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JENNINGS v. FETTERMAN

November 29, 2005.

CHARLTON EARLE JENNINGS, Plaintiff,
v.
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 ...


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