional violations against Defendants Officer Chad W. Miller (“Officer Miller”), Officer Adam R. Kosheba, Jr. (“Officer Kosehba”), Officer Daniel M. Smeck (“Officer Smeck”), Officer Andrew R. Brady (“Officer Brady”), Lower Paxton Township (“the Township”), and the County.

The County's motion to dismiss argues that Count V, alleging Monell liability against the County, should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (Doc. 51.) Upon reviewing the second amended complaint and the parties' briefs regarding the County's motion to dismiss, the court concludes that Ashley again fails to plead a claim against the County and will therefore grant the motion to dismiss.

Background

Ashley initiated this action by filing a complaint on June 21, 2022. (Doc. 1.) Thereafter, both the Township and County filed a motion to dismiss for failure to state a claim. (Docs. 9 12.) Ashley then filed an amended complaint as matter of right on September 29, 2022, alleging the following claims excessive force against Officer Miller (Count I), duty to intervene against Officers Kosheba, Smeck, and Brady (Count II), supervisor liability against Officers Kosheba, Miller, and Brady (Count III), Monell liability against the Township (Count IV), and Monell liability against the County (Count V). (Doc. 18.)

The Township and County filed motions to dismiss the amended complaint. (Docs. 22, 23.) On September 22, 2023, the court denied the Township's motion insofar as it sought to dismiss the complaint, but granted it in part insofar as it sought to strike portions of the complaint. (Doc. 48.) In the same order, the court granted the County's motion to dismiss without prejudice to Ashley filing a second amended complaint. (Id.) On October 13, 2023, Ashley filed a second amended complaint raising the same claims against the same Defendants. (Doc. 50.)

On October 27, 2023, the County filed the instant motion to dismiss. (Doc. 51.) The parties briefed the motion. (Docs. 53, 55, 56.) Thus, the motion is ripe for review. On March 4, 2024, following a status conference with the parties, the court stayed case management deadlines pending resolution of the motion to dismiss. (Doc. 61.)

The second amended complaint alleges the following facts. Francis Chardo (“Chardo”) became the elected District Attorney (“DA”) for the County in January 2018. (Doc. 50, ¶ 20.) As DA, Chardo was a policymaker for the County DA's office. (Id. ¶ 21.) DA Chardo's policymaking role extended to the Criminal Investigation Division (“CID”). (Id. ¶¶ 22-23.) DA Chardo authorized Officer Kosheba to be sworn in as a law enforcement officer under DA Chardo's supervision, gave Officer Kosheba the title of “Special Detective,” and assigned him to the CID.^[1] (Id. ¶¶ 24-25.) Under the portion of Pennsylvania statute called the County Code (the “Code”), county detectives “shall be general police officers and shall have the powers conferred on constables by the laws of this Commonwealth.” 16 Pa. Stat. § 1440(d).

Officer Kosheba was named the Township's Director of Public safety on April 17, 2018. (Id. ¶ 17.) The Township delegated policymaking authority to Officer Kosheba for the Lower Paxton Township Police Department. (Id. ¶ 19.) The second amended complaint alleges that Officer Kosheba took all relevant conduct mentioned herein in his dual roles as Township's Director of Public Safety and as a Special Detective for the County. (Id. ¶ 27.)

During his time as Director of Public Safety, Officer Kosheba allegedly sought to “police the community pursuant to a policy of excessive force and intimidation.” (Id. ¶ 31.) Officer Kosheba allegedly changed the reporting requirements of use of force incidents in order for it to appear that injuries only occurred in a small fraction of situations, and he also changed the vehicle pursuit policy, which led to an increased number of vehicle pursuits in the Township. (Id. ¶¶ 31, 36-37.)

Ashley alleges that DA Chardo provided Officer Kosheba with countywide police authority. (Id. 152.) DA Chardo provided Officer Kosheba with no supervision “despite knowing that [Officer] Kosheba was a County policymaker in charge of the [Community Engagement Team “CET”] and was traveling around the County using the CET [] to engage in police use of force incidents.” (Id. ¶¶ 58, 153.) The CET was a team with the mission “to provide the residents of Lower Paxton Township the best possible police services through aggressive enforcements of the Laws and Statutes of the Commonwealth of Pennsylvania.” (Id. ¶ 59 (emphasis removed).)

Finally, Ashley alleges that Officers Kosheba, Miller, Brady, and Smeck served an arrest warrant at his home on June 24, 2020. (Id. ¶ 65.) All Defendants involved in this incident knew that Ashley had been suffering from mental illness and was working with a mental health case worker at the time. (Id. ¶ 73.) The named Defendants and the CET surrounded Ashley's home with law enforcement vehicles, armed officers, and a police K-9. (Id. ¶ 78.) The officers pounded on Ashley's door, threatening to break the door the down and threatening to send the K-9 into the home. (Id. ¶¶ 79, 81.) As Ashley was heading for the door, he heard it being broken down and hid in a closet behind a desk so that the K-9 would not bite him. (Id. ¶¶ 80-82, 84-85.) The officers warned Ashley that if he did come out, the K-9 would be sent in to bite him. (Id. ¶ 87.)

Officers Kosheba, Brady, and Smeck found Ashley in the storage closet and commanded him to show his hands. (Id. ¶¶ 89-91.) Ashley complied, but then froze when he saw the K-9. (Id. ¶¶ 92-96.) Officer Miller then commanded the K-9 to bite Ashley, causing him to suffer injuries on his arm. (Id. ¶¶ 97, 100-01.) Officers Kosheba, Miller, Brady, and Smeck then attempted to pull Ashley over the desk he was hiding behind by the hood of his sweatshirt, causing injury to Ashley's neck. (Id. ¶ 102.) Ashley then proceeded to lie in the fetal position on the floor, during which Officer Miller instructed the K-9 to bite Ashley's leg. (Id. ¶¶ 105-07.) The K-9 was permitted to chew Ashley's leg, causing significant injuries. (Id. ¶¶ 108, 110-11.) This encounter forms the basis of Ashley's lawsuit.

Standard of Review

In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “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. (quoting Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019) (quoting Iqbal, 556 U.S. at 678-79). To determine whether a complaint survives a motion to dismiss, a court identifies “the elements a plaintiff must plead to state a claim for relief,” disregards the allegations “that are no more than conclusions and thus not entitled to the assumption of truth,” and determines whether the remaining factual allegations “plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

Discussion

The County argues that Count V fails for two reasons. First Officer Kosheba lacked final policymaking authority. (Doc. 53, pp. 10-12.)^[2] Therefore, his actions did not represent official County policy. (Id.) Second, Officer Kosheba's actions cannot be otherwise attributed to the County through a failure to supervise theory. (Id. at 12-14.) Ashley counters that the County is wrong on both arguments and that he has sufficiently pleaded Count V.

Under Supreme Court precedent, a municipality can be liable for constitutional violations committed by its employees only when “the action that is alleged to be unconstitutional implements or executes a policy, statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). To bring a so-called Monell claim, a plaintiff must “plead that the complained-of injury was caused directly by a local government's ‘policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.'” Schlaybach v. Berks Heim Nursing & Rehab, 434 F.Supp.3d. 342, 350-51 (E.D. Pa. 2020) (quoting Harris v. City of Phila., 171 F.Supp.3d 395, 400 (E.D. Pa. 2016)).

A policy or custom can be proven in multiple ways. First, a plaintiff may point to “a formal policy officially promulgated or endorsed by the municipality ....” Id. at 351. The policy must be “an official proclamation, policy or edict” made by “a decisionmaker possessing final authority to establish municipal policy with respect to the action ....” Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d. Cir. 2019).

Second absent a formal policy, a “specific injury-causing action[...