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Boria v. Bowers

March 31, 2009

ANGELO C. BORIA, SR., ON HIS OWN BEHALF, AND AS CO-ADMINISTRATOR OF THE ESTATE OF ANGELO C. BORIA, JR., DECEASED; CARMEN AYALA, ON HER OWN BEHALF, AND AS CO-ADMINISTRATOR OF THE ESTATE OF ANGELO C. BORIA, JR., DECEASED; AND EDWARD L. COURTNEY, JR., PLAINTIFFS
v.
OFFICER ROBERT BOWERS, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS MEMBER OF THE READING POLICE DEPARTMENT; OFFICER DAVID D. HOGAN, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS MEMBER OF THE READING POLICE DEPARTMENT; CHIEF CHARLES R. BROAD; MAYOR THOMAS MCMAHON; JOHN DOES I-X, INDIVIDUALLY, AND IN THEIR OFFICIAL CAPACITY AS MEMBERS OF THE READING POLICE DEPARTMENT; AND CITY OF READING, DEFENDANTS



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

OPINION

This matter is before the court on The Reading Defendants' Motion for Summary Judgment, which motion was filed on behalf of defendants Officer Robert Bowers, Officer David D. Hogan, Chief Charles R. Broad, Mayor Thomas McMahon and the City of Reading (collectively, the "Reading Defendants"), on July 14, 2008.*fn1 Plaintiffs' Answer to Defendants' Statement of Undisputed Facts ("Plaintiffs' Facts") was filed on August 14, 2008.*fn2

Plaintiffs did not file a brief or response in opposition to defendants' motion for summary judgment.

Upon consideration of the Reading Defendants' brief and the parties' statements of disputed and undisputed facts, and for the reasons articulated in this Opinion, I grant in part and deny in part The Reading Defendants' Motion for Summary Judgment.

Specifically, I grant The Reading Defendants' Motion for Summary Judgment as to plaintiffs' federal constitutional claims under Section 1983 in Count I for delaying medical treatment, unlawful seizure and arrest, and plaintiffs' various Monell claims.*fn3 I also grant The Reading Defendants' Motion for Summary Judgment as to plaintiffs' state-law claims for negligence and negligent supervision (Count II), intentional infliction of emotional distress (Count V), negligent infliction of emotional distress (Count VI), false arrest (Count VII) and false imprisonment (Count VIII).

Because all claims against them have been dismissed, I dismiss defendants Chief Charles R. Broad, Mayor Thomas McMahon and the City of Reading as parties to this action. In addition, I dismiss the fictitious defendants, John Does 1-X, because discovery has closed without plaintiffs identifying these defendants.

I deny The Reading Defendants' Motion for Summary Judgment as to plaintiffs' federal Section 1983 constitutional claims in Count I for excessive force, unlawful damage to the residence and destruction of property, and conspiracy. I also deny The Reading Defendants' Motion for Summary Judgment as to plaintiffs' state claims under the Pennsylvania Survival Act*fn4 (Count III) and the Pennsylvania Wrongful Death Act*fn5 (Count IV).

JURISDICTION

Jurisdiction in this case is based upon federal question jurisdiction. 28 U.S.C. §§ 1331, 1343. The court has supplemental jurisdiction over plaintiffs' pendent state law claims. See 28 U.S.C. § 1367.

VENUE

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

PROCEDURAL HISTORY

Complaint On September 29, 2006, plaintiffs Angelo C. Boria, Sr., Carmen Ayala, and Edward L. Courtney, Jr. filed their Complaint against defendants Officer Robert Bowers, Officer David D. Hogan, Chief Charles R. Broad, Mayor Thomas McMahon, John Does 1-X, Dr. Nicholas Bybel, the City of Reading, and the County of Berks.*fn6 Both plaintiffs Boria, Sr. and Ayala bring this suit in their own behalf and as the co-administrators of the estate of their deceased son, Angelo C. Boria, Jr.

Plaintiffs bring their claims against defendants Bowers, Hogan, and Does 1-X in both defendants' individual capacities and in their official capacities as members of the Reading Police Department. Both defendants Chief of Police Broad and Mayor McMahon are in this lawsuit in their individual capacities only.*fn7

Plaintiffs' eight-count Complaint alleges various constitutional violations brought pursuant to 42 U.S.C. § 1983, as well as several pendent state-law claims arising out of the death of Angelo C. Boria, Jr. and the arrest of plaintiff Edward L. Courtney, Jr. on October 1, 2004 in Reading, Pennsylvania by a Reading police officer for allegedly possessing a sawed-off shotgun.

In Count I, all plaintiffs sue all defendants pursuant to Section 1983 alleging multiple constitutional violations.

Although the Complaint is not very clear in some respects, it appears that plaintiffs are bringing five Section 1983 claims for alleged constitutional violations: (1) use of excessive force; (2) delaying medical treatment; (3) unlawful seizure and arrest; (4) unlawful damage to the residence and destruction of property; and (5) conspiracy.*fn8 Plaintiffs also bring related Monell claims against defendants for developing, implementing, and carrying out policies, practices, or procedures which caused these alleged constitutional harms to plaintiffs.

In Count II, all plaintiffs bring pendent state-law claims for negligence and negligent supervision against the Reading Defendants and Does 1-X.

In Count III, plaintiffs Boria and Ayala bring a Pennsylvania Survival Act claim against the Reading Defendants and Does 1-X. In Count IV, those plaintiffs bring a claim under the Pennsylvania Wrongful Death Act against those defendants.

In Count V, all plaintiffs allege a state-law claim of intentional infliction of emotional distress against the Reading Defendants and Does 1-X. In Count VI, all plaintiffs allege a state claim for negligent infliction of emotional distress against these defendants.

In Count VII, plaintiff Courtney brings a Pennsylvania state false arrest claim against the Reading Defendants and Does 1-X. In Count VIII, plaintiff Courtney brings a state-law false imprisonment claim against these defendants.

Reading Defendants' Motion to Dismiss The Reading Defendants filed the Motion of the Reading Defendants to Dismiss Portions of Plaintiffs' Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) on February 12, 2007. Plaintiffs filed their Memorandum of Law in Opposition to Reading Defendants' Motion to Dismiss Portions of Plaintiffs' Complaint on May 16, 2007. In their response, plaintiffs withdrew their claims under the Eighth Amendment.*fn9

On September 17, 2007, Judge Stengel granted the Reading Defendants' motion to dismiss in part and denied the motion in part. Judge Stengel's Order dismissed: (1) Count II (negligence and negligent supervision) against the Reading Defendants; (2) Counts III (survival action), IV (wrongful death), and V (intentional infliction of emotional distress) against defendants Broad, McMahon, and the City of Reading; and (3) Count VI (negligent infliction of emotional distress) against the Reading Defendants.*fn10 In addition, Judge Stengel's Order struck all reference to: (1) defendants Broad and McMahon being sued in their official capacities; (2) defendants Bowers and Hogan being sued in their official capacities in Counts II-VI; and (3) alleged violations of the Pennsylvania Constitution under Section 1983.

Discovery

Judge Stengel's September 18, 2007 Scheduling Order ordered discovery to be completed by December 14, 2007 and set a January 15, 2008 deadline for plaintiffs' expert reports. On December 7, 2007 defendants filed a motion requesting that defendants' discovery deadline be extended 60 days until February 12, 2008, and that plaintiffs be required to provide defendants with copies of all materials prepared by or relating to Dr. John J. Shane*fn11 by December 21, 2007 or be precluded from offering any testimony, or material prepared, by Dr. Shane as evidence in this case.

On February 19, 2008, Judge Stengel granted defendants' motion, extended defendants' discovery deadline by sixty days from the date of his Order, and ordered plaintiffs to provide defendants with copies of all materials prepared by, or referring to, Dr. Shane within 10 days of the date of his February 19, 2008 Order or be precluded from offering any testimony, or material prepared, by Dr. Shane as evidence in this case.

As I noted in footnote 2, above, this case was reassigned from Judge Stengel to me on October 10, 2008. My December 18, 2008 Order granted in part and denied in part The Reading Defendants' Motion to Strike the Report of Dr. John J. Shane, struck Dr. Shane's report and all references thereto from Plaintiffs' Answer to Defendants' Statement of Undisputed Facts, and precluded plaintiffs from offering any testimony, or material prepared, by Dr. Shane as evidence in this case.

My Order was based, in part, upon the fact that plaintiffs did not produce Dr. Shane's report until August 14, 2008, nearly six months after Judge Stengel's deadline, and the fact that plaintiffs did not file a response to defendants' motion to strike Dr. Shane's report.

As noted in footnote 6, above, on January 9, 2009, by agreement of counsel, I dismissed all claims against defendants Bybel and the County of Berks.

This matter is now before the court on The Reading Defendants' Motion for Summary Judgment.

FACTS DEEMED ADMITTED

Judge Stengel's Rule 16 Conference Notices filed October 31, 2006, February 12, 2007 and March 28, 2007 directed the parties "to comply with Judge Stengel's Polices and Procedures".

Judge Stengel's Policies and Procedures require any party moving for summary judgment to include with their motion a statement setting forth all undisputed facts which entitle the movant to summary judgment, and require any party opposing summary judgment to set forth a statement of the material facts which present genuine issues for trial.

These statements of material fact must "include specific and not general references to the parts of the record that support each statement. Each stated fact shall cite the source relied upon, including the page and line of any document to which reference is made." Judge Stengel's Policies and Procedures also give the parties notice that the court "will accept all material facts set forth in the moving party's statement as admitted unless controverted by the opposing party."*fn12

In this case, defendants filed a statement of undisputed facts in support of their motion for summary judgment. Although plaintiffs filed a statement of disputed facts, they did not do so in the manner set forth in Judge Stengel's Policies and Procedures. Specifically, plaintiffs failed to provide specific references to the record for their counter averments of fact in numerous paragraphs. In addition, in many other paragraphs, plaintiffs relied solely on Dr. Shane's report to support their disputed facts, despite the fact that all references to Dr. Shane's report were stricken by my December 19, 2008 Order.

Requiring a statement of undisputed facts and a responsive statement of material facts which present genuine issues for trial is consistent with Rule 56 of the Federal Rules of Civil Procedure. Rule 56 requires the movant to provide proof that there are no genuine issues of material fact, and requires the non-movant to "not rely merely on allegations or denials in its own pleading...[but to] set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

In addition, Rule 83(b) of the Federal Rules of Civil Procedure provides:

A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district's local rules. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.

Plaintiffs had notice of Judge Stengel's Policies and Procedures, which clearly were not complied with.

Accordingly, for the purposes of the within motion, I deem admitted all facts contained in paragraphs 5-6, 15, 20-21, 23-26, 28, 30, 32-34, 37, and 40-42 of the Statement of Relevant Undisputed Facts in Support of the Reading Defendants' Motion for Summary Judgment filed July 14, 2008 (Document 25-2).

STANDARD OF REVIEW

As indicated above, plaintiffs did not file a brief or response in opposition to The Reading Defendants' Motion for Summary Judgment. Rule 7.1(c) of the Local Rules of the United States District Court for the Eastern district of Pennsylvania ("Local Rules") provides that any party opposing [a] motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion.... In the absence of a timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response will be governed by Fed.R.Civ.P. 56(c).*fn13

E.D.Pa.R.Civ.P. 7.1(c).

Federal Rule of Civil Procedure 56(e)(2) (formerly Rule 56(c)) provides that "[i]f the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party." (Emphasis added). Pursuant to this rule, failure to respond to a summary judgment motion is not fatal to plaintiffs' claims because the court has the obligation to review the merits of an unopposed summary judgment motion. Peter v. Lincoln Technical Institute, 255 F.Supp.2d 417, 426 (E.D.Pa. 2002) (Van Antwerpen, J.).

The court should grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Startzell v. City of Philadelphia, 533 F.3d 183, 192 (3d Cir. 2008). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"The court must view all evidence and draw all inferences in the light most favorable to the non-moving party, and summary judgment is appropriate only if there are no genuine issues of material fact." Startzell, 533 F.3d at 192. Only facts that may affect the outcome of a case are "material." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; 91 L.Ed.2d at 211.

Once the party moving for summary judgment has satisfied its burden by showing that there are no genuine disputes as to any material facts, the non-movant must provide evidence to support each element on which it bears the burden of proof. See Monroe v. Beard, 536 F.3d 198, 206-207 (3d Cir. 2008); Padillas v. Stork-Gamco, Inc., 186 F.3d 412, 414 (3d Cir. 1999).

Plaintiffs cannot avert summary judgment with speculation or by resting on the allegations in the pleadings, but rather must present competent evidence from which a jury could reasonably find in plaintiffs' favor. Ridgewood Board of Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999); Berrier v. Simplicity Corporation, 413 F.Supp.2d 431, 437 (E.D.Pa. 2005)(Davis, J.).

FACTS

Based upon the foregoing standard of review, the Statement of Relevant Undisputed Facts in Support of the Reading Defendants' Motion for Summary Judgment ("Defendants' Facts"), including the facts deemed admitted as enumerated above; the depositions, affidavits and other record papers enumerated in the footnotes in this section; the pleadings; the pertinent facts and inferences viewed in the light most favorable to the plaintiffs as the non-moving parties, are as follows.

On October 1, 2004, at about 10:30 p.m., plaintiff Edward L. Courtney, Jr. was sleeping in his upstairs bedroom at 338 Pearl Street, Reading, Pennsylvania.*fn14 Angelo C. Boria, Jr., the decedent, was watching television downstairs with Alan Gregory Santana, decedent's cousin.*fn15 Joshue Harvey, Courtney's stepson, was washing dishes in the kitchen.*fn16 Decedent was engaged to Courtney's stepdaughter, Samantha Riefsnyder, and had been living with Courtney's family for parts of three to four months.*fn17

Downstairs, decedent picked up a loaded shotgun and then tripped over a speaker wire, causing the shotgun to accidentally fire through the home's front window.*fn18 Alan went upstairs and woke Courtney to tell him that Angel accidentally fired the shotgun.*fn19 Reading police officers responded after receiving a 9-1-1 call that shots had been fired in the home and that a juvenile male was screaming for help.*fn20 Police officers broke open the door and entered Courtney's residence.*fn21 Officers Bowers and Hogan were the first officers to enter the residence.*fn22

The police officers told Courtney not to move and handcuffed decedent, who was lying on the floor with his hands behind his back.*fn23 While decedent was on the floor and handcuffed, Officers Bowers and Hogan started beating him.*fn24 One of the officers hit decedent "between five and ten" times in the head and upper left shoulder with a metal flashlight, and kicked him in the left side "four or five times."*fn25 Another "five to six" officers struck decedent with their batons and flashlights, and kicked, hit, and stomped decedent.*fn26

This beating continued for "three to four, five minutes."*fn27 Decedent remained handcuffed and face down during the entire beating.*fn28 After the beating, the police officers grabbed decedent by the handcuffs and "yanked him up" because he wasn't able to get up under his own strength.*fn29 The police officers threw or shoved decedent out the door.*fn30

Decedent suffered severe injuries, including "blunt force trauma to the head" and a fractured rib.*fn31 This beating caused decedent's death.

The police officers then began turning over and breaking things in Courtney's house.*fn32 The police officers first tipped over and broke a large entertainment center which contained a big screen television.*fn33 The police officers then moved an antique bureau which contained various "knickknacks," breaking "a lot" of them in the process.*fn34 The police officers ...


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