THE ESTATE OF BRIAN EDWARD FISHER, deceased, by and through the ADMINISTRATRIX OF THE ESTATE JAMIE FISHER v. CITY OF PITTSBURGH; PITTSBURGH BUREAU OF POLICE; ROBINSON TOWNSHIP; ROBINSON TOWNSHIP POLICE DEPARTMENT; POLICE OFFICER JORDAN PRICE; and POLICE OFFICER JOSEPH TOMKO
Civil Action No. 2:24-cv-1234
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
May 8, 2025
Judge J. Nicholas Ranjan; Magistrate Judge Patricia L. Dodge
Case 2:24-cv-01234-NR-PLD Document 62 Filed 05/08/25 Page 1 of 18
I. RECOMMENDATION
It is respectfully recommended that Defendants’ motions to dismiss (ECF Nos. 47, 49) be granted in part and denied in part.
II. REPORT
A. Relevant Procedural History
Plaintiff Jamie Fisher (“Plaintiff“) commenced this action following the death of her brother, Brian Edward Fisher. The initial Complaint named the City of Pittsburgh, Pittsburgh Bureau of Police (collectively “Pittsburgh Defendants”), Robinson Township, Robinson Township Police Department (collectively “Robinson Defendants”), Pittsburgh Police Officer Jordan Price (“Price“), and Robinson Township Police Officer Joseph Tomko (“Tomko”). (ECF No. 1.)
In response, Plaintiff amended the complaint on November 11, 2024. The Amended Complaint asserts claims for Fourth and Fourteenth Amendment violations against all Defendants (Count I); Monell liability-failure to train against the City of Pittsburgh (Count II); Monell liability–failure to train against Robinson Township (Count III)1;
The Robinson Defendants and Tomko collectively moved to dismiss the Amended Complaint on November 25, 2024. (ECF Nos. 47.) That same day, the Pittsburgh Defendants filed a separate motion to dismiss (ECF Nos. 49), and Price filed an Answer (ECF No. 51). Both motions have now been fully briefed (ECF Nos. 48, 50, 56, 57, 61) and are ready for disposition.
B. Facts Alleged in the Amended Complaint
The events giving rise to this action occurred on September 1, 2022. Robinson Township Police (“Robinson PD”) received a call from a woman stating that she had not seen her adult daughter, Leah Hess (“Ms. Hess”) in about twenty-four hours. (ECF No. 43 ¶ 14.) She did not say that Ms. Hess was in imminent danger and did not file a formal missing person report. (Id. ¶¶ 15-16.)
Robinson PD dispatched Officer Tomko to investigate and locate Ms. Hess. (Id. ¶ 16.) Tomko subsequently determined that Ms. Hess was at a house located on Rydal Street in
The Rydal house is located outside of Robinson PD‘s jurisdiction. As a result, Tomko contacted the Pittsburgh Bureau of Police (“PBP”) to request assistance in conducting a wellness check on Ms. Hess. PBP dispatched Officer Price to assist Tomko. (Id. ¶¶ 23-24.)
The Rydal house is one-story and has a front yard that slopes down towards the street. The front door opens onto a small porch that has steps connecting down to a driveway below. (Id. ¶ 25.) By the time Tomko and Price arrived, it was dark outside, the front door was closed, and blinds on the front windows were closed. (Id. ¶ 28.) Price positioned himself in the front yard to the right of the porch while Tomko stood on the porch and aggressively knocked on the door without announcing that he was a police officer. (Id. ¶¶ 26-28.) Fisher opened the door and Price fired three shots from his firearm, hitting Fisher in the chest. (Id. ¶¶ 32, 41.) The shots were fired within three seconds of the door opening and before Fisher had fully presented himself through the doorway. (Id. ¶ 32.) Price later said that he saw a firearm in Fisher‘s right hand. (Id. ¶ 33.)
Tomko and Price immediately retreated to the end of the driveway and called for emergency medical services. (Id. ¶¶ 42-43.) Ms. Hess, who had been in the house at the time of the shooting, attempted to help Fisher but ultimately was unable to do so. (Id. ¶¶ 30, 44.) She went outside to yell for help, at which point Tomko and Price removed her from the house. Until that point, Ms. Hess had not known that police were on the scene. (Id. ¶ 45.) Neither Tomko nor Price checked on or administer first-aid to Fisher and they remained at the end of the driveway until an ambulance arrived approximately ten minutes after the shooting. (Id. ¶¶ 43-44.) Despite the efforts
C. Legal Standard
Under
To overcome a
D. Discussion
1. Constitutional claims against Officer Tomko
Count I asserts a claim under
Plaintiff‘s claim at Count I can be broken down into three separate alleged constitutional violations: excessive force; failure to intervene; and failure to provide medical care.5 Each
a. Excessive force
Plaintiff alleges that Tomko‘s planning and execution of the door-knock was not objectively reasonable, thereby creating the circumstances that resulted in Fisher being shot. (ECF No. 56 at 5.) Tomko argues that he cannot be held liable for excessive force because there are no allegations that he himself used force or even physically touched Fisher. Thus, he argues that Plaintiff has failed to establish his personal involvement in the alleged misconduct. (ECF No. 48 at 5.)
A
The Amended Complaint alleges that Tomko was initially tasked with finding Ms. Hess and that his investigation led to the Rydal house. The Rydal house is located within the jurisdiction of the Pittsburgh Police, and therefore, ultimately under its control. Accordingly, Tomko requested assistance in conducting a wellness check on Ms. Hess, resulting in both he and Price arriving at Fisher‘s house on September 1, 2022. As alleged in the Amended Complaint, the two officers decided that Tomko would proceed to the front door and Price would position himself in the front yard. (ECF No. 56 ¶ 26.) Tomko then initiated an aggressive door-knock while Price waited in the front yard.
Thus, the Amended Complaint fails to point to conduct by Tomko sufficient to support a claim of excessive force. Even assuming that Tomko‘s actions in knocking on the door were not reasonable and led to Fisher opening the door armed with a firearm, Plaintiff alleges that it was Price who made the decision to shoot Fisher and then proceeded to do so. See Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 289 (3d Cir. 2018) (“liability must be predicated on [defendant‘s] direct and personal involvement in the alleged violation”); Witters v. Smith, 736 F. Supp. 3d 238, 247 (M.D. Pa. June 10, 2024) (dismissing Fourth Amendment claim against parole agent who was present when fellow agent shot plaintiffs’ dog based on lack of personal involvement).6
The excessive force claim against Tomko should therefore be dismissed. Typically, when dismissing a claim for failure to state a claim, “a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236 (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). “An amendment is futile if the amended
b. Failure to intervene
Next, Plaintiff alleges that Tomko failed to take reasonable steps to protect Fisher from the use of lethal force. Plaintiff maintains that there was ample opportunity to intervene and “a significant window for de-escalation,” throughout Tomko‘s planning and execution of the door-knock. (ECF No. 56 at 6.) Tomko argues that because Price shot Fisher within three seconds of him opening the front door, “no reasonable jury could conclude that Officer Tomko had a realistic opportunity to intervene.” (ECF No. 48 at 6.)
To plead a failure to intervene claim, a plaintiff must allege: “(1) the defendant failed or refused to intervene when a constitutional violation took place in his or her presence or with his or her knowledge; and (2) there was a ‘realistic and reasonable opportunity to intervene.”’ Knight v. Walton, 2014 WL 1316115, at *8 (W.D. Pa. Mar. 28, 2014) (quoting Smith v. Mensinger, 293 F.3d 641, 651 (3d Cir. 2002)). “[T]he duration of the incident is key to determining whether there was a reasonable opportunity.” El v. City of Pittsburgh, 975 F.3d 327, 335 (3d Cir. 2020). But although failure to intervene is recognized as a distinct claim, it requires that there first be a finding of excessive force. See Lora-Pena v. Denney, 760 F. Supp. 2d 458, 468 (D. Del. 2011) (“[B]y definition, if there was no excessive force then there can be no failure to intervene.”) (collecting cases). Plaintiff‘s ability to assert a failure to intervene claim is therefore tethered to the viability of the excessive force claim against Price.
It would therefore be premature for the Court to attempt to resolve whether the force used by Price against Fisher was reasonable this early in the proceedings. See, e.g., Bonilla v. City of York, 2015 WL 1525483, at *6 (M.D. Pa. Apr. 2, 2015) (denying motion to dismiss because “jury presented with such facts may very well find that the use of deadly force in such a situation was indeed unreasonable”); Ford v. City of Pittsburgh, 2014 WL 7338758, at *4 (W.D. Pa. Dec. 22, 2014) (“[B]efore any discovery has been completed, it is surely premature to expect the Court to make such a resolution at the motion to dismiss stage”). Applying that same logic, it would be similarly inappropriate to attempt to extend the analysis one step further and determine whether there was a “realistic and reasonable opportunity” for Tomko to intervene in any excessive force
c. Failure to provide medical care
Finally, Plaintiff alleges that Tomko deprived Fisher of necessary medical care in violation of the Fourteenth Amendment by failing to render first-aid following the shooting. (ECF No. 56 at 6-7.) Tomko argues that Plaintiff‘s claim fails because an ambulance was called and arrived on scene ten minutes after the shooting. (ECF No. 48 at 6-7.)
The Fourteenth Amendment guarantees non-incarcerated individuals rights “at least as great as the Eighth Amendment protections available to a convicted prisoner.” Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983); see also Cooleen v. Lamanna, 248 F. App’x 357, 361 (3d Cir. 2007) (“[S]ubstantive due process rights are invoked by pre-trial detainees and other nonconvicted persons seeking medical care who cannot invoke the Eighth Amendment.”). To state a claim for failure to provide medical care, a plaintiff must allege (1) that they have a serious medical need, and (2) acts or omissions by police officers indicating deliberate indifference to that need. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); see also Peters v. Brown, 793 F. App’x 118, 123 (3d Cir. 2019) (“We have found it constitutionally sufficient . . . to analyze pretrial detainees’ claims of inadequate medical care under the familiar deliberate indifference standard.”).
A medical need is “serious” if it is “so obvious that a lay person would easily recognize the necessity for a doctor‘s attention.” Monmouth Cnty. Corr. Inst’l Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Plaintiff has undoubtedly alleged a serious medical need, as Fisher was
“Deliberate indifference is a ‘subjective standard of liability consistent with recklessness as that term is defined in criminal law.”’ Natale, 318 F.3d at 582 (quoting Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)). “Deliberate indifference exists where there is ‘objective evidence that [a] plaintiff had serious need for medical care’ and the need was ignored or delayed for non-medical reasons.” Smith v. Gransden, 553 F. App’x 173, 177 (3d Cir. 2014) (quoting Natale, 318 F.3d at 582).
Tomko argues that Plaintiff‘s claim fails because the facts alleged show that Fisher was shot, officers called an ambulance, paramedics arrived ten minutes later, and medical aid was rendered. According to Tomko, he had “no special medical training beyond basic first aid in treating gunshot wounds.” (ECF No. 48 at 7.) “Other than calling for EMS and remaining on scene, it is unclear what else Officer Tomko, who was in shock from the incident could have done.” (Id. at 8.)
But viewing the allegations in the light most favorable to Plaintiff, the Amended Complaint alleges that Tomko immediately retreated from the door after Fisher was shot. He then remained at the end of the driveway for the ten minutes it took for the ambulance to arrive. During that time, he did not know or even attempt to find out if Fisher was still alive. Without the benefit of discovery, it is simply too early to definitively say whether Tomko‘s actions in delaying treatment “diminished [Fisher‘s] chances of survival.” Smith, 553 F. App’x at 177. For now, though, it is
Finally, Tomko also argues that he is entitled to qualified immunity because it would not be clear to a similarly situated officer in the same circumstances that merely calling an ambulance, without more, was unlawful. (ECF No. 48 at 8-9.) As the Third Circuit has cautioned, “it is generally unwise to venture into a qualified immunity analysis at the pleading stage as it is necessary to develop the factual record in the vast majority of cases.” Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (per curiam); see also Ford, 2014 WL 7338758, at *4 (citing Debrew v. Auman, 354 F. App’x 639, 642 (3d Cir. 2009)) (“[U]nless a complaint discloses that a police officer did not violate clearly established law when firing at a suspect, dismissal on qualified immunity grounds is premature.”). The circumstances alleged place this case among the “vast majority of cases” in which dismissal on qualified immunity grounds would be inappropriate at the pleading stage.
2. Monell claims
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under
Instead, a city or county government, such as the City of Pittsburgh or Robinson Township, are deemed a “person” under
a. City of Pittsburgh
Plaintiff alleges that the City of Pittsburgh failed to train its police officers in various ways, including:
- Failing to teach officers how to properly to give verbal warnings prior to using deadly force;
- Failing to teach officers how to properly give commands prior to using deadly force;
- Failing to teach officers how to properly announce themselves as police and to use less lethal options prior to restoring [sic] to the use of deadly force.
- Failure to properly screen, supervise, discipline, transfer, counsel or otherwise
control police officers, including the officers who killed Brian Fisher who are known or should have been known to engage in improper use of excessive force and deadly force; - Creating and implementing procedures that allow for and promote the use of deadly force in unwarranted and under unjustified circumstances;
- Training the officers to use deadly force seconds after encountering an individual rather than less confrontational and less harmful methods such as physical restraint or other detention techniques.
- Otherwise violating the rights of the Decedent.
(ECF No. 43 ¶ 120(a)-(g).) Plaintiff also points to a Consent Decree between Pittsburgh and the U.S. Department of Justice, prior lawsuits, and public records involving settlements paid by the City of Pittsburgh to purportedly show a pattern of excessive use of force and misconduct within the PBP. These added facts purportedly demonstrate that the City of Pittsburgh was on notice that its training policies were “woefully inadequate, allowing a culture of excessive force and disregard for constitutional rights to continue.” (ECF No. 57 at 4-5.)
The Pittsburgh Defendants argue that Plaintiff failed to show a causal connection between any alleged training deficiencies and Fisher‘s injuries, as required to sustain liability under Monell. They also contend that the Consent Decree and prior lawsuits lack factual similarity and temporal proximity to the events of this lawsuit. (ECF No. 50 at 6-17.)8
In addition, the plaintiff must also bear the “burden of proving that the municipal practice was the proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). To satisfy this requirement, a plaintiff “must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality‘s custom and the specific deprivation of constitutional rights at issue.” Id. Causation is typically an issue for the jury. Panas v. City of Phila., 871 F. Supp. 2d 370, 378 (E.D. Pa. May 14, 2012); Ford, 2014 WL 7338758, at *7. “As long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury.” Bielevicz, 915 F.2d at 851.
b. Robinson Township
Unlike the claim against the City of Pittsburgh, Plaintiff does not allege that Robinson Township has a history of similar police misconduct, prior lawsuits, or settlements. Instead, Plaintiff merely pleads that “Robinson Township‘s secretive use of force policies have inadequately trained its police officers, including Officer Tomko, in both when its proper to use force and in how to deescalate encounters with the public.” (ECF No. 43 ¶ 94.)
Plaintiff nonetheless alleges that Robinson Township failed to adequately train its officers by:
- Failing to teach officers how to properly announce themselves when knocking on a door;
- Failing to teach officers how to properly to give verbal warnings prior to using deadly force;
- Failing to teach officers how to properly give commands prior to using deadly force;
- Failing to teach officers how to properly announce themselves as police and to use less lethal options prior to restoring to the use of deadly force;
- Faling [sic] to teach officers how to properly announce themselves when they are knocking on a door;
- Failure to properly screen, supervise, discipline, transfer, counsel or otherwise control police officers, including the officers who killed Brian Fisher who are known or should have been known to engage in improper use of excessive force and deadly force;
- Creating and implementing procedures that allow for and promote the use of deadly force in unwarranted and under unjustified circumstances;
- Training the officers to use deadly force seconds after encountering an individual rather than less confrontational and less harmful methods such as physical restraint or other detention techniques.
- Failing to ensure officers understand the importance of announcing themselves when knocking on a door;
- Otherwise violating the rights of the Decedent.
(Id. ¶ 148(a)-(j).) Many of the other allegations in Count III involve specific actions taken by Tomko, see, e.g., Id. ¶¶ 152-56, 165, followed by conclusory remarks regarding Robinson Township‘s alleged failure to train stemming from “an intentional, reckless, and callous disregard to the constitutional rights and the life of [Fisher].” (Id. ¶ 172.) Without more, these generic allegations are not enough to state a claim against Robinson Township. Wood, 568 F. App’x at 104.
It is therefore recommended that the Robinson Defendants’ motion to dismiss be granted as to Count III and that the Monell claim against Robinson Township be dismissed. Because the Court cannot conclude at this time that Plaintiff could never assert a plausible Monell claim against Robinson Township, it is recommended that the dismissal be without prejudice.
III. CONCLUSION
For these reasons, it is respectfully recommended that Defendants’ motions to dismiss (ECF Nos. 47, 49) be granted to the extent that:
- The excessive force claim against Tomko at Count I is dismissed with prejudice.
- The Fourth and Fourteenth Amendment claims against the City of Pittsburgh and Robinson Township at Count I are dismissed with prejudice.
- The Monell claim against Robinson Township at Count III is dismissed without prejudice and with leave to amend.
It is further respectfully recommended that Defendants’ motions be denied in all other respects.
IV. NOTICE
Pursuant to the Magistrate Judges Act,
Dated: May 8, 2025
/s/ Patricia L. Dodge
PATRICIA L. DODGE
UNITED STATES MAGISTRATE JUDGE