                                            PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________

                       No. 18-3429
                    ________________

                   NICOLE HABERLE,
As Administratrix for the Estate of Timothy Nixon Deceased,

                         Appellant

                             v.

               BOROUGH OF NAZARETH
                  ________________

      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
               (D.C. Civil No. 5-15-cv-02804)
      District Judge: Honorable Joseph F. Leeson, Jr.
                     ________________

     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    on April 18, 2019

   Before: AMBRO, GREENAWAY, JR., and SCIRICA,
                   Circuit Judges.

                 (Filed: August 29, 2019)
Joseph E. Welsh
Lauer & Fulmer
701 Washington Street
Easton, PA 18042

   Counsel for Appellant

Rufus A. Jennings
John P. Morgenstern
Deasey Mahoney & Valentini
1601 Market Street
Suite 3400
Philadelphia, PA 19103

   Counsel for Appellee

                    _________________

                OPINION OF THE COURT
                   _________________


SCIRICA, Circuit Judge


        Plaintiff Nicole Haberle’s long-time partner Timothy
Nixon suffered from severe mental illness. Nixon committed
suicide during an encounter with the Borough of Nazareth
Police Department, and Haberle sued the Borough. She alleged
that the Police Department’s failure to accommodate mentally
disabled individuals constituted a violation of the Americans
with Disabilities Act (ADA) and sought money damages.




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        Haberle’s challenge is before us for a second time. The
District Court had previously dismissed her complaint, which
raised the ADA claim and several constitutional claims. We
affirmed in part the District Court’s dismissal, but remanded
with instructions to provide Haberle leave to amend her ADA
complaint. After Haberle filed an amended complaint, the
District Court dismissed it for failure to allege intentional
discrimination. Because Haberle’s complaint raises a plausible
claim that the Police Department was deliberately indifferent
in failing to enact policies accommodating mental disability,
we will reverse and remand.

                              I.

      We have previously described the facts as follows:

             Timothy Nixon suffered from a variety of
      mental health problems, including depression.
      For years, he had lived off and on with his long-
      time partner, Ms. Haberle, and their two
      children. On May 20, 2013, he had “a serious
      mental health episode involving severe
      depression.” He called Haberle and told her that
      he was suicidal, and then broke into a friend’s
      home and took a handgun. He next went to his
      cousin’s apartment.

             Fearing for Nixon’s life, Haberle
      contacted the Borough of Nazareth Police
      Department. Officer Daniel Troxell obtained a
      warrant for Nixon’s arrest, and, having learned
      that Nixon was still at his cousin’s apartment,
      Troxell went there, accompanied by other




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       officers from the Borough and surrounding
       municipalities. Upon arriving at the apartment,
       some of the officers suggested setting up a
       perimeter and asking the Pennsylvania State
       Police to send crisis negotiators. Others
       suggested asking Haberle to help communicate
       with Nixon. Troxell rebuffed those suggestions,
       calling the other officers “a bunch of f[—]ing
       p[—]sies.” He declared his intention to
       immediately go to the apartment, because “[t]his
       is how we do things in Nazareth.” He did as he
       said, knocked on the door of the apartment, and
       identified himself as a police officer. Nixon then
       promptly went into one of the bedrooms of the
       apartment and turned the stolen gun on himself.

Haberle v. Troxell (Haberle I), 885 F.3d 170, 174 (3d Cir.
2018) (internal citations omitted, alterations in original).

       Haberle sued the Borough of Nazareth, several
members of its Police Department including Officer Troxell,
and other Borough officials (collectively, defendants). She
claimed that Nixon’s suicide was the foreseeable result of
Officer Troxell’s decision to unconstitutionally seize Nixon in
violation of the Fourth Amendment; Officer Troxell’s actions
constituted a “state-created danger” in violation of the
Fourteenth Amendment Due Process Clause; and the
Borough’s failure to implement police procedures to
accommodate disabled individuals violated the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101–213. Id. at
175. She sought money damages. Defendants successfully
moved to dismiss Haberle’s complaint, and she appealed.




                               4
        On appeal, we upheld the District Court’s dismissal of
Haberle’s Fourth Amendment (unconstitutional seizure) and
Fourteenth Amendment (state-created danger) claims. Id. at
176–78. We also held that, while the ADA applied to arrests,
Haberle had not stated a claim for damages “because she [did]
not allege facts showing that any inaction of the Borough
reflect[ed] deliberate indifference,” which would be necessary
to sustain a claim for damages. Id. at 178. We remanded with
the direction that Haberle be given an opportunity to amend her
complaint to cure that defect. Id. at 182.

        Haberle then filed an amended complaint. She alleged
that the Borough had “a history of violating the legal rights of
residents of Nazareth,” listing use of excessive force, unlawful
prosecution, and retaliation as examples. App’x 60–61
(Complaint ¶ 29). With respect to the Borough’s disability
accommodation practices, Haberle alleged that “[p]rior to the
events underlying this action, a set of policies and procedures
had been drafted by Officer Frederick Lahovski, Jr.” which
“would have provided guidance to the Department in dealing
with interactions with emotionally disturbed persons, such a[s]
Timothy [Nixon].” App’x 62 (Complaint ¶¶ 30, 32). The Police
Department did not adopt that policy. App’x 63 (Complaint ¶
39). Haberle also alleged that the Department’s officers and
chief “routinely encountered several known mentally
challenged individuals including two individuals known as
‘Dickey’ and ‘Rosie,’” and “had a custom and practice of being
verbally abusive, harassing, and, in at least one instance,
arresting a mentally challenged person, including ‘Dickey’ and
‘Rosie’ without regard to, or accommodation of, their mental
disability.” App’x 63 (Complaint ¶¶ 35–36). She also asserted
that “[h]ad Defendant Nazareth adopted the policy drafted by
Officer Lahovski, or otherwise had in place effective policies




                               5
and procedures for dealing with mentally ill residents, and
effective disciplinary procedures to enforce those policies,
Timothy would have received the professional medical
assistance which he so desperately needed.” App’x 64
(Complaint ¶ 43).

       On defendants’ motion, the District Court dismissed
Haberle’s amended complaint for failure to allege deliberate
indifference. See Haberle for Estate of Nixon v. Borough of
Nazareth, No. 15-2804, 2018 WL 4770682 (E.D. Pa. Oct. 2,
2018). Haberle now appeals. 1

                               II.

        To make out a claim for monetary damages under the
ADA, Haberle must show deliberate indifference on the part of
the Borough. See S.H. ex rel. Durrell v. Lower Merion Sch.
Dist., 729 F.3d 248, 263 (3d Cir. 2013). We have explained
that deliberate indifference can be satisfied on a showing “the
official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” Beers-Capitol v. Whetzel, 256
F.3d 120, 131 (3d Cir. 2001) (quoting Farmer v. Brennan, 511
U.S. 825, 842 (1994)). 2 Haberle can establish such deliberate

1
  The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343. This court has appellate jurisdiction under 28 U.S.C.
§ 1291. We review the District Court’s dismissal under Federal
Rule of Procedure 12(b)(6) de novo. Haberle, 885 F.3d at 175
n.4. In reviewing the grant of a motion to dismiss, we accept
all well-pleaded facts as true and draw all reasonable
inferences in the plaintiff’s favor. Id. at 174 n.1.
2
  Though Beers-Capitol and Farmer involved 42 U.S.C. §
1983 actions, the “definition of deliberate indifference in the .




                               6
indifference in one of two ways: “(i) showing that the
[Department’s existing policies] failed to adequately respond
to a pattern of past occurrences of injuries like the plaintiffs’,
or (ii) showing that the risk of constitutionally cognizable harm
was ‘so great and so obvious that the risk and the failure of
supervisory officials to respond will alone’ support finding
[deliberate indifference].” Id. at 136–37 (internal citations
omitted); Haberle I, 885 F.3d at 181. We remanded in Haberle
I to provide Haberle the chance to plausibly allege either of
those two conditions.

       Haberle contends the District Court erred in concluding
her amended complaint does not allege the Department failed
to adequately respond to a pattern of like injuries. 3 We agree
with the District Court that conclusory allegations about
Department misconduct do not amount to a plausible claim for


. . ADA context is consistent with our standard of deliberate
indifference in the context of § 1983 suits by prison inmates.”
S.H., 729 F.3d at 263 n.23.
3
  Haberle’s reply brief suggests in passing that the risk of harm
like Nixon’s was so great and obvious the Borough’s failure to
respond evidences deliberate indifference. See Reply Br. at 4–
5. “Raising an issue in a reply brief is too late, for ‘[a]s a
general matter, an appellant waives an argument in support of
reversal if it is not raised in the opening brief.’ ‘[W]here an
issue is raised for the first time in a reply brief, we deem it
insufficiently preserved for review before this court.’” Garza
v. Citigroup Inc., 881 F.3d 277, 284–85 (3d Cir. 2018)
(citations omitted, alterations in original) (first quoting In re:
Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 237 (3d
Cir. 2017); then quoting Kost v. Kozakiewicz, 1 F.3d 176, 182
(3d Cir. 1993)).




                                7
relief. We explained before that “general allegations that the
Borough has ‘a history of violating the civil rights of
residents’” were insufficient to demonstrate “a pattern of past
occurrences of injuries like the plaintiff[’s],” id. at 182
(citations omitted, alterations in original), and Haberle’s
repetition of that allegation does not cure the defect we
previously recognized.

       But Haberle’s amended complaint adds new allegations
that together amount to a plausible claim that the Borough’s
Police Department was deliberately indifferent in the face of a
pattern of past occurrences of “injuries” like Nixon’s. See id.
at 181. She alleges Department officers and its chief
“routinely” encountered “mentally challenged individuals,”
including two specifically named individuals. App’x 63
(Complaint ¶ 35). In those encounters, the Complaint alleges,
Department officers were often “verbally abusive” and
“harassing,” and they performed arrests without
accommodating the individuals’ disabilities. App’x 63
(Complaint ¶ 36). In response to those and similar events,
Officer Lahovski drafted a policy to guide Department
interactions with disabled individuals. App’x 62, 63
(Complaint ¶ 32, 37). He relied on his personal mental health
training, Police Department procedures, and consultation with
mental health professionals to draft the policy. App’x 62
(Complaint ¶¶ 31, 33). Haberle further alleges that “[i]n
drafting the said proposed policy, Officer Lahovski[] identified
for Borough officials the grave risks to mentally challenged
persons as a result of the Police Department continuing to
operate without proper policies and procedures for the
accommodation of mentally disabled persons,” but the
Department did not adopt that or any other accommodation
policy. App’x 63–64 (Complaint ¶¶ 38–39, 41).




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        Those allegations meet our directive to allege “facts
indicating that the policies were drafted because of an
awareness that the pre-existing policies were substantially
likely to lead to a violation of citizens’ rights.” Haberle I, 885
F.3d at 182. They amount to a plausible claim the Department
was deliberately indifferent by failing to adopt the policies
Officer Lahovski proposed. The District Court concluded
otherwise on the basis that Haberle had not described “a pattern
of Nazareth police mishandling encounters with citizens
experiencing mental health crises that result in citizens’
suicides,” 2018 WL 4770682, at *4, but Haberle need not plead
such specific allegations. She contends the Department
deliberately failed to accommodate disabled individuals in
police encounters in violation of the ADA. The past
misconduct she invokes in her complaint did not have to result
in the exact injury suffered by Nixon. Her amended pleading
accordingly meets the level of specificity we prescribed in
Haberle I: it alleges facts that support a history of encounters
between disabled individuals and Department personnel that
resulted in harm to those individuals, the Department’s
awareness of those encounters and their risks, and its failure to
adopt an offered policy to address them.

                               III.

      Because Haberle has plausibly alleged a violation of the
ADA, we will reverse the District Court’s grant of the
Borough’s motion to dismiss and remand for further
proceedings consistent with this opinion.




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