The opinion of the court was delivered by: MAURICE COHILL JR., District Judge
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.
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 ...