NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-1521

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ELLA BAKER, individually and as guardian

ad litem for R.B. and T.B.; BENJAMIN FRYE;

R.B.; T.B.

v.

UNITED STATES OF AMERICA; JOHN DOES I-II;

JOHN DOES III-X; CITY OF CAMDEN;

POLICE CHIEF JOHN SCOTT THOMPSON

ELLA BAKER, individually and as guardian ad litem

for R.B. and T.B.; and BENJAMIN FRYE,

 Appellants

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On Appeal from the United States District Court 

for the District of New Jersey

(D. C. No. 1-12-cv-00494)

District Judge: Honorable Jerome B. Simandle 

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Submitted under Third Circuit LAR 34.1(a)

on October 29, 2015

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

(Filed: February 9, 2016)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

ROTH, Circuit Judge

Appellants Ella Baker and Benjamin Frye appeal three decisions by the District 

Court, seeking reversal of (1) the District Court’s grant of summary judgment; (2) the 

District Court’s denial of leave to file a third amended complaint; and (3) the District 

Court’s rejection of the testimony proffered by appellants’ expert. Appellants have failed 

to provide any factual basis to support their claims and have also failed to show that the 

District Court abused its discretion in denying leave or in rejecting the expert testimony. 

Consequently, we will affirm the judgment of the District Court with respect to all issues. 

I.

In November 2010, members of the United States Marshals Service and the 

Camden Police Department SWAT Team searched appellants’ home in an effort to arrest 

Anthony Fontanez. Law enforcement sought Fontanez as a prime suspect in an incident 

during which a house was shot into using a high-powered rifle; Fontanez also had several 

outstanding warrants for aggravated assault, attempted murder, kidnapping, robbery and 

possession of weapons. Fontanez had previously been in a relationship with Baker’s 

daughter Tawana Baker, and Fontanez is the father of Tawana Baker’s children. 

Baker alleges that on November 24, 2010, officers arrived at her home with their 

guns drawn and forced her to wait outside for 45 minutes while they searched her 

residence. Once inside, the officers allegedly pointed a gun at Baker’s 9-year-old 

nephew, R.B., and threatened to shoot him if he did not stop moving. Baker’s 12-yearold daughter, T.B., begged the officers not to shoot R.B., stating that he had ADHD and 

could not keep still. R.B., T.B. and Baker’s husband Benjamin Frye were brought 
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downstairs and detained while the officers searched the home. Frye alleges that he was 

restrained using zip ties and forced to lie on the living room floor for an extended period 

of time. Baker, Frye, T.B. and R.B. (hereinafter Plaintiffs) allege that they have suffered 

psychological injuries, such as nightmares and nervousness around police, as a result of 

the search. There is no evidence that any member of Baker’s household sought medical 

treatment in connection with these injuries. 

In January 2012, Plaintiffs filed a complaint, which named the United States 

Department of Justice, the United States Marshals Service, and John Does I-II as 

defendants. In November 2012, Plaintiffs filed an Amended Complaint naming the 

United States of America, the City of Camden, Chief of Police John Scott Thompson and 

John Does I-X as defendants. All claims against the United States were dismissed by the 

District Court. In February 2013, Plaintiffs filed the Second Amended Complaint, which 

contained nine counts, five of which named only fictitious defendants (John Does). In 

June 2014, Plaintiffs again moved for leave to amend the complaint in order to add Sgt. 

Pasquale Giannini, a part-time leader of the Camden Police SWAT Team, as a defendant. 

The District Court denied leave, pointing out that Plaintiffs had been aware of Giannini’s 

relevance for months prior to the September 2013 deadline to amend pleadings, and 

therefore that Plaintiffs did not have good cause for failing to timely amend their 

complaint. Defendants then moved for summary judgment, which the District Court 

granted. 

II.
4

The District Court exercised jurisdiction over this matter pursuant to, inter alia, 

the Federal Tort Claims Act1and 42 U.S.C. §§ 1983 and 1985. We have appellate 

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District 

Court’s decision to grant summary judgment.2 We evaluate the District Court’s denial of 

leave to amend the complaint and rejection of Plaintiffs’ expert for abuse of discretion.3

Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”4 

The court must view any evidence in favor of the nonmoving party and extend any 

reasonable favorable inferences to that party.5 Plaintiffs claimed that the City of Camden 

was negligent in failing to adequately supervise or monitor the actions of law 

enforcement personnel involved in searching Baker’s residence. Such a claim is barred 

under the New Jersey Tort Claims Act, which provides that damages shall not be 

awarded against a public entity for pain and suffering, unless the victim has suffered 

“permanent loss of a bodily function, permanent disfigurement or dismemberment where 

the medical treatment expenses are in excess of $3,600.00.”6 In the present case, 

Plaintiffs have alleged no permanent injuries, nor have they offered any evidence that 

they sought medical treatment as a result of the incident in question. Thus, the District 

 

1 28 U.S.C. § 1346(b).

2 Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015).

3 Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 145 (3d Cir. 2002) (denial 

of leave to amend); Oddi v. Ford Motor Co., 234 F.3d 136, 156 (3d Cir. 2000) (rejection 

of expert testimony).

4 Fed. R. Civ. P. 56(a).

5 Scott v. Harris, 550 U.S. 372, 378 (2007).

6 N.J.S.A. 59:9-2(d).
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Court was correct in granting summary judgment as to Plaintiffs’ negligence claim 

against the City of Camden.

Plaintiffs’ conspiracy claim under 42 U.S.C. § 1985 is similarly unsupported by 

evidence. In the Second Amended Complaint, Plaintiffs allege that the City of Camden 

and the law enforcement officers “knowingly and willfully conspire[d] . . . to oppress, 

threaten, intimidate or otherwise deprive [Plaintiffs] in the free exercise and enjoyment of 

their rights.” Plaintiffs provide no evidence of such a conspiracy, or of any agreement 

between any of the Defendants for anything but coordination and support during the 

execution of a lawful arrest warrant. In opposing Defendants’ motion for summary 

judgment, Plaintiffs “may not rest upon the mere allegations or denials of [their]

pleading, but . . . must set forth specific facts showing that there is a genuine issue for 

trial.”7 In light of Plaintiffs’ failure to do so, the District Court was correct in granting 

summary judgment as to Plaintiffs’ conspiracy claim under 42 U.S.C. § 1985.

Plaintiffs’ § 1983 claim alleges that the law enforcement officers’ use of excessive 

force was the likely and obvious consequence of maintaining an active SWAT Team 

without proper training. As respondeat superior or vicarious liability will not attach 

against a municipal defendant,8the City of Camden cannot be held liable under § 1983 

unless Plaintiffs prove the existence of an unconstitutional municipal policy.9 Here, 

Plaintiffs’ § 1983 claim is based solely on the City of Camden’s alleged failure to train its 

SWAT Team; therefore Plaintiffs are required to show that this failure amounted to 

 

7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

8 Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691 (1978).

9 City of St. Louis v. Praprotnik, 485 U.S. 112, 128 (1988). 
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“deliberate indifference to the rights of persons with whom those employees will come 

into contact.”10 The only evidence offered by Plaintiffs to support the inference that 

Camden failed to train its SWAT Team was the report and testimony of Plaintiffs’ 

proffered expert, Mark Weber, who concluded that a “lack of resource[s] led to poor 

training by the Swat Team at the time and caused them not to establish or properly follow 

protocols dealing with certain operations such as entry and searches of residential 

properties while occupied.” In evaluating the admissibility of expert opinions, the district 

court must consider an expert’s qualifications, reliability and fit.11 In order for an 

expert’s testimony to be reliable, it must be based on the “methods and procedures of 

science,” rather than on “subjective belief or unsupported speculation.”12 The District 

Court found Weber’s opinions as to Camden’s alleged failure to train its SWAT Team to 

be unreliable, as he could provide no basis for his opinion regarding a lack of training 

beyond the conduct of the officers giving rise to this litigation. Indeed, in his deposition, 

Weber admitted that he did not review any materials regarding the training of the 

Camden SWAT Team and conceded that, in fact, he did not know what training the 

Camden SWAT Team received in the years preceding the incident at issue. Given these 

admissions, the District Court did not abuse its discretion in rejecting the testimony 

offered by Weber. As Plaintiffs offered no other evidence to support their allegations 

that Camden had failed to train the law enforcement officers, the District Court properly 

dismissed Plaintiffs’ § 1983 claim. 

 

10 Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014).

11 Schneider ex. rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

12 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993).
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The remainder of Plaintiffs’ Complaint is comprised of claims against unnamed 

defendants. While courts may initially allow claims based upon unnamed defendants 

because they may be found and named later through the discovery process,13 courts must 

eventually dismiss unnamed parties if discovery yields no identities.14 While discovery 

in the present case did yield the identity of one of the law enforcement officers – Sgt. 

Pasquale Giannini – Plaintiffs attempted to amend their complaint to include Sgt. 

Giannini nine months after the deadline to amend proceedings set by the District Court.

In its decision to deny leave to amend the complaint, the District Court found that 

Plaintiffs had failed to show good cause as to why they waited until September 2014 to 

amend their complaint when Giannini was identified as a relevant witness in Camden’s 

April 2013 Rule 26 disclosures. Plaintiffs were clearly aware that Giannini was 

important because he was a focus of Plaintiffs’ interrogatories, the answers to which 

Giannini certified in August 2013. Plaintiffs have failed to show that the District Court 

abused its discretion in refusing to grant leave to further amend their complaint, and 

therefore we affirm the District Court’s decision. Without Giannini as a defendant, the 

Plaintiffs’ remaining claims exist only against unnamed defendants. The case law is clear 

that “an action cannot be maintained solely against Doe defendants.”15 We therefore also 

 

13 Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004).

14 Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998).

15 Id. See also Breslin v. Philadelphia, 92 F.R.D. 764, 765 (E.D. Pa. 1981) (Because 

unnamed parties cannot be served process or otherwise participate in their defense, a 

court cannot, consistent with due process, permit a matter to go to trial against parties 

who have not been identified).
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affirm the District Court’s decision to grant summary judgment as to the claims against 

unnamed defendants. 

III.

Plaintiffs have provided no evidence, other than inadmissible expert testimony to 

support their claims. Further, they have failed to show that the District Court abused its 

discretion in denying leave to amend or in rejecting the testimony of Plaintiffs’ expert. 

We therefore affirm the judgment of the District Court in all respects.