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BINGHAM v. CITY OF PITTSBURGH

April 16, 1987

Roy K. Bingham and Pamela Y. Bingham, Plaintiffs
v.
City Of Pittsburgh, Raymond Cousins, Samuel McElrath, James W. Owens, Michael J. Kondas, Charles P. Bates, and Lana Price, Defendants



The opinion of the court was delivered by: MENCER

 HONORABLE GLENN E. MENCER, P.J.

 I. INTRODUCTION

 On December 31, 1984 plaintiffs, Roy K. Bingham and Pamela Y. Bingham, *fn1" filed a lawsuit against individual police officers employed by the City of Pittsburgh ("City") *fn2" and against the City itself. Plaintiffs allege that the individual defendants violated Mr. Bingham's civil rights by arresting him without probable cause and by using unlawful, unjustified and excessive force in carrying out the arrest. The City is implicated by reason of its allegedly unconstitutional policies which caused or permitted to be caused the unlawful acts perpetrated on plaintiff.

 Pending before the Court is a summary judgment motion filed on behalf of the City. The City contends that it has no official policy which condones any of the following: the use of improper police practices; the inadequate training, supervision or discipline of its officers or the use of excessive force. In the absence of such a policy or policies there cannot, as a matter of law, be any § 1983 municipal liability. Therefore, according to the City, judgment should be entered in its favor.

 In response to the motion for summary judgment, the plaintiff asserts that: (1) the motion is unsupported by record evidence; (2) the motion should not be granted while there are still outstanding interrogatories and requests for production, and (3) there is a genuine issue of material fact as to the existence of an official policy. For these reasons, the plaintiff urges the Court to deny the motion.

 The Court finds that the defendant has complied with the requirements of Fed.R.Civ.P. 56, see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), and that the plaintiff's contention that the motion should be denied because discovery requests are still outstanding is untimely. *fn3" Therefore, concluding that there are no genuine issues of material fact, regarding the Defendant City of Pittsburgh, the Court will grant the defendant's motion for summary judgment.

 II. FACTUAL BACKGROUND

 In the late evening hours of January 1, 1983, while the plaintiff, Roy Bingham, was managing "Leonard's Store," in Homewood, a number of males entered the premises and began making threatening remarks. With the thought of protecting the patrons, the property and himself, plaintiff demanded that the men leave the store. When they would not do so voluntarily, plaintiff retrieved and displayed a revolver that had been hidden under the counter. Predictably, the males dispersed.

 Shortly thereafter, acting on a report that gunshots had been fired from inside "Leonards," Officers Cousins and McElrath entered the premises and approached plaintiff. Officer Cousins demanded that Mr. Bingham surrender his gun; plaintiff immediately complied with that demand. Next, Officer Cousins frisked and handcuffed Mr. Bingham. After the initial search was complete, without instigation or provocation, Officer Cousins began "roughing up" the plaintiff. This "roughing up", at least part of which was witnessed by five other police officers, continued to the point where plaintiff required emergency medical treatment. *fn4"

 After he was treated at the West Penn Hospital emergency room, plaintiff was brought to the police station where criminal charges were filed against him. The charges included reckless endangerment and violation of the Uniform Firearms Act. All the charges were subsequently withdrawn or dismissed.

 III. SUMMARY JUDGMENT STANDARD

 In reviewing a motion for summary judgment, the Court is governed by the standard set forth in Fed.R.Civ.P. 56 (c). In pertinent part the Rule provides that "the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 The application of this standard requires that "inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion." Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986) citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). Therefore, this Court must resolve all doubt, as to the existence of a genuine issue of material fact, in favor of the plaintiff.

 Plaintiff contends that the motion for summary judgment must be denied because the City failed to properly support its motion. As explained by the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), however: "in cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Celotex Corp., 106 S. Ct. at 2553.

 In the present case, the City based its motion for summary judgment on its answers to the complaint, wherein it specifically denied the existence of a constitutionally inadequate policy and/or custom. Therefore, as the nonmoving party, plaintiff must now, through affidavits or otherwise, establish the existence of a genuine issue of material ...


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