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Zion v. Nassan

July 23, 2010

DIANE ZION INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF NICHOLAS HANIOTAKIS. TAYLOR HANIOTAKIS, NIKKI HANIOTAKIS, BENJAMIN HANIOTAKIS, PLAINTIFFS,
v.
TROOPER SAMUEL NASSAN, SGT. TERRENCE DONNELLY, LT. DAVID HECKMAN, CAPT. SHELDON EPTEIN, COMMISSIONER FRANK PAWLOWSKI, MAJOR TERRY SEILHAMER INTHEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge

MEMORANDUM OPINION AND ORDER

Background

Pending before this court are several motions, including several motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) and a motion for sanctions filed pursuant to Federal Rule of Civil Procedure 11. On December 29, 2009, defendant Trooper Samuel Nassan (―Nassan‖) filed a motion for sanctions. (Docket No. 63.) On January 26, 2010, three motions to dismiss were filed: (1) motion to dismiss amended complaint filed by Nassan (Docket No. 71), (2) motion to dismiss amended complaint filed by defendant Sergeant Terence Donnelly (―Donnelly‖) (Docket No. 70), and (3) motion to dismiss filed by defendants Commissioner Frank Pawlowski (―Pawlowski‖), Major Terry Seilhamer (―Seilhamer‖), Captain Sheldon Epstein (―Epstein‖), and Lieutenant David Heckman (―Heckman‖) (collectively ―supervisory defendants,‖ and together with Nassan and Donnelly, ―defendants‖) (Docket No. 73). All three pending motions to dismiss relate to the amended complaint filed by plaintiffs Diane Zion (―Zion‖), Taylor Haniotakis, Nikki Haniotakis, and Benjamin Haniotakis (collectively ―plaintiffs‖). (Docket No. 54.)

On April 1, 2009, plaintiffs filed the initial complaint. (Docket No. 1.) On August 26, 2009, Nassan filed a motion to dismiss the initial complaint. (Docket No. 19.) That same day, defendants Heckman, Epstein, Pawlowski, and Seilhamer filed a motion to dismiss the initial complaint. (Docket No. 21.) On November 19, 2009, this court held a hearing on the two motions to dismiss. At the hearing, the court also addressed a motion to strike scandalous pleadings filed on September 1, 2009 by plaintiffs. (Docket No. 23.) On the record, the court denied the motion to strike and granted the motions to dismiss the complaint without prejudice. On December 3, 2009, plaintiffs filed the amended complaint, and the pending motion for sanctions and the motions to dismiss followed.

Allegations in the Amended Complaint*fn1

Plaintiffs' claims arise from the death of Nicholas Haniotakis. Zion is the appointed personal representative of the estate of Nicholas Haniotakis. (Am. Compl. (Docket No. 54) ¶ 2.) Taylor Haniotakis, Nikki Haniotakis, and Benjamin Haniotakis are the children of Nicholas Haniotakis. (Id. ¶ 3.) Zion filed the lawsuit in both her individual capacity and her representative capacity on behalf of the estate of Nicholas Haniotakis. (Id. ¶ 2.)

Nassan was a Pennsylvania State Police patrol trooper, stationed out of Troop B in Fayette County, Pennsylvania. (Id. ¶ 4.) Donnelly was an officer employed by the Pittsburgh Police Department. (Id. ¶ 5.) Pawlowski was the Pennsylvania State Police Commissioner. (Id. ¶ 6.) As commissioner, Pawlowski exercised administrative command over the Pennsylvania State Police. (Id.) This command included fiscal authority and responsibility, as well responsibilities related to employee misconduct and discipline. (Id.) Seilhamer was the Area Commander responsible for supervising Troop B, among other troops. (Id. ¶ 7.) Epstein was the commanding officer of Troop B. (Id. ¶ 8.) Heckman was the station commander and direct supervisor of Nassan. (Id. ¶ 9.)

On the night of March 15, 2009, Nassan and Donnelly were working together, patrolling in a police vehicle. (Id. ¶ 5.) They followed a vehicle because it had a broken headlight. (Id. ¶ 10.) This vehicle was driven by Nicholas Haniotakis, although Nassan and Donnelly did not know the identity of the driver or the driver's condition, state of mind, or intentions. (Id. ¶¶ 10, 12.) Nassan and Donnelly were instructed by dispatch to stop their pursuit of the vehicle, but, despite the instructions, the two continued to follow the vehicle. (Id. ¶ 14.) Nicholas Haniotakis stopped the vehicle, and Nassan and Donnelly exited the police vehicle with firearms drawn. (Id. ¶ 15.) Nassan and Donnelly approached the vehicle and opened fire. (Id.) Nicholas Haniotakis was facing away from Nassan and Donnelly when the two fired. (Id. ¶ 19.) Bullets hit Nicholas Haniotakis in the extremities and back, which ultimately caused his death. (Id. ¶¶ 20, 21.)

Nicholas Haniotakis did not possess a weapon, and he did not pose a threat to anyone in the area. (Id. ¶¶ 16, 17.) Police officers are taught to use a police vehicle as a barrier if necessary for protection, and are also taught to maintain distance when pursuing individuals. (Id. ¶ 17.) Nassan and Donnelly could have used the police vehicle as a barrier, but did not do so. (Id. ¶ 18.)

Nassan had a history of violent propensities, including physical altercations with officers while he was in the military. (Id. ¶ 22.) Heckman, Pawlowski, Epstein, and Seilhamer were aware of this history. (Id. ¶ 42.) In one such incident, Nassan caused facial fractures and head injuries to a military officer. (Id.) Nassan left the military without an honorable discharge. (Id. ¶ 23.) Nassan became employed by the Pennsylvania State Police after leaving the military. (Id.) The Pennsylvania State Police had Trooper Frank Murphy, who shared a close personal relationship with Nassan, perform Nassan's background check. (Id.) Murphy had a history of a violence and perjury, and intentionally covered up several aspects of Nassan's history. (Id. ¶¶ 23, 24.)

During his employment as a state trooper, Nassan was involved in confrontations with both state and local law enforcement officers, including Barry Gaston of the Pennsylvania State Police and Corporal Tony Guy. (Id. ¶¶ 25, 33.) Nassan was not disciplined for these altercations, and his supervisors, including Pawlowski, Seilhamer, Epstein, and Heckman, were aware of the incidents. (Id. ¶¶ 26-30, 33.) Nassan also had confrontations with members of public. (Id. ¶ 32.)

In February 2008, a civil jury found Nassan liable for violating the civil rights of Michael Ellerbe (―Ellerbe‖), a twelve-year-old boy, and returned a $28,000,000 verdict against Nassan and his co-defendant. (Id. ¶¶ 34, 37.) The verdict was based upon the fatal shooting of Ellerbe by Nassan. (Id.) The boy was unarmed and running away when he was shot. (Id. ¶ 36.) Pawlowski interacted with the office of the governor of Pennsylvania with respect to the jury verdict and facilitated a settlement of the case. (Id. ¶¶ 6, 38.) Heckman was the crime unit commander responsible for investigating the shooting on behalf of the Pennsylvania State Police. (Id. ¶¶ 9, 41.)

Pawlowski, Seilhamer, Epstein, and Heckman knew who Nassan was before the jury returned its verdict in the case related to Ellerbe. (Id. ¶ 54.) After the verdict, Pawlowski, Seilhamer, Epstein, and Heckman learned through ―lines of communication standard in the state police‖ that the jury determined Nassan lied about the circumstances of the shooting. (Id.) Around the time of the verdict, Pawlowski, Seilhamer, Epstein and Heckman each learned the significant points about Nassan's past. (Id. ¶ 55.) For example, plaintiffs allege Pawlowski, Seilhamer, Epstein, and Heckman learned that Nassan was asked to leave the military because Nassan failed to meet certain standards, and they learned that the military rejected Nassan's request to remain in the service of the military despite these failures. (Id.)

In December 2008, Heckman forced a subordinate, Corporal Ken Munshower (―Munshower‖), to alter the employment records of Nassan, purging evidence of violent tendencies. (Id. ¶ 39.) With respect to an annual performance evaluation for Nassan, Heckman ordered Munshower to change a statement from ―needed improvement‖ to ―satisfactory.‖ (Id. ¶ 40.)

Pawlowski, Seilhamer, Epstein, and Heckman received specific information and reports with respect to Nassan's propensity for violence, misconduct while on duty, record of physical confrontations with other state and local police officers and supervisors, and fatal shooting of Ellerbe. (Id. ¶¶ 6-9, 26-29.) Although Heckman, Pawlowski, Epstein, and Seilhamer were aware of violent episodes in Nassan's past, they did not order training to address these problems. (Id. ¶ 42.) Heckman, Pawlowski, Epstein, and Seilhamer decided to continue Nassan's employment, despite their being aware of Nassan's history. (Id. ¶ 43.)

Plaintiffs assert three counts in the amended complaint. Count one asserts a claim pursuant to 42 U.S.C. § 1983, alleging that Nassan or Donnelly used excessive deadly force on Nicholas Haniotakis, in violation of his Fourth Amendment rights. (Id. ¶¶ 45-51.) Count two asserts a claim pursuant to § 1983, alleging that Pawlowski, Seilhamer, Epstein, and Heckman violated Nicholas Haniotakis's civil rights by acting with deliberate indifference to, or tacit authorization of, Nassan's illegal conduct. (Id. ¶¶ 52-59.) Count three asserts a state law claim of assault and battery against Nassan. (Id. ¶¶ 60-62.) The court will first discuss the motions to dismiss and then will consider the motion for sanctions.

I. Motions to Dismiss

The motions to dismiss filed by Nassan and Donnelly challenge the factual allegations in the amended complaint, arguing that they are insufficient to establish a § 1983 claim of excessive force. Nassan and Donnelly argue that they are entitled to qualified immunity.*fn2

The motion to dismiss filed by supervisory defendants also challenges the factual allegations. Supervisory defendants argue that plaintiffs failed to plead sufficient facts to establish their personal involvement in the violations of the constitutional rights of Nicholas Haniotakis.

A. Standard of Review with respect to Motions to Dismiss

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) (―Rule 12(b)(6)‖) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A ―formulaic recitation of the elements of a cause of action will not do.‖ Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). ―Factual allegations must be enough to raise a right to relief above the speculative level‖ and ―sufficient to state a claim for relief that is plausible on its face.‖ Id. ―A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.‖ Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a ―probability requirement,‖ but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are ―merely consistent with‖ a defendant's liability, it ―stops short of the line between possibility and plausibility of ‗entitlement to relief.'‖

Id. at 1949 (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

Two working principles underlie Twombly. Id. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. ―Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.‖ Id. (citing Twombly, 550 U.S. at 555.) Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 1950. ―Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.‖ Id. (citing Iqbal v . Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). ―But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not ‗show[n] -- that the pleader is entitled to relief.‖' Id. (quoting FED. R. CIV. P. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions.

While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id.

B. Discussion with Respect to Motions to Dismiss

1. Facts to Consider in Analyzing the Motions to Dismiss

a. Factual Allegations Versus Legal Elements and Conclusions

In ruling upon a motion to dismiss, a court must accept as true all well-pled factual allegations in the complaint. Iqbal, 129 S.Ct. at 1950. The court does not, however, have to accept the truth of ―legal conclusions couched as factual allegations‖ or ―‗[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'‖ Donnelly v. O'Malley & Langan, PC, No. 09-3910, 2010 WL 925869, at *2 (3d Cir. Mar. 16, 2010) (quoting Iqbal, 129 S.Ct. at 1949); see Mays v. Truppo, No. 09-4772, 2010 WL 715362, at **2-3 (D.N.J. Feb. 22, 2010) (noting that the first ―working principle‖ set forth in Iqbal is that ―the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions‖).

In Iqbal, the Supreme Court analyzed the allegations of the complaint to determine whether any were not entitled to an assumption of truth. The Supreme Court held that the allegation that the defendant ―knew of, condoned, and willfully and maliciously agreed to subject [the plaintiff]‖ to harsh conditions of confinement ―as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest‖ was ―conclusory and not entitled to be assumed true.‖ Iqbal, 129 S.Ct. at 1951.

This court finds that all conclusions in the complaint that Nicholas Haniotakis was not a ―threat of harm‖ to the police officers are not entitled to be accepted by this court, because there are insufficient factual allegations to support the conclusion. In Pace v. Capobianco, 283 F.3d 1275, 1279-80 (11th Cir. 2002), the plaintiff's son was fatally shot by police officers moments after a high-speed automobile chase. Id. at 1276-78. The plaintiff sued, claiming that the use of deadly force violated her son's Fourth Amendment rights. The defendants moved for summary judgment. Id. at 1281. In response, the plaintiff argued that a statement in an affidavit of a witness, which provided ―[a]t no time did the [plaintiff's] car appear to be a threat to any officer on the scene,‖ created a an issue of material fact whether the plaintiff posed an immediate threat of serious physical harm to the defendants at the time the defendants shot the plaintiff. Id. at 1279-80. The district court agreed with plaintiff, but the Court of Appeals for the Eleventh Circuit held that this statement was not entitled to the court's acceptance, stating that the ―conclusory opinion is inadequate to create an issue of fact about the objective danger . . . .‖ Id. at 1281. The court of appeals noted the statement was not supported by sufficient facts to be worthy of credence. Id. at 1280-81.

Although Pace was decided upon a motion for summary judgment, the court believes the same principles would apply given that the statement in Pace was virtually identical to the allegations presented in the amended complaint here. Without sufficient factual allegations to support such conclusions in plaintiffs' amended complaint, the court cannot accept the conclusions for purposes of analyzing the pending motions to dismiss.

To the extent that supervisory defendants contend that a number of factual allegations in the amended complaint should be re-characterized as legal conclusions not worthy of credence under Iqbal, the court will address those contentions when discussing supervisory defendants' motion to dismiss.

b. Matters of Public Record

In ruling upon a motion to dismiss, a district court generally is ―not permitted to go beyond the facts alleged in the [c]omplaint.‖ In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1424-25 (3d Cir. 1997). Despite the general rule that a district court is limited to the four corners of a complaint in analyzing a motion to dismiss filed pursuant Rule 12(b)(6), a district court may look beyond the complaint and address the motion as one requesting summary judgment. A district court has ―discretion to address evidence outside the complaint when ruling on a motion to dismiss.‖ Pryor v. NCAA, 288 F.3d 548, 559 (3d Cir. 2006). ―The court is not permitted to look at matters outside the record; if such matters are considered, the [Federal Rule of Civil Procedure] 12(b)(6) motion to dismiss is, by the express terms of [Federal Rule of Civil Procedure] 12(b), converted into a motion for summary judgment.‖ Id. at 560. Certain limited types of evidence, however, may be considered by a district court upon a Rule 12(b)(6) motion to dismiss without converting the motion to dismiss into a motion for summary judgment. The court may take judicial notice of matters of public record without effecting such a conversion. Anspach ex rel. Anspach v. City of Phila., 503 F.3d 256, 273 n.11 (3d Cir. 2007). Matters of public record that the court may take judicial notice of are those facts ―capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.‖ FED. R. EVID. 201(b)(2); see Oran v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000).

Nassan attached seven exhibits to his motion to dismiss the original complaint. (See Docket No. 20, Exs. A-G.) These exhibits are alleged to be matters of public record. (See Mot. to Dismiss Hr'g Tr. (Docket No. 82) 27-30, Nov. 19, 2009.) Among these exhibits are a criminal complaint filed in 2005 against Nicholas Haniotakis in an unrelated case. (Docket No. 20, Ex. D). That complaint concerned the alleged use by Nicholas Haniotakis of a vehicle to assault a police officer. (Id.) An autopsy report and other records from the Allegheny County Office of the Medical Examiner related to the death of Nicholas Haniotakis (id., Ex. E), and petitions for protection from abuse (id., Exs. F, G) were also attached as exhibits.

From the public records attached to Nassan's motion to dismiss the original complaint, defendants wish the court to infer the aggressive or reckless use of the automobile by Nicholas Haniotakis immediately prior to the shooting. (See Mot. to Dismiss Hr'g Tr. 27-54.) Based upon this inference, defendants argue that the court should apply Fourth Amendment jurisprudence specific to situations involving reckless driving. (Id.)

The court cannot draw the suggested inference in this case. The only records that directly or indirectly concern the actions of Nicholas Haniotakis on the night of his death are the Allegheny County Office of the Medical Examiner records. (Docket No. 20, Ex. E.) These records include the results of forensic tests which indicate Nicholas Haniotakis had alcohol and other drugs in his system on the night of the incident.*fn3 (Id.) Such evidence, however, does not establish as a matter of law that Nicholas Haniotakis was operating his vehicle in an aggressive or reckless manner at the time of his death. Based upon the factual allegations of the amended complaint, Nicholas Haniotakis could not have been operating his vehicle in a reckless manner during the moments preceding his death; rather, after the chase, his vehicle was stopped. See Boring v. Google, Inc., No. 09-2350, 2010 WL 318281, at *2 (3d Cir. Jan. 28, 2010) (noting that, although Iqbal provides that legal conclusions do not have to be accepted as true, the court ―must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant‖ (emphasis added)). The complaint contains allegations that the shooting occurred after the vehicular chase ended and after the area was or could have been secured from danger. The probative value of the Medical Examiner's toxicology reports, therefore, is questionable at this stage.*fn4

2. Count I

a. Failure to State a Claim That Nicholas Haniotakis's Fourth Amendment Rights were Violated

In count one, plaintiffs assert a claim pursuant to § 1983 against Nassan and Donnelly, alleging that they used excessive deadly force on Nicholas Haniotakis in violation of the Fourth Amendment. (Am. Compl. ¶¶ 45-51.) Section 1983 provides a remedy against any person who, under the color of state law, deprives another of his or her constitutional rights. A prima facie case under § 1983 requires a plaintiff to demonstrate that a person deprived him or her of a federal right and that the person who deprived him or her of that right acted under color of state or territorial law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The parties did not make any arguments with respect to whether defendants acted under color of state law; rather, Nassan and Donnelly moved to dismiss count one of the ...


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