The opinion of the court was delivered by: Carol Sandra Moore Wells United States Magistrate Judge
Plaintiffs Joyce Cianfrani and Lisa Russell have sued the Borough of Clifton Heights and Sergeant Stephen Brown, of the Clifton Heights Police Department, under 42 U.S.C. § 1983 as a result of the events surrounding Sgt. Brown's alleged seizure of Plaintiffs on January 13, 2007. Defendant Clifton Heights has sought summary judgment on the ground that Plaintiffs have not identified a municipal policy or custom that would expose it to § 1983 liability under Monell v. Dep't of Soc. Services, 436 U.S. 658 (1978). Defendant Brown has also moved for summary judgment asserting that: (1) Russell's substantive due process claim, duplicative of her excessive force claim, should be dismissed; (2) Russell cannot pursue a bystander liability claim against him; (3) Cianfrani's claim of excessive force is devoid of evidentiary support; and, alternatively, (4) qualified immunity defeats Cianfrani's excesive force claim.
Plaintiffs allege that, on January 13, 2007, Russell was driving her car in Clifton Heights with Cianfrani as her passenger. Complaint at ¶¶ 6-10.*fn1 They were pulled over by Sgt. Brown and another police officer. Id. at ¶¶ 11-12. Sgt. Brown handcuffed Russell's hands behind her back, with her handbag still on her wrists; Sgt. Brown or the other officer*fn2 handcuffed Cianfrani in the same fashion. Id. at ¶¶ 15, 19. Plaintiffs allege that they remained handcuffed for over four hours, causing nerve damage to the hands. Id. at ¶¶ 15, 17, 19-20.
Plaintiffs were transported to the Clifton Heights Police Station; Cianfrani was placed handcuffed on a bench; Russell was placed handcuffed in a holding cell. Id. at ¶ 21. Russell was then told that she had been arrested, because her former boyfriend, Richard Carney, had accused her of breaking into his apartment and assaulting him. Id. at ¶ 22. While Russell was in the holding cell, Sgt. Brown, amidst Russell's protests, unzipped her jacket and began rubbing his hands over her breasts and between her legs. Id. at ¶ 24. Several hours later, Carney came to the police station and retracted his prior statement and complaint against Russell. Id. at ¶ 26. Nevertheless, Sgt. Brown and another police officer continued to detain Plaintiffs, stating that they would be held until they both signed confessions. Id. at ¶ 27. As a result of this coercion, Russell eventually signed a confession and, after more than four hours in police custody, Plaintiffs were released. Id. at ¶ 28.
In Count I of the Complaint, Plaintiffs allege that Sgt. Brown caused their false arrest and imprisonment. Complaint at ¶ 35. Count II alleges that Sgt. Brown subjected them to excessive force in violation of the Fourth Amendment. Id. at ¶ 39. Russell alleges in Count III that Sgt. Brown violated her right to due process when he inappropriately touched her breasts and between her legs. Id. at ¶ 45. In Count IV, Plaintiffs allege that Sgt. Brown failed to intervene to protect Plaintiffs from constitutional violations by his fellow police officer. Id. at ¶¶ 50-52. In Count V, Plaintiffs allege that Clifton Heights is liable to them based on a policy, practice or custom of condoning the illegal and unconstitutional arrests of citizens as well as the use of excessive force by its police department. Id. at ¶¶ 54-58.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate 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)(2). An issue of fact is genuine only if there is sufficient evidence that would permit a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue of fact is material only if it might affect the outcome of the suit under the governing law. Id. at 248. Credibility determinations are not appropriately made by the judge in summary judgment but must be left for the jury. Id. at 255.
The movant may support his motion with affidavits, depositions, and answers to interrogatories. Fed. R. Civ. P. 56(e)(1). Once he has done so, the non-movant "may not rely merely on allegations or denials of [her] own pleading; rather [her] response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). If the non-movant "does not so respond, summary judgment should, if appropriate, be entered against [the non-movant]." Id.
The burden to demonstrate the absence of a genuine issue of material fact remains with the movant, regardless of which party has the burden of persuasion at trial. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. denied, 483 U.S. 1052 (1987). If, however, the non-movant has the burden of proof on an element essential to its case at trial, and does not, after adequate time for discovery, make a showing sufficient to establish the existence of that element, summary judgment is mandated. See Celotex, 477 U.S. at 322. In such a situation, there can be no genuine issue as to any material fact, because a complete failure of proof concerning an essential element of the non-movant's case necessarily renders all other facts immaterial. See id. Consequently, the party moving for summary judgment is entitled to judgment as a matter of law.
Clifton Heights argues that Plaintiffs have failed to identify any municipal policy or custom that caused any alleged constitutional violation. Memorandum of Law in Support of Defendant's Motion for Partial Summary Judgment ("Def.'s Mem.") at 6. A municipality cannot be responsible for damages under 42 U.S.C. § 1983 on a vicarious liability theory, Monell v. Dept. of Soc. Services, 436 U.S. 658, 691-92 (1978), and "can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385 (1989) (emphasis as in original). A plaintiff must identify a municipal policy or custom that amounts to deliberate indifference to the rights of people with whom the police come into contact. Canton, 489 U.S. at 388. This typically requires proof of a pattern of underlying constitutional violations. Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (per curiam). Proving deliberate indifference in the absence of such a pattern is an extremely difficult task. Id. Policy is established by showing that a "'decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issued an official statement of policy." Jimenez v. All American Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). Municipal "custom" exists, when, although not authorized by law, the "'practices of state officials [are] so permanent and well settled' that they operate as law." Id. (quoting Monell, 436 U.S. at 690).
Plaintiffs' municipal liability claims can be divided into two categories here: (1) the failure to properly train its police officers on the proper procedures for searching female detainees; and (2) the failure to adequately investigate and discipline claims of misconduct lodged against police officers that involve searches of women. Plaintiffs' Memorandum of Law in Support ...