United States District Court, W.D. Pennsylvania
November 29, 2005.
CHARLTON EARLE JENNINGS, Plaintiff,
LES FETTERMAN, OFFICER, in his individual capacity, Defendant. v. TERRY DAWLEY, OFFICER, Defendant. v. ERIE COUNTY DISTRICT ATTORNEYS OFFICE, D.A. BRAD FOULK, and EX-EPD, CHIEF PAUL DEDIONISIO, Defendants.
The opinion of the court was delivered by: MAURICE COHILL JR., District Judge
OPINION AND ORDER
The above-entitled actions were referred to United States
Magistrate Judge Susan Paradise Baxter in accordance with the
Magistrates Act, 28 U.S.C. §§ 636 (b)(1), Rules 72.1.3 and 72.1.4
of the Local Rules for Magistrate Judges. The matters have been
referred back to this Court for further proceedings and we
previously Ordered that actions to be consolidated for trial. A
Pretrial Conference in these actions is set for November 30, 2005
at 2:30 p.m. Our review of Defendants' motions in limine,
Plaintiff's motions to compel discovery, and the parties'
pretrial statements show that this action should be dismissed. I. Background
Plaintiff's claims arise from the events following a traffic
stop of Plaintiff's vehicle on the evening of July 7, 2000. On
July 7, 2000, Plaintiff's vehicle was stopped by Patrolmen Donald
Knepper because his taillights were not working. Patrolmen Jay
White arrived on the scene separately to back up Knepper. A
plastic bag was observed on the floor of the vehicle that
appeared to contain marijuana. Plaintiff provided a false
identification to White, however when White conducted a computer
check the false identification provided by Plaintiff revealed
that the person had a suspended driver's license. Plaintiff was
asked to exit the vehicle. Plaintiff fled the scene upon exiting
the vehicle and White took off in pursuit. When White caught up
to Plaintiff, Plaintiff punched White, stole his police revolver,
and shot White in the leg. Thereafter, several Erie Police
Officers were engaged in a search for Plaintiff lasting
approximately three hours.
Defendant Police Officer Terry Dawley's shift had ended at 1:30
a.m. on July 7, 2000. After his shift, he ate dinner and drank
two 12 ounce beers. He went to bed around 3:30 a.m. Officer
Dawley received one telephone call from a police clerk after he
went to bed informing him of the events thus far that night.
After receiving that call, Officer Dawley immediately called the
officer in charge to discover more information and to offer
assistance. The officer in charge said they did not need any help
at the time.
Defendant Police Officer Les Fetterman was involved in the
search. Officer Fetterman was performing the search with his
police dog. Sometime after 4:00 a.m., Officer Fetterman
telephoned Officer Dawley at his home. Officers Dawley and
Fetterman discussed the situation and eventually Officer Dawley
asked if his assistance was needed. Officer Fetterman told Officer Dawley that his dog and another dog involved in the
search were exhausted and that they could use Officer Dawley and
his dog's help. Officer Dawley hung up with Officer Fetterman,
called the officer in charge, relayed the conversation he had
with Officer Fetterman, and asked permission to assist in the
search. The officer in charge granted him permission.
Eventually, Officer Dawley and Police Officer Paul McMahon
found Plaintiff. After failing to obey Officer Dawley's orders to
get down, Officer Dawley observed Plaintiff dropping his hands to
his waist and pulling out a revolver with his right hand. Officer
Dawley fired at Plaintiff, a split-second later Officer McMahon
tackled Plaintiff, and Plaintiff fired his revolver. A gun battle
ensued. Plaintiff received five gun shot wounds from Officer
Dawley. Plaintiff shot one of Officer McMahon's finger's off and
shot Officer Dawley five times.
Plaintiff was arrested and following a jury trial he was
convicted of criminal attempt (homicide), 18 Pa.C.S.A. § 901,
against Officer Dawley; aggravated assault, 18 Pa.C.S.A. § 2702,
against Officers White and Dawley; recklessly endangering another
person, 18 Pa.C.S.A. § 2705, against Officer Fetterman; theft by
unlawful attacking or disposition, 18 Pa.C.S.A. § 3921, for
taking Officer White's revolver; possessing an instrument of
crime, 18 Pa.C.S.A. § 907; carrying a firearm without a license,
18 Pa.C.S.A. § 6106; escape, 18 Pa.C.S.A. § 5121; resisting
arrest or other law enforcement, 18 Pa.C.S.A. § 5104, driving
while operating privilege is suspended or revoked,
75 Pa.C.S.A. § 1543; and violating vehicle requirements, 75 Pa.C.S.A. § 4303. He
was sentenced on May 4, 2001, to a total of thirty-four and
one-half years to seventy-one years' imprisonment. His judgment
of sentence was affirmed by the Pennsylvania Superior Court in a
memorandum opinion dated March 17, 2003. Commonwealth v. Jennings, Docket No. 01407WDA01
(Pa.Super. 2003), rehearing denied, May 15, 2003 (attached as
Ex. A to Defendant's Appendix (Doc. 31 of Civ No. 02-195 Erie).
No further appeals were taken and thus Plaintiff's judgment of
conviction is final.
II. Plaintiff's Claims
Plaintiff originally filed five separate civil actions arising
out of the events of July 7, 2000, against twenty-three
defendants. In three of these actions Plaintiff's mother was also
a Plaintiff. After disposition of numerous pre-trial motions we
are left with three civil actions consolidated into one action by
Plaintiff asserting claims against six defendants.
Plaintiff's remaining claims are as follows. Plaintiff claims
that Officer Fetterman violated his civil rights by calling
Officer Dawley to return to duty even though Officer Fetterman
knew Officer Dawley was intoxicated. Plaintiff also claims that
Officer Dawley violated his civil rights by using excessive
force, i.e., Officer Dawley's shooting at Plaintiff while under
the influence of alcohol.
Next, Plaintiff claims that the Erie Police Department and
Ex-Erie Police Chief Paul DeDionisio violated his constitutional
rights by being deliberately indifferent to a serious medical
need when, after he was shot, he was not given medical treatment
for two hours.
Plaintiff also claims that the Erie County District Attorney's
Office violated his Fourth Amendment rights by causing a surgical
intrusion on his body to recover a bullet without his consent and
without prior notification to his attorney.
Finally, Plaintiff claims that District Attorney Brad Foulk
directed the Erie Police Department to refrain from conducting a
critical internal review of the events of July 7, 2000. Plaintiff
specifically claims that Foulk told Fraternal Order of Police
President Christopher Lynch and Chief DeDionisio not to conduct the internal review
because it would reveal information beneficial to Jennings'
criminal defense. Additionally, Foulk was aware that the FOP had
filed a grievance against the Erie Police Department for not
conducting a review of the events of July 7, 2000.
The parties have submitted pre-trial statements in which all
Defendants submit that the claims asserted against them cannot be
sustained as a matter of law. In addition, Defendants complain
that Plaintiff's pre-trial statements reveal that he intends to
relitigate each and every argument he made at his criminal trial,
and to present evidence regarding claims dismissed in this Court.
Plaintiff's pre-trial statements do indeed set forth the entire
history of his criminal case and his civil case as seen through
his eyes. However, at trial Plaintiff can only pursue his
surviving claims and only present evidence relevant to such
claims. He cannot present evidence in support of his dismissed
claims regarding "racial profiling"; comments made by the
District Attorney during pre-trial and trial proceedings;
excessive force by Officer Fetterman; deliberate indifference to
serious medical needs by Officer Fetterman; violation of civil
rights based on collecting Plaintiff's blood; as well as all
other dismissed claims.
Our review of Defendants' pre-trial statements reveal that
there is merit to their argument that Plaintiff will be unable to
prevail as a matter of law should this case proceed to trial.
Therefore, we will consider Defendants arguments for dismissal of
all claims as a motion for reconsideration of our previous
Orders. III. Discussion
We agree with Defendants that Plaintiff's claims that Officer
Fetterman violated his civil rights by calling Officer Dawley to
return to duty even though he knew Officer Dawley was
intoxicated, and that Officer Dawley violated his civil rights by
using excessive force while under the influence of alcohol must
be dismissed as a matter of law.
In affirming Plaintiff's judgment of conviction, the
Pennsylvania Superior Court explained in relevant part with
regard to shooting Officer Dawley as follows:
Criminal attempt (homicide) is defined as a
substantial step toward causing the death of another
human being, with the intent to cause the other human
being's death. 18 Pa.C.S.A. § 901(a), id. §
2501(a); see also Commonwealth v. Hobson,
604 A.2d 717, 719 (Pa.Super. 1992) (quotation omitted).
The record reveals that Jennings took a substantial
step toward causing Officer Dawley's death and that
Jennings intended to cause Officer Dawley's death.
Officer Dawley testified that, after commanding
Jennings to get on the ground at least three times
during the attempted arrest of Jennings, he witnessed
Jennings lower his hands and pull out a handgun. N.T.
Trial, 3/22/01, at 217. As Officer Paul McMahon was
attempting to restrain Jennings, Jennings shot at
Officer Dawley, striking him in the left hand. Id.
at 218-20. Moreover, after Officer McMahon and
Jennings fell to the ground, Jennings fired several
more shots at Officer Dawley, striking him in the
back of his knee and in the right thigh. Id. at
Jennings, Docket No. 01407WDA01, at 5-6.
The trial judge instructed the jury as to the charge of
criminal attempt as follows:
. . . The defendant is charged with three counts of
criminal attempt at homicide, specifically, murder.
In order to find the defendant guilty of attempted
murder, you must be satisfied that the Commonwealth
has proven the following elements beyond a reasonable
doubt: First, that the defendant did a certain act,
and in this case it's alleged by the Commonwealth
that the act or acts was the shooting of officers
White, McMahon and Dawley and each one of those is
a separate count; second, that the defendant did the
act, the shooting, with the specific intent to kill
that person; and, third, that the act constituted a
substantial step toward the commission of that crime.
107.) The Trial judge continued by instructing the jury as to the
element of intent:
Now, a person has the specific intent to kill if he
has formed intent to kill and is conscious of his own
intention. The specific intent to kill needed or
murder does not require planning or previous thought
or any particular length of time. It can occur quickly. All that is necessary is that there be time
enough so that the defendant can and does fully form
an intent to kill and is conscious of that intention.
If you find that the Commonwealth has proven those
elements beyond a reasonable doubt, you should find
the defendant guilty of attempted murder. Otherwise,
you must find him not guilty.
(Id. at 107-108.) The trial judge also instructed the jury as
to the elements of aggravated assault against officers Dawley,
McMahon, and White. (Id. at 108.) The trial judge then
instructed the jury as to Jennings' defenses to these charges:
Now, as to the confrontation between the defendant
and officers Dawley and McMahon, the defendant or the
defense claims that this incident, this shooting,
occurred in self-defense. Now, self-defense, if
justifiable, is a complete defense to the charges of
attempted murder or aggravated assault concerning
officers Dawley and McMahon. The Commonwealth has the
burden of proving beyond a reasonable doubt that the
defendant did not act in justifiable self-defense.
The basic rule for self-defense is that a defendant
is justified in using force against another person if
he reasonably believes he is in immediate danger of
unlawful force from that person and reasonably
believes it is necessary then and there to use the
force which he does to protect himself. Now, there
are other requirements for justifiable self-defense
besides the basic rule. The additional requirements
are more restrictive if a defendant uses deadly force
which, under the circumstances in which it is used,
is readily capable of causing death or serious bodily
(Id. at 114-115). The trial judge then specifically instructed
the jury as to the "additional requirements" as follows:
Now, when a defendant employs deadly force to protect
himself, his force must meet the following
requirements as well as the basic rule. The defendant
must reasonably believe he is in immediate danger of
death or serious bodily injury from the other person
and reasonably believe it is necessary then dn there
to use deadly force upon that person to protect
himself. Now, the defendant must have been free from
fault in provoking the difficulty which led to his
use of deadly force. A defendant is at fault in
provoking a difficulty if he is the initial
(Id. at 115.) The trial judge concluded this part of his
instructions as follows:
Because the Commonwealth has the burden of disproving
the defendant's claim of self-defense, you cannot
find that defendant guilty of the crimes I have
enumerated unless you are satisfied beyond a
reasonable doubt that the defendant did not act in
justifiable self-defense. In other words, you cannot
find the defendant guilty unless you are satisfied
beyond a reasonable doubt that at least one of the
requirements essential to the defense is lacking. (Id.) In response to jury questions submitted to
the Court during deliberations, the trial judge
repeated his instructions as to the elements of
criminal attempt at criminal homicide. (Id. at
Officer Dawley argues that the claim against him must be
dismissed as it constitutes an impermissible civil collateral
attack upon a criminal conviction as it challenges the validity
of a conviction. Heck v. Humphrey, 512 U.S. 477 (1994). In
addition, Officers Dawley and Fetterman argue that the claims
against them regarding officer Dawley's alleged intoxication must
be dismissed because the undisputed facts at trial show that
Dawley's alcohol consumption did not cause him to use improper,
excessive force against Plaintiff. We agree.
In Heck v. Humphrey, the Supreme Court of the United States
In order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
Heck v. Humphrey, 114 S. Ct. at 2372 (1994) (footnote and
citations omitted). In addition, the Supreme Court stated that if
"a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence . . . the complaint must
be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated." Id.
Plaintiff presented to the jury his defense that he was
justified in shooting Officer Dawley because Officer Dawley was
intoxicated and/or used excessive force. (See Transcript of
Trial, March 22, 2001, at 234-238 & 238-245 (cross-examination of
Dawley); 110-117 (cross-examination of Fetterman).) Officer
Dawley offered unrebutted testimony that he had consumed two 12 ounce beers with his dinner over the course of
two hours after his shift ended, with the last beer being
consumed no later than 3:30 a.m. (Transcript, March 22, 2001, at
203-204) He also offered unrebutted testimony that he was not
under the influence of alcohol when he left his house. (Id. at
204; 238 (on cross-examination).) Officer Fetterman offered
unrebutted testimony on direct examination that when Officer
Dawley arrived on the scene he seemed to be awake and alert.
(Id. at 92.) Officer Fetterman was not asked about his
knowledge of Officer Dawley's alcohol consumption by Plaintiff's
counsel. It was also undisputed that medical records from Saint
Vincent's hospital show that Officer Dawley's blood alcohol
content level after the incident was .04. (Id. at 236.)
Plaintiff was convicted of criminal attempt at homicide,
otherwise known as attempted murder. Thus, the jury found beyond
a reasonable doubt that Plaintiff shot Officer Dawley with the
specific intent to kill Officer Dawley and that his act of
shooting Officer Dawley was a substantial step toward the
commission of the crime. The jury necessarily rejected
Plaintiff's defense that he acted in justifiable self-defense. To
reach this result the jury had to have been satisfied beyond a
reasonable doubt that at least one of the requirements essential
to the defense of justifiable self-defense was lacking.
Based on the above facts and jury instructions on the law we
conclude that there is no logical possibility that the jury could
have found Plaintiff guilty of attempted murder if they
entertained a reasonable doubt that Plaintiff was the initial
aggressor and that he was free from fault in provoking the
incident. A judgment in favor of Plaintiff that Officer Dawley
used excessive force while under the influence of alcohol would
necessarily imply the invalidity of his conviction or sentence,
since such a conclusion would mean that Officer Dawley was (1) under the influence of alcohol that (2) caused Officer Dawley to
unjustifiably shoot Plaintiff. That scenario was rejected by the
jury. Accordingly, we will dismiss Plaintiff's claims asserted
against Officers Fetterman and Dawley as a prohibited collateral
attack upon his criminal conviction under Heck v. Humphrey. In
addition, we dismiss Plaintiff's claims regarding his assertion
that Officer Dawley was under the influence of alcohol on the
alternative ground that there is no genuine issue of material
fact that the record evidence demonstrates that Officer Dawley
was not under the influence of alcohol.
We will also dismiss as a matter of law Plaintiff's claim that
the Erie Police Department and Chief DeDionisio violated his
constitutional rights by being deliberately indifferent to a
serious medical need when, after he was shot, he was not given
medical treatment for two hours. We have already dismissed the
same claim as asserted against Officer Fetterman. (See Report
and Recommendation, Doc. 40 at Civ. No. 02-195 Erie, at 11-13.)
As stated in the Report and Recommendation, "Defendants have
produced documentary evidence to support their position that
Plaintiff was medically treated." (Id. at 13.) We concluded as
a matter of law that Officer Fetterman's actions were not
deliberately indifferent towards Plaintiff." (Id.) The same
evidence supports dismissal of the deliberate indifference claims
asserted against the Erie Police Department and Chief DeDionisio.
In addition, we also dismiss Plaintiff's claim asserted against
the Erie Police Department as it is not a "person" subject to
suit under § 1983.
Next we examine Plaintiff's claim that Defendant Foulk violated
his rights by directing the Erie Police Department to refrain
from conducting a critical internal review of the events of July
7, 2000, because it would reveal information beneficial to
Jennings' criminal defense. Plaintiff claims that Foulk told FOP President
Christopher Lynch and Chief DeDionisio not to conduct the
internal review because it would reveal information beneficial to
Jennings' criminal defense. The record evidence establishes that
there is no genuine issue of material fact on this issue.
After his conviction Plaintiff filed a motion to discharge
arguing that his charges should be dismissed because the
Commonwealth violated the Pennsylvania Rules of Criminal
Procedure by requesting that the FOP hold off on a grievance
asking for a review of the incident leading to Jennings' arrest.
The trial court held a hearing on the motion and rejected
Plaintiff's claim. On appeal the Pennsylvania Superior Court
addressed this issue as follows:
In the instant case, Christopher Lynch, President of
the City of Erie Post Memorial Lodge Number 7 FOP
testified at the motion to discharge hearing that
the purpose of the grievance was to determine
whether the Erie Police had appropriate help in
capturing Jennings, N.T. Motion to Discharge
Hearing, 7/3/01, at 33-34, not whether there was
police misconduct in capturing Jennings, id. at
37. We fail to see how evidence of a grievance
calling for the investigation into whether the Erie
Police had appropriate help in capturing Jennings
creates a reasonable probability that the result of
Jennings' trial would have been different had such
"evidence" been disclosed.
Jennings, Docket No. 01407WDA01, at 15-16 (emphasis added).
Both Defendant Foulk and the FOP President testified at the
discharge hearing, and both offered consistent testimony that
Foulk never intended to stifle an investigation and that Foulk
was not referring to police misconduct. (See, e.g., Motion to
Discharge Hearing, July 3, 2001, 16, 25, 37, 40, 44.) In
addition, FOP President Lynch repeatedly testified that the
grievance, and any internal investigation, had nothing to do with
any police misconduct issues. (Id. at 37-38, 40, 43-44.) In
light of these undisputed facts we conclude that Plaintiff cannot
state a claim against Defendant Foulk. Finally, we also dismiss Plaintiff's claim that his Fourth
Amendment rights were violated by Defendants causing a surgical
intrusion on his body to recover a bullet without his consent and
without prior notification to his attorney. The record evidence
demonstrates that because Plaintiff was experiencing pain he
sought a court order requiring the Erie County Prison to permit
outside doctors to examine him and remove the bullets if
medically necessary. The record evidence also shows that the
decision to remove the bullet from Plaintiff was made by medical
personnel for medical reasons. Thus, there is no genuine issue of
material fact that no Defendant had any involvement in the
surgical intrusion into Plaintiff's body to remove a bullet from
his body and to leave another bullet in his body. Under these
facts, there can be no Fourth Amendment violation and Plaintiff's
claim must be dismissed.
We conclude as a matter of law that Plaintiff has no viable
cause of action against any of the remaining Defendants.
Accordingly, we will dismiss Plaintiff's claims and dismiss this
The following Order is therefore entered.
AND NOW, to-wit, this 29th day of November, 2005, for the
reasons in Opinion accompanying this Order, it is hereby ORDERED,
ADJUDGED, and DECREED that Plaintiff's claims asserted against
the Defendants are dismissed as a matter of law. Judgment is
entered in favor of Defendants and against Plaintiff. IT IS FURTHER ORDERED that Plaintiff's Motions to Compel
Previous Requested Discovery Exhibits Prior to November 30, 2005
Pre-Trial Hearing, and Defendants' Motions in Limine are hereby
denied as moot.
The Pretrial Conference set for November 30, 2005 at 2:30 p.m.
is hereby cancelled.
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