The opinion of the court was delivered by: Judge Conner
This is a civil rights action filed by plaintiffs Carolyn Horton and Adeleno Oliver as administrators of the estate of Adeleno Jamar Oliver Horton ("Horton") against the City of Harrisburg ("the City") and several members of its police force, including the Harrisburg Bureau of Police*fn1, Chief of Police Charles Kellar ("Kellar"), and Corporal Raymond Lyda ("Lyda"). Presently before the court are objections (Docs. 50, 52) to the report of the magistrate judge recommending that defendants' motion for summary judgment be granted in part and denied in part.
Following an independent review of the record, the court will adopt this recommendation in part and reject it in part.
I. Statement of Facts*fn2
This case arises from an incident between Lyda and Horton on February 4, 2006. (Doc. 30 ¶ 17; Doc. 43 ¶ 17.) At approximately 2:00 a.m., Lyda observed a vehicle driven by Horton traveling in the wrong direction down a one way street. (Doc. 30 ¶ 18; Doc. 43 ¶ 18.) Lyda began to follow the vehicle in his police cruiser at which time Horton attempted to flee. (Doc. 30 ¶ 26; Doc. 43 ¶ 26.) During the chase, Horton struck a parked car, disabling his vehicle. (Doc. 30 ¶ 28; Doc. 43 ¶ 28.) Lyda alleges that he exited his police cruiser and approached the passenger side of Horton's vehicle to prevent Horton from escaping on foot. (Doc. 32, Ex. 7 at 30.) Lyda then claims that Horton attempted to exit through the passenger side door. (Id. at 33-34.) Plaintiffs allege that Lyda gave no verbal commands to Horton during Horton's flight of the vehicle or during the subsequent events. (See Doc. 35 at 6.) After Horton had fully exited the car, a physical altercation ensued during which Lyda positioned Horton on his hands and knees on the ground. (Doc. 32, Ex. 7 at 40-41, 45-46.) Lyda contends that Horton reached into his coat pocket and pulled out a small dark object between his thumb and index finger. (Id. at 45-48.) Lyda, believing the object was a weapon, drew his firearm and shot one round at Horton, hitting him in the shoulder. (Id. at 51-54.) Horton collapsed on the ground and was pronounced dead by medical responders approximately forty minutes later. (Doc. 35, Ex. A.) Investigators subsequently discovered that Horton had been attempting to remove a cellular telephone from his pocket at the time Lyda discharged his weapon. (Doc. 32, Ex. 10 at 6.)
Plaintiffs brought this suit in the Court of Common Pleas for Dauphin County, Pennsylvania on November 21, 2006. (Doc. 1, Ex. A.) They seek to hold all defendants liable under 42 U.S.C. § 1983 for violation of Horton's Fourth Amendment right to be free from excessive force. (See id. at 6.) They also advance state law claims for negligence, wrongful death, survival, and intentional infliction of emotional distress ("IIED") . (See id. at 9-14.) Defendants filed a notice of removal on December 6, 2008. (Doc. 1.) The magistrate judge recommends that the court grant summary judgment on all claims except (1) the Fourth Amendment claim against Lyda, (2) the Fourth Amendment claim against the City, (3) all state law claims against Lyda, and (4) the intentional infliction of emotional distress claim against Kellar. (See Doc. 49.) Both plaintiffs and defendants have filed objections to the magistrate judge's report. (See Docs. 50, 52.) The issues addressed therein have been fully briefed and are ripe for disposition.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
Plaintiffs assert excessive force, municipal liability, and supervisory liability claims pursuant to § 1983. They also advance state law claims for negligence, wrongful death, survival, and IIED. The court will address these claims seriatim.
A. Liability for Excessive Force under 42 U.S.C. § 1983
Section 1983 of Title 42 of the United States Code offers private citizens a means of redress for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To establish a civil rights claim, the plaintiff must show a "deprivation" of a constitutional or statutory right by a person "acting under color of state law."*fn3 Id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)).
In the instant case, plaintiffs allege that Lyda violated Horton's Fourth Amendment right against excessive force when he fatally shot Horton in February 2006. Additionally, plaintiffs assert that Kellar and the City are liable for these violations because they fostered a policy or custom of failing to train and supervise their officers to prevent the excessive use of force.
1. Individual Liability Against Lyda
Every citizen has a Fourth Amendment right to be free from excessive force during lawful arrests. See Kopec v. Tate, 361 F.3d 772, 776-78 (3d Cir. 2004). To avoid running afoul of the Fourth Amendment, an officer may exercise only an "objectively reasonable" degree of force in effectuating an arrest. Id. In determining whether an officer's conduct was reasonable, a court looks to the "totality of the circumstances." See Graham v. Connor, 490 U.S. 386, 397 (1989). Specific factors to consider when evaluating reasonableness include: (1) the severity of the crime, (2) the immediate threat that the suspect posed to the officer's safety, (3) whether the suspect was actively resisting the arrest, and (4) the number of suspects with whom the officer had to contend at one time. Gravely v. Speranza, 219 F. App'x 213, 215 (3d Cir. 2007); see also Saucier v. Katz, 533 U.S. 194, 205 (2001). The issue of reasonableness is a mixed question of fact and law that should frequently be reserved for the jury. See Estate of Smith v. Marasco, 318 F.3d 497, 516 (3d Cir. 2003) (citing Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) ("Since we lack a clearly defined rule for declaring when conduct is unreasonable in a specific context, we rely on the consensus by a jury decision to help ensure that the ultimate legal judgment of 'reasonableness' is itself reasonable and widely shared.")). However, summary judgment may be entered if the court concludes, "resolving all factual disputes in favor of the plaintiff, that the officer's use of force was objectively reasonable under the circumstances." Abraham, 183 F.3d at 290.
Defendants argue that Lyda was objectively reasonable in shooting Horton. (See Doc. 31 at 10-12.) They contend that the totality of the circumstances establishes that Lyda acted reasonably and that he properly exerted deadly force upon Horton. (See Doc. 31, Ex. 10.) Plaintiffs contest that Lyda was not reasonable in using deadly force against the decedent because use of such force is only proper when a suspect presents a threat of serious bodily injury. (Doc. 35 at 5-7.) Because ...