READER v. BLAIR COUNTY, PENNSYLVANIA et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:22-cv-00140-SLH-MPK Document 138 Filed 12/19/25 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD READER, as Administrator of __ )
the Estate of Rhonda Russell, )
) Civil Action No. 3:22-CV-140
Plaintiff, )
) District Judge Stephanie L. Haines
V. ) Magistrate Judge Maureen P. Kelly
)
BLAIR COUNTY, PENNSYLVANIA, et ) Re: ECF Nos. 106, 110, and 114
al., )
)
Defendants. )

REPORT AND RECOMMENDATION

I. RECOMMENDATION

Pending before the Court are: (1) a Motion to Dismiss, ECF No. 106, filed by Defendants
Blair County, Pennsylvania (“Blair County”), Abbie Tate (“Warden Tate”), James Eckard
(“Deputy Warden Eckard”), Shaun Edmundson (“Deputy Warden Edmundson”), David Fogel
(“Lieutenant Fogle”), Nathaniel Port (“Officer Port’), and Zachary Stitt (“Officer Stitt’)
(collectively, the “Blair County Defendants”); (2) a Motion to Dismiss, ECF No. 110, filed by
Defendants City of Altoona, Pennsylvania (“Altoona”) and the Estate (“Estate of Sergeant
Bistline) of George E. Bistline (“Sergeant Bistline”)! (collectively, the “Altoona Defendants”);
and (3) a Motion to Dismiss, ECF No. 114, filed by Defendants James Ott (“Deputy Ott”) and

Larry Hopkins (“Deputy Hopkins”).

I Sergeant Bistline passed away on February 23, 2022. Therefore, the Estate of Sergeant
Bistline is named as a Defendant. ECF No. 103 § 18.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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For the following reasons, it is respectfully recommended that:

(1) the Blair County Defendants’ Motion to Dismiss be granted;

(2) the Altoona Defendants’ Motion to Dismiss be granted in part and denied in part; and

(3) that Deputies Ott and Hopkins’s Motion to Dismiss be granted.

Il. REPORT

Plaintiff Richard Reader (‘Plaintiff’) brought this action as the administrator of the Estate
of Rhonda Russell (“Officer Russell”). Officer Russell was a Blair County Corrections Officer
killed in the line of duty on November 17, 2021, when a prisoner attempted to escape from the
Blair County Central Court. ECF No. 103. As aresult of these events, Plaintiffhas brought several
claims under 42 U.S.C. § 1983, as well as an assault and battery claim and wrongful death and
survival actions, against various government entities and actors.

A. PROCEDURAL BACKGROUND

Given the importance of the procedural posture of this matter, the Court will set forth the
procedural history in detail.

On August 30, 2022, Plaintiff filed a complaint against Defendants in the United States
District Court for the Western District of Pennsylvania. ECF No. 1. In preparation for filing
motions to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b), all Defendants
filed a “Joint Motion to Submit and Rely Upon Video Evidence in Support of their Respective
Motions to Dismiss” (“Joint Motion on Video Evidence”), on October 25, 2022. ECF No. 13. In
that motion, Defendants sought to submit surveillance video of the hostage situation for the Court’s
consideration in deciding the anticipated motions to dismiss. Id. The Altoona Defendants also
filed a separate motion seeking for the Altoona “police policies and procedures manual” (the

“Police Policy”) to be filed under seal for the Court’s consideration at the motion to dismiss stage.

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ECF No. 14 at 2. The Blair County Defendants filed a similar motion seeking to file Blair County’s
“Inmate Transportation Policy” (the “Transportation Policy”) under seal for the Court’s
consideration. ECF No. 15 at 2. On October 25, 2022, Plaintiff filed responses in opposition to
each of these motions. ECF Nos. 16, 17, 18.

On October 31, 2022, United States District Judge Kim R. Gibson issued a Memorandum
Order denying the Joint Motion on Video Evidence and granting the Police Policy Motion and
Transportation Policy Motion. ECF No. 19. The Memorandum Order permitted (1) the Altoona
Defendants to submit Altoona’s Police Policy and (2) the Blair County Defendants to submit their
Transportation Policy under seal. Id. at 3-4. However, Judge Gibson deferred on reaching a
conclusion as to whether it would be appropriate to consider either policy at the motion to dismiss
stage until the time when the Court resolved the anticipated motions to dismiss. Id. Accordingly,
he ordered Defendants to provide Plaintiff's counsel with a copy of the Police Policy and the
Transportation Policy, id. at 5-6, and the parties complied, ECF Nos. 21, 27.

That same day, all Defendants filed motions to dismiss, along with briefs in support. ECF
Nos. 20, 22, 23, 24, 25, 26. Plaintiff responded on November 18, 2022, by filing an Amended
Complaint. ECF No. 30.

At Count I of the Amended Complaint, Plaintiff brought a claim based on “Violations of
the Fourteenth Amendment of the United States Constitution” pursuant to 42 U.S.C. § 1983 against
all Defendants. This Count was separated into different Section 1983 claims asserted against
different Defendants.

e First, Plaintiff raised a “State-created Danger” claim against Defendants Blair
County, Deputy Warden Eckard, Deputy Warden Edmundson, Lieutenant Fogle,

Officer Port, Officer Stitt, and Deputy Hopkins. ECF No. 30 4 196.

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e Second, Plaintiff asserted a “Substantive Due Process — Shocks the Conscience”
claim against Defendants Altoona and Sergeant Bistline. Id. 4214.

e Third, Plaintiff brought a Monell “Policies, Practices and Customs” claim against

Defendants Blair County, Warden Tate, Deputy Warden Eckard, Deputy Warden
Edmundson, and Lieutenant Fogle, id. § 234, against Defendants Blair County and
Deputy Ott, id. § 238, and against Defendant Altoona, id. { 245.

e Fourth, Plaintiff raised a different Monell claim based on an alleged “Failure to

Train” against Defendants Blair County, Warden Tate, Deputy Warden Eckard,
Deputy Warden Edmundson, and Lieutenant Fogle, id. 258, against Defendants
Blair County and Deputy Ott, id. § 259, and against Defendant Altoona, id. § 260.
e Fifth, Plaintiff asserted a “Supervisory Liability” claim against Defendants Warden
Tate, Deputy Warden Eckard, Deputy Warden Edmundson, Lieutenant Fogle, and
Deputy Ott. Id. J 266.
At Counts II and III, Plaintiff brought state-law Wrongful Death Act and Survival Act claims,
respectively, against all Defendants. Id. {| 273-95.

Between November 30 and December 2, 2022, all Defendants filed motions to dismiss,
along with briefs in support. ECF Nos. 32, 33, 34, 35, 36. Between December 20 and December
22, 2022, Plaintiff filed responses in opposition to these motions. ECF Nos. 46, 47, 48. All
Defendants filed reply briefs. ECF Nos. 49, 51, 54.

In an Order accompanied by a comprehensive 126-page Memorandum Opinion issued on

April 8, 2024 (“2024 Opinion”), Judge Gibson granted each of the motions to dismiss. ECF No.

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61.2 However, he dismissed Plaintiff's claims without prejudice and granted Plaintiff 28 days to
file another amended complaint. Id.

Plaintiff filed his Second Amended Complaint on May 6, 2024. ECF No. 65. Once again,
all of the Defendants filed motions to dismiss with accompanying briefs. ECF Nos. 68, 69, 70, 71,
72, 73. Plaintiff filed oppositions to each of these motions, ECF Nos. 76, 77, 78, to which the
Defendants replied, ECF Nos. 81, 82, 83. Discovery was stayed pending resolution of the
Defendants’ motions to dismiss. ECF No. 84.

On April 1, 2025, just prior to Judge Gibson’s passing, this case was reassigned to the
undersigned. ECF No. 89. This Court held a telephonic status conference on April 29, 2025, at
which the Court reviewed the chronology of the case and the pending claims and instructed
Plaintiff to file a third amended complaint. ECF No. 96. The pending motions to dismiss were
denied as moot. ECF No. 98.

On May 8, 2025, Plaintiff filed the operative Third Amended Complaint. ECF No. 103.
Similar to his earlier complaints, at Count I of the Third Amended Complaint, Plaintiff brought a
claim based on “Violations of the Fourteenth Amendment of the United States Constitution”
pursuant to Section 1983 against all Defendants. This Count was again separated into different
Section 1983 claims asserted against different Defendants.

e First, Plaintiff raises a “State-created Danger” claim against Defendants Blair
County, Deputy Warden Eckard, Deputy Warden Edmundson, Lieutenant Fogle,
Officer Port, Officer Stitt, and Deputy Hopkins. Id. 7 199.

e Second, Plaintiff asserts a “Substantive Due Process — Shocks the Conscience”

claim against Sergeant Bistline. Id. 4 219.

The Order and the 2024 Opinion were filed, and remain, under seal.

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e Third, Plaintiff asserts a Monell “Policies, Practices and Customs” claim against
Defendants Blair County, Warden Tate, Deputy Warden Eckard, Deputy Warden
Edmundson, Lieutenant Fogle, Deputy Ott, and Altoona. Id. § 237.

e Fourth, Plaintiff brings a different Monell claim based on an alleged “Failure to

Train” against Defendants Blair County, Warden Tate, Deputy Warden Eckard,
Deputy Warden Edmundson, Lieutenant Fogle, Deputy Ott, and Altoona. Id. [ 309.
e Fifth, Plaintiff raises a “Supervisory Liability” claim against Defendants Warden
Tate, Deputy Warden Eckard, Deputy Warden Edmundson, Lieutenant Fogle, and
Deputy Ott. Id. 337.

Plaintiff asserts a new claim at Count II for assault and battery under Pennsylvania law against
Sergeant Bistline. Id. 4344. At Counts II and IV, Plaintiff again brings state-law Wrongful Death

Act and Survival Act claims, respectively, against all Defendants. Id. {§ 357-79.
On June 4, 2025, the Blair County Defendants filed their Motion to Dismiss Plaintiff's
Third Amended Complaint (“Blair County Motion to Dismiss”) and brief in support thereof. ECF
Nos. 106, 107. The next day, the Altoona Defendants filed their Rule 12(b)(6) Motion to Dismiss
Claims in the Third Amended Complaint (“Altoona Motion to Dismiss”) and an accompanying
brief. ECF Nos. 110, 111. On June 16, 2025, Defendants Ott and Hopkins filed their Motion to
Dismiss Plaintiffs Third Amended Complaint and brief. ECF Nos. 114, 117. On June 24, 2025,

Plaintiff filed a Response in Opposition to each of these motions. ECF Nos. 119, 120, 121. All

3 As the Third Amended Complaint explains, and as will be further discussed below,
“fujnder Pennsylvania law, wrongful death and survival actions are not substantive causes of
action; rather, they provide a vehicle through which a plaintiff can recover for unlawful conduct
that results in death.” Id. § 359.

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Defendants have filed Reply Briefs, and Plaintiff filed a Sur-reply to the Altoona Defendants’
Reply Brief. ECF Nos. 122, 123, 125, 131.

The matter is fully briefed, and the Motions to Dismiss are ripe for consideration.

B. FACTUAL BACKGROUND

The primary facts of the underlying incident in this case have changed little through the
various amended complaints. For the sake of clarity, the Court will summarize the facts as set
forth in the Third Amended Complaint. The Court construes the Third Amended Complaint in the
light most favorable to Plaintiff and takes the factual allegations therein as true, as it must in ruling
on a motion to dismiss.

Prior to November 2021, Christopher Aikens (“Aikens”) had an extensive criminal history
consisting of arrests or convictions for robbery, burglary, reckless endangerment, unlawful firearm
possession, assault, harassment, terroristic threats, witness/victim intimidation, receiving stolen
property, criminal mischief, and drug-related offenses, among others. ECF No. 103 § 23. Aikens
had been incarcerated for more than twenty years. Id. § 24. On November 10, 2021, Aikens was
arrested and charged with several felonies, including firearm offenses, forgery, and drug-related
offenses, for which he faced several additional years in prison. Id. {] 25, 26.

On November 11, 2021, Aikens entered the Blair County Prison. Id. § 28. Aikens stated
that he had nothing to live for during his medical intake process, but instead of being placed on
suicide watch, Aikens was moved to Blair County Prison’s J-Block, where he was placed in cell
J-03. Id. ff] 29-31.

During the morning of November 15, 2021, Blair County Corrections Officers Christopher
Charles and Joshua Coudriet were working J-Block. Id. § 32. When the drains stopped working

and the J-Block inmates were relocated to the prison gym, an inmate informed Officer Coudriet

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that he should inspect Aikens’s cell because he heard that inmates had been digging with a broken
piece of a fan. Id. J§ 32-34. Upon inspection, the officers found an approximately three feet by
two feet hole in the wall of cell J-03. Id. 4 35. Several large bricks or pieces had been removed
from the wall and attempts had been made to conceal the resulting brick dust. Id. 436. The officers
also found the metal piece of fan hidden in the top bunk with Aikens’s belongings. Id. 37.

Although Officers Charles and Coudriet initially separated Aikens and his cell mate off of
J-Block, Officer Charles soon thereafter saw Aikens and his cell mate back on J-Block. Id. { 39.
Officer Charles called Lieutenant Fogle and asked if Aikens would be sent to the Restrictive
Housing Unit (“RHU”) due to the escape attempt, and Lieutenant Fogle responded that there was
no evidence that Aikens attempted to escape and that he would not be sent to RHU, over Officer
Charles’s objections. Id. §§ 40-42. Accordingly, Lieutenant Fogle ordered Officer Charles to
move Aikens and his cell mate back to J-Block. Id. J 43.

Officer Coudriet provided his findings to Sergeant Chad Murray and provided a report of
this incident to Deputy Warden Edmundson. Id. § 44. Sergeant Murray advised Deputy Warden
Eckard of Officer Coudriet’s findings and showed him the fan piece and removed bricks that were
found in Aikens’s cell, but Deputy Warden Eckard instructed Sergeant Murray to discard the
evidence of Aikens’s escape attempt. Id. {J 45-46.

Officer Coudriet also advised Officer Port, who was the Shift Commander on November
15, 2021, of Aikens’s escape attempt; however, when completing his Shift Report, Officer Port
wrote that there had been zero misconducts and related incidents. Id. {J 11, 47-48. When
discussing the shift with other Corrections Officers, including Officer Russell, Officer Port again

stated that there had been zero incidents of misconduct. Id. 4 49-50.

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The next day, on November 16, 2021, Officer Charles told Deputy Warden Edmundson of
Aikens’s escape attempt. Id. § 51. Deputy Warden Edmundson advised Officer Charles that all
he could do was search J-Block. Id. ¥ 52. Upon doing so, Officer Charles found slight digging
near the window next to Aikens’s bunk which was the start of another escape attempt. Id. {{{ 53-
54.

During a subsequent conversation, Lieutenant Fogle again told Officer Charles that there
was not enough proof of an escape attempt. Id. 455. Later, however, after Officer Charles told
Lieutenant Fogle that he wanted Aikens to be moved, Aikens was moved to RHU. Id. {{ 56-57.
No assessment was performed of Aikens’s security risk upon his arrival at RHU. Id. § 58.

Officer Stitt was the Shift Commander on November 16, 2021, and was aware of Aikens’s
escape attempts and his move to RHU. Id. J 60-61. Nonetheless, Officer Stitt did not identify
Aikens when listing the misconducts and related incidents in his Shift Report. Id. § 62. When
meeting with Corrections Officers, including Officer Russell, Officer Stitt affirmatively
represented that Aikens was involved in no misconduct. Id. { 63.

Later that same evening, in a purposeful attempt to receive medical attention as part of
another escape plot, Aikens claimed that he fell out of his bunk and requested to be transported to
the hospital. Id. J] 64, 66. A prison nurse evaluated him and determined that hospitalization was
unnecessary. Id. { 65.

The next day, on November 17, 2021, Officer Russell and Brett Carruthers — another Blair
County Corrections Officer — were ordered to transport eight inmates, including Aikens, to Blair
County Central Court (“Central Court”). Id. § 69. As this was an order from a superior, Officers
Russell and Carruthers were required to comply or face discipline. Id. 70. Aikens’s commitment

to RHU did not automatically disqualify him from being transported to court for proceedings, and

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no risk assessment had been performed for him. Id. §§] 71-74. Aikens’s file therefore contained
no reference to his escape attempts or increased security risk. Id. 75.

Committing Officer Brumbaugh, who was responsible for all temporary releases from Blair
County Prison, was also not apprised of information pertaining to Aikens’s escape attempts. Id.
{4 77-78. Officer Brumbaugh advised Officers Russell and Carruthers that there was nothing they
needed to know about Aikens. Id. 9§ 79-80. Had Officers Russell and Carruthers been informed
of Aikens’s escape attempts, they would have taken additional precautions when transporting and
guarding Aikens. Id. { 82.

Each Wednesday, two Magisterial District Justices preside over between fifteen and forty
preliminary hearings in recently filed criminal cases held at Central Court. Id. {J 83-85. One
civilian staff member from Altoona is present for the purpose of handling the police files, and an
Altoona police officer is present in the role of court liaison to coordinate the appearances of the
Altoona police officers who will be testifying. Id. { 86.

Incarcerated defendants are transported to Central Court for these preliminary hearings by
Blair County Corrections Officers and Blair County Sheriff's Deputies. These defendants include
individuals accused of felonies and violent crimes. Id. Jf 88-89. Nonetheless, there was no security
provided at Central Court, or any other judicial building in Blair County, prior to November 17,
2021, despite the fact that District Attorney Peter Weeks raised concerns about this with Blair
County Officials for years. Id. §{ 90-92.

Throughout the day, the incarcerated defendants wait for their cases to be called in one of
two locked holding cells, separated by sex, within Central Court. Id. | 93. These holding cells
were located next to each other on one side of the hallway, and each only had one door. Id. {{ 94-

96. The holding cell doors each had a small window which was covered to prevent anyone from

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seeing in or out. Id. 997. When called for his or her preliminary hearing, an incarcerated defendant
is escorted to the courtroom by a Corrections Officer or Sheriff's Deputy while the additional
Corrections Officers or Sheriff's Deputies remain in the holding cells with the remaining
incarcerated defendants. Id. § 98. There are surveillance cameras present in the hallways but not
in the holding cells themselves. Id. { 99.

Twenty-five cases were scheduled for preliminary hearing at Central Court on November
17, 2021, including Aikens’s. Id. § 100. Sergeant Bistline was the Altoona Police Officer assigned
as the court liaison and was present in plainclothes, armed with his Altoona Police Department
issued pistol. Id. §§ 102-03. Sergeant Bistline had been an Altoona police officer for more than
40 years and was 73 years old at the time. Id. § 104.

After being transported to Central Court, the eight Blair County inmates, including Aikens,
were placed in their respective holding cells. Id. {{ 105-06. Officer Russell was armed with her
Blair County issued pistol. Id. ¢ 107. About one-and-a-half hours after transporting the inmates
to Central Court, Officers Russell and Carruthers were joined by two Blair County Sheriff's
Deputies. Id. J 109.

During his stay in the holding cell, Aikens attempted to remove his handcuffs, bending
them to the extent that they had to be replaced by Officer Carruthers. Id. {[f 111-12. Aikens also
insisted that he needed to use the bathroom several times to see if an opportunity to escape arose.
Id. § 113. During his first four trips to the bathroom, Aikens noticed that the Sheriff's Deputies
and Corrections Officers utilized handcuffs differently; while both unlocked one cuff, Sheriff's
Deputies secured the empty cuff to Aikens’s restraint belt, while Corrections Officers did not
secure the empty cuff. Id. §§ 114-15. Sheriff's Deputies underwent specific training regarding

securing the empty cuff in such a scenario, but Corrections Officers did not. Id. § 116.

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Prior to arriving at Central Court on November 17, 2021, Deputy Hopkins was warned by
a Corporal with the Blair County Sheriff's Department that one of the inmates at Central Court
had attempted to escape from prison the prior day. Id. § 118. The other inmates in the male holding
cell identified Aikens as the inmate who had attempted to escape. Id. § 119. This information was
not shared with Officers Russell or Carruthers. Id. § 120.

Around 2:17 p.m., the Sheriff's Deputies at Central Court witnessed Officer Carruthers
escort an inmate into the courtroom. Id. J§ 121-22. Seven or eight minutes later, however, the
two Sheriffs Deputies left Central Court to return the two female inmates to Blair County Prison.
Id. § 123. This left Officer Russell alone with the five remaining male inmates who were housed
in the single, locked holding cell — even though Deputy Hopkins was aware of Aikens’s escape
attempts. Id. 4 124. Corrections Officers and Sheriff's Deputies do not answer to each other and
are part of separate agencies within Blair County. Id. J 126.

Aikens noticed that the Sheriff's Deputies had left and that Officer Russell was left alone
guarding the male inmates, and approximately forty minutes later, he requested to use the
bathroom for the fifth time. Id. J] 130-31. Officer Carruthers was still in the courtroom securing
an inmate. Id. § 132. Officer Russell released Aikens from the holding cell and escorted him to
the bathroom, releasing the handcuff around Aikens’s right wrist. Id. §{ 133-34. The loose
handcuff was not secured to Aikens’s restraint belt, so he was able to maneuver the loose handcuff
through the metal ring and gain full mobility of both of his arms and hands. Id. § 135. For years,
Corrections Officers took prisoners to the bathrooms alone and utilized handcuffs in the same
manner as Officer Russell. Id. 153.

Aikens exited the bathroom and walked past Officer Russell, who was alone in the hallway.

Id. §§ 137-38. Aikens held his hands together, pretending that he was still restrained, while a paper

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towel concealed the loose cuff. Id. § 140-41. While Officer Russell reached for the keys in her
pocket, Aikens spun around and reached for the holstered pistol strapped to Officer Russell’s hip.
Id. | 142.

Aikens drove Officer Russell against the wall, put his right hand around her neck, and
eventually forced Officer Russell into the now-empty female holding cell. Id. {§ 143-45. The
holding cell door closed behind them. Id. J 147. According to Aikens, Officer Russell’s isolation
emboldened him to attempt to escape. Id. 4 148. By approximately 3:10 p.m., Aikens had taken
Officer Russell hostage in the female holding cell. Id. § 158.

Attorneys nearby heard noise in the female holding cell and sought Sergeant Bistline’s
assistance. Id. § 159. Sergeant Bistline went down the empty hallway and pushed open the door
to the female holding cell. Id. §§ 160-61. At that time, Aikens had physical control of Officer
Russell and her firearm. Id. § 162. Aikens had Officer Russell in front of him, like a human shield,
and pointed the firearm at Sergeant Bistline, instructing him to back off. Id. {J 163, 165. Sergeant
Bistline, who was still in plainclothes, did not announce that he was a police officer, but instead
put his hand out signaling compliance and retreated to his left away from the doorway and down
the hallway until he was out of Aikens’s line of sight. Id. 4] 165-66.

At this point, Sergeant Bistline had time to deliberate and did not have to make a split-
second decision. Id. J§ 168-69. Aikens was no longer pointing a firearm at Sergeant Bistline,
Aikens had nowhere to escape, and Officer Russell was a subdued, cooperating hostage. Id. {f
170-71. According to Aikens, he never pointed the firearm at Officer Russell. Id. 172. Sergeant
Bistline chose not to announce he was a police officer, attempt to negotiate or deescalate the
situation, warn Aikens he might use deadly force, or call for back-up, a SWAT unit, crisis

intervention, or a hostage negotiator. Id. {{ 173-76.

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Instead, after removing himself from Aikens’s line of sight, Sergeant Bistline pulled his
loaded firearm from its holster and walked back towards the doorway. Id. § 177. Immediately
upon reaching the threshold of the doorway, Sergeant Bistline fired and shot Officer Russell, who
was in front of Aikens, leaning forward and being used as a human shield, through the top of her
head. Id. | 178. Aikens had lowered and dropped the firearm prior to Sergeant Bistline firing his
weapon. Id. § 179. Aikens, who was neither shot nor injured, never attempted to shoot Sergeant
Bistline. Id. J 190.

Aikens fell to the floor with his empty hands in a raised position, as Officer Russell
collapsed on top of him. Id. § 191. Officer Russell died at the age of forty-seven. Id. 4 192.

C. STANDARD OF REVIEW

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The

complaint must “state a claim to relief that is plausible on its face” by providing facts which

“permit the court to infer more than the mere possibility of misconduct ...,” Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009), and “raise a right to relief above the speculative level,” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). In assessing a plaintiff's claims, “the Court must accept

all non-conclusory allegations in the complaint as true, and the non-moving party ‘must be given

the benefit of every favorable inference.’” Mergl v. Wallace, No. 2:21-CV-1335, 2022 WL

4591394, at *3 (W.D. Pa. Sept. 30, 2022) (quoting Malleus v. George, 641 F.3d 560, 563 (3d Cir.

2011) and Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). “However, the Court

‘disregard[s] threadbare recitals of the elements of a cause of action, legal conclusions, and

conclusory statements.’” Mergl, 2022 WL 4591394, at *3 (quoting City of Cambridge Ret. Sys.

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v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878-79 (3d Cir. 2018) and James v. City of

Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)).
As a general rule, courts consider only the pleadings themselves in evaluating a Rule

12(b)(6) motion. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997). However, certain exceptions apply. See id. Courts may also consider “exhibits attached
to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230

(3d Cir. 2010). See also Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192,

1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and
whose authenticity no party questions, but which are not physically attached to the pleading, may

be considered.” Pryor v. Nat’! Collegiate Athletic Ass’n, 288 F.3d 548, 560 (d Cir. 2002).

As Judge Gibson discussed in the 2024 Opinion, Defendants previously filed under seal
the Altoona Police Policy, Sergeant Bistline’s training records, and the Blair County
Transportation Policy. ECF No. 61 at 15. Judge Gibson ultimately found that he could consider
the Altoona Police Policy at this stage of the proceedings, but not Sergeant Bistline’s training
records or Blair County’s Transportation Policy. Id. at 18-20. The parties do not expressly
challenge this finding, and this Court will also consider only the Altoona Police Policy in
adjudicating the pending motions.

D. DISCUSSION

1. Law of the Case

As this Court has discussed, Judge Gibson previously issued a comprehensive 126-page

Memorandum Opinion and Order — the 2024 Opinion — addressing the Defendants’ motions to

dismiss Plaintiffs initial Amended Complaint. In that thorough document, Judge Gibson

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considered many of the same arguments that are set forth in regard to the pending Motions to
Dismiss the Third Amended Complaint. The issue, therefore, is what preclusive effect, if any, this
prior opinion has on the issues before the Court now.

“The law of the case doctrine ‘limits relitigation of an issue once it has been decided’ in an

earlier stage of the same litigation.” Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir. 2003)

(quoting In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir. 2002)). It is a “prudential

principal” providing that “a rule of law announced in a case should later be applied to “the same

issues in subsequent stages of litigation.’”” Saint-Jean v. Palisades Interstate Park Comm., 29 F.4th

830, 836 (3d Cir. 2022) (quoting In re Resyn Corp., 945 F.2d 1279, 1281 (3d Cir. 1991)). However,

this doctrine merely counsels against a district court reconsidering its previous rulings; it does not
prevent it from doing so because the law of the case principle is discretionary. See id. This is true

even where — as here — a case has been transferred between judges. See United States ex rel.

Petratos v. Genentech Inc., 855 F.3d 481, 493 (3d Cir. 2017).

An important exception to the law of the case doctrine is that “[r]econsideration of a
previously decided issue may ... be appropriate in certain circumstances, including when the record
contains new evidence.” Hamilton, 322 F.3d at 787. However, even in such cases, reconsideration
is generally appropriate “only if the new evidence differs materially from the evidence of record
when the issue was first decided and if it provides less support for the decision.” Id.

Here, of course, there is no new “evidence,” as the case remains at the pleading stage.
However, Plaintiff has added and/or changed several allegations in the Third Amended Complaint
from prior versions. Given that the Court, at this procedural stage, must still accept all non-
conclusory allegations as true and give Plaintiff the benefit of every favorable inference, these new

allegations could potentially lead to results different from those in the 2024 Opinion. As such, the

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Court will exercise its discretion to consider whether any new allegations contained in the Third
Amended Complaint require this Court to make any new and different findings.

That said, Judge Gibson’s 2024 Opinion is uniquely thorough and well-reasoned. To the
extent that Judge Gibson has made a ruling of law that is not disturbed by new facts or allegations,
this Court is inclined to follow those findings. Indeed, while the Court has discretion to reconsider
previous findings, “a successor judge should not lightly overturn decisions of [her] predecessors

in a given case.” Petratos, 855 F.3d at 493 (quoting Fagan v. City of Vineland, 22 F.3d 1283, 1290

(3d Cir. 1994)). Accordingly, while acknowledging that it is not expressly bound by any prior
decisions made by Judge Gibson, this Court will generally continue to apply those holdings absent
new facts or allegations that compel a different result.
2. Plaintiff’s Section 1983 Claims
As noted, at Count I, Plaintiff brings various claims under the Fourteenth Amendment
pursuant to 42 U.S.C. § 1983. This statute provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

Id. To state a claim under Section 1983, a plaintiff must allege facts sufficient to establish “the
defendant, acting under color of state law, deprived him or her of a right secured by the

Constitution or the laws of the United States.” Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d

Cir. 2006). Section 1983, by its own terms, creates no substantive rights, but rather provides a

means for plaintiffs to seek relief for the deprivation of rights established by the Constitution or

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federal laws. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). The Court, as did Judge

Gibson, will address each of Plaintiff's Section 1983 claims in turn.
a. State-Created Danger

Plaintiff brings a state-created danger claim pursuant to Section 1983 and the Fourteenth
Amendment against Blair County, Deputy Warden Eckard, Deputy Warden Edmundson,
Lieutenant Fogle, Officer Port, Officer Stitt, and Deputy Hopkins. This claim is, for the most part,
the same as the state-created danger claim raised in Plaintiff's first Amended Complaint that Judge
Gibson dismissed without prejudice in the 2024 Opinion. ECF No. 61 at 22-53. Although Plaintiff
has raised a handful of new factual allegations, the Court finds that these new allegations do not
change the outcome at to this claim.

As Judge Gibson recognized in the 2024 Opinion, “the Due Process Clause imposes no

affirmative duty to protect a citizen who is not in state custody.” Bright v. Westmoreland Cnty.,

443 F.3d 276, 281 (3d Cir. 2006). However, a constitutional violation “can occur when state
authority is affirmatively employed in a manner that injures a citizen or renders him ‘more

vulnerable to injury from another source than he or she would have been in the absence of state

intervention.’” Id. (quoting Schieber v. City of Phila., 320 F.3d 409, 416 (3d Cir. 2003)).

The four “essential elements” of such a state-created danger claim are:
(1) “the harm ultimately caused was foreseeable and fairly direct;”

(2) astate actor acted with a degree of culpability that shocks the
conscience;

(3) arelationship 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 subjected to
the potential harm brought about by the state’s actions,” as
opposed to a member of the public in general; and

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(4) astate 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.

Id. (quoting Kneipp v. Tedder, 95 F.3d 1199, 1208, 1209 & n.22 (3d Cir. 1996); Morse v. Lower

Merion Sch. Dist., 132 F.3d 902, 906, 913 (3d Cir. 1997).

In conducting this inquiry, courts must determine “the exact contours of the underlying

tight said to have been violated.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (quoting

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)). Judge Gibson found, and this

Court agrees, that pursuant to precedent from the United States Supreme Court and the United
States Court of Appeals for the Third Circuit, “[i]ndividuals have a constitutional liberty interest
in personal bodily integrity that is protected by the Due Process Clause of the Fourteenth

Amendment.” ECF No. 61 at 25-26 (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235

(3d Cir. 2008)). See also Washington v. Glucksberg, 521 U.S. 702, 720 (1997). This Court also

agrees that being attacked by Aikens and subsequently shot and killed by Sergeant Bistline
undoubtedly implicated Officer Russell’s well-established Fourteenth Amendment rights to life

and bodily integrity. See Moore v. Richman, 797 F. Supp. 2d 572, 581 (W.D. Pa. 2011) (holding

that “one’s right to life and to be free from bodily injury is entitled to protection by the Due Process

Clause in an appropriate case”); Popow v. Margate, 476 F. Supp. 1237, 1242 (D. N.J. 1979) (“It is

beyond dispute that one killed by a state police officer is deprived of [her] fourteenth amendment
right to life.”).

Judge Gibson further recognized that the harm suffered by Officer Russell was two-fold:
Part A of Count I of the Amended Complaint defined the “harm suffered” as “being attacked by
Aikens as he attempted to escape and being shot by Sgt. Bistline as he responded.” ECF No. 30 4

201 (emphasis added). This same language is also used in the Third Amended Complaint. ECF

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No. 103 4 204. Judge Gibson assumed without deciding that the harm of being attacked by Aikens
was sufficiently foreseeable to satisfy the first element for a state-created danger claim. ECF No.
61 at 27. He found, though, that Sergeant Bistline’s reaction, which included shooting Officer
Russell, was neither foreseeable nor fairly direct. Id.

Specifically, Judge Gibson explained that “[a] superseding cause breaks the chain of

proximate causation.” Id. at 28 (quoting Lamont v. New Jersey, 637 F.3d 177, 185 (3d Cir. 2011)).

See also Grau v. New Kensington-Arnold Sch. Dist., 429 F. App’x 169, 172-73 (3d Cir. 2011)

(explaining that “intervening causes” may break the requisite chain of causation to establish a
state-created danger claim). He found that Sergeant Bistline’s actions constituted such a
superseding cause, as the Amended Complaint was “devoid of any facts that suggest the state-
created danger Defendants possessed ‘sufficiently concrete’ information that ‘put the actors on
notice’ that Sergeant Bistline — or any officer, for that matter — would respond to Aikens’s attack
in the way he did.” ECF No. 61 at 28-29 (quoting Phillips, 515 F.3d at 238).

The Third Amended Complaint contains a few new allegations as to state-created danger.
For instance, at paragraphs 208-210 of the Third Amended Complaint, Plaintiff adds to the
previous language regarding how Defendants enhanced Plaintiff's vulnerability to attack that:
“thus, [these Defendants] knew Officer Russell would face a risk of almost certain injury if she
performed the work she was ordered to perform.” ECF No. 103 4 208-10. Further, paragraph
213 now provides: “Indeed, upon information and belief, these Defendants knew that Officer
Russell, a female corrections officer, was at a particular risk and had been the subject of plans by
an inmate to be taken hostage in the past who had even made make-shift handcuffs, a ball-gag and

had a map as part of his escape plan.” Id. 213. Nonetheless, these additional allegations do not

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change the analysis in any way as to the unforeseeability of Sergeant Bistline’s actions in the
context of a state-created danger claim.

If anything, these allegations go toward the foreseeability of an attack by an inmate,
something Judge Gibson had already assumed was adequately foreseeable and direct. They do not
in any way provide additional support for a finding that Sergeant Bistline’s reaction was
foreseeable. Judge Gibson’s finding that this reaction constituted a superseding cause remains
undisturbed. While not technically bound by this early finding, the Court perceives no reason not
to follow Judge Gibson’s well-reasoned conclusion on this point.

Again, the new allegations do arguably pertain to the foreseeability of Aikens’s actions.
However, as explained, the foreseeability of such conduct has been assumed already for purposes
of Plaintiff’s state-created danger claim. It was not any lack of foreseeability or directness that led
to Judge Gibson’s previous dismissal of this claim; rather, he determined that because inmate
violence is a risk inherent to the job of a corrections officer, Plaintiffs state-created danger claim

is precluded by the Supreme Court’s decision in Collins v. Harker Heights, 503 U.S. 115 (1992).

ECF No. 61 at 30.

In Collins, the Supreme Court held that the Due Process Clause is “not a guarantee against
incorrect or ill-advised personnel decisions,” nor does it “impose an independent federal obligation
upon municipalities to provide certain minimum levels of safety and security in the workplace.”
503 U.S. at 129-30. As Judge Gibson discussed, in light of Collins, the Third Circuit has held that

a government employee may bring a substantive due process claim, despite Collins, if the plaintiff

employee was “compelled ... to be exposed to a risk of harm not inherent in the workplace.” ECF

No. 61 at 31 (quoting Kedra v. Schroeter, 876 F.3d 424, 436 n.6 (3d Cir. 2017)). Judge Gibson

proceeded to exhaustively discuss the case law relevant to this issue, including Kedra, Eddy v. V.I.

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Water & Power Auth., 256 F.3d 204 (3d Cir. 2001), and Kaucher v. Cnty. of Bucks, 455 F.3d 418

(3d Cir. 2006). ECF No. 61 at 31-38.

In light of his extensive analysis, Judge Gibson decided that the question was whether the
risk Officer Russell faced of being attacked by Aikens as he attempted to escape was inherent in
her employment as a corrections officer. Id. at 38. As Judge Gibson explained, “[i]nherent risks
are those to which an employee can be expected to be exposed during the course of h[er]
employment. A risk is only not inherent if it is ‘qualitatively different from the types of risks the

employee agreed to face when he or she accepted employment.’” Speakman v. Williams, 440 F.

Supp. 3d 376, 384 (D. Del. 2020) (quoting Estate of Carrigan v. Park Cnty. Sheriff's Office, 381

F. Supp. 3d 1316, 1325 (D. Colo. 2019)). Therefore, even if the “alleged misconduct on the part
of Defendants” increased the risk Officer Russell faced, such actions will not give rise to liability

so long as they “did not alter the fundamental nature of this inherent risk.” Speakman v. Williams,

841 F. App’x 382, 386 (3d Cir. 2021).
Based on this, Judge Gibson concluded that “the risk of violence by inmates is a risk

inherent in the role of a Corrections Officer.” ECF No. 61 at 38 (citing Correction Officers’

Benevolent Ass’n v. City of New York, 415 F. Supp. 3d 464, 475 (S.D.N.Y. 2019) (“[E]xposing

COs to a risk of violence by prisoners cannot shock the conscience because such a risk is one
reason the job of CO exists.”)). Accordingly, he found that Plaintiffs state-created danger claim
failed.

The new allegations in Part A of Count I in no way change this analysis. Claims that, as a
female corrections officer, Officer Russell was at a particular risk and had been the subject of plans

by an inmate to be taken hostage in the past does not diminish or change the fact that the risk of

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inmate violence is inherent to her job as a corrections officer. If anything, such facts only further
demonstrate the inherent risk of such conduct.

Plaintiff attempts to bolster his argument by including additional language that Officers
Russell and Carruthers were required to comply with the order to transport Aikens and the other
prisoners to Central Court or face discipline, as this would have constituted an order from a
superior. ECF No. 103 § 70. This apparently was done in response to Judge Gibson’s statement
that “[tJhere is no indication in the Amended Complaint that [Officer Russell] was otherwise
compelled to [act] by threat of discipline or termination,” in distinguishing this matter from the
situation in Eddy. ECF No. 61 at 50. Plaintiff contends that this new language eliminates this
distinction between his case and Eddy, a case he believes should apply here. There are several
problems with this argument.

First, the Third Amended Complaint does not allege the type of compulsion or threat
involved in Eddy. In that case, the plaintiff was ordered to perform work over the plaintiffs
objections that he was unqualified to do so and was told that he would be subject to discipline and
possible termination if he refused. See 256 F.3d at 207. There is no such direct threat alleged
here; Plaintiff merely states the truism that, had Officers Russell and Carruthers refused to comply
with the order of a superior officer, they could be disciplined. ECF No. 103 § 70. There is no
allegation that either Officer Russell or Officer Carruthers actually objected to transporting the
prisoners or that they were expressly threatened with discipline if they refused to perform this task.

Moreover, even if these new allegations could help diminish the distinction between this

case and cases such as Eddy and Briscoe v. Potter, 355 F. Supp. 2d 30 (D.D.C. 2004), another case

upon which Plaintiff relies where the plaintiff was threatened with the loss of employment if he

failed to comply with the order at issue, the overall analysis remains unchanged. As Judge Gibson

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pointed out, the threatened discipline in Briscoe was “not crucial” to the court’s holding. ECF No.
61 at 49. Rather, the issue was whether the employee was compelled to be exposed to a risk of
harm not inherent in the workplace. Id. at 49-50. As both Judge Gibson and this Court have
discussed, the risk of inmate violence was a risk inherent in Officer Russell’s employment.

Accordingly, this Court finds that the new allegations in Part A of Count I of the Third
Amended Complaint do not disturb Judge Gibson’s finding that Plaintiff failed to plausibly state
a state-created danger claim. This Court finds Judge Gibson’s finding to be well-reasoned and
compelling and therefore recommends that the Motions to Dismiss filed by the Blair County
Defendants and Ott and Hopkins be granted as to this claim, and that the state-created danger claim
set forth in Part A of Count I be dismissed.

b. Due Process/Shocks the Conscience

In Part B of Count I, as noted above, Plaintiff asserts a substantive due process claim under
the Fourteenth Amendment against the Estate of Sergeant Bistline for Sergeant Bistline’s conduct,
which Plaintiff alleges “shocks the conscience.” ECF No. 103 § 219.4 Specifically, Plaintiff
contends that Sergeant Bistline’s use of deadly force, in conscious disregard of a substantial risk
of harm to innocent parties, is a constitutional due process violation. Id. [222. Moreover, Plaintiff
alleges new, potentially material facts in the Third Amended Complaint that warrant this Court’s
reconsideration of Judge Gibson’s dismissal of this claim in the 2024 Opinion.

Both Plaintiff and the Altoona Defendants ask this Court to reconsider a number of Judge
Gibson’s legal conclusions supporting his dismissal of the prior version of this claim. However,

as the Court will explain, only Judge Gibson’s determination that Sergeant Bistline was entitled to

4 In the Amended Complaint considered by Judge Gibson in the 2024 Opinion, this claim
was also raised against Altoona. Altoona no longer appears as a defendant in the current iteration
of the complaint. .

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qualified immunity is impacted by the new allegations in the Third Amended Complaint. The
Court agrees with and adopts Judge Gibson’s rationale in all other respects in regard to this claim.
i. Liability

Although Plaintiff pled his claim under the Fourteenth rather than the Fourth Amendment,
the Altoona Defendants have continued to argue that Plaintiffs claim, as asserted against them,
sounds under the Fourth Amendment, not the Fourteenth Amendment. Judge Gibson found that
the Fourteenth Amendment was the governing amendment. ECF No. 61 at 73-80. The new facts
alleged by Plaintiff in no way change this analysis, and this Court again will adopt Judge Gibson’s
comprehensive decision that the Fourteenth Amendment applies in this case.°

The Altoona Defendants further seek for the Court to reconsider Judge Gibson’s finding
regarding the appropriate level of culpability under which to evaluate whether Sergeant Bistline’s
deprivation of Officer Russell’s protected interest shocks the conscience. As Judge Gibson
explained, in determining whether conduct shocks the conscience, “[c]ourts employ one of three
standards, based on the time state actors have to deliberate: (1) intent to cause harm; (2) conscious
disregard of a great risk of serious harm; or (3) deliberate indifference. ECF No. 61 at 81 (citing

Quinn v. Badolato, 709 F. App’x 126, 130 (3d Cir. 2017) and Sanford v. Stiles, 456 F.3d 298, 306

(3d Cir. 2006)). After an exhaustive analysis, he determined that the intermediate standard of
culpability — the one that applies “in situations falling in the grey area between requiring “true

split-second decisions’ and allowing ‘relaxed deliberation,’” Sanford, 456 F.3d at 308 (quoting

5 The Altoona Defendants continue to rely on cases such as Davenport v. Borough of
Homestead, 870 F.3d 273 (3d Cir. 2017), and Villanueva v. California, 996 F.3d 1158 (9th Cir.
2021), for the proposition that a passenger injured while in a vehicle driven by a suspect pursued
by police has been “seized” for purposes of the Fourth Amendment. As Judge Gibson explained,
however, Officer Russell was not such a passenger, and these cases are inapplicable to her situation.
ECF No. 61 at 79-80.

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Estate of Smith v. Marasco, 318 F.3d 497, 509 (3d Cir. 2003) — applies under the facts of this case.

ECF No. 61 at 92-93.
In so finding, Judge Gibson found that the facts here clearly did not fall under the standard
of deliberate indifference, which requires the opportunity for “careful deliberation” and “unhurried”

judgment. ECF No. 61 at 85 (quoting Haberle v. Troxell, 885 F.3d 170, 177 (3d Cir. 2018)). He

further found, however, that the situation here also did not involve the type of “hyperpressurized
situation” requiring “‘a split-second decision” necessary for the heightened intent-to-harm standard
to apply. Haberle, 885 F.3d at 177. While concluding that the situation faced by Sergeant Bistline,
i.e., entering into an armed hostage situation, was hyperpressurized, Judge Gibson determined that
Sergeant Bistline was not required to make a true split-second decision. ECF No. 61 at 88.

After initially encountering Aikens holding Officer Russell as a human shield and pointing
Officer Russell’s firearm at him, Sergeant Bistline retreated “back and to his left, away from the
doorway and down the hallway until he was out of Aikens’[s] line of sight.” ECF No. 103 {| 166.
Judge Gibson therefore determined that “[a]t this point, a reasonable inference can be made that
Sergeant Bistline was out of immediate danger. Aikens was no longer pointing a firearm at him,
nor was he in Sergeant Bistline’s line of sight.” ECF No. 61 at 89. It was only then that Sergeant
Bistline made the decision to reenter the doorway and fire. Id. Judge Gibson concluded that
“while Sergeant Bistline faced a hyperpressurized scenario,” the fact that he had time in the
hallway to determine what action to take demonstrated that he “ha[d] more than a ‘split-second’
to make a decision, but less than enough time to make an ‘unhurried judgment.’” Id. (quoting

Patrick v. Great Valley Sch. Dist., 296 F. App’x 258, 261 (3d Cir. 2008)).

The Court finds nothing new in the Third Amended Complaint that would warrant a

different finding. Plaintiff continues to allege that some unstated amount of time passed between

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Sergeant Bistline’s exiting the cell at gunpoint and returning to open fire. Given these allegations,
this Court agrees with Judge Gibson that the intermediate standard should apply here.°

Judge Gibson next determined that Sergeant Bistline’s conduct did, in fact, shock the
conscience under the intermediate standard. Id. at 93. In finding that Sergeant Bistline’s conduct
demonstrated a conscious disregard of a great risk of serious harm, Judge Gibson compared his

behavior to that of defendants in cases such as Sauers v. Borough of Nesquehoning, 905 F.3d 711

(3d Cir. 2018). Judge Gibson explained that shooting at Aikens while Sergeant Bistline knew he
was using Officer Russell as a human shield constituted just as great a threat of harm — if not
greater — than the threat posed to those involved in a high-speed police chase. Id. at 94. He
therefore concluded that “the facts contained in the Amended Complaint — that Sergeant Bistline,
knowing that Aikens was using Officer Russell as a human shield, re-approached the holding cell
doorway and immediately fired his weapon — plausibly show that Sergeant Bistline consciously

disregarded a great risk of harm to Officer Russell.” Id. (citing Small v. City of Phila., No. 05-cv-

5291, 2007 WL 674629, at *23 (E.D. Pa. Feb. 26, 2007) (finding sufficient evidence to support a
jury finding that the defendant officer consciously disregarded a risk of harm to the plaintiff where
he shot in a suspect’s direction when he “knew [the plaintiff] was standing next to the front
passenger-side window of [the suspect’s] car”)).

This Court again agrees with Judge Gibson’s compelling analysis and finds that the facts

set forth in the Third Amended Complaint continue to plausibly support a claim for liability under

6 As the Court discusses below, additional discovery as to the issue of qualified immunity is

warranted. It is certainly possible that additional information could demonstrate that Sergeant
Bistline was faced with the type of split-second decision needed to trigger the heightened intent-
to-harm standard. Accordingly, this issue may be revisited at a later stage of the case.

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Section 1983 and the Due Process clause. Not only do the additional alleged facts not change this
analysis, if anything, they further confirm it.
ii. Qualified Immunity

The situation is more complicated, however, in regard to the issue of whether Sergeant
Bistline is entitled to qualified immunity. Judge Gibson found that he was so entitled, stating that
although Plaintiff had plausibly alleged that Sergeant Bistline violated Officer Russell’s
substantive due process rights by acting with a degree of culpability that shocked the conscience,
that right to be free from harm under the circumstances presented by this case was not sufficiently
clearly established. Id. at 96-109. While the Court again finds Judge Gibson’s discussion to be
thorough and persuasive, the new allegations in the Third Amended Complaint, particularly in
light of more recent Third Circuit case law, necessitate a different approach at this stage of the
litigation.

“The qualified immunity doctrine ‘protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Sharp v. Johnson, 669 F.3d 144, 159

(3d Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). See also Ray v. Twp. of

Warren, 626 F.3d 170, 173 (3d Cir. 2010). Because “[q]ualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law,’ ... so long as an official reasonably
believes that his conduct complies with the law, qualified immunity will shield that official from

liability.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). See Pearson, 555 U.S. at 244;

Ray, 626 F.3d at 173-74.
The Supreme Court has established a two-part analysis to determine whether an official is

entitled to qualified immunity: (1) whether the plaintiff has alleged facts that demonstrate a

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violation of a constitutional right; and (2) whether the right at issue was clearly established at the

time of the alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Sharp, 669 F.3d

at 159. The first question “is not a question of immunity, but whether there is any wrong to address.”
Ray, 626 F.3d at 174. Further, “clearly established rights” are those with contours sufficiently
clear that a reasonable official would understand that what he is doing violates that right.

McLaughlin v. Watson, 271 F.3d 566, 571 (3d Cir. 2001). If the plaintiff fails to satisfy either

prong, the defendant is entitled to judgment as a matter of law. See James v. City of Wilkes-Barre,

700 F.3d 675, 679 (3d Cir. 2012).

As noted, Judge Gibson found that Plaintiff had pled facts sufficient to demonstrate a
violation of a constitutional right. He found, however, that the right was not clearly established.
In doing so, he defined the particular right at issue for qualified immunity purposes as “an innocent
hostage’s right to be free from a state officer firing at their armed hostage taker while knowing
that the innocent hostage is in close proximity to the officer’s intended target.” ECF No. 61 at 104.
He subsequently considered ““whether [Sergeant Bistline, in November 2021,] had fair warning
that he could be subject to constitutional liability for ... conscious[ly] disregard[ing] a great risk of
harm’ by shooting at Aikens while he knew Officer Russell was in close proximity.” Id. (quoting
Sauers, 905 F.3d at 718). He ultimately found that Sergeant Bistline did not have such fair warning
and that his conduct did not violate a clearly established right. Id. at 108. New potential factual
and legal circumstances, however, preclude this Court from making the same finding at this point.

In determining whether a right was clearly established at the time, the Court conducts a
two-part inquiry. First, the Court must define the right allegedly violated with sufficient specificity.
Second, the Court assesses “whether it was ‘sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] that right.”” Rivera v. Redfern, 98 F.4th 419, 422-

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23 (3d Cir. 2024) (quoting Saucier, 533 U.S. at 202). This analysis precludes dismissal under Rule
12(b)(6) in this case.

The Third Circuit has consistently emphasized that courts must define the right at issue
specifically, based on the particular facts, and not as a broad general proposition. See Otero v.

Kane, No. 24-2907, 2025 WL 3493890, at *3 (3d Cir. Dec. 5, 2025); Rivera, 98 F.4th at 422;

Sauers, 905 F.3d at 719; Davenport, 870 F.3d at 281. This is a “fact-intensive” process that
requires enough detail to enable the Court to define the right with sufficient specificity. Stringer

vy. Cnty. of Bucks, 141 F.4th 76, 87 (3d Cir. 2025).

In Stringer, the Third Circuit discussed, in detail, the nature of this inquiry within the
context of deciding a Rule 12(b)(6) motion. The Circuit acknowledged the well-established
protocol of resolving qualified immunity “at the earliest possible stage in litigation.” Id. at 85
(quoting Pearson, 555 U.S. at 232). However, it further pondered “how soon is too soon” to grant
such immunity. Id. at 81. The Circuit emphasized that “the fact-intensive nature of qualified

immunity makes it often a bad fit for Rule 12(b)(6).” Id. at 87 (quoting Siefert v. Hamilton Cnty.,

951 F.3d 753, 761 (6th Cir. 2020)). It explained that dismissal under Rule 12(b)(6) is appropriate
only where qualified immunity can be established from the face of the complaint. See id. at 86-
88. As the Circuit explained:

So the fact-bound nature of the clearly established inquiry combined
with the dearth of facts at the pleadings stage makes it “difficult for
a defender to claim qualified immunity on the pleadings before
discovery and before the parties (much less the courts)” uncover the
precise contours of the official’s conduct and the context in which it
occurred.

Id. at 86 (emphasis in original) (quoting Evans-Marshall v. Bd. of Educ. of Tipp City Exempted

Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005)).

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Indeed, as the Third Circuit pointed out in Stringer, qualified immunity is an affirmative
defense, and “a plaintiff ‘has no pleading burden to anticipate or overcome a qualified immunity

defense.’” Id. (quoting Thomas v. Independence Twp., 463 F.3d 285, 289, 294 (3d Cir. 2006)).

Accordingly, “an absence of detailed factual allegations supporting a plaintiffs claim for relief

under s 1983 does not ... establish defendants’ immunity.” Id. at 88 (quoting Thomas, 463 F.3d

at 289). The Circuit noted that “complaints typically lack the case-specific details needed to
conduct the clearly established analysis,” id. at 86, and that thus complaints are “generally not

dismissed under Rule 12(b)(6) on qualified immunity grounds,” id. at 88 (quoting Reed v. Palmer,

906 F.3d 540, 548 (7th Cir. 2018)).

Judge Gibson, of course, did not have the benefit of Stringer, decided in 2025, when
rendering the 2024 Opinion. While Stringer does not purport to change the law in regard to the
process of determining whether a well established right has been violated, it firmly emphasizes the
importance of ensuring that a sufficient record is available to make such a determination. It
expressly clarifies that the process is fact-specific and generally not compatible with determining
the sufficiency of a complaint under Rule 12(b)(6). This Court, fortunately, is able to rely on
Stringer, and in applying that recent decision finds that the allegations contained in the Third
Amended Complaint are such that additional development of the record on the issue of qualified
immunity is warranted.

The Third Amendment Complaint, of course, is not lacking in detail, but it leaves a number
of potentially relevant questions unanswered. As discussed above, the Third Amended Complaint,
unlike the prior versions of the complaint, alleges that Aikens “dropped” the firearm he had pointed
at Sergeant Bistline before Sergeant Bistline fired his own weapon. ECF No. 103 § 179. However,

it is not at all clear what dropping the gun meant in this context. Did he merely set it down beside

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him? Did he slide it across the floor? Could he still access it? To what extent did Sergeant Bistline
and Officer Russell remain in imminent danger? More importantly, there is nothing that would
indicate what Sergeant Bistline knew in regard to Aikens “dropping” the weapon.’ Given the
Third Circuit’s consistent admonitions to ensure that the right at issue be defined specifically and
based on the particular facts of the case, see Otero, 2025 WL 3493890, at *3, these unknown
variables could significantly impact the definition of the relevant right in this matter.

Further, this material change in the factual allegations demonstrates that the exact details
of this incident are not entirely clear and are certainly not undisputed. In addition to whether
Aikens had dropped the gun, and the impact of that action, Judge Gibson recognized in the 2024
Opinion that “the Amended Complaint does not specify the timing of [Sergeant Bistline’s] actions.”
ECF No. 61 at 88. The Third Amended Complaint likewise contains no allegations as to what, if
anything, was said by Sergeant Bistline, Aikens, Officer Russell, or anyone else.

Judge Gibson defined the particular right at issue here as “an innocent hostage’s right to be
free from a state officer firing at their armed hostage taker while knowing that the innocent hostage
is in close proximity to the officer’s intended target.” ECF No. 61 at 104. Although he found no
analogous Supreme Court or Third Circuit decisions addressing this specific right, he did consider

a handful of cases from other circuits he found to be factually analogous — Childress v. City of

Arapaho, 210 F.3d 1154 (10th Cir. 2000), and Medeiros v. O’Connell, 150 F.3d 164 (2d Cir. 1998).

These cases both involved law enforcement agents shooting at a suspect that they knew was armed

(and that had in fact fired at the officers) and accidentally hitting one of the suspect’s hostages.

7 Unresolved issues as to what information a law enforcement agent has at the time of his or

her conduct will even preclude a finding of qualified immunity under Rule 56. See Curley v. Klem,
298 F.3d 271, 278, 282 (3d Cir. 2002) (“[A] decision on qualified immunity will be premature
where there are unresolved disputes of historical facts relevant to the immunity analysis.”).

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Judge Gibson ultimately distinguished these cases as both applied a heightened intent-to-harm
standard of liability (and therefore did not reach the issue of qualified immunity). ECF No. 61 at
107-108.8

Here, based on the still fluid nature of the factual allegations, it is not clear whether Aikens
remained an “armed” hostage taker and it is not certain what Sergeant Bistline might have known
in that regard. Moreover, the time intervals between the various actions in this incident remain
unknown and potentially relevant. As such, the Court deems it inappropriate to attempt to craft
the carefully tailored definition needed in a qualified immunity analysis at this juncture. While
the basic facts have been alleged, the precise details of those facts remain undetermined and in
flux. Limited discovery expressly directed toward a qualified immunity decision at the summary
judgment stage seems to be the most prudent course of action.

It is by no means sure that discovery of any kind will unearth facts that would move this
case into the category of involving a clearly established right.? However, assuming this at the Rule
12(b)(6) stage is unnecessary and inconsistent with the Third Circuit’s clear guidance as to how to
address such situations. As the Court discussed above, Plaintiff has no duty to plead in such a way

as to anticipate or overcome an affirmative defense of qualified immunity. See Stringer, 141 F.4th

8 Epitomizing the ever-changing and fact-specific nature of the qualified immunity analysis,

this Court has identified two additional cases decided after the 2024 Opinion was issued (one after
briefing had closed in regard to the pending Motions to Dismiss). Both cases, though, Hawatmeh
v. City of Henderson, No. 24-6146, 2025 WL 3120662 (9th Cir. Nov. 7, 2025), and Estate of
Parker v. Miss. Dep’t of Pub. Safety, 140 F.4th 226 (5th Cir. 2025), like Childress and Medeiros,
involved situations where the hostage taker was known to be armed and where he had fired at law
enforcement agents.

9 After discovery, cases such as Hawatmeh, Estate of Parker, Childress, and Medeiros may

continue to be the most factually analogous cases. However, it may also be that the facts adduced
from discovery move the case closer to cases that Plaintiff argues should apply, such as Mack v.
Yost, 63 F.4th 211 (3d Cir. 2023), Coon v. Ledbetter, 780 F.2d 1158 (Sth Cir. 1986), Hensley v.
Price, 876 F.3d 573 (4th Cir. 2017), and Small, 2007 WL 674629.

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at 86. Accordingly, he was not obligated to specify all of the details that could be relevant in a
court’s qualified immunity decision. While it may be that Sergeant Bistline is indeed shielded by
qualified immunity, that decision is more properly made at the summary judgment stage after some

development of the record. See, e.g., Vintzileos v. Borough of Lavallette, Civ. No. 25-2200, 2025

WL 3247616, at **11-12 (D. N.J. Nov. 20, 2025) (denying defendant’s motion to dismiss based
on qualified immunity where important underlying facts remained in dispute).

This is simply not one of the unusual cases where qualified immunity can be determined
from the face of the complaint. See Stringer, 141 F.4th at 85 (“Rule 12(b)(6) is often ‘a mismatch

for immunity and almost always a bad ground for dismissal’”) (quoting Fogle v. Sokol, 957 F.3d

148, 162 n.14 (3d Cir. 2020)). The Court therefore recommends that the Altoona Defendants’
Motion to Dismiss be denied in this regard without prejudice to re-raise the issue of qualified
immunity at summary judgment and that the parties be given 90 days to conduct discovery only
as to the issues involved in Sergeant Bistline’s claim of qualified immunity. This will balance the
Altoona Defendants’ interest in having the issue decided as early as possible while still ensuring
that the Court has an adequate record on which to make such a decision.
Cc. Monell Claims

In Parts C and D of Count I, Plaintiff brings Fourteenth Amendment-based “Policies,
Practices and Customs” and “Failure to Train” claims against Blair County, Warden Tate, Deputy
Warden Eckard, Deputy Warden Edmundson, Lieutenant Fogle, Deputy Ott, and Altoona pursuant

to Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Judge Gibson had

dismissed all such claims in the 2024 Opinion. Although Plaintiff purports to add new allegations

to bolster his Monell claims, these new allegations do not upset Judge Gibson’s thorough analysis.

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i. Claims Against the Blair County Defendants

As Judge Gibson explained in the 2024 Opinion, in the initial Amended Complaint,
Plaintiff alleged a number of inadequate policies, practices, and/or customs relating to prisoner
detention and transfer, reporting and investigating misconduct such as escape attempts, security at
Central Court, and guarding prisoners on behalf of the Blair County Defendants and Deputy Ott.
ECF No. 61 at 56-57. In that earlier Amended Complaint, Plaintiff further alleged that these
Defendants failed to provide adequate training in a number of areas involving supervising and
transporting prisoners, reporting and investigating misconduct such as escape attempts, assessing
risks, and providing security at Central Court. ECF No. 30 {{j 258-59. These allegations are
similar to those in the Third Amended Complaint at issue here.

In evaluating Plaintiffs Monell claims against the Blair County Defendants and Deputy
Ott, Judge Gibson explained that although municipalities and local government units cannot be
held liable for the unconstitutional acts of their employees on a respondeat superior theory,
pursuant to Monell, “[a] municipality may be held liable if a constitutional violation was caused
by actions taken pursuant to a municipal policy or custom.” ECF No. 61 at 54 (quoting Brown v.

Commonwealth of Pa. Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 482

(3d Cir. 2003)). He further discussed the three situations where the actions of a government
employee may be deemed to have been caused by a policy or custom of the municipality for which
the employee works, giving rise to municipal liability under Section 1983:

(1) where the appropriate officer or entity promulgates a generally
applicable statement of policy, and the subsequent act in question is
an implementation of that policy;

(2) where no rule has been formally announced as policy, but a right
has been violated by an act of the policymaker itself; or

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(3) where the policymaker has failed to act affirmatively, although
the need to take some action to control the municipality’s agents is
so obvious, and the inadequacy of the existing practice so likely to
result in the violation of constitutional rights, that the policymaker
can reasonably be said to have been deliberately indifferent to the
need.

Id. at 54-55 (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)).

Judge Gibson explained, “[a] plaintiff must also allege that the policy or custom was the

‘proximate cause’ of h[er] injuries.” Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.

1990)) “This is done for a custom if [the plaintiff] demonstrates that [the municipality] had
knowledge of ‘similar unlawful conduct in the past, but failed to take precautions against future
violations, and that [its] failure, at least in part, led to [her] injury.’” Id. (quoting Bielevicz, 915
F.2d at 851).

The discussion then turned to the standard for evaluating Monell failure-to-train cases.
Judge Gibson explained that to prevail on such a claim, a plaintiff must show that the defendants’
failure “amounts to ‘deliberate indifference’ to the rights of persons with whom [the

municipality’s] employees will come into contact.” Id. at 57 (quoting Johnson v. City of Phila.,

975 F.3d 394, 403 (3d Cir. 2020)). A showing of deliberate indifference, in turn, “requires a
plaintiff to identify a ‘pattern of similar constitutional violations by untrained employees’ that
‘puts municipal decisionmakers on notice that a new program is necessary’” or to show “that
failure to provide the identified training would ‘likely . . . result in the violation of constitutional

rights’ — i.e., to show that ‘the need for more or different training [was] so obvious.’” Johnson,

975 F.3d at 403 (quoting Connick v. Thompson, 563 U.S. 51, 62 (2011) and City of Canton v.
Harris, 489 U.S. 378, 390 (1989)). Judge Gibson stressed, “[p]roving that an injury could have

been avoided if [the Blair County Defendants] had better or more training is not enough to show

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municipal liability.” ECF No. 61 at 58 (quoting Kline v. Mansfield, 255 F. App’x 624, 629 (3d

Cir. 2007).

Judge Gibson next discussed two preliminary matters. First, he considered whether Collins
had the same impact on Plaintiff's Monell claims as it did on his state-created danger claims. In
considering the issue, he stated that “the same limiting principle of foreseeability” applies to

Plaintiff's Monell claims. Id. at 59 n.12. Judge Gibson explained:

it may have been foreseeable that those actions would allow for an
escape attempt by Aikens and the attack upon Officer Russell that
accompanied it. But it could not have been foreseeable to the Blair
County Defendants that their actions would lead Sergeant Bistline —
an Altoona police officer not alleged to be under the supervision of
any Blair County Defendant — to act in a way that shocks the
conscience in firing at Aikens while he knew Officer Russell was
being used as a human shield.

Id. Accordingly, he found that “the injury in question is limited to Aikens’s attack of Officer
Russell with respect to her Monell claims against the Blair County Defendants, just as it was
regarding her state-created danger claim.” Id.

Second, relying primarily on Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994), Judge

Gibson rejected the Blair County Defendants’ argument that, pursuant to Mulholland v. Cnty. of

Berks, 706 F.3d 227 (3d Cir. 2013), municipality liability cannot be valid where there is no
underlying violation by any of its employees. ECF No. 61 at 61-65. He did find, however, that
“Fagan contemplated a viable Monell claim in the absence of individual-defendant liability
pursuant to a particular avenue of Monell liability — where the individual actors were following a
‘policy reflecting the city policymakers’ deliberate indifference to constitutional rights.’” Id. at
65 (quoting Fagan, 22 F.3d at 1292).

Accordingly, both of Plaintiffs Monell claims against the Blair County Defendants —

pursuant to (1) inadequate policies and/or customs and (2) failure to train — were analyzed as to

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whether he had pled facts sufficient to show that the Blair County Defendants and Deputy Ott

acted with deliberate indifference. Id. at 65-66. Citing Hadesty v. Rush Twp. Police Dep’t, No.

3:14-cv-2319, 2016 WL 1039063, at *13 (M.D. Pa. Mar. 15, 2016), Judge Gibson determined that
Plaintiff's allegation that “Defendants knew that employees would confront the situations
contemplated, that there had been a history of resulting inappropriate conduct, and that such
conduct could lead to a deprivation of constitutional rights,” was too conclusory, and tracked too
closely to the legal elements of deliberate indifference, to survive a Motion to Dismiss standing
alone. ECF No. 61 at 66 (quoting ECF No. 30 § 263).

Judge Gibson further determined that the “isolated instances of alleged unconstitutional
conduct” contained in the Amended Complaint were “insufficient to show deliberate indifference

on behalf of Blair County policymakers.” Id. at 67 (citing Timko v. City of Hazleton, 665 F. Supp.

1130, 1138 (M.D. Pa. 1986) (‘“[I]solated incidents are normally insufficient to establish
supervisory inaction upon which to predicate § 1983 liability.”)). He explained that while the
allegations may have plausibly shown that the Blair County Defendants were aware of certain
issues, they failed to show that they were aware that these issues would “frequently cause

deprivation of constitutional rights.” Id. at 68 (quoting Estate of Roman v. City of Newark, 914

F.3d 789, 798 (3d Cir. 2019)).
Judge Gibson similarly found that Plaintiffs failure-to-train Monell claim failed to
accomplish the difficult feat of “[e]stablishing municipal liability on a failure to train claim under

§ 1983.” Id. (quoting Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997)). He explained

that showing deliberate indifference on behalf of a municipality with respect to a failure-to-train
claim generally “requires a plaintiff to identify a pattern of similar constitutional violations by

untrained employees that puts the municipal decisionmakers on notice that a new program is

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necessary.” Id. (quoting Johnson, 975 F.3d at 403). He determined that Plaintiff had failed to
assert facts that would establish such a pattern, and that general allegations regarding a history of
resulting inappropriate conduct was too conclusory. Id.

In response to Plaintiffs contention that the need to train Blair County officials, or to adjust
or implement policies or customs, was so obvious that Defendants’ failure to do so absent a pattern
of constitutional violations constitutes deliberate indifference, i.e., the “single-incident” form of
liability, Judge Gibson discussed that it was well established that only in a “narrow range of
circumstances” would “a pattern of similar violations ... not be necessary to show deliberate
indifference.” Id. at 69 (quoting Connick, 563 U.S. at 63). He held that Plaintiffs allegations did
not fall within the narrow range of circumstances where municipal liability may apply pursuant to
Monell in the absence of a pattern of constitutional violations. Id. at 70. Accordingly, he found
that the Amended Complaint did not plausibly allege deliberate indifference sufficient to support
either of Plaintiff's Monell claims.

The issue before the Court now remains whether Plaintiff has alleged facts adequate to
establish deliberate indifference. Most of the new allegations in the Third Amended Complaint
appear to be calculated to provide the specificity that Judge Gibson found lacking in the Amended
Complaint. However, although the quantity of additional allegations is noteworthy, they continue
to simply provide general statements that continue to be too conclusory to establish a claim.

For example, Plaintiff includes in the Third Amended Complaint general statistics from the
Pennsylvania Department of Corrections regarding recidivism rates and the need for mental health
for certain inmates. ECF No. 103 §§ 245-46. He also provides vague statements regarding inmates
possessing weapons and/or contraband and attempting to escape. Id. {J 247-50. Such allegations

do not in any way demonstrate that the Blair County Defendants or Deputy Ott had an obvious

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need to change any specific inadequate policy or to provide any specific training. These general
assertions do not establish deliberate indifference on the part of the Blair County Defendants or
Deputy Ott as to issues that would frequently cause deprivation of constitutional rights.

Plaintiff also includes in the Third Amended Complaint new allegations regarding a
handful of attacks by high-risk inmates on corrections officers from around the country within an
undisclosed time frame. Id. § 269. Nothing in these allegations provides any relevant context or
suggests any material similarities to what happened in this case, and they do not show any obvious
need to change any specific policy or to provide any specific training. Indeed, given the vague
nature of the allegations, it is unclear what, if any, policies or training relevant to this case could
have been implicated in those cases.

Generally, to state a valid Monell claim, the complaint must “contain specific factual
allegations referencing the conduct, time, place, and persons responsible for any official municipal

policy or custom endorsing the police officers' conduct.” Torres v. City of Allentown, No. CIV.

A. 07-1934, 2008 WL 2600314, at *5 (E.D. Pa. June 30, 2008). Here, Plaintiff does not allege
facts that would plausibly establish a custom so widespread in regard to the Blair County
Defendants or Deputy Ott “as to have the force of law.” He also fails to provide any context that
would connect the general information contained in the Third Amended Complaint to any
deliberate indifference on behalf of any Defendants in this case.

The closest Plaintiff comes to alleging any facts that may have demonstrated that the Blair
County Defendants or Deputy Ott failed to act affirmatively despite the obvious need to take some
action to control their agents and the inadequacy of existing practices likely to result in the
violation of constitutional rights is by referencing an apparently thwarted or otherwise failed plan

by an inmate to abduct Officer Russell specifically. ECF No. 103 §§ 251-52. However, even this

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attempt at specificity fails, as it does not demonstrate the obvious failure of any specific policy,
nor did it show that failure to act would lead to any specific constitutional violations.'”

Although Plaintiff attempts to further support his Monell claims against the Blair County
Defendants and Deputy Ott by alleging addition general facts, his allegations remain insufficient
to plausibly demonstrate a prior pattern of similar instances or other facts that would indicate that
the risk of attacks such as the one here was so obvious that any Defendants’ failure to address the
problem amounted to deliberate indifference. Accordingly, the Court recommends that the
Motions to Dismiss filed by the Blair County Defendants and Deputies Ott and Hopkins be granted
as to the Monell claims raised in Parts C and D of Count I. These counts should be dismissed as
to these Defendants.

ii. Claims Against Altoona

Plaintiff's Monell claims against Altoona in Parts C and D of Count I fare no better.
Plaintiff alleges that Altoona had policies and/or customs whereby police officers would fail to
identify themselves as police or warn prior to the use of force and would fail to take steps to de-
escalate, negotiate, or otherwise defuse hostage or potentially volatile situations. ECF No. 103 {
280. Plaintiff further alleges that Altoona failed to provide adequate training in a number of areas,
include hostage situations and negotiations, de-escalation, identification of officers, and
recognition of risks. Id. 318. These are essentially the same as the claims raised in the Amended

Complaint that Judge Gibson dismissed, ECF No. 30 {§ 245, 260, and this Court will similarly

dismiss Parts C and D as to Altoona.

10 Plaintiff also engages in circular reasoning by arguing that the failure to take certain actions

created a pattern of non-activity that necessitated those very actions to be taken. ECF No. 103 {If
253-63, 274-76. Needless to say, merely alleging the absence of a practice does not itself support
the obvious need for such a practice to prevent similar constitutional violations.

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As discussed above, Judge Gibson considered Altoona’s Police Policy in evaluating this
claim and found that the policy itself did not encourage Sergeant Bistline to fail to identify himself
or issue a warning prior to the use of deadly force or to fail to take steps to de-escalate the situation
at issue. ECF No. 61 at 113. He went on to decide whether Plaintiff plausibly pled that the “given
course of conduct, although not specifically endorsed or authorized by law, is so well-settled and
permanent as virtually to constitute law.” Id. at 114 (quoting Bielevicz, 915 F.2d at 850). Judge
Gibson found that Plaintiff's allegations regarding inappropriate conduct by an Altoona police
officer who shot an unarmed man without warning or commands failed to sufficiently establish an
identifiable custom or deliberate indifference on the part of Altoona. Id. at 115.

Judge Gibson likewise determined that Plaintiff failed to establish a failure-to-train claim
against Altoona. In finding that Plaintiffs allegations failed to show the requisite deliberate
indifference, he explained that, for such a showing, a municipality must know that employees will
confront a “particular situation” that is “specific enough that an employee will confront it during

the course of their job.” Id. at 118 (quoting Nace v. Pennridge Sch. Dist., 185 F. Supp. 3d 564,

577 (E.D. Pa. 2016) (citations cleaned up)). He further noted that framing the relevant situation
as broadly as one involving an Altoona police officer being faced with the choice of using deadly

force is inappropriate. Id. (citing Ward v. Noonan, 147 F. Supp. 3d 262, 279 (M.D. Pa. 2015)).

Judge Gibson stressed that the particular situation Altoona must have known its officers
would face had to be a hostage or similarly hyperpressurized situation. Id. at 119. He determined
that Plaintiffs allegations were too conclusory to support such a finding and that Plaintiff's
reference to one other Altoona police officer failed to establish any relevant pattern. Id. at 119-20.

He ultimately found that Plaintiff failed to adequately support this claim. Id. at 123.

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As in regard to the Monell claims against the Blair County Defendants and Deputy Ott,
Plaintiff attempts to further support his claims against Altoona by adding additional factual
allegations. However, these new allegations continue to simply provide general statements that
continue to be too conclusory to establish a claim.

In addition to the incident involving a different Altoona police officer shooting a man
without warning or commands also cited in the Amended Complaint, Plaintiff identifies three more
incidents involving Altoona police officers which he claims show a pattern of mishandling
situations calling for the use of force or de-escalation. ECF No. 103 9 288-95. However, as

Judge Gibson explained in regard to Plaintiff's previous Monell claims against Altoona, none of

these examples involved a hostage situation or substantially similar situation. Indeed, they show
little more than the fact that Altoona police officers are occasionally involved in situations where
third parties may be harmed or deadly force may be used. As Judge Gibson explained, this is
simply not enough to support a claim. ECF No. 61 at 118.

Similarly to what he did in regard to his Monell claims against the Blair County Defendants
and Deputy Ott, Plaintiff also cites several situations involving law enforcement agents injuring or
killing hostages from around the country within an undisclosed time frame. ECF No. 103 { 297.
However, these allegations fail to provide any relevant context or suggest any material similarities
to what happened in this case, and they do not show any obvious need to change any specific
policy or implement any specific training.

Therefore, the Court finds that Plaintiffs allegations remain insufficient to plausibly
demonstrate the level of deliberate indifference needed to support either of his Monell claims

against Altoona. Accordingly, the Court recommends that the Altoona Defendants’ Motion to

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Dismiss be granted as to the claims raised in Parts C and D of Count I and that these counts be
dismissed as to Altoona.
d. Supervisory Liability

In Part E of Count I of the Third Amended Complaint, Plaintiff brings allegations of
supervisory liability against Warden Tate, Deputy Warden Eckard, Deputy Warden Edmundson,
Lieutenant Fogle, and Deputy Ott. ECF No. 103 §§ 337-41. Given that Plaintiff offers no new
allegations in regard to this claim, this Court will adopt Judge Gibson’s finding that no such
liability has accrued.

As explained in the 2024 Opinion, although Monell does not provide for a claim under the
respondeat superior doctrine, “the Third Circuit has ‘recognized in limited circumstances that
supervisors may be held liable for the unlawful conduct of subordinates.’” ECF No. 61 at 71

(quoting Diorio v. Harry, No. 21-1416, 2022 WL 3025479, at *7 (3d Cir. Aug. 1, 2022)). Judge

Gibson found, however, that because no underlying constitutional violations had been committed
by anyone these Defendants would have supervised, i.e., the Blair County Defendants, supervisory

liability could not attach. ECF No. 61 at 72 (citing Santiago v. Warminster Twp., 629 F.3d 121,

130 (3d Cir. 2010) (explaining that a cognizable Section 1983 supervisory liability claim
“necessarily includes as an essential element an actual [constitutional] violation at the hands of

subordinates”); Talley v. Varner, 786 F. App’x 326, 329 (3d Cir. 2019) (“[Plaintiff's] claim[] of

supervisory liability . . . fail[s] because, as noted by the District Court, there is no underlying
constitutional violation.”)).

Again, Plaintiff has included no additional allegations in support of a supervisory liability
claim in the Third Amended Complaint. As such, the claim fails for the reasons discussed by

Judge Gibson. The Court therefore recommends that the Motions to Dismiss filed by the Blair

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County Defendants and Deputies Ott and Hopkins be granted as to this claim, and that Part E of
Count I be dismissed.
3. Plaintiff’s Assault and Battery Claim

At Count II of the Third Amended Complaint, Plaintiff brings a state law assault and battery
tort claim under Pennsylvania law against the Estate of Sergeant Bistline. This claim arises out of
the same body of operative facts as Plaintiff's claim for due process/shocks the conscience set
forth in Part B of Count I. While the Court is not recommending the dismissal of Plaintiff's due
process/shocks the conscience claim at this point, it does recommend that his assault and battery
claim be dismissed.

As discussed above, the Court is recommending limited discovery in connection with the
allegations in Part B of Count I as to the issue of qualified immunity. Should this discovery fail
to adduce facts that would show that Sergeant Bistline violated a clearly established right,
judgment will likely be entered in his favor as to that claim. Under such circumstances, the Court
would decline to exercise supplemental jurisdiction over Plaintiffs state law assault and battery

claim under 28 U.S.C. § 1367(c). See Talley v. Clark, 111 F.4th 255, 266 n.6 (3d Cir. 2024)

(quoting with approval Talley v. Clark, No. 19-253, 2019 WL 6218265 (E.D. Pa. Nov. 20, 2019)).

Regardless, pursuant to 42 Pa. C.S. § 8545:
An employee of a local agency is liable for civil damages on account
of any injury to a person or property caused by acts of the employee
which are within the scope of his office or duties only to the same
extent as his employing local agency and subject to the limitations
imposed by this subchapter.
Under 42 Pa. C.S. § 8541, “Except as otherwise provided in this subchapter, no local agency shall

be liable for any damages on account of any injury to a person or property caused by any act of

the local agency or an employee thereof or any other person.” Accordingly, municipal employees

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such as Sergeant Bistline are generally given the same broad immunity that applies to the

municipalities themselves. See Bright v. Westmoreland Cnty., 443 F.3d 276, 287 (3d Cir. 2006).

An exception to this broad immunity for employees, as set forth at 42 Pa. C.S. § 8550, is
where the employee’s act constituted a crime, actual fraud, actual malice, or willful misconduct.
There are no allegations in the Third Amended Complaint that Sergeant Bistline’s actions were
criminal or that they involved malice or fraud. Rather, Plaintiff alleges that Sergeant Bistline
engaged in “willful misconduct” of the sort that would except him from the immunity provided by
Section 8545. ECF No. 103 § 345.

However, to establish willful misconduct, “a plaintiff must establish that the actor desired
to bring about the result that followed, or at least was substantially certain to follow.” Bright, 443

F.3d at 287 (quoting Robbins v. Cumberland Cnty. Child. And Youth Servs., 802 A.2d 1239, 1252-

53 (Pa. Commw. Ct. 2002)). In other words, the employee must act with “specific intent.” Id. A
claim of deliberate indifference is not sufficient. See id. Here, there is no reasonable inference to
be drawn from the allegations in the Third Amended Complaint that Sergeant Bistline acted with
the specific intent of bringing about Officer Russell’s death. Although Plaintiff argues that
Sergeant’s Bistline’s intent to shoot Aikens can be transferred to his shooting of Officer Russell,
this argument ignores the fact that Sergeant Bistline’s act of shooting at Aikens was neither tortious
nor did it constitute misconduct. It likewise does not establish any specific intent “to bring about
the result that followed” as required.

Accordingly, the Court recommends that the Altoona Defendants’ Motion to Dismiss be

granted as to this count and that Count II be dismissed.

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4. Plaintiff’s Wrongful Death and Survival Act Claims
At Counts III and IV, Plaintiff brings state law claims pursuant to Pennsylvania’s Wrongful
Death Act and Survival Act, 42 Pa. C.S. §§ 8301, 8302, respectively, against all Defendants. ECF
No. 103 §§ 357-79. Under Pennsylvania law, “wrongful death and survival actions are not

substantive cause of action; rather, they provide a vehicle through which plaintiffs can recover for

unlawful conduct that results in death.” Johnson v. City of Phila., 105 F. Supp. 3d 474, 483 (E.D.

Pa. 2015); Carroll v. Skloff, 202 A.2d 9, 10-11 (Pa. 1964)). As noted above, Plaintiff

acknowledges this but states that a Section 1983 claim is a sufficient underlying basis for wrongful
death and survival claims under Pennsylvania law. ECF No. 103 4 359, 360.

As was the case for Judge Gibson in considering the Amended Complaint, the Court here
has found that Plaintiffhas failed to state a valid Section 1983 claim against any of the Blair County
Defendants or Deputies Ott or Hopkins. It therefore recommends that the Motions to Dismiss by
those Defendants be granted and that Counts III and IV be dismissed in regard to them.

Unlike Judge Gibson in the 2024 Opinion, though, this Court has declined to recommend
dismissal of the due process/shocks the conscience claim brought in Part B of Count I against the
Estate of Sergeant Bistline at this stage of the proceedings. Accordingly, the Court recommends
that the Altoona Defendants’ Motion to Dismiss be denied to the extent that Counts III and IV not
be dismissed as to Estate of Sergeant Bistline. Because no valid claim remains against Altoona,
the Court recommends that the Motion to Dismiss be granted in that regard.

E. AMENDMENT

If a complaint is vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable or futile. See Grayson

v. Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Budhun v. Reading Hosp. and Med. Cntr.,

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765 F.3d 245, 259 (3d Cir. 2014). “Amendment would be futile if the amended complaint would
not survive a motion to dismiss for failure to state a claim.” Budhun, 765 F.3d at 259; Alvin v.
Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).

The claims that this Court has recommended be dismissed have already been dismissed
once before in this case. Plaintiff has now amended his original complaint three times and has
been given ample opportunity to provide sufficient allegations to support the claims contained
therein. Despite these opportunities, he has failed to do so. Moreover, for the most part, it appears
to be a lack of supporting facts, rather than merely a lack of supporting factual allegations, that is
Plaintiff's primary issue. As such, the Court recommends that amendment be found to be futile in
regard to all of the claims dismissed.

F. CONCLUSION

For the foregoing reasons, the Court respectfully offers the following recommendations:

e That the Blair County Defendants’ Motion to Dismiss, ECF No. 106, be granted
and that all claims against those Defendants be dismissed with prejudice.

e That the Altoona Defendants’ Motion to Dismiss, ECF No. 110, be granted in part
and denied in part. Specifically, it should be denied in regard to Plaintiff's due
process/shocks the conscience claim brought in Part B of Count I against the Estate
of Sergeant Bistline without prejudice to re-raise the issue of qualified immunity at
summary judgment, and the parties should be given 90 days to conduct discovery
only as to the issues involved in Sergeant Bistline’s claim of qualified immunity.
The Motion to Dismiss should be granted in all other respects, and all other claims

against the Altoona Defendants should be dismissed with prejudice.

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e That Deputies Ott and Hopkins’s Motion to Dismiss, ECF No. 114, be granted and

that all claims against those Defendants be dismissed with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule
72.D.2, the parties are permitted to file written objections in accordance with the schedule
established in the docket entry reflecting the filing of this Report and Recommendation. Failure

to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193

n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within

fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.

BY THE COURT,

end

MAUREEN PSKELLY

UNITED STATES MAGISTRATE JUDGE

Dated: December / q , 2025

cc: All counsel of record by Notice of Electronic Filing

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