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Odom v. Borough of Taylor

October 24, 2006


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants Officer John Harrison, Officer Cord Mickavicz, and Borough of Taylor Chief of Police Stephen Derenick's (collectively "Taylor Defendants") Motion for Summary Judgment (Doc. 42), Defendants Borough of Old Forge, Borough of Old Forge Police Department, Officer Jason Dubernas, Officer Thomas Lutkowski, and Borough of Old Forge Chief of Police Frank J. Avvisato's (collectively "Old Forge Defendants") Motion for Summary Judgment (Doc. 50), and Defendants Borough of Moosic, Borough of Moosic Police Department, Officer James Waters, and Borough of Moosic Chief of Police Charles Maurer's (collectively "Moosic Defendants") Motion for Summary Judgment (Doc. 44), as to Plaintiffs Phillip ("Plaintiff") and Jennifer Odom's (collectively "Plaintiffs") Complaint (Doc. 2). For the reasons set forth below, Defendants' motions will be granted in part and denied in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.


The facts presented in the summary judgment record, viewed in the light most favorable to Plaintiffs, are as follows. Plaintiff Phillip Odom, an adult African-American male, was the Director of Youth Enrichment with the Scranton School District (Pl.'s Dep. 13:14-14:2, Dec. 1, 2005.) In connection with this position, Plaintiff worked with the Lackawanna County District Attorney's Office and the Scranton School District as a counselor and advocate for at-risk children and adults. (Pl.'s Dep. 14:17-16:16.) On the evening of February 22, 2003, Plaintiff's nephew, Devon Odom, then sixteen (16) years of age, went to Pettinato's, an underage night club in Taylor, Pennsylvania, with his friends Stephon Draper, Marvin McCloe and Lacey Johnson. (Pl.'s Br. 2; Draper Dep. 8:12-14, Jan. 26, 2006.) On this evening, Pettinato's clientele was eighty (80) to ninety (90) percent African-American. (Harrison Dep. 24:6, Dec. 12, 2005.) While at Pettinato's, a fight erupted between students of West Scranton and students of Scranton High Schools. Id. The owner of Pettinato's closed the night club, displacing the seventy (70) to one hundred (100) teenagers who were present at the time out into the parking lot. (Doc. 43 ¶ 2.)

As a result of the disturbance, a radio call requesting assistance was received by Defendant Taylor Police Officers John Harrison and Cord Mickavicz. (Doc. 43 ¶ 3.) Upon arriving at the scene, Harrison and Mickavicz spoke with the owner of Pettinato's, who asked that the crowd of teenagers in his parking lot be dispersed. (Harrison Dep. 24:14-18.) While Harrison and Mickavicz were dispersing the crowd, white teenagers began exiting the pool hall that was located next door to Pettinato's. (Harrison Dep. 24:18-25-16.) These teenagers then began heckling and yelling at the Pettinato's crowd, calling them names. (Harrison Dep. 24:22-24.) Eventually, the yelling and name calling escalated into fighting. (Doc. 60 ¶ 2.) In need of additional officers, Harrison and Mickavicz called for assistance from Moosic and Old Forge Police Departments. (Harrison Dep. 25:1-3.) Old Forge Police Officers Jason Dubernas, Thomas Lutkowski and Thomas Callaghan, as well as two Moosic Police Officers, one of which being James Waters, were then dispatched to assist Harrison and Mickavicz in controlling the crowds. (Doc. 50-2 ¶ 1; Doc. 45 ¶ 6.) After these additional officers arrived, Harrison and Mickavicz took two African-American teenagers into custody for disorderly conduct and returned to the Borough of Taylor Police Department, leaving the responsibility of dispersing the crowd in the hands of the Old Forge and Moosic officers. (Pl.'s Br. 2.) Eventually, the crowd was dispersed and the officers left the scene. (Doc. 60 ¶ 2.)

Sometime after leaving Pettinato's, Devon Odom called Plaintiff for a ride home. (Doc. 43 ¶ 4.) While Devon Odom and his friends were waiting to be picked up by Plaintiff, several white teenagers in a white car pulled up and started yelling racial slurs at them. (D. Odom Dep. 9:9-13, Jan. 26, 2006.) The white teenagers then got out of the car and began fighting with Devon Odom and his friends. (Draper Dep. 8:18-19; D. Odom Dep. 9:14-10:15.) After about fifteen (15) minutes, the fight was broken up when additional friends of Devon Odom came from a nearby grocery store. (D. Odom Dep. 10:12-14.) At this point, Officers Dubernas, Lutkowski and Callaghan arrived on the scene for the second time. (Pl.'s Br. 3.) Apparently, Officer Waters was also present. (Pl.'s Br. 3.) Devon Odom and his friends then described to the officers the fight with the white teenagers. (D. Odom Dep. 12:7-9.)

Around this time, Plaintiff arrived to pick up Devon Odom and his friends. (D. Odom Dep. 15:2-3.) According to Plaintiff, when he arrived, his nephew was "making threats [of revenge], [and was] highly upset." (Pl.'s Dep. 40:10-24.) Plaintiff then recognized Officer Callaghan from Plaintiff's work in the Lackawanna County Courthouse. (Pl.'s Br. 3.) Plaintiff and Callaghan spoke to each other and then Callaghan introduced Plaintiff to Officers Dubernas, Lutkowski and Waters, explaining to them that Plaintiff worked for the Lackawanna County court system. (Doc. 50-2 ¶ 5.) Shortly thereafter, the white car carrying the white teenagers, with whom Devon Odom and his friends had fought, drove by. (Doc. 59 ¶ 7.) Devon Odom and his friends identified the car and the teenagers as the ones with whom they had fought. (Lutkowski Dep. 26:6-9, Dec. 12, 2005.) Officers Callaghan and Waters pursued the white car, arrested the three white teenagers, handcuffed them, and brought them to the Borough of Taylor Police Station. (Lutkowski Dep. 26:9-16; Doc. 43 ¶ 9.) Plaintiff was advised that if his nephew wished to file charges against the white teenagers, he would need to go to the Borough of Taylor Police Department to fill out report. (Doc. 43 ¶ 10; Pl.'s Br. 4.) Plaintiff then drove Devon Odom and his friends to the Borough of Taylor Police Station. (Doc. 60 ¶ 10; Pl.'s Br. 4.) During the drive to the police station, Plaintiff called Amy Phillips, a Lackawanna County Assistant District Attorney and friend, to inform her of the incident involving Plaintiff's nephew. (Doc. 43 ¶ 11.)

When Plaintiff, Devon Odom, and Devon Odom's friends arrived at the Borough of Taylor Police Station, Officers Harrison, Mickavicz, Dubernas, Lutkowski, Waters and Callaghan were already present. (Pl.'s Br. 5.) Plaintiff approached the intake window outside the police station, identifying himself as the uncle of one of the African-American teenagers who was involved in the fight outside of Pettinato's. (Doc. 59 ¶ 15.) Officer Harrison then led Plaintiff's group to the doorway and opened the door to enter the police station. (Doc. 59 ¶ 14.) Around this time, Plaintiff again placed a call from his cellular phone to Amy Phillips. (Pl.'s Dep. 50:6.)

Upon entering the police station, Plaintiff observed the three white teenagers who were involved in the altercation with Devon Odom and his friends in handcuffs and seated in chairs. (Doc. 59 ¶ 17; Pl.'s Dep. 53:21.) What happened thereafter is unclear, but, Plaintiff agrees, there was yelling and name-calling, and some type of confrontation, between Devon Odom and his friends and the white teenagers. (Pl.'s Dep. 54:5-23; Draper Dep. 10:20-11:1; D. Odom Dep. 20:7-21:9; Doc. 43 ¶ 19; Doc. 59 ¶ 19.) Plaintiff also stated that he approached one of the white teenagers and told him "son, I'm going to advise you to sit down, you are in a lot of trouble, you assaulted some kids . . . [and] I advise you to keep quiet." (Pl.'s Dep. 53:25-54:4.) Officer Harrison then directed Devon Odom and his friends to a side room so as to separate the two groups of teenagers. (Pl.'s Dep. 54:12-55:13.) Plaintiff and Defendants dispute whether Harrison also directed Plaintiff to accompany his nephew's group to the side room. (Pl.'s Dep. 57:18-19; Doc. 52 ¶ 24.) Notwithstanding the order, Plaintiff tried to walk past Harrison toward the back of the station where Officer Callaghan was located. (Pl.'s Dep. 57:9-12.) At this time, Harrison told Plaintiff to go to the room to which his nephew's group had been sent. (Pl.'s Dep. 57:12-13.) Harrison then grabbed Plaintiff's right shoulder, at which point Plaintiff spun around with his hand extended, and said "what the hell." (Pl.'s Dep. 62:4-10, 64:18-19.) Defendants contend that Plaintiff's swinging of his extended hand was an attempt to strike Harrison. (Doc. 50-2 ¶ 19; Doc. 52 ¶¶ 31-32; Doc. 43 ¶ 28; Doc. 45 ¶ 10.) Plaintiff asserts that Harrison's action of grabbing Plaintiff's shoulder caused him to spin around.

(Pl.'s Dep. 62:13-15.) Plaintiff also stated, at the time he was grabbed, that "this is some racist bullshit." (Doc. 54-9 p.89 ¶ 16-17.) Another police officer, either Dubernas, Mickavicz or Waters, then stated that Plaintiff "just threw a punch" at Harrison. (Pl.'s Dep. 63:10.) Plaintiff responded, "you are a mother fucking liar." (Pl.'s Dep. 63:24-25, 64:20-22.) According to Plaintiff, at that point Officer Harrison rushed him from behind and slammed him into the wall. (Pl.'s Dep. 64:24-25.) A struggle ensued and Officers Lutkowski, Waters, Mickavicz and Dubernas joined in. (Pl.'s Dep. 66:25-68:17.) During the melee, the officers tried to grab Plaintiff's hands (Pl.'s Dep. 74:15-16), which Plaintiff kept in front of him and between his legs (Pl.'s Dep. 68: 22-23). Defendants contend that their attempts to grab Plaintiff's hands were in an effort to handcuff Plaintiff, who was offering substantial resistance. (Doc. 52 ¶¶ 32-38; Doc. 43 ¶¶ 29-30, 34; Doc. 45 ¶¶ 12-15.) Conversely, Plaintiff avers that he offered no resistance and was merely trying to protect himself. (Pl.'s Dep. 74:19-23.) During the struggle, Plaintiff was sprayed with mace three times, including once after he was handcuffed and lying on the floor. (Pl.'s Dep. 72:3-79:1.) Plaintiff was also poked in the ribs and hit in the legs with a night stick. (Pl.'s Dep. 76:3-4.) Eventually, Plaintiff and the officers fell to the floor, and, once on the floor, the officers were able to handcuff Plaintiff. (Doc. 45 ¶¶ 14-15; Pl.'s Dep. 77:7-78:24.) Plaintiff also testified during his deposition that after he was handcuffed and lying on the floor, an "officer came and jumped on the back of my neck." (Pl.'s Dep. 78:25-79:1.) Plaintiff was then taken to a holding cell. (Pl.'s Dep. 81:7-8.) Thereafter, Plaintiff received medical assistance concerning his being maced. (Pl.'s Dep. 83:11-85:15.)

The Borough of Taylor filed a criminal complaint against Plaintiff in the Lackawanna County Court of Common Pleas, charging Plaintiff with simple assault, resisting arrest and disorderly conduct. (Doc. 54-9 p.4 ¶ 16-18.) Plaintiff was found guilty of the summary offense of disorderly conduct and fined one hundred dollars ($100) and court costs. (Doc. 54-9 p. 114 ¶¶ 7-16.) The simple assault and resisting arrest charges were dismissed. Id.

On February 17, 2005, Plaintiffs filed a Complaint in this Court. (Doc. 1-1.) Plaintiff alleged that he was deprived his Fourth, Fifth and Fourteenth Amendment rights under color of state law in violation of 42 U.S.C. §§ 1983 and 1985(3) (Counts I, VI-XI). (Doc. 1-1 ¶¶ 38-53.) Plaintiff also asserted state law claims of assault and battery (Count II), false imprisonment (Count III), intentional infliction of emotional distress (Count IV), negligence (Count V), and malicious prosecution (Count XII). (Doc. 1-1 ¶¶ 54-73, 131-137.) Plaintiff's wife, Jennifer Odom, also brought a state law claim for loss of consortium. (Doc. 1-1 ¶¶ 138-139.) On April 25, 2005, Taylor Defendants moved to dismiss Plaintiffs' Complaint. (Doc. 10.) On February 21, 2006, this Court granted in part and denied in part Taylor Defendants' motion, dismissing all claims against the Borough of Taylor Police Department, all claims against Taylor Defendants in their official capacities, Plaintiffs' section 1985(3) conspiracy claims against Taylor Defendants, Plaintiffs' Fifth Amendment claims against Taylor Defendants, Plaintiffs' section 1983 claims against the Borough of Taylor, and Plaintiffs' state law negligence claims against the Borough of Taylor. (Doc. 29.) On May 16, 2006, the remaining defendants filed motions for summary judgment as to Plaintiffs' Complaint. (Docs. 42, 44, 50.) These motions are fully briefed and ripe for disposition.


Summary judgment is appropriate 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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-257.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.


I. Claims against the Moosic and Old Forge Police Departments

Defendants argue that the Moosic and Old Forge Police Departments are not proper parties to this action because they are agencies of the Boroughs of Moosic and Old Forge, respectively. The Court agrees. Police departments cannot be sued in conjunction with municipalities, as a police department is merely an administrative arm of the local municipality and is not a separate judicial entity. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 26 n. 4 (3d Cir. 1997); Irvin v. Borough of Darby, 937 F. Supp. 446, 450 (E.D. Pa. 1996). Consequently, the Court will grant summary judgment in favor of Defendants Borough of Moosic Police Department and Borough of Old Forge Police Department as to all of Plaintiffs' claims.

II. Official Capacity Claims

Plaintiffs' assert claims against Old Forge Police Officers Jason Dubernas and Thomas Lutkowski, Old Forge Police Chief Frank J. Avvisato, Moosic Police Officer James Waters, and Moosic Police Chief Charles Maurer in their individual and official capacities. Defendants seek summary judgment as to Plaintiffs' official capacity claims as they are "in all respects other than name" a suit against the municipalities themselves. Ky. v. Graham, 473 U.S. 159, 166 (1985). The Court agrees. Therefore, the Court will grant Defendants' motion for summary judgment as to Plaintiffs' official capacity claims against Old Forge Police Officers Jason Dubernas and Thomas Lutkowski, Old Forge Police Chief Frank J. Avvisato, Moosic Police Officer James Waters, and Moosic Police Chief Charles Maurer.

III. Section 1985 Claims

Section 1985 provides a plaintiff with a cause of action where two or more persons conspire to deprive the plaintiff of his civil rights. 42 U.S.C. § 1985(3). For a plaintiff to establish a claim under the civil rights conspiracy statute, he must show: "(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons . . . [of] the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States." Ridgewood Bd. of Educ. v. N.E. ex rel M.E., 172 F.3d 238, 253-54 (3d Cir. 1999) (quoting Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)); see also Griffen v. Breckenridge, 403 U.S. 88, 102 (1971). Thus, a claim under section 1985(3) requires that there be "some racial, or perhaps other class-based, invidiously discriminatory animus behind the conspirators' action." United Bhd. of Carpenters v. Scott, 463 U.S. 825, 834 (1983).

Old Forge and Moosic Defendants argue that Plaintiffs have failed to even allege a conspiracy, let alone present sufficient evidence to survive their motion for summary judgment. The Court agrees. Plaintiff has failed to present evidence to create a genuine issue of material fact as to the existence of a conspiracy. Specifically, there is no evidence in the summary judgment record tending to show an agreement and concerted action among the Old Forge and Moosic officers to deprive Plaintiffs of their federal rights based on a racially discriminatory animus. Plaintiff's conclusory allegations of conspiracy and racial animus, without any factual support, are not sufficient to survive summary judgment. Accordingly, the Court will grant summary judgment in favor of the Old Forge and Moosic Defendants as to Plaintiffs' section 1985 claims.

IV. Section 1983 Municipal Liability - Old Forge and Moosic Boroughs

For a municipality or other government entity to be liable under section 1983, a plaintiff must establish: (1) a deprivation of a constitutionally protected right; (2) resulting from a policy, practice, or custom. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691-94 (1978). "Policy is made by an official statement of a 'decisionmaker possessing final authority to establish municipal policy,' and custom can be shown by the presence of a course of conduct that 'is so well-settled and permanent as virtually to constitute law.'" Chernavsky v. Twp. of Holmdel Police Dep't, 136 Fed. Appx. 507, 509 (3d Cir. 2005) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)) (internal quotations omitted). A municipality's failure to properly train its employees and officers can constitute a "policy" that is actionable under section 1983 only when that failure amounts to a deliberate indifference to the rights of the impacted person. Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997). This does not mean that liability for failure to train can be predicated solely upon a showing that a municipality's employees could have been better trained or that additional training was available which would have reduce the overall risk of constitutional injury. Canty v. City of Phila., 99 F. Supp. 2d 576, 581 (E.D. Pa. 2000) (citing Colburn v. Upper Darby Twp., 946 F.2d 1017, 1029-30 (3d Cir. 1991)). Rather, there must be a deliberate or conscious choice by the municipality to not train its employees before it may be held liable under section 1983. Reitz, 125 F.3d at 145. Further, evidence of an isolated incident is not sufficient to show the existence of a custom or policy. See, e.g., Jones by & Through Jones v. Berwick Area Sch. Dist., No. 94-1818, 1995 U.S. Dist. LEXIS 21164, at *8 (M.D. Pa. March 13, 1995); see also Losch v. Borough of Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984) ("[a] policy cannot ordinarily be inferred from a single instance of illegality"). Isolated violations are not the persistent, often repeated, constant violations that constitute a custom or policy. Jones, 1995 U.S. Dist. LEXIS, at *8. In addition, there must be a direct causal link between the policy or custom and the alleged constitutional violation. Chernavsky, 136 Fed. Appx. at 509.

Here, Plaintiffs allege that the Boroughs of Old Forge and Moosic "failed to train [their] municipal agents, servants and/or employees who caused the plaintiff's injuries on February 22, 2003, which conduct constitutes an official policy, custom and practice" of the Boroughs of Old Forge and Moosic, and their respective police departments. However, Plaintiffs have failed to present any evidence as to how "in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [municipality] can reasonably be said to have been deliberately indifferent to the need." See, e.g., Canty, 99 F. Supp. 2d at 581. A single, isolated incident involving only two officers in the case of Old Forge, and only a single officer from the Moosic Police Department, is insufficient to create a genuine issue of material fact as to the existence of a policy, practice or custom within the Borough of Old Forge or Borough of Moosic Police Departments. As such, the Court will grant summary judgment in favor of the Borough of Old Forge and the Borough of Moosic as to Plaintiffs' section 1983 claims.

V. Section 1983 Claims against Chiefs of Police Stephen Derenick, Frank J. Avvisato and Charles Maurer

In order to be liable under section 1983 as a supervisor, the defendant must have personal involvement in the alleged wrongdoing. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). "Supervisory liability cannot be based solely upon the doctrine of respondeat superior." Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990). However, "[a] supervising authority may be liable under [section] 1983 for failing to train [or supervise] police officers when the failure to train [or supervise] demonstrates deliberate indifference to the constitutional rights of those with whom the officers may come into contact." Gilles v. Davis, 427 F.3d 197, 207 n. 7 (3d Cir. 2005) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). To establish liability pursuant to a failure-to-train or failure-to-supervise theory, a plaintiff "must identify a failure to provide specific training [or supervision] that has a causal nexus with [his] injuries and must demonstrate that the absence of that specific training [or supervision] can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred." Reitz, 125 F.3d at 145. "Findings of deliberate indifference, as a matter of law, require that there be a history of unconstitutional behavior by municipal employees. The Supreme Court has found that municipal liability for failure to train under [section] 1983 cannot be inferred from a single instance of police misconduct by a non-policy making employee." Labo v. Borger, Civ. A. No. 02-3975, 2005 U.S. Dist. LEXIS 17176, at *14 (D.N.J. Aug. 15, 2005) (citing City of Okla. v. Tuttle, 471 U.S. 808, 813 (1985); City of Canton, 489 U.S. at 397 (a jury cannot infer "deliberate indifference" on the part of the trainer or supervisor from a single incident of police ...

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