The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge
At the Hearing held on July 26, 2010, Plaintiff confirmed that her claims are solely against the City of Philadelphia, as she was unable to serve Clarence Morris with the Complaint. Hr'g Tr. 3. Thus her claims against Mr. Morris for assault and battery, deprivation of her civil rights pursuant to § 1983, violation of the constitution of the Commonwealth of Pennsylvania, and conversion are hereby DISMISSED. See Compl. at 5-8 (Docket No. 1).
In her Complaint, Plaintiff makes claims against Defendants City of Philadelphia and Philadelphia Department of Public Health for deprivation of her civil rights pursuant to § 1983, violation of the constitution of the Commonwealth of Pennsylvania, and conversion, and alleges the City is liable for Clarence Morris's actions under the doctrine of respondeat superior. Id. at 6-8. At the Hearing, Plaintiff clarified that her theory of municipal liability pursuant to respondeat superior applies only to her claim of conversion. Hr'g Tr. 3-4.
Establishing liability for an alleged violation of his or her constitutional rights under Section 1983 requires a Plaintiff to prove that the defendants acted under color of state law and their actions deprived the plaintiff of a right secured by the Constitution. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). To establish municipal liability under Section 1983, a Plaintiff must prove that the municipality has a policy or custom, about which a policymaker is deliberately indifferent, that caused the violation at issue. See Monell v. Department of Social Services, 436 U.S. 658 (1978).
In its Motion for Summary Judgment (Docket No. 29, hereinafter "Def. Mot."), Defendant City of Philadelphia moves for dismissal of all claims against it. Def. Mot. at 9. Defendant first argues that Plaintiff cannot prove a violation of her civil rights under § 1983 because she cannot show that Clarence Morris was acting under the color of state law when he assaulted her. Id. at 12-14. Second, Defendant argues that Plaintiff cannot prove that there was a policy or custom of failing to properly hire or conduct background investigations of health inspectors, id. at 17-18, failing to supervise health inspectors, id. at 18-19, or failing to train and discipline health inspectors. Id. at 19-21. Defendant also argues that Plaintiff cannot prove deliberate indifference on the part of a policymaker and cannot establish that any policies or customs caused a violation of Plaintiff's constitutional rights. Id. at 21-23. Finally, Defendant argues that Plaintiff's claim under the Pennsylvania constitution is not one for which damages may be awarded, and that Plaintiff's conversion claim against the City is barred by the Political Subdivision Tort Claims Act. Id. at 23-25.
In her Response (Docket No. 31, hereinafter "Pl. Resp."), Plaintiff stipulates to the dismissal of her civil rights claims for Failure to Supervise Health Inspectors and Failure to Train or Discipline Health Inspectors, and of her claim for Violation of the Constitution of the Commonwealth of Pennsylvania. Pl. Resp. at 14, 17, 23. These claims are hereby DISMISSED. Plaintiff argues that Clarence Morris was acting under the color of state law because he would not have had access to Plaintiff's restaurant absent the authority granted him as a Health Inspector, access which "predictably led to the stealing and assault." Id. at 3-8. Plaintiff further argues that she has adduced competent evidence that the City had policies or practices of failing to properly hire or conduct background investigations of health inspectors, of failing to supervise human resource associates, and of failing to train or discipline human resource associates. Id. at 11-19. Plaintiff argues she has adduced evidence of deliberate indifference on the part of a policymaker as to these customs or policies, id. at 19-21, and that she has adduced sufficient evidence to demonstrate at least a tenuous causal link between these policies and her harm such that the case should go to a jury. Id. at 21-23. As to her claim of conversion, Plaintiff argues that because the Political Subdivision Tort Claims Act only provides immunity for negligent acts, it does not bar liability for the intentional act of conversion. Id. at 23-25.
In its Reply (Docket No. 34, hereinafter "Def. Reply"), Defendant City argues that Plaintiff cannot satisfy Monell with a single hiring decision of a health inspector, that Plaintiff failed to establish a lack of supervision or training of Human Resource associates caused a constitutional violation, and that Clarence Morris was not acting under the color of law. Def. Reply at 1-5.
Summary "judgment should be rendered 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)(1)(C)(2). "An issue is 'genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party" and "a factual dispute is 'material' if it might affect the outcome of the case under governing law." Lieberman v. Marino, 2008 WL 4216150, at *2 (E.D. Pa. Sept. 15, 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment is appropriate if, after the parties have identified those parts of the record that demonstrate the presence of absence of a genuine issue of material fact, the non-moving party fails to identify facts "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
First, Defendant City asserts summary judgment should be granted because Clarence Morris did not act under the color of state law such that Plaintiff cannot validly assert a violation of her civil rights under § 1983. See Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982) (stating "there is no liability under § 1983 for those not acting under color of law."). While "[i]t is uncontested that Defendant Morris entered the Erie Express Restaurant on July 18, 2007, and used his health inspector's identification to gain access to the kitchen," Def. Mot. at 14, the parties dispute whether an individual who uses official credentials to access a space and then commits theft in that space and an assault upon leaving is "acting under the color of state law."
Defendant argues that Clarence Morris, in attacking Plaintiff after having accessed the restaurant kitchen with his authority as a health inspector, pursued purely private motives and his theft from and assault of Plaintiff were unconnected with his execution of official duties such that he did not act under the color of state law. Def. Mot. at 12-14 (citing Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) (determining that while a volunteer fire company was a state actor, a member of that company did not act "under color of state law" when he secretly set a fire that the company then put out)). Plaintiff responds that the fact of Clarence Morris's use of his authority to enter the premises is sufficient to consider him acting under the color of state law, Pl. Resp. at 3-8, notably that his wrongdoing was only made possible because he was clothed in the authority of the state, and that at the time in question he purported to act in an official capacity or to exercise official responsibilities pursuant to state law. Id. (citing West v. Atkins, 487 U.S. 42, 49-50 (1988)). Defendant argues that "there is no evidence that Morris' position furthered his ability to commit assault" and that "it was clear to both parties that he wasn't acting pursuant to his position as a City employee." Def. Reply at 4-5.
Liability under Section 1983 "attaches only to those wrongdoers 'who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.'" National Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988) (finding that the NCAA did not act under the color of state law when it threatened UNLV with sanctions should it not discipline its basketball coach, as the actions taken as to that coach were all those of UNLV and not of the NCAA). "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of state law.'" Id. (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). However, "not all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law." Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997). "[T]he essence of section 1983's color of law requirement is that the alleged offender, in committing the act complained of, abused a power or position granted by the state." Id. In Bonenberger, the Third Circuit noted that if a state entity places an official in a position from which that official can issue orders to an individual who had to obey the orders or face potential formal reprisal -- in the case of Bonenberger, insubordination -- that official acts under the color of state law. Id. at 24-25.
Here, it is undisputed that Clarence Morris used his authority as a health inspector to have the employees of Erie Express Restaurant leave the kitchen so that he could examine the premises. Having used his authority in his manner, Morris then stole $1,200 from the restaurant's kitchen and assaulted Plaintiff while escaping with the stolen money. Clarence Morris could not have committed his apparent "personal goal" of stealing the money absent his assertion of state authority, and thus he acted under the color of state law when committing the theft in the restaurant. See Bonenberger, 132 F.3d at 24-25.
It is substantially less clear that authority granted Clarence Morris by the state facilitated his commission of assault. Under the facts presented by the parties, Morris had the stolen cash visible in his pocket and this prompted Plaintiff to try and get the money back. Def. Stat. Uncontested Facts, ¶ 1.6. Were the money not visible, it is possible that Plaintiff would not have sought to stop Morris, and thus the altercation might not have ensued. As such, it is unclear from the facts alleged by the parties whether Clarence Morris appeared to be asserting state authority at the time he assaulted Plaintiff. Thus, a jury would have to decide whether Morris was acting in his personal or official capacity when he assaulted Plaintiff. See Errico v. Township of Howell, 2008 WL 2559355, at *3-4 (D.N.J. June 26, 2008). However, as discussed below, Plaintiff's theories of liability as to customs of improper hiring, of failing to supervise, and of failing to train cannot survive summary judgment, rendering moot the issue of whether Morris was a state actor.
Defendant City's second argument is that summary judgment should be granted because even if Plaintiff could establish that Clarence Morris acted pursuant to state authority, she has not adduced competent evidence to establish the elements of municipal liability as outlined in Monell and its progeny. As previously mentioned, to establish liability on the part of a municipality for constitutional harms, Plaintiff must prove that the municipality has a policy or custom, either promulgated by a department or about which a policymaker is deliberately indifferent, that caused the violation at issue. See Monell v. Department of Social Services, 436 U.S. 658 (1978). Defendant City argues that Plaintiff has not adduced competent evidence of a City policy or custom of failing to train, supervise, discipline, or properly hire/conduct background investigations of health inspectors. Def. Mot. at 15-21. Defendant further argues that Plaintiff has not adduced competent evidence of deliberate ...