United States District Court, M.D. Pennsylvania
September 15, 2005.
EMIRA BRODLIC, et. al., Plaintiffs,
CITY OF LEBANON, et. al., Defendants.
The opinion of the court was delivered by: JOHN E. JONES, District Judge
MEMORANDUM AND ORDER
Pending before the Court is a Motion for Summary Judgment ("the
Motion") (doc. 45) by the Defendants, City of Lebanon, et. al.
("Defendants") which seeks a dismissal of the First Amended
Complaint (doc. 4) filed by Plaintiffs, Emira Brodlic,
individually, and as the Personal Representative of the Estate of
Emir Brodlic, and as the Parent and Natural Guardian of Minor
Children NB, MB, HB and EB; and Eldin Brodlic, in its entirety.
Federal question jurisdiction is proper pursuant to
28 U.S.C. § 1331. For the reasons that follow, the Motion is granted in part
and denied in part.
On May 4, 2004, the Plaintiffs filed a complaint in the United
States District Court for the Middle District of Pennsylvania against the City of
Lebanon, Mayor Robert Anspach, Lebanon City Bureau of Police;
Sergeant David Gingrich, Patrolman Matthew Shollenberger,
Patrolman William Walton, Patrolman Andrew Lebo, Patrolman Frank
Batencourt, Patrolwoman Bithia Rissinger ("Defendant Police
Officers"); Lebanon County, Lebanon County Department of Mental
Health and Mental Retardation and Kevin J. Schrum, Administrator,
Philhaven Hospital, and Jeffrey A. Okamoto, M.D. On May 25, 2004,
Plaintiffs filed an amended complaint as to all Defendants to
which the Defendants filed an answer on July 14, 2004. On July
30, 2004 this Court entered an Order (doc. 36) dismissing
Plaintiffs' claims as to the following Defendants: County of
Lebanon, Lebanon County Department of Mental Health and Mental
Retardation and Kevin J. Schrum, Administrator, Philhaven
Hospital and Jeffery A. Okamoto, M.D.*fn1
In Count 1 of the amended complaint, Plaintiffs allege that
Defendants violated decedent Emir Brodlic's civil rights under
42 U.S.C. § 1983. In Counts 2 through 4 Plaintiffs allege Defendants
violated decedent Emir Brodlic's statutory rights under: the
Americans with Disabilities Act (Count 2); the Rehabilitation Act
of 1973 (Count 3); and the Pennsylvania Mental Health Procedures
Act (Count 4). In Counts 5 and 6 Plaintiffs assert professional negligence and
respondeat superior claims against the previously dismissed
Defendants. In Counts 7 and 8 Plaintiffs assert Survival and
Wrongful Death Claims, respectively, against Defendants.
On July 1, 2005 Defendants filed the instant Motion together
with a Statement of Material Facts. (Rec. Doc. 46). Thereafter,
on July 11, 2005, Defendants filed a brief in support of the
Motion (doc. 49), and on August 8, 2005, Plaintiffs filed a brief
in opposition to the Motion (doc. 58) together with their
Statement of Material Facts. (Rec. Doc. 57). On August 18, 2005,
Defendants filed a reply brief. (Rec. Doc. 60). Therefore, the
Motion has been fully briefed and is ripe for disposition.
STANDARD OF REVIEW:
Summary judgment is appropriate if "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." FED .R. CIV. .P. 56(c); see
also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d
Cir. 1990). The party moving for summary judgment bears the
burden of showing "there is no genuine issue for trial." Young
v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment
should not be granted when there is a disagreement about the
facts or the proper inferences which a fact finder could draw
from them. See Peterson v. Lehigh Valley Dist. Council,
676 F.2d 81, 84 (3d Cir. 1982). Initially, the moving party has a burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corporation
v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the
moving party pointing out to the court that there is an absence
of evidence to support an essential element as to which the
non-moving party will bear the burden of proof at trial. Id. at
Federal Rule of Civil Procedure 56 provides that, where such a
motion is made and properly supported, the non-moving party must
then show by affidavits, pleadings, depositions, answers to
interrogatories, and admissions on file, that there is a genuine
issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme
Court has commented that this requirement is tantamount to the
non-moving party making a sufficient showing as to the essential
elements of their case that a reasonable jury could find in its
favor. Celotex Corp., 477 U.S. at 322-23.
It is important to note that "the non-moving party cannot rely
upon conclusory allegations in its pleadings or in memoranda and
briefs to establish a genuine issue of material fact." Pastore
v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994)
(citation omitted). However, all inferences "should be drawn in
the light most favorable to the non-moving party, and where the
non-moving party's evidence contradicts the movant's, then the
non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW
of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).
Still, "the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). "As to materiality, the substantive law will identify
which facts are material." Id. at 248. A dispute is considered
to be genuine only if "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id.
STATEMENT OF RELEVANT FACTS:
The facts in this matter are largely disputed. We will, where
necessary, view the facts and all inferences to be drawn
therefrom in the light most favorable to the Plaintiffs in our
analysis of the pending Motion.
On the evening of May 5, 2002, the Lebanon City Police
Department ("LCPD") received a call from the Brodlic's neighbor,
Ms. Dana Kreiser, to request that police officers respond to the
Brodlic home. Mrs. Emira Brodlic had gone to Ms. Kreiser's home,
apparently to request her assistance in a developing situation at
the Brodlic home. Mrs. Brodlic's husband, Mr. Emir Brodlic, who
suffered from bipolar disorder, affective disorder and
depression, had ceased taking his medication and was in a psychotic and delusional mental state. The Brodlics' four minor
children remained in the upstairs level of the home throughout
the events that occurred that evening.
In response to Ms. Kreiser's call to the LCPD, several officers
responded to the Brodlic home, including Patrolman Betancourt,
Patrolman Walton, Patrolmen Shollengerger, Patrolman Lebo,
Patrolwoman Rissinger and Sergeant Gingrich.*fn2 Also,
Lebanon County Crisis Intervention Counselor Carol Saltzer
arrived at the Brodlic home. Ms. Saltzer had prior experience
with Mr. Brodlic's mental illness history. Ms. Saltzer spoke with
Mrs. Brodlic and obtained Mrs. Brodlic's signature on a § 302
involuntary commitment warrant that authorized Mr. Brodlic's
involuntary psychiatric commitment.*fn3
Following Ms. Saltzer's exchange with Mrs. Brodlic, Ms. Saltzer
attempted to speak with Mr. Brodlic via telephone, but was
unsuccessful in reaching him.*fn4 It is disputed whether Saltzer attempted
to speak to Mr. Brodlic through a window in the Brodlic home.
Nonetheless, Ms. Saltzer was unable to engage in a conversation
with Mr. Brodlic, nor was she able to coax him out of his home,
during this course of events.
The ensuing series of events is disputed in great detail by the
parties. Defendants allege that Patrolman Betancourt, Sergeant
Gingrich and Ms. Saltzer all witnessed Mr. Brodlic take a window
curtain and "immerse it in a lit candle." (Rec. Doc. 46 at 5).
Plaintiffs concede that Mr. Brodlic was holding a candle, however
Plaintiffs specifically deny that Mr. Brodlic attempted to light
a window curtain on fire.*fn5
Following the officers' entry into the home, both parties
concede that pepper spray was dispensed in an attempt to subdue
Mr. Brodlic. However, the extent that the pepper spray impaired
Mr. Brodlic's breathing and ultimately contributed to his cardiac
arrest is disputed. In further dispute is the length of time it took to handcuff Mr. Brodlic and remove
him from the home. However, both parties concede that Mr. Brodlic
was "fighting and actively resisting" custody. (Rec. Doc. 57 at
9; Rec. Doc. 46 at 6).
Mr. Brodlic was then removed from the home.*fn6 Upon his
arrival on the front lawn, Mr. Brodlic remained in a prone
position. Plaintiffs allege that Mr. Brodlic was forcibly
restrained by the aggregate weight of the police officers for an
unspecified period of time until an ambulance arrived at the home
to transport Mr. Brodlic. The Defendants do not directly address
whether the officers applied their body weight to Mr. Brodlic,
and note only that Mr. Brodlic was not "left alone" at any point
during his time on the front lawn. (Rec. Doc. 46 at 6).
An ambulance that had been staged by Ms. Saltzer arrived at the
Brodlic home following Mr. Brodlic's removal to the lawn. Upon
the initial examination of Mr. Brodlic by the EMTs, it was
discovered that Mr. Brodlic was unresponsive and without a pulse.
CPR was initiated by the EMTs and a pulse restored.
Unfortunately, Mr. Brodlic never regained consciousness and died
on May 10, 2002, five days following the events that took place
at his home.
The cause of Mr. Brodlic's death as indicated in the autopsy
report of Dr. Saralee Funke was "anoxic encephalopathy [lack of
oxygen to the brain causing death of brain cells] due to cardiac
arrest associated with combative excitement and restraint;
contributing conditions are cardiomegaly and psychiatric
disorder(s)." (Rec. Doc. 46 at 9). Following the autopsy, it was
Dr. Funke's opinion, as stated in her report, that Mr. Brodlic's
cardiac arrest was "multifactoral." (Rec. Doc. 57 at 13).
Plaintiff's expert is of the opinion that Mr. Brodlic's anoxic
encephalopathy was caused by "positional or restraint asphyxia
induced by police officers." (Rec. Doc. 57 at 13).
A. Count 1: Violations of 42 U.S.C. § 1983
Plaintiffs assert that the Defendant Police Officers violated
Mr. Brodlic's Fourth Amendment right to be free from unreasonable
seizure by utilizing excessive and objectively unreasonable force
in seizing him on May 5, 2005. Further, Plaintiffs assert that
Defendants City of Lebanon, Lebanon City Bureau of Police,
William L. Harvey Chief of Police and Mayor Robert Anspach
violated Mr. Brodlic's Fourth Amendment right to be free from
unreasonable seizure and Fourteenth Amendment due process rights
by failing to provide proper training to the Defendant Police Officers with respect to proper handling
procedures of individuals in custody in order to prevent asphyxia
of such individuals. We will consider these claims under § 1983
1. Fourth Amendment Claim
The appropriate legal standard applied to an individual's claim
that law enforcement officers used excessive force in carrying
out a seizure is objective reasonableness, as applied to the
Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395
(1989). The standard of objective reasonableness is one of
careful balancing under which courts are to weigh the "nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the countervailing government interests." Id.
Defendants claim that the police officers conducted themselves
with objective reasonableness and that they did not employ
excessive force throughout the course of events that took place
at the Brodlic home on May 5, 2002. Defendants support this
allegation with several factual statements, including that: 1)
Ms. Saltzer, a trained crisis intervention worker, determined Mr.
Brodlic was a candidate for psychiatric committment; 2) an
ambulance was staged nearby to transport Mr. Brodlic; and, 3) no
weapon was used upon Mr. Brodlic other than pepper spray. Plaintiffs dispute Defendants' allegations of fact and claim
that the officers did not act in an objectively reasonable
manner. Plaintiffs allege that once Mr. Brodlic was handcuffed,
it was not objectively reasonable for the officers to keep him in
a face-down position on the lawn, in light of the fact that Mr.
Brodlic was not arrested for a crime, but was being restrained
for a psychiatric committment. Further, Plaintiffs allege, and
Defendants dispute, that the police officers continued to apply
the force of their body weight to Mr. Brodlic's back while he lay
prone on the front lawn.
After a careful review of the record and and given the genuine
issues of material fact noted by this Court, namely the length of
time the Defendant Police Officers applied the force of their
body weight to the prostrate Mr. Brodlic, or if they did so at
all, as well as the nature of restraint tactics used on Mr.
Brodlic, summary judgment is not warranted with respect to Count
1 of the amended complaint.
2. Failure to Train Claim
The Supreme Court has held that "where the failure to train
amounts to deliberate indifference to the rights of the persons
with whom the police come into contact," the municipality is
liable from injuries sustained at the hands of its officers.
City of Canton v. Harris, 489 U.S. 387, 388 (1989). The Supreme
Court explains that deliberate indifference exists when "in light of
the duties assigned [to the police officers], the need for more
or different training is so obvious and the inadequacy is so
likely to result in the violation of constitutional rights."
Id. at 390.
It is apparent to the Court from our reading of the depositions
taken in this matter that there is a range of training/knowledge
concerning positional asphyxia among the Defendant Police
Officers. However, there exists a genuine issue of material fact
as to whether the training provided, or lack thereof, rises to
the level of deliberate indifference. Therefore, summary judgment
is not appropriate with respect to the § 1983 failure to train
3. Qualified Immunity Defense
The Defendants raise the defense of qualified immunity to
Plaintiffs' § 1983 claims. Under qualified immunity,
"governmental officials performing discretionary function[s]
generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In order to find the Defendants immune from suit, we must find
that, viewing the facts in the light most favorable to the
Plaintiffs, Defendants did not violate Mr. Brodlic's clearly
established rights, or, in the alternative, that an "objectively reasonable" officer under the circumstances would have believed
his actions to be lawful. Anderson v. Creighton, 483 U.S. 635,
640 (1987). Plaintiffs allege that Mr. Brodlic, who was a large
man suffering from mental illness, and clearly agitated from his
attempts to avoid restraint, was a known risk for positional
asphyxiation if improperly restrained. Plaintiffs claim that the
police officers restrained Mr. Brodlic in a prone position and
applied their collective body weight, which accumulated to an
aggregate of over 600 pounds, to Mr. Brodlic's back as he lay on
the ground. Defendants deny these allegations. As previously
noted, Plaintiffs claim that as a result of this conduct and at
some point during Mr. Brodlic's restraint, he became unconscious
and was without a pulse.
Given the fact that genuine material issues of fact are in
dispute, it is impossible for us to determine whether qualified
immunity shields the Defendant Police Officers as a matter of
law. See Creighton, 483 U.S. at 646 n. 6; See also
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Saucier v.
Katz, 533 U.S. 194, 201 (2001). For the foregoing reasons, we
hold that Defendants are not entitled to a qualified immunity
B. Counts 2 and 3: Violation of the Americans with
Disabilities Act and the Rehabilitation Act
Plaintiffs allege that Defendants violated Mr. Brodlic's
statutory right to be free from discrimination on the basis of disability under Title
II of the Americans with Disabilities Act ("ADA"). It is a
violation of 42 U.S.C. § 12132 for a public entity to
discriminate against a qualified individual with a disability or
to deny such individual the benefits of the programs, services
and activities of the public entity.
Although the ADA fails to define programs, services or
activities, § 504 of the Rehabilitation Act defines program or
activity as "all of the operations of a department . . . of a
State or of a local government." 29 U.S.C. § 794(b).*fn7
The essence of Plaintiffs' ADA and Rehabilitation claims is
that the failure of Defendants to train its police officers how
to apply proper restraint procedures for mentally disabled
persons caused Mr. Brodlic to be discriminated against and
excluded from these government services on the basis of his
disability. Presently, the Third Circuit Court of Appeals has not
addressed the application of Title II of the ADA to police
training or procedures. Although not binding upon this Court, our
colleague Judge Yvette Kane has addressed this issue in the case
of Schorr, v. Borough of Lemoyne, (1:CV-01-930, Feb. 10, 2003)
and we are persuaded by her logic in that case.
Judge Kane's opinion reasons that the legislative history of
the ADA tends to favor a broad interpretation of the statute, illustrated by the
fact that the House Committee that drafted the ADA chose not to
specifically define the term "discrimination" in the text of the
statute. Rather, the Committee adopted the broad
anti-discrimination prohibition of § 504 of the Rehabilitation
Act, which extends to "all actions of state and local
governments." 29 U.S.C. § 794(b) (emphasis added). Further,
Judge Kane points to several district court opinions of various
circuits that find the ADA applicable to arrests to disabled
persons. In light of Judge Kane's detailed analysis of the
foregoing, she reasoned, and we agree, that "properly executing §
302 involuntary commitment warrants and modifying police
practices to accommodate subjects of the warrants are included in
`programs, services, or activities of a public entity' under §
12132 of the ADA." (Rec. Doc. 58 at 11).*fn8
Accordingly, summary judgment with respect to Counts 2 and 3 of
the amended complaint is denied.
C. Counts 4, 5 and 6: Violations of the Pennsylvania Mental
Health Procedures Act; Professional Negligence Claim; Respondeat
As previously noted, on July 30, 2004, this Court entered an
Order (doc. 36) terminating this action with prejudice with
respect to Defendants County of Lebanon, Lebanon County
Department of Mental Health and Mental Retardation and Kevin
Schrum, Administrator, Philhaven Hospital and Jeffery A. Okamoto,
M.D. As a result of this Order, we will simply clarify that the
state claims under Pennsylvania law in Counts 4, 5 and 6 of the
amended complaint are no longer a part of this case, as the
claims therein were asserted against the dismissed Defendants. As
a result, Counts 4, 5, and 6 will now be dismissed.
D. Counts 7 and 8: Wrongful Death and Survival Claims
In the first amended complaint, Plaintiffs claim damages
pursuant to Pennsylvania's Survival Act, 42 P.S. § 8302 (2005)
and Wrongful Death Act, 42 P.S. § 8301 (2005). Defendants seek
summary judgment on these claims on the basis of governmental
It is well established that municipal agencies are protected by
governmental immunity from state law claims. See 42 Pa. Const.
Stat. § 8541-42; 8545 (2005). Also, under the Pennsylvania
Political Subdivision Torts Claims Act ("Tort Claims Act"),
"government officials are granted protection from the enforcement
of judgments against then when they act within the scope of their
employment." Retenauer v. Flaherty, 164 Pa.Cmwlth. 182 (1994).
In this matter the Defendants, which are governmental agencies
and their employees or agents, were clearly acting within the
scope of their employment when they executed the § 302
involuntary commitment warrant against Mr. Brodlic. There is
nothing in the record which indicates otherwise. Therefore, the
Defendants are protected by Pennsylvania's governmental immunity
statute, and they may not be subjected to liability under
Pennsylvania's Wrongful Death or Survival Acts. We will
accordingly grant summary judgment in favor Defendants on Counts
7 and 8 of the amended complaint, and those counts will be
E. Loss of Consortium Claims
Under Pennsylvania law, loss of consortium means "loss of the
company, society, cooperation, affection and aid of a spouse in
every conjugal relation." Pahle v. Colebrookdale TP.,
227 F.Supp.2d 361, 374-75 (E.D. Pa. 2002) (citing Cleveland v.
Johns-Manville Corp., 547 Pa. 402 (1997). "A wife who suffers a
loss of consortium does not herself sustain physical injury, but
rather, damaged marital expectations, as a result of the injuries
to her husband." Pahle, 227 F.Supp.2d at 375. Generally, loss
of consortium claims are derivative claims, and may proceed only
upon the success of the underlying claim asserted by the injured
spouse. See Id.
However, there is a split of authority among the district
courts in the Third Circuit concerning individual claims for loss
of consortium raised under § 1983. In Pahle, the Eastern
District of Pennsylvania held that "a spouse may assert a claim
under § 1983 that the government improperly interfered with her
personal right to the services, society and companionship (i.e.
consortium) of her husband." Id. at 380. However, other Eastern
District of Pennsylvania cases have held the exact opposite, i.e.
that individual claims for loss of consortium are not cognizable
in § 1983 actions. See Ballas v. City of Reading, 2001 U.S.
Dist. LEXIS 657 (E.D. Pa. 2001); Colburn v. City of
Philadelphia, 2001 WL 872960, *2 (E.D. Pa. 2001).
It is well established that a wife has no standing to bring §
1983 claims that rest on violations of the husband's
constitutional rights. See Pahle, 227 F.Supp.2d at 381 (citing
Estate of Cooper By and Through Cooper v. Leamer,
705 F.Supp. 1081, 1086 (M.D. Pa. 1989). To date, the Third Circuit Court of
Appeals has never directly addressed the issue of whether "a
husband or wife can allege violations of his or her own
constitutional rights under § 1983 for unlawful, government
imposed injuries to a spouse that have a devastating impact on
their marriage." Pahle, 227 F.Supp.2d at 381. However, the
Third Circuit Court of Appeals has permitted a father to assert his own § 1983 claim for
violations of his own constitutional rights following his child's
death by abuse in a county youth center. See Estate of Baily
v. County of York, 786 F.2d 503, 509 n. 7 (3d Cir. 1985).
Following the Bailey decision, several District Courts have
permitted parents to bring suits in their own right under § 1983
for the deprivation of their child without due process by the
government. See, e.g., Scheiber v. City of Philadelphia,
1999 WL 482310, *2 (E.D. Pa. 1999); White v. City of
Philadelphia, 118 F.Supp.2d. 564, 567 n. 1 (E.D. Pa. 1992).
The Pahle court reasons, and we are inclined to agree, that
the rights of parents and children recognized in the Bailey
decision logically extend to spouses. Therefore, as a result of
government action, a wife can be deprived of her constitutional
right to her husband's services and may bring an individual claim
under § 1983.
Under the Federal Rules of Civil Procedure, only notice
pleading, i.e. a short plain statement of facts giving rise to
claims for relief, is required for a claim to stand. In Pahle,
the wife's individual claim for loss of consortium did not
survive summary judgment because the complaint did not specify
the wife's individual claim. See Pahle, 227 F.Supp.2d at 374
n. 8. In this matter, paragraph 53 of the amended complaint (doc.
4) gives sufficient notice to the Defendants of the Plaintiff wife's individual claim for loss of consortium under § 1983.
Furthermore, paragraph 52 of the amended complaint (doc. 4) gives
Defendants sufficient notice of the Plaintiff wife's derivative
loss of consortium claim. As a result of this analysis,
Defendants' Motion will be denied as to Plaintiff wife's loss of
NOW, THEREFORE, IT IS ORDERED THAT:
1. Defendants' Motion for Summary Judgment (doc. 45)
is granted in part and denied in part to the
a. Defendants' Motion is granted with respect to
Counts 7 and 8 of the amended complaint. (Rec. Doc.
b. Defendant's Motion is denied with respect to
Counts 1, 2 and 3 of the amended complaint (doc. 4)
and with respect to claims of loss of consortium.
c. As according to this Court's July 30, 2004 Order
dismissing certain parties (doc. 36), Counts 4, 5 and
6 are dismissed.
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