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January 11, 2002


The opinion of the court was delivered by: Van Antwerpen, J.



Plaintiffs, the Estate of Robert C. Smith, Pauline Smith, Dana Smith and Wanda Smith, have brought this action pursuant to 42 U.S.C. § 1983. Plaintiffs allege that defendants violated Robert Smith's rights under the First, Fourth and Fourteenth Amendments of the United States Constitution. They have also brought a wrongful death claim, a claim for intentional infliction of emotional distress and a survival action under state law against all of the defendants.

Presently before this Court is Defendants' Renewed and Amended Motion for Summary Judgment on all claims, filed by Defendants on October 26, 2001. Defendants filed a prior motion for summary judgment, but we granted plaintiffs' request under Federal Rule of Civil Procedure 56(f) for more discovery. The issues are now back before us in the renewed and amended motion. Oral argument was held on December 13, 2001. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343 and 1367.


The court shall render summary judgment "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S.Ct. 2505. All inferences must be drawn, and all doubts resolved, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985).

On motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2505.



This case arises out of events that took place during the late hours of July 10, 1999 and the early hours of July 11, 1999, and during the week that followed. On July 10, 1999, at approximately 10:30 p.m., two Pennsylvania state police officers, Trooper James Marasco ("Marasco") and Trooper Nicholas Scianna ("Scianna") arrived at the residence of the decedent in this case, Robert Cecil Smith ("Smith"), to investigate a complaint lodged by Smith's neighbor, Michael J. Shafer ("Shafer), against Smith.*fn1 (J. Marasco Dep. at 45, 60-64.)

• Previous Interactions Between Smith and Pennsylvania State Police

Smith and several members of the Pennsylvania state police force had interacted on numerous occasions prior to July 10, 1999. Members of Troop L of the Pennsylvania state police had previously responded to complaints by Shafer and Smith against one another. (J. Marasco Dep. at 25-30.) Additionally, Smith had complained about misconduct by members of Troop L. Smith had, for example, filed a complaint with the state police against Corporal James Hamill ("Hamill"), a defendant named in the present case. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 11.) The state police thereafter charged Smith with making false reports to law enforcement, harassment by communication and harassment. (Crim. Compl. by Trooper E. Korvalski against Robert Smith, OT N:666498-0, Filed Jan. 24, 1992.) Smith had also filed another complaint with the state police, alleging that Weaver used excessive force in connection with an incident in October of 1998.*fn2 (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 11.)

Plaintiffs allege that through these interactions, defendants had knowledge of Smith's health conditions. According to plaintiffs, defendants knew that Smith had Post Traumatic Stress Disorder ("PTSD") resulting from his service as a Marine in Vietnam and that Smith had coronary disease. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 25; J. Marasco Dep. at 93, 103-05; E. Snyder Dep. at 74-75; T. Weaver Dep. at 60-62.) More specifically, they knew that Smith had undergone knee replacement surgery, suffered from hypertension, had recently been hospitalized, was required to be free from stressful situations and required medication. (M. Marcantino Dep. at 49; Snyder Dep. at 169; T. Weaver Dep. at 31.) Plaintiffs also allege that through these interactions, defendants discovered that Smith had a history of disagreements with Shafer, and that Smith believed that Shafer, a Caucasian individual, was prejudiced against Smith, an African-American individual. (G. Hall Dep. at 56; J. Marasco Dep. at 27-29.) Defendants, on the other hand, indicate that through these interactions, police learned that Smith possessed several weapons, had experience using them and was volatile. (J. Marasco Dep. at 102-03, 105.)

C. Arrival at Smith Residence: July 10, 1999

Although it is unclear whether Marasco and Scianna were planning simply to talk to Smith or to issue a citation when they initially arrived at Smith's residence on July 10, 1999, it is clear that they attempted to make contact with Smith. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 2, 5; J. Marasco Dep. at 63, 73-74; M. Rodriguez Dep. at 36.) At this time, they did not have an arrest warrant or a search warrant. (See generally Penn. State Police Gen. Invest. Rep./IAD#1999-543.) No one answered when they knocked on the front door. (J. Marasco Dep. at 67-68.) They called the barracks and Corporal Mervin Rodriguez ("M. Rodriguez") advised them to have the residence telephoned and, if no one answered, to leave. (J. Marasco Dep. at 36; M. Rodriguez Dep. at 36.) No one answered the call placed by the barracks to the Smith residence. (J. Marasco Dep. at 80-82.) Marasco and Scianna did not leave, but went to the back of the house in search of Smith.*fn3 (J. Marasco Dep. at 82; N. Scianna Dep. at 42-43.)

At some point while in Smith's yard, Scianna observed a small red light, a dot, in a window of the house; initially, he thought that someone inside the residence was videotaping them and that the red light might be coming from the video camera. (J. Marasco Dep. at 82, 166; N. Scianna Dep. at 41-42.) Marasco then saw a small red light shine on Scianna's body. (J. Marasco Dep. at 82-84, 117-19; N. Scianna Dep. at 43.) Believing that Smith was directing the light at Scianna and thinking that it was the light from a laser sight attached to a firearm, the officers retreated and called for back-up assistance. (J. Marasco Dep. at 83; N. Scianna Dep. at 41-45.) Plaintiffs, on the other hand, highlight that defendants never saw a firearm or anything resembling a firearm and could not be sure what the source of the light was, or who was projecting the light. (F. Fetterolf Dep. at 72, 73; M. Rodriguez Dep. at 76-77; N. Scianna Dep. at 40; E. Snyder Dep. at 140; T. Weaver Dep. at 91, 149, 187-88; A. Wenger Dep. at 40, 46.) Plaintiffs also point to evidence suggesting that the light could have emanated from Shafer's property rather than from Smith's. (Marasco Dep. at 84.)

• Arrival of Back-Up Assistance and SERT Activation

Two other state police officers, M. Rodriguez and Trooper Thomas Rodriguez ("T. Rodriguez"), and local police officers initially responded to the call for assistance. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 6.) M. Rodriguez attempted to communicate with Smith over the public address system of his vehicle and tried to contact him by telephone, but was unsuccessful. (Id.) At some point, M. Rodriguez called Lieutenant Fetterolf ("Fetterolf") to request assistance from the state police's Special Emergency Response Team ("SERT"). (Id.) With Fetterolf's agreement, Corporal Hall ("Hall) of SERT was contacted. (Id.) Hall then contacted the Division Director of SERT, Captain Torkar ("Torkar"), and SERT was activated. (Id.)

Plaintiffs point out that Fetterolf made the decision to activate SERT even though he did not know from where the light was emanating or who was projecting the light, he did not have any indication that anyone had seen a weapon and he had not spoken to Marasco or Scianna. (F. Fetterolf Dep. at 30-31, 72, 113.) Plaintiffs also point to Hall's testimony that SERT should not have been activated unless the officers had or were in the process of preparing a warrant, or if there were exigent circumstances. (G. Hall Dep. at 39.) SERT was activated before the decision was made to obtain a warrant. (See generally Penn. State Police Gen. Invest. Rep./IAD#1999-543.) And in the opinion of Hall, there were no exigent circumstances.*fn4 (Id. at 67.)

Before SERT arrived, Marasco, Scianna, M. Rodriguez, T. Rodriguez and several municipal officers began to establish a perimeter around the Smith residence. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 7.) At some point prior to SERT's arrival, M. Rodriguez and T. Rodriguez saw an individual, whom they believed to be Smith, walk from the residence to a shed in the backyard. (M. Rodriguez Dep. at 98-102.) The individual did not respond to their calls to him. Plaintiffs emphasize that defendants could not positively identify the individual as Smith. When SERT, which consisted of a negotiation team and a tactical team, arrived, Marasco, Scianna, M. Rodriguez, T. Rodriguez and the local officers were relieved; SERT members took over and set up a perimeter. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 7.) According to plaintiffs, at least thirty SERT members, wearing riot gear and armed with various weapons, were present. (E. Vail Aff. at ¶ 18, C. Zwicky Dep. at 42-43.) They cordoned off the area, such that no one, including Smith's family members, was allowed to approach or leave without the permission of the police. (E. Vail Aff. at ¶¶ 20, 21.) SERT attempted unsuccessfully to contact Smith. (See generally Penn. State Police Gen. Invest. Rep./IAD#1999-543.)

• Execution of Warrants

In the early morning of July 11, 1999, Weaver, the on-duty criminal investigator who was called out to conduct an investigation, filed criminal charges against Smith. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 7.) The criminal complaint charged Smith with aggravated assault of Scianna, simple assault and recklessly endangering a person. (Id. and Attachment 14, p. 23-24.) Plaintiffs stress that this decision was made despite the fact that no one had been able to positively identify Smith and that there was no evidence of a firearm.

At the same time, Trooper Andrew Wenger ("Wenger") obtained a search warrant for the Smith residence (Id.); the warrant authorized a search for "[a]ny and all firearms, including handguns, shotguns, rifles, or any combination thereof, including those equipped with `laser-sights' or those capable of being equipped with such, as well as any instrument, device and/or object capable of projecting a laser-type beam visible to the naked eye." (Comm. of Penn., County of Berks App. for Search Warrant and Auth., Warrant Control # L01-0638117A, Dated July 11, 1999.) Plaintiffs argue that the application for the search warrant was made even though the officers lacked a basis for believing that the light emanated from Smith's property.

After the warrants were obtained, SERT entered and cleared the shed and the house, using rocks, distraction devices and tear gas. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 7.) Plaintiffs emphasize that the officers made this entry without having utilized means that were available to contact Smith. Specifically, the officers rejected offers from family members, friends and neighbors who requested to attempt to communicate with Smith. (Statement of D. Zwicky.) They did not record a message from anyone close to Smith, despite the availability of this technique. (G. Hall Dep. at 189-90.) They prevented a neighbor who was familiar with the woods and was confident that he could find Smith, Chris Zwicky ("Zwicky"), from going into the woods. (C. Zwicky Dep. at 13-14, 25.) They did not utilize Smith's daughter, Dana Smith, despite the fact that she had received a call from Smith asking her to serve as a mediator between Smith and the police. (D. Smith Dep. at 22.) They also eliminated the possibility of using a psychologist. (Penn. State Police Gen. Invest. Rep./IAD#1999-543, Attachment 17, p. 2.)

The police did not find anyone in the shed or the house. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 7.) The officers did not locate a laser-sighted weapon, but did seize nine weapons, including several handguns with scopes. (Id. at 8.) During the search, Weaver rewound a video cassette that was in the Smiths' video camera and viewed the tape. (T. Weaver Dep. at 102-03.) At some point thereafter, a second warrant was obtained for a camcorder, its tape and answering machine cassette tapes; the police then seized answering machine cassette tapes.*fn5 (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 8.) Inside Smith's house were his wallet, his identification, cash, credit cards, keys and the medication that he needed for his recent bypass surgery. (D. Smith Dep. at 68-69, 206.)

Members of SERT searched the wooded area adjacent to the Smith residence after learning that Smith had a hunting hideout in the woods. (Penn. State Police Gen. Invest. Rep./#1999-543 at 8.) With Zwicky's assistance, SERT officers located the hideout from a state police helicopter used in the search. (Id.; C. Zwicky Dep. at 13, 16-18.) SERT never found Smith. (See generally Penn. State Police Gen. Invest. Rep./IAD#1999-543.) Shortly after failing to find Smith at the hunting hideout, the officers called off the search.*fn6 (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 8.) Around midday on July 11, 1999, the officers left the scene, stating that they had not been able to locate Smith to effect the arrest. (Id.) On Monday, July 12, 1999, the complaint against Smith was withdrawn pending further investigation. (Id.) Also on July 12, 1999, Smith's brother filed a missing persons declaration because Smith had not yet returned to his residence. (Id.)

• Events Following Morning of July 11, 1999

The parties' versions of the events that followed the morning of July 11, 1999 differ widely. Thus, we consider each of their versions in turn.

1. Defendants' Version of Events Following Morning of July 11, 1999

Defendants allege that the search effort continued past July 11, 1999 and involved numerous officers and search tactics. On July 14, 1999, Marasco and Corporal Elser ("Elser") conducted a foot search. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 8.) Elser also drove around the area looking for Smith. (Id.) Corporal Schell ("Schell") conducted an aerial search in a state police helicopter and interviewed neighbors. (Id.) Wenger inquired into Smith's cell phone records to determine if his cell phone had been used.*fn7 (Id.) On July 15, 1999, Elser contacted the Lebanon Veterans Administration Hospital to see if Smith was there and on July 15, and 16, 1999, followed up on the inquiry into Smith's cell phone records. (Id.) On July 16, 1999, members of the state police searched the wooded area behind the Smith residence and several roads in the area. (Id. at 9.) Officers located Smith's cell phone during this search. (Id.) Officers describe the wooded area adjacent to the Smith residence as virtually impenetrable. (Id. at 19.)

2. Plaintiffs' Version of Events Following July 11, 1999

Plaintiffs allege that defendants did not make a concerted search effort on July 11, 1999 or in the week that followed. Plaintiffs point out that following the entry into the house and shed and the search of the woods, defendants did not act like Smith was a fugitive or a missing person; they did not conduct a house-to-house inquiry and did not conduct a sustained search; there was no effort that day to contact Smith's family members or friends, to check with local hospitals or to check houses or commercial establishments in the area. (Pls.' Opp. to Defs.' Renewed and Amended Mot. for Sum. Judg. at 19-20.) Plaintiffs note that defendants' search on July 14, 1999 lasted only thirty-five minutes and extended only 4 to 5 feet into the woods. (Penn. State Police Gen. Invest. Rep./IAD#1999-543 at 8 and Attachment 5, p. 6). Defendants did not use any maps, diagrams, photos, or a compass in their search on July 16, 2001. (W. Elser Dep. at 83; E. Snyder Dep. at 106, 109.) Smith's family and friends, on the other hand, continued to search for him, and asked defendants to assist them; defendants denied their requests to use search dogs.*fn8 (D. Schools Dep. at 57-58; E. Snyder Dep. at 27-28, 165.) Tragically, on July 18, 1999, Smith's friend, Alan Achey ("Achey"), found Smith's partially decomposed body in the wooded area several yards from Smith's home. (A. Achey Aff. at ¶¶ 34-38.) Forensic pathologist Sanford Edberg estimated that Smith died in the woods behind his home sometime between 11:50 a.m. and 10:00 or 11:00 p.m. on Sunday July 11, 1999, and concluded that, given his medical background, the stress of the evening's events probably led to a fatal heart attack. (Dr. Edberg Rep. at 2-3.)

Plaintiffs point to evidence that they argue suggests that police located Smith's cell phone earlier than July 16, 1999 and his body earlier than July 18, 1999. They note that on July 11, 1999, police were in the part of the woods where Smith's body was found. (A. Achey Aff. at ¶ 41.) Witnesses stated that while the police were searching this part of the woods, the police helicopter hovered above this spot for an extended period of time. (Id.) Plaintiffs also indicate that the time of the morning when the police were at this location corresponds to the time that a call was received on Smith's cell phone. (Bell Atlantic Cell Phone Records, Invoice # 0193917473, Dated July 12, 1999; C. Brown Aff.) Plaintiffs note in addition that police used clippers to cut back the brush on the morning of July 11, 1999, and that signs of clipping were found within ten to fifteen yards of where Smith's body was ultimately found. (A. Achey Aff. at ¶ 42; G. Hall Dep. at 96-97.) Additionally, according to plaintiffs, on July 13, 1999, Weaver told Richard Smith, Smith's brother, that the police had already found Smith's cell phone (R. Smith Dep. at 43); given that police had not been at the scene since July 11, 1999, plaintiffs surmise that, contrary to defendants' assertion that they found Smith's cell phone during a search on July 16, 1999, defendants had actually found the phone by noontime on July 11, 1999.


A. Discovery Issues

Plaintiffs have raised several discovery issues. We address each of the issues in turn.

1. Rule 56(f) Motion

On November, 28, 2001, this Court denied plaintiffs' motion under Federal Rule of Civil Procedure 56(f) to take additional depositions and to extend discovery. This marked the second time plaintiffs sought more discovery time to respond to summary judgment under Rule 56(f). We explain the reasons for the denial herein.

Federal Rule of Civil Procedure 56(f) provides that

should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

Fed.R.Civ.P. 56(f).

The purpose of Rule 56(f), which provides relief to a party unable to respond to a motion for summary judgment because of insufficient opportunity for discovery, is "to prevent premature grants of summary judgment in cases where, given adequate time to obtain discoverable material from the movant, the party opposing the motion might be able to establish genuine issues of fact which would preclude summary judgment." Temple Univ. v. Salla Brothers, Inc., 656 F. Supp. 97, 109-10 (E.D.Pa. 1986).

"The court must give a party opposing summary judgment an adequate opportunity to obtain discovery." Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir. 1989). Here, plaintiffs have had sufficient opportunity to conduct discovery. On September 24, 2001, Magistrate Judge Rapoport ordered that plaintiffs choose ten individuals to depose. Plaintiffs did take those depositions. This Court has since denied plaintiffs' requests to take additional depositions because plaintiffs have failed to demonstrate a sufficient need for the additional depositions. On October 10, 1999, this Court denied plaintiffs' appeal from Magistrate Judge Rapoport's order denying plaintiffs' request to take more than ten depositions. This court noted in that order that plaintiffs' conduct had been dilatory and that no sufficient reason for taking the additional depositions was stated. On November 14, 2001, this Court again and for these same reasons denied a motion by plaintiff to take additional depositions and to extend discovery.

2. Additional Discovery Issues

On October 26, 2001, plaintiffs' counsel wrote a letter to Magistrate Judge Rapoport raising several discovery issues. Plaintiffs asserted in this letter that defendants had provided inadequate responses to various of plaintiffs' discovery requests, including plaintiffs' requests for admission, one document request and several interrogatories. Since it appeared that these issues had not been addressed specifically, we permitted the parties to argue these issues orally on December 13, 2001 despite our order of November 28, 2001 denying a discovery extension. Plaintiffs argued that defendants' discovery responses were incomplete, and that they would learn additional information that would preclude the issuance of summary judgment if further responses to these discovery requests were compelled and additional discovery permitted. Defendants argued that several of the discovery requests in question were overly burdensome and duplicative of discovery provided through deposition testimony and document production.

After hearing the parties argue these issues, we took under advisement in particular Plaintiffs' Interrogatory Number Two*fn9 and whether, as plaintiffs allege, defendants had provided inadequate discovery as to the substance of oral communications made by defendants to Smith from July 10, 1999 to July 16, 1999.*fn10

We conclude that there is no need for additional discovery. Plaintiffs have not shown that they would learn anything in addition to that which defendants have already provided through deposition testimony. Eight of the depositions taken by plaintiffs make mention of oral communications made by defendants to Smith. The two officers who initially appeared at Smith's residence in response to the complaint by Smith's neighbor, Marasco and Scianna, testified as to their communications with Smith, including statements made upon first approaching the house, telephone calls placed and messages made over the public address system; Marasco states that they called out Smith's name, identified themselves as state police officers and requested that he come out and speak with them. (J. Marasco Dep. at 72-73.) The state police officers who provided back-up assistance also testified as to similar communications made to Smith via the telephone and public address system, and to statements addressed to an individual, whom the officers assumed was Smith, seen moving from the house to the shed. (M. Rodriguez Dep. at 47, 59-61, 79-80, 108-09. 124.) Members of SERT also testified that they tried to hail Smith over the public address system and left messages on Smith's answering machine. (G. Hall Dep. at 59-60, 182, 198, 216.) Officers who participated in subsequent searches for Smith testified as to a prepared statement that was read over the public address system; this message stated that the Pennsylvania state police were looking for him, that his family was concerned about him and that he was not wanted for any crimes and asked him to show himself. (W. Elser Dep. at 78; E. Snyder Dep. at 102-03, 107.)

Given that plaintiffs have deposed the major players involved in the events of July 10 — 11, 1999 and of the week that followed and that eight of these individuals have testified in detail as to the timing and substance of their communications with Smith, we find that allowing more discovery would not reveal additional information that would alter our disposition of defendants' motion for summary judgment.

• Conclusion

This case was filed on October 27, 2000 and discovery closed on October 26, 2001. See Pretrial Order Dated February 8, 2001 (ordering that all discovery be completed by October 26, 2001); see also Order Granting Plaintiffs' Rule 56(f) Motion Dated September 24, 2001 (granting motion to the extent that discovery would continue until October 26, 2001, denying it in all other respects and stating that "no further extensions of discovery will be permitted for any reason."). There has been ample time for discovery. Plaintiffs have in their last three motions for additional discovery and in oral arguments ...

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