OPINION
Now pending before the court in this matter are the motion to dismiss the claims against the City of Philadelphia (“the City”), filed by the City on April 11, 2011 (Docket No. 7), and the City’s motion for leave to file a reply brief to the plaintiffs response to the motion to dismiss, filed on May 18, 2011 (Docket No. 10). For the reasons that follow, I will grant the motion for leave to file a reply brief nunc pro tunc, but I will deny the motion to dismiss.
I. Background
A. Factual Allegations
The following narrative is drawn from the plaintiffs amended complaint, filed on July 20, 2011 (Docket No. 15). The well-pleaded factual allegations of the amended complaint must be assumed to be true in evaluating a motion to dismiss for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6).
On the morning of June 1, 2009, an eleven-year-old girl was brutally raped in the Kensington neighborhood of Philadelphia. Philadelphia police officers received an unsubstantiated tip that an individual known as “Romeo” may have been involved in the rape. Michael Zenquis was known in Kensington by the nickname “Romeo.” Upon receiving the tip, the defendant police officers began to advise citizens in the Kensington area that Zenquis had committed the rape.
The public identification of Zenquis as a suspect in the rape occurred over the course of several hours on June 1, the day of the crime. The officer defendants distributed a photograph of Zenquis to citizens in the area and advised the citizens that they should detain Zenquis, and they specifically advised citizens to use physical force. The citizens to whom the officer defendants spoke understood that “the clear message from the officers [was] that they would be free to assault [Zenquis] with impunity.” Am. Compl. ¶ 24.
On the afternoon of June 1, Zenquis was assaulted by several individuals in Kensington. The altercation began when Zenquis was walking in the area of Argyle and Ontario Streets and was called over to Argyle Street by a man whom he knew from the neighborhood. On Argyle, Zenquis was approached by two other men whom he also knew from the neighborhood. One of the newcomers struck Zenquis in the eye with a piece of lumber. The three men then threw Zenquis to the ground and assaulted him. Several other individuals joined the violence, using improvised weapons (including pieces of lumber and a baseball bat), punches, and kicks. As he was being beaten, Zenquis heard a woman yelling that he was a “rapist.” Zenquis yelled that he was innocent and had done nothing wrong. “The civilians who assaulted [Zenquis] had spoken to at least one or more of the individual defendants, and were told ... that they should detain [Zenquis] and that they would be permitted to use force against [Zenquis].” Am. Compl. ¶ 32.
The assault ended when some of the officer defendants, including Officer Raymond Singleton, arrived at the scene. Zenquis was arrested. At the time, the police did not investigate the assault on Zenquis and did not arrest or question any of the other persons at the scene. Zenquis was then transported to a hospital “for treatment of the multiple physical injuries he sustained during the assault, including serious bruising to his face, back, and foot, and lacerations to his ankle and elbow.” Am. Compl. ¶ 35.
On the following day, June 2, 2009, Zenquis gave a statement to the police concerning the individuals who had assaulted him. The police had not initiated any investigation of the assault until contacted again by Zenquis. Zenquis was able to identify the two individuals who had begun the attack on Argyle Street. Police sought arrest warrants for these two individuals on June 8, 2009.
In the interim, the police continued to investigate the June 1 rape, which Zenquis had been mistakenly identified as committing. On June 2, 2009, the police came to suspect an individual named Jose Carrasquillo. The police, including at least one of the officer defendants, advised citizens in Kensington that Carrasquillo had committed the rape. As they had done with Zenquis, the police “made clear to the civilians that they would be permitted to use physical force against Carrasquillo.” Am. Compl. ¶ 44.
On the afternoon of June 2, Carrasquillo was detained on the streets of Kensington by citizens who had been informed by the police that Carrasquillo committed the rape. Carrasquillo was chased down and then assaulted by a group of individuals using “improvised weapons, such as a piece of lumber. The assault, which was captured on a video surveillance camera, caused Carrasquillo serious injuries.” Am. Compl. ¶ 45. When police officers arrived on the scene, Carrasquillo was arrested. He was later charged with committing the June 1 rape. He pleaded guilty to the crime and is currently serving a sentence of thirty to sixty years in prison.
In the wake of the public capture of Carrasquillo, Philadelphia Mayor Michael A. Nutter stated that the citizens’ actions were “a further demonstration that Philadelphians care passionately about the city, about our quality of life, and certainly about our children.” Am. Compl. ¶ 49. Philadelphia Police Commissioner Charles Ramsey stated, after the fact, that “members of the community were very upset over this [rape], and some may have used more force than a trained police officer.” Am. Compl. ¶ 50. Ramsey also publicly announced that no criminal charges would be brought against the individuals involved in capturing Carrasquillo. Two of the individuals later received an $11,000 award at a public ceremony.
B. Prior Proceedings
On March 1, 2011, Zenquis initiated the present action pursuant to 42 U.S.C. § 1983 against the City and various “John Doe” police officer defendants (Docket No. 1). The City moved to dismiss the complaint on April 11, 2011 (Docket No. 7). Zenquis opposed that motion on April 29, 2011 (Docket No. 9).
On May 18, 2011, the City filed a motion for leave to file a reply brief to the plaintiffs opposition to the motion to dismiss
On July 13, 2011, Zenquis submitted an unopposed motion to file an amended complaint (Docket No. 13). The motion was granted on July 20, 2011 (Docket No. 14). The amended complaint substituted the names of the officer defendants for the “John Does” named in the initial complaint, but the pleading did not alter the allegations against the City. To prevent duplicative motion practice, I noted in my order granting the motion to file an amended complaint that I would consider the City’s April 11, 2011, motion to dismiss (and, by implication, the responses and replies thereto) as though it were addressed to the amended complaint. The officer defendants have filed an answer to the amended complaint (Docket No. 19), but they have not moved to dismiss the amended complaint; only the City has done so.
The amended complaint was filed on July 20, 2011 (Docket No. 15). It contains multiple theories of liability. First, the amended complaint asserts that the individual police officers conspired with and aided and abetted private citizens in violating Zenquis’s rights under the Fourth Amendment (as incorporated under the Fourteenth Amendment) to be free of unreasonable seizures, including unlawful stops, detentions, arrests, and the unlawful use of force. Second, the amended complaint asserts that the conduct of the individual officers violated Zenquis’s right to due process under the Fourteenth Amendment, because the state actors created the danger of harm that befell Zenquis. Both theories — state actors’ conspiracy with private actors to violate the Fourth Amendment, and state-created danger in violation of the Fourteenth Amendment — are asserted as the first cause of action against the officers, pleaded under 42 U.S.C. § 1983. They are distinct theories of liability and will be discussed separately.
The amended complaint also asserts, as a second cause of action, that the City is liable for the violation of Zenquis’s constitutional rights committed by the individual officers. This claim is built on alternate theories of municipal liability: either the City failed to train the officers (e.g., about the danger of encouraging civilians to use force to apprehend a suspect), and/or the City adopted, condoned, or was deliberately indifferent to a policy, practice, or custom of encouraging private citizens to act as vigilantes. Both alleged failings are said to have caused Zenquis’s constitutional injuries.
Finally, the amended complaint asserts that the individual officers are liable to the plaintiff under state-law tort theories of “assault, battery, violation of the common law duty to protect, reckless disregard of safety and civil conspiracy.” Am. Compl. ¶ 68.
II. Jurisdiction and Venue
This court has jurisdiction over the controversy because the amended complaint raises federal questions; the remaining state-law claims may be heard in supplemental jurisdiction. 28 U.S.C. §§ 1331, 1367. The civil-rights counts, under 42 U.S.C. § 1983, would provide an alternate and overlapping source of federal jurisdiction. Id. § 1343. Venue is proper in this court because a substantial portion of the
III. Discussion
To withstand the motion to dismiss, the amended complaint “must contain factual allegations that, taken as a whole, render the plaintiffs entitlement to relief plausible.” West Penn Allegheny Health Sys., Inc. v. UPMC,
At this stage, the factual allegations of the amended complaint must be taken as true, but not all material in a complaint qualifies as a factual allegation. For example, a district court may disregard the complaint’s legal conclusions. Fowler v. UPMC Shadyside,
Because the plausibility of the amended complaint varies with the elements of Zenquis’s several legal theories, I will discuss those theories separately.
A. Conspiracy to Violate the Fourth Amendment
The City argues that Zenquis has failed to allege the necessary facts to state a plausible claim that the police entered into a conspiracy with private citizens to violate Zenquis’s constitutional rights. City’s Mot. to Dismiss, at 8-11.
The City does not address this argument to any particular theory of constitutional harm contained in the amended complaint. As summarized above and confirmed by Zenquis in his opposition to the motion to dismiss, Zenquis relies on conspiracy only to establish the putative liability of the officer defendants, under the Fourth Amendment, for the “seizure” that was committed by private actors. PL’s Mem. of Law in Opp., at 14 & n. 6. Accordingly, I will defer discussion of Zenquis’s state-created danger claim for the moment.
The City also does not address the underlying elements of a Fourth Amendment claim — ie., whether the seizure of Zenquis was reasonable under the circumstances and/or whether the seizure was effected with reasonable force. See, e.g., Schneyder v. Smith,
“To state a claim under § 1983, a plaintiff ... must show that the alleged [constitutional] deprivation was committed by a person acting under color of state
[A] private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983. “Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under col- or’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.”
Adickes v. S.H. Kress & Co.,
Not infrequently this doctrine is invoked in § 1983 suits only seeking recovery from a private party. E.g., Adickes,
“A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose.” Ammlung v. City of Chester,
To support the inference of an agreement among the officer defendants and the private individuals who assaulted him, Zenquis relies principally on the allegation that the private individuals “had spoken to at least one or more of the individual [police] defendants, and were told ... that they should detain [Zenquis] and that they would be permitted to use force against [Zenquis].” Am. Compl. ¶ 32.
Taken together, these allegations are adequate to state a claim for conspiracy. According to the complaint, the private individuals who assaulted Zenquis were urged by the police to do so, were told they could use force to do so, and understood this to mean that they could assault Zenquis “with impunity.” That is a sufficient basis, at the pleading stage, to ground an inference that there was an agreement between at least some of the officer defendants and the private actors to violate Zenquis’s Fourth Amendment right against unreasonable seizure. In context, it is not implausible that the police would commit themselves to such an agreement during the frenetic search for a suspect wanted for a sensational crime; the plausibility of the conspiracy allegation is further bolstered by the allegation that the police licensed similar behavior in capturing the actual rapist the following day. At the very least, Zenquis has put the defendants on notice of the nature of the conspiracy claim with sufficiently detailed factual allegations to justify discovery.
B. State-Created Danger
On a theory of state-created danger, the amended complaint also alleges that the individual defendants violated Zenquis’s Fourteenth Amendment due process rights. In its motion to dismiss, the City appears to have construed the due process claim as alleging that the police violated Zenquis’s constitutional rights either by failing to properly investigate the June 1 rape or by failing to protect Zenquis from harm caused by a third party — claims that would be difficult to maintain under settled precedent. See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
I do not read the amended complaint as relying on either legal theory
A state-created danger theory is not foreclosed by DeShaney. In that case, the Supreme Court held that the failure of state officials to protect a four-year-old child from traumatic injury at the hands of his father was not actionable under 42 U.S.C. § 1983, because “a State’s failure to protect an individual against private violence ... does not constitute a violation of the Due Process Clause.”
The Third Circuit has subsequently recognized “the ‘state-created danger’ theory as a viable mechanism for establishing a constitutional violation under 42 U.S.C. § 1983.” Kneipp v. Tedder,
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subject to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
Bright v. Westmoreland Cnty.,
I am not aware of any binding authority from the Third Circuit in which the state-created danger theory has been applied to facts such as are alleged here — i.e., where the police are accused of inciting violence by private parties — -though such an application of the theory has been contemplated in non-precedential decisions. See Cherry v. City of Phila.,
Because the City has, apparently, not read the amended complaint as propounding this theory, the City’s motion to dismiss offers no argument that the amended complaint fails to allege sufficient facts to render the claim of state-created danger plausible. In the absence of such an argument from the moving defendant, I will not
C. Municipal Liability
The foregoing discussion has addressed only whether the amended complaint plausibly alleges a constitutional violation by the officer defendants. The motion to dismiss now pending before the court was filed only by the City. To hold the City liable, the plaintiff faces the additional hurdle of establishing some basis for municipal liability under Monell v. Department of Social Services,
There is some dispute as to whether this issue is properly before the court. Zenquis asks that I disregard the Monell arguments because the City raised them for the first time in its reply memorandum and not in the City’s initial motion to dismiss. As a general rule, “[a] reply brief is intended only to provide an opportunity to respond to the arguments raised in the response brief; it is not intended as a forum to raise new issues.” United States v. Martin,
A municipality such as the City may be held liable for the constitutional injuries inflicted by its employees or agents only when the injuries were caused by official municipal policy, practice, or custom. Monell,
The City argues that the amended complaint contains only “a formulaic recitation of the elements of a failure to train argument” and otherwise “does not allege a pattern or practice of The City of Philadelphia to violate the rights of its citizens by acts of ‘vigilante justice.’ ” City’s Reply Mem., at 1, 4. As with the state-created danger theory, the City appears to rely on an overly restrictive reading of the amended complaint. Zenquis has alleged more than mere failure to train. The amended complaint raises two potential bases for municipal liability. First, Zenquis claims that the City “has encouraged, tolerated, ratified and has been deliberately indifferent” to a long list of policies and customs alleged to have caused his injury, including “encouragement of civilians to detain and
The factual allegations supporting Monell liability are not so lacking as to render Zenquis’s claim for relief against the municipality implausible. To begin, the amended complaint contains two relevant statements from figures who would certainly appear to be City policymakers. Mayor Michael A. Nutter is alleged to have said, after the public capture of Carrasquillo, that the conduct of the private individuals who detained the rapist was “a further demonstration that Philadelphians care passionately about the city, about our quality of life, and certainly about our children.” Am. Compl. ¶ 49. Police Commissioner Charles Ramsey is alleged to have said, also after the fact, that “members of the community were very upset over this, and some may have used more force than a trained police officer.” Am. Compl. ¶ 50. In context, both statements may be seen as providing some factual support for the amended complaint’s theory that City policymakers were deliberately indifferent to a practice of condoning private violence in the pursuit of suspects.
Of course, both alleged comments related to the public capture of Carrasquillo, not Zenquis; both alleged comments also post-dated the assault on Zenquis, and thus neither could have caused the policy that allegedly harmed him. But the amended complaint’s theory that the City acquiesced in a practice of condoning private'violence in the pursuit of suspects is also bolstered by several other allegations. The amended complaint alleges that the individuals who captured Carrasquillo were given a monetary award and were not criminally prosecuted, even though the assault on Carrasquillo was recorded on video. Am. Compl. ¶¶ 45, 51-52. The amended complaint also alleges that the police conducted no investigation of the individuals who assaulted Zenquis until after determining that Zenquis was innocent of the June 1 rape (and after being prompted to investigate by Zenquis on June 2). Am. Compl. ¶¶ 34, 39.
Finally, it is relevant to the allegation of a practice or custom, condoned by the City, that the same sort of vigilante violence allegedly directed at Zenquis was also allegedly directed at Carrasquillo. As pleaded, this is not a situation in which there was a single exceptional incident of constitutional misconduct. . Cf. Connick,
IY. Conclusion
The amended complaint states a claim for relief against the City. For the foregoing reasons, the City’s motion to dismiss the amended complaint will be denied.
Notes
. Zenquis alleges that the following individual officers (members of either the Philadelphia Police Department's Special Victims Unit or police districts in the geographical area of the rape) were involved in the investigation of the rape and in the erroneous public dissemination of Zenquis’s name as a suspect: Detective Blowes; Officer Joseph Conard; Officer Kathleen Denofa; Detective Francis Dragon; Detective Enriquez; Detective Kevin Gage; Officer Jose Latorre; Officer Lee; Detective Peter Marcellino; Lieutenant Thomas McDev
. The amended complaint does not specify which of the officer defendants were in fact involved in distributing Zenquis's photograph or in advising citizens to detain him and/or to use physical force. Instead, the pleading alleges that all the officer defendants committed these acts and, alternatively, that "[t]o the extent any of the individual defendants did not personally distribute a photograph to civilians, advise civilians to detain plaintiff and/or advise civilians to use physical force against plaintiff, those defendants acted in concert and conspiracy with all other defendants to do so and/or failed to intervene to prevent their fellow officers from carrying out these actions.” Am. Compl. ¶ 23; see also Am. Compl. ¶ 19 ("To the extent any of the individual defendants did not personally inform civilians in the Kensington area that plaintiff had in fact committed the rape, those defendants acted in concert and conspiracy with all other defendants to inform civilians that plaintiff had in fact committed the rape and/or failed to intervene to prevent their fellow officers from providing such information to civilians.”).
. The amended complaint does not allege expressly that any of the officer defendants personally observed any part of the assault on Zenquis. But the severity of Zenquis’s injuries and the need for immediate medical care give rise to a reasonable inference that some of the officer defendants were aware at the time of his arrest that Zenquis had been assaulted by persons present at the scene. Additionally, the amended complaint alleges on information and belief that the officer .who
. The amended complaint gives the date of the arrest warrant as June 8, 2010, but the plaintiff has clarified that the year is a typographical error and should be 2009.
. Even if Zenquis proves that there was a conspiracy, whether the individual police defendants would be liable for any or all of the conduct of their alleged co-conspirators is a separate question — one not broached in the City's motion to dismiss or, consequently, in this memorandum. See Melo v. Hafer,
. To be sure, the amended complaint also alleges that the individuals who assaulted Zenquis "were acting in concert and conspiracy with Philadelphia police officers.” Am. Compl. ¶ 58. Although the existence vel non of a conspiracy is often treated as a factual matter for the jury to decide, see Adickes,
. "A government policy or custom can be established in two ways. Policy is made when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a custom when, though not authorized by law, such practices of state officials are so permanent and well settled as to virtually constitute law.” Andrews v. City of Phila.,
. In the factual averments earlier in the pleading, Zenquis also alleges that the City had a "policy and practice of tolerating and/or ratifying the encouragement of civilians acting as vigilantes as in the assaults of plaintiff and Carrasquillo." Am. Compl. ¶ 48.
. This is not to imply that a single incident of vigilante violence instigated by the police would necessarily be insufficient to state a claim of municipal liability, particularly as to a failure to train. Although a pattern of prior constitutional violations by untrained employees is ordinarily necessary to show that a municipality was deliberately indifferent to the need for training, such a pattern is not always necessaiy. See Connick,
It is unnecessary to determine at this time whether "single-incident liability” for a failure to train may or should apply in this case. The amended complaint alleges sufficient facts to justify further discovery as to the police conduct in this and other cases and the awareness and/or tolerance of that conduct by City policymakers. Many of the “single-incident” cases relied upon by the City to justify dismissal of the complaint were decided upon a far more developed factual record. E.g., Connick,