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Zumbado v. City of Allentown

February 6, 2009


The opinion of the court was delivered by: James Knoll Gardner, United States District Judge


This matter is before the court on Defendants' Motion for Summary Judgment filed October 30, 2008 together with Defendants' Statement of Facts in Support of their Motion for Summary Judgment, and the Brief of Defendants, City of Allentown and Chief Joseph Blackburn, in Support of their Motion for Summary Judgment. Also before the court is defendants' Motion for Sanctions filed October 7, 2008. For the reasons expressed below, I grant the motion for summary judgment and enter judgment in favor of defendants, and dismiss the motion for sanctions as moot.

Specifically, I conclude that there are no genuine issues of material fact that would preclude summary judgment in defendants' favor regarding plaintiffs' claims against the City of Allentown and Chief Joseph Blackburn.


Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court has supplemental jurisdiction over plaintiffs' pendent state law claims. See 28 U.S.C. § 1367.


Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff's claims allegedly occurred in the City of Allentown, Lehigh County, Pennsylvania, which is located within this judicial district.


Plaintiffs initiated this action on June 18, 2007 by filing a twelve-count civil Complaint against the City of Allentown; Chief Joseph Blackburn, individually and in his official capacity as Chief of the Allentown Police Department; and John Does I-X, individually and in their official capacity as members of the Allentown Police Department. Plaintiffs' claims arise from an alleged home invasion by the Allentown Police Department on June 17, 2005. Plaintiffs' Complaint avers that police entered the home of Adrian and Christine Zumbado, while they were at home with a number of other individuals, without a warrant and without probable cause to believe any unlawful activity was taking place.

By Order dated November 15, 2007, as amended by my Order dated January 31, 2008, I dismissed Count I (described in the Complaint simply as "42 U.S.C. § 1983"), Count VII (State Constitutional Violations), and Count XII (Negligent Infliction of Emotional Distress) of the Complaint; all claims under the First and Fourteenth Amendments of the United States Constitution; and plaintiffs' claim for injunctive relief. By Order dated March 19, 2008, I dismissed all claims against the John Doe defendants.

Accordingly, the remaining claims are as follows: Count II (Excessive Force and Physical Brutality); Count III (Unlawful Seizure (Arrest)); Count IV (False Imprisonment); Count V (Civil Conspiracy); Count VI (Municipal Liability); Count VIII (Assault and Battery); Count IX (False Arrest and Illegal Imprisonment); Count X (Civil Conspiracy); and Count XI (Intentional Infliction of Emotional Distress).

By Order dated July 28, 2008, I referred this matter to United States Magistrate Judge Elizabeth T. Hey for the purpose of resolving discovery disputes. On August 25, 2008, Magistrate Judge Hey entered an Order directing plaintiffs to provide their Rule 26 disclosures, answers to defendants' interrogatories, and responses to defendants' requests for production of documents on or before August 29, 2008. On October 7, 2008, defendants filed the within Motion for Sanctions seeking dismissal of this action for plaintiffs' failure to comply with Magistrate Judge Hey's August 25, 2008 Order. On October 30, 2008, defendants filed the within motion for summary judgment. As discussed below at footnote 1, plaintiffs did not respond to the motion for summary judgment.

On December 23, 2008, I conducted a hearing on defendants' Motion for Sanctions, and took the matter under advisement. Hence this Opinion addresses both motions.

Initially, I address defendants' motion for summary judgment. Because I conclude that defendants are entitled to summary judgment on all remaining claims, as discussed below, I dismiss the Motion for Sanctions as moot.


In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-2510, 91 L.Ed.2d 202, 211 (1986); Federal Home Loan Mortgage Corporation v. Scottsdale Insurance Company, 316 F.3d 431, 443 (3d Cir. 2003). Only facts that may affect the outcome of a case are "material". Moreover, all reasonable inferences from the record are drawn in favor of the non-movant. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

Although the movant has the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element on which it bears the burden of proof. See Watson v. Eastman Kodak Company, 235 F.3d 851, 857-858 (3d Cir. 2000). Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in their pleadings, but rather they must present competent evidence from which a jury could reasonably find in their favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Woods v. Bentsen, 889 F.Supp. 179, 184 (E.D.Pa. 1995).


Based upon the pleadings, record papers, exhibits, and the uncontested concise statement of facts contained within defendant's motion for summary judgment and accompanying brief, the pertinent facts for purposes of the motion for summary judgment are as follows.*fn1

On June 17, 2005, plaintiffs Adrian and Christine Zumbado were at their home at 1531 Liberty Street, Allentown, Pennsylvania. Plaintiffs Robert Ward and Miguel Torres, Sr., as well as minor plaintiff Miguel Torres, Jr., were also present. Without warning, members of the Allentown Police Department Emergency Response Team ("ERT") entered the residence through the front and back doors. Entry was made because ERT believed that an extremely dangerous suspect in a recent homicide was inside the home.

ERT officers pointed guns at the persons in the house, and forced everyone to lie on the floor while officers searched the house. The adults were handcuffed and plaintiffs were detained for approximately one hour. No warrant was ever presented to plaintiffs, and plaintiffs were subsequently released and no criminal charges were ever filed.

At the time of the incident, Chief Joseph Blackburn was the only person in the Allentown Police Department ("Department") authorized to set or adopt policies for the Department. Chief Blackburn was not on duty during the incident, was not present during the events described in plaintiffs' Complaint, and had no personal involvement in the incident. He was not consulted about the incident and was not aware of the details or nature of the event until after it had occurred.

In addition to the Chief of Police, the Mayor of the City of Allentown was authorized to set or adopt policies for all city departments. Chief Blackburn was responsible for implementing any such policies within the Department. Additionally, a majority of the Allentown City Council, acting in their legislative capacity, could adopt ordinances or other legislative enactments which could set or adopt policies for the City, including the Department.

At the time of the incident giving rise to plaintiffs' Complaint, the City of Allentown had in place a Policy Manual detailing administrative policies and procedures that the Department was to follow in order to promptly, fairly, and thoroughly investigate complaints and allegations involving Department personnel. The Department had specific procedures in place concerning search and seizure, which established guidelines and procedures for police officers to follow when conducting searches and seizures without a warrant. This policy specifically required officers to follow all constitutional guidelines, as well as all Pennsylvania and federal statutory and case law provisions when conducting searches and seizures.

The Department had a policy explicitly prohibiting officers from using unreasonable or excessive force. Moreover, the Department followed a policy governing arrest procedures wherein officers were required to follow the appropriate Pennsylvania Rules of Criminal Procedure and all other relevant statutes in making arrests both with and without a warrant.

The ERT is a unit of the Department that is specially trained to respond to crisis situations, including hostage rescue operations, officer rescue operations, barricaded subjects, execution of high-risk search and arrest warrants, active shooter incidents, and the apprehension of armed and dangerous persons. ERT operations are covered by a policy known as General Order 4-12, which outlines extensive policies and procedures that are to be followed by the ERT.*fn2

In order to become a member of the ERT, a police officer must have at least three years of service with the Department, pass a physical test and a handgun test, and be approved by a review board. The review board considers an ERT candidate's ability to follow orders, work as a team member, and perform well in high-stress situations, in addition to the candidate's disciplinary record, health records, and job performance. Successful candidates must pass a psychological examination and be approved by the Chief of Police.

New ERT members must train with the ERT for at least one year, attend a week-long seminar on the subject of ERT operations and tactics, and obtain National Rifle Association instructor certification for handguns and shotguns before participating in an actual operation of the ERT. Additionally, new ERT members must become qualified or certified by the National Tactical Officers' Association in the use of all weapons and devices used by the ERT before participating in ERT operations. All members are required to maintain yearly qualifications or certifications for all weapons used during ERT operations.

At the time of the incident giving rise to plaintiffs' claims, ERT members received a minimum of 24 training days per year, including at least six days' training on special weapons. The ERT trains as a unit at least two days per month, except for February, in which the unit trains one day. Additionally, once a year the ERT trains as a unit for four consecutive days. All such training requirements and membership standards are in addition to mandatory recertification training required for all police officers under Pennsylvania law, and were in effect on June 17, 2005.

At the time of the incident giving rise to plaintiffs' claims, the Department had been accredited by the Pennsylvania Law Enforcement Accreditation Commission and the Commission on Accreditation for Law Enforcement Agencies. Both accreditation processes include self-assessment and formal assessment to determine whether ...

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