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