The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by George Marshall ("Marshall" or "the Plaintiff"), a resident of Greensburg, Pennsylvania. Marshall alleges that his constitutional rights were violated by actions of Penn Township, its Chief of Police, and its police officers, when officers were dispatched to his home after his girlfriend called 911 to report that Marshall was ill. In Count I of the five count*fn1 Complaint, Marshall alleges that Penn Township violated his Fourteenth Amendment substantive due process rights by "failing to properly train and supervise the Defendant police officers them [sic] with regard to appropriate interaction with the public without causing the deprivation of constitutional rights." (Doc. 1 ¶ 67). Specifically, Marshall alleges that the Township failed to train its officers in the proper use of force, and in the duty to provide medical treatment. In Count II of the Complaint Marshall alleges that Penn Township's Chief of Police, Michael Mastroianna*fn2 ("Mastroianna"), inadequately supervised or monitored subordinate officers. The Plaintiff also alleges that Mastroianna promulgated and implemented, or failed to promulgate and implement policies regarding the appropriate use of force and providing reasonable medical treatment. Count III names Penn Township Police Lieutenant Ralph Boura ("Boura"), Detective Sergeant Anthony Pecora ("Pecora"), and Officer William T. Supancic ("W.T. Supancic"), claiming that they willfully and wantonly used excessive force in violation of the Fourth and Fourteenth Amendments in subduing and arresting Marshall.*fn3 At Count IV, Marshall claims that W.T. Supancic, and William G. Supancic ("W.G. Supancic") violated the Fourth and Fourteenth Amendments when they signed refusal of treatment forms on behalf of Marshall at a time when he was not capable of refusing treatment. Count VI sets out a state law claim alleging vicarious liability on the part of Penn Township for assault and battery committed by the individual Defendants, with the exception of W.G. Supancic. Cross Motions for Summary Judgment are pending. The Court will deny the Motion filed by the Plaintiff (Doc. 26). The Motion filed by the Defendants (Doc. 22) will be granted in part and denied in part.
A party seeking summary judgment must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party must respond by presenting evidence that a genuine issue of material fact compels a trial. (Id. at 324). In doing so, the non-moving party must point to specific facts rather than to "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). This means that the non-moving party cannot defeat summary judgment by relying on unsupported assertions, bare allegations, or speculation. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.1999). The mere existence of some evidence favoring the non-moving party will not defeat the motion. There must be enough evidence with respect to a particular issue to enable a reasonable jury to find in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In evaluating the evidence, the Court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pennsylvania Coal Ass'n v. Babbitt, 63 F. 3d 231, 236 (3d Cir.1995). The Court may not assess credibility or the weight of the evidence; it may determine only the existence of a triable issue of fact. Big Apple BMW of N. Am. Inc., 974 F.2d 1358, 1362 (3d Cir.1992). A motion for summary judgment will be granted where the materials in the record, if reduced to admissible evidence, would be insufficient to satisfy the non-moving party's burden of proof at trial. Celotex, 477 U.S. at 322.
Marshall alleges that during the week prior to Christmas 2004, he engaged in a period of heavy drinking that was related to the death of his son in a motor vehicle accident some two years earlier. In mid-January 2005, Bonita McKowen ("McKowen"), took Marshall to the emergency room at Jeannette Hospital because he was weak, not eating, drinking heavily, and abusing prescription sleep medication. (Doc. 26 ¶ 2). Marshall was released, but the problematic symptoms and behavior persisted.
On January 22, 2005, McKowen became particularly concerned because Marshall was weak, did not feel well, had consumed nineteen beers, and could not sleep. He had taken antidepressants and sleeping pills in amounts greater than were prescribed. ( Id. at ¶¶ 4-7, 160)). Late that afternoon, McKowen called 911 to have Marshall taken to the hospital after he had collapsed three times while to trying to stand and walk. (Id. at ¶ 65). McKowen testified at her deposition that after she placed the call, Marshall said, "I don't want an ambulance, I don't want an ambulance." (Doc. 24 Ex. F at 22). While she was on the phone with the 911 operator, Marshall crawled to her, pulled himself up, and took the phone out of her hand, telling the dispatcher, "I don't want no ambulance," and hanging up the phone. (Id.) Marshall fell, and when 911 called his home, he reiterated that he did not want an ambulance and again terminated the call. (Id. at 23). McKowen testified: "I don't know how many times he hung up on 911, I have no idea, but he kept hanging up on them. I would say two or three times, maybe. I know it was at least twice." (Id.) At the end of these calls, Marshall again stated that he did not want an ambulance, and crawled back to his bedroom. (Id. at 24).
A transcript of the testimony of W.T. Supancic, attached as an exhibit to Marshall's Motion for Summary Judgment, shows that in the late afternoon of January 22, 2005, he, Boura, and Pecora were dispatched to Marshall's residence. (Doc. 29 Ex. H. at 5). The 911 dispatcher reported that the call for an ambulance "sounded like a physical domestic between the two parties," and the dispatch was "for a domestic." (Id. at 6). The police were also dispatched by the ambulance service. The service said that the medical unit would not enter Marshall's residence until police arrived and cleared the scene. (Doc. 25 Ex. B at 44). Boura testified at trial that the dispatcher told the officers that they had lost voice contact with the caller, heard screaming in the background and that the phone went dead. (Doc. 24 Ex. B at 43). Officers reported to Marshall's in three separate cars. (Id. at 45). Two ambulances responded to what they were told was a possible domestic violence situation.
When officers drove up the road on which Marshall lived, they observed McKowen waving to them. (Id. at 45-46). She explained that she was concerned for Marshall's safety, stating that he had not hurt her. (Id. at 47). Bora testified that the officers asked McKowen whether Marshall had weapons in his home, and that McKowen responded that he kept weapons in the bedroom. (Id. at 47). W.T. Supanic testified that McKowen told the officers that Marshall kept a gun in his bedroom. (Doc 29 Ex. H at 7). McKowen confirmed the following exchange: "[A]nd they said does he have any weapons, I'm like well, yeah, you know." (Doc. 33 Ex. G. at 162.). She stated that she told the officers that Marshall kept an army knife, a gun in his closet, and a BB gun behind the couch, but that she did so only after Marshall was in police custody. McKowen testified that she had not told police that there were weapons in Marshall's nightstand, or "that there were weapons in the bedroom specifically." (Id.). McKowen had last seen Marshall crawling toward his bedroom. ( Id.).
In his Concise Statement of Facts (Doc. 27) and his deposition testimony (Doc. 33), Marshall sets out his version of what transpired next. W.T. Supanic entered Marshall's bedroom and saw Marshall, who appeared to be intoxicated and unable to stand. Marshall was lying on his left side between his bed with his face to the wall and his head near a nightstand. (Doc. 33 Ex. C at 54). There was no light on in the bedroom. The other officers entered the room and told Marshall "that Ms. McKowen had advised them that he needed an ambulance." (Doc. 27 at ¶44). Marshall "replied that the did not need any fucking ambulance and told them to get out."
(Id. at ¶ 45). The officers told Marshall to get up because they wanted to talk to him. Marshall states that they were "nudging" his feet. (Id. at ¶¶ 18-23, Doc. 33 Ex. C at 55). McKowen stated that she heard Pecora tell Marshall that the officers just wanted to talk to him, and heard Marshall answer, "I'm not doing nothing, I'm just trying to get in bed." (Doc. 27 at ¶ 69). "[I]n a matter of seconds," she says that she heard Pecora saying, "Get him, get him, get him," and "Haven't you had enough yet, you motherfucker." (Id.).
According to an incident report prepared by W.T. Supanic, officers entering Marshall's bedroom were unable to see his hands, and ordered him several times to put them in the air. (Doc 24 Ex C at 3). Marshall lifted his right hand toward the bed, and the officers ordered him to stop. (Id.). W.T. Supanic states that he saw Marshall reach for the handle of the nightstand. (Id. at ¶ 21). Again, the officers told Marshall to stop, and he failed to comply. Marshall disputes that he reached for the nightstand and that he failed to comply with the officers' orders.
Pecora states that he grabbed for Marshall's arms, and Marshall resisted. (Doc. 24 Ex. C at 3). When Marshall tried to get up by placing one hand on the bed, he was tased by Supanic, but one of the probes failed to make contact. Marshall contends that both of the Taser probes deployed, and that it functioned fully. He insists that after he was tased he ceased resisting, but was tased a second time. According to the officers, Marshall was tased again because he continued to resist. According to W.T. Supanic, at the time of the second tasing, the taser had lost conductivity. (Id. at ¶¶ 23-24).
Marshall states that he remembers feeling the impact from the taser barbs twice. The first impact was on the left side of his abdomen, but he was not sure whether both barbs hit him. He believes that the second taser hit him in the front of the abdomen. (Doc. 33 Ex. C at 57). The three officers removed Marshall from his bedroom, and attempted to cuff him in the hallway.
They were unsuccessful because Marshall was kicking at them. (Doc. 24 Ex. C at 3). They then moved the Plaintiff to the living room where Marshall admits that he "started to push and kick," that "officer Supanic was struggling with him," and that "the officers had to use the taser one more time." (Doc. 27 at ¶¶ 27-28). The officers then carried Marshall outside. "Mr. Pecora had him under the shoulders and the other two policemen were carrying him by his legs." ( Doc. 33 Ex. G at 165). According to the officers, when they again tried to cuff Marshall, he resisted, and Boura used the taser "in drive stun mode*fn5 several times to overcome [Marshall's] resistance." (Doc. 24 Ex. C at 3). "The officers then got Mr. Marshall's hands behind his back and handcuffed him." (Doc. 27 at ¶ 29). McKowen stated that "[h]is shirt was wrapped around his neck, his pants were down, his whole bum was hanging out." (Doc. 33 Ex. G at 166). Marshall contends that he was tased again in his upper chest after he was handcuffed. (Doc. 33 Ex. C at 64). He was then taken to an ambulance by two officers who were holding him under his arms. After Marshall was taken from the house, one of them found a twelve inch bayonet knife in the drawer of the nightstand in Marshall's room and an SK Russian rifle in his closet. (Doc. 29 Ex. H at 10).
The officers' account of Marshall's medical evaluation by the ambulance is summarized by W.T. Supanic in the incident report as follows:
On scene, [Marshall] was assessed by the Penn Township Ambulance Association. The Taser probes were removed and [Marshall] did not require any medical treatment. [He] was taken to the rear of the ambulance and placed onto the cot. Paramedic Andres [sic] performed a detailed assessment... and determined [that Marshall] was not in need of emergency treatment. [He] was already handcuffed behind his back and strapped into the cot. (Doc. 24 Ex. C at 3). The ambulance incident report prepared by Michael Andras ("Andras") states that Marshall suffered a superficial injury from a taser electrode that was removed from his abdomen at police request. (Doc. 24 Ex. C at 2). The assessment "reveal[ed intoxication, but no indicators of a medical emergency or trauma." ( Id.). Andras stated that "[p]olice officer refused further treatment via signing of [the] refusal form." (Id.). At his deposition, Andras testified that he recommended to Marshall that he go to the hospital, and that Marshall refused. (Doc. 24 Ex. H at 36). Andras told Boura that Marshall was refusing transport to the hospital. Id. Another member of the ambulance crew, EMT Jonathan Lindsey ("Lindsey"), stated at his deposition that W.T. Supanic signed Marshall's refusal of treatment form "because the patient was in his custody and the patient was denying transport to the hospital." (Id. Ex. I at 14). Lindsey knew that Marshall was denying transport because Lindsey asked Marshall numerous times if he wanted to go, and Marshall responded that he did not. (Id. at 16). Lindsey did not believe that Marshall needed to go to the hospital, stating that if Marshall had needed to go, the ambulance crew would have persuaded him to do so. (Id. at 16). "For [Marshall's] safety, [he] was transported to the Penn Township Police Department for processing" on charges of disorderly conduct and resisting arrest. (Doc. 24 Ex. C at 3). Marshall acknowledges that he could not sign the Refusal of Treatment form because he was intoxicated.
At the Police Department, Marshall appeared to be highly intoxicated. He needed assistance walking, smelled of alcohol, and was glassy eyed. (Id. Ex. B. at 109). W.G. Supanic testified that Marshall was placed in a cell where he sat on a cot as he was told to do. (Id. at 110). The cell was under video surveillance, and an officer was required to visit the cell periodically. (Id.). When Boura checked the monitor, he saw that Marshall was lying on the cell floor. (Id.). Later, W.T. Supanic observed that Marshall had fallen from the cot a second time, and had suffered a laceration above his eye. The ambulance service was called. (Id. at 113-114). Paramedic Andras testified that he cleaned and bandaged Marshall's eye, and that Marshall still appeared to be intoxicated. (Id. Ex. H at 44). W.G. Supanic executed a second patient refusal form, indicating that Marshall did not wish to be taken to the hospital. (Id.).
Marshall was arraigned via video on charges of resisting arrest and disorderly conduct. (Doc. 24 Ex. E at 8). When he could not make bail, he was secured in a police vehicle and transported to the Westmoreland County Jail. "[B]ecause of his intoxication and laceration over his eye the jail nurse wanted Marshall taken to the Westmoreland County Hospital." (Id.). W.G. Supanic transported Marshall to the emergency room where he was cuffed to a gurney and, later, to a bed.
Hospital records show that Marshall had been drinking, had fallen several times, and had been engaged in domestic abuse over the prior three days. He reported that he had been assaulted by police earlier in the evening. Diffuse bruising was noted, as were lacerations on his head and left elbow. He reported that he had fallen in his cell, was dizzy and lightheaded, and had a headache. X-rays of his shoulder, neck, and arm, and CT scans of his pelvis and brain were negative. His head wound was closed with four stitches. For alcohol-related reasons, he was not medically stable, and was admitted to the hospital so that his liver function and alcohol withdrawal could be monitored. (Doc. 24 Ex. C). Marshall was placed under guard until he was able to make ...