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Dominique Gallashaw v. City of Philadelphia


March 9, 2011


The opinion of the court was delivered by: Anita B. Brody, J.



Plaintiff Dominique Gallashaw ("Plaintiff" or "Gallashaw") brings suit against Defendant City of Philadelphia ("Defendant" or "City of Philadelphia" or "City") under 42 U.S.C. § 1983 and state law.*fn1 Jurisdiction is proper pursuant to 28 U.S.C. §§ 1331 and 1367. Defendant has filed a Motion for Summary Judgment. For the reasons set forth below, I will grant that Motion.


A.Alleged Facts*fn2

Plaintiff Gallashaw is a Philadelphia resident. On September 8, 2007, at approximately 7:30 pm, she was waiting for a bus at 11th and Diamond Streets in Philadelphia when she encountered Police Officer James A. Miles ("Miles").

Plaintiff alleges that Miles slammed her on the ground, kicked her, hand-cuffed her, and arrested her without probable cause. Plaintiff also claims that Miles verbally assaulted her, and that she was subsequently unlawfully imprisoned and detained.

B.Procedural History

On September 4, 2009, Plaintiff filed a complaint against Miles and the City of Philadelphia. On September 24, 2009, Plaintiff effected service on both Defendants. On October 15, 2009, the City of Philadelphia answered the complaint. Miles never answered the complaint. On November 25, 2009, the Court notified counsel for the Plaintiff that failure to request default as to Miles by December 11, 2009 could result in dismissal for lack of prosecution. Plaintiff did not request default, and on January 27, 2010, the Court dismissed the case against Miles for lack of prosecution.

On May 12, 2010, Plaintiff and the City of Philadelphia attended a Rule 16 conference. On May 24, 2010, the Court issued a Scheduling Order, pursuant to which discovery was to be completed by August 13, 2010. Dispositive motions were due August 27, 2010.

On August 26, 2010, Defendant City of Philadelphia moved for summary judgment.

Plaintiff responded on September 13, 2010, and Defendant replied on September 14, 2010.

III.Legal Standard

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Kornegay v. Cottingham, 120 F.3d 392, 395 (3d Cir. 1997). A fact is "material" if the dispute "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" if the evidence would permit a reasonable jury to return a verdict for the non-moving party. Id.

The party moving for summary judgment bears the initial burden of demonstrating that there are no material facts supporting the nonmoving party‟s legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party cannot rely upon "bare assertions, conclusory allegations or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence, through affidavits, depositions, or admissions on file, to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324.

The threshold inquiry at the summary judgment stage involves determining whether there is the need for a trial, that is, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.


I will grant summary judgment in favor of Defendant on Plaintiff‟s § 1983 claims as well as on Plaintiff‟s state law claims.

A.42 U.S.C § 1983

Plaintiff has brought suit under § 1983, alleging that, pursuant to the customs, policies, and practices of the City of Philadelphia, and acting within the scope of his employment and under color of state law, Miles violated her constitutional rights. Defendant has moved for summary judgment on Plaintiff‟s § 1983 claims on the grounds that there can be no respondeat superior liability for the City of Philadelphia, and that Plaintiff cannot establish that the City had a policy or custom that caused constitutional injury.

1.No Respondeat Superior Liability

Defendant is correct that there can be no respondeat superior liability for a municipality, stemming from the actions of its employees. In Monell v. Department of Social Services, 436 U.S. 658, 691 (1978), the Supreme Court stated definitively that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." In this case therefore, even if Miles deprived Plaintiff of her constitutional rights, the City of Philadelphia is not liable under § 1983 simply as Miles‟s employer.

2.No Policy or Custom

Monell also held, however, that municipalities can be liable under § 1983 when "action pursuant to official municipal policy of some nature cause[s] a constitutional tort." Id.*fn3 On this point, Defendants have argued more specifically that there is no evidence in the record that would allow Plaintiff to meet her burden of proof and demonstrate a policy or custom. Plaintiff has suggested in response that Defendant has some affirmative obligation to disprove her case, and has also implied that Miles‟s behavior alone may be indicative of the requisite policy or custom.

1.Plaintiff's, Not Defendant's, Failure To Meet the Burden of Proof

Plaintiff cannot require Defendant to disprove her claims. Plaintiffs have the burden of proof when alleging municipal liability under Monell. See Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). According to the case law on summary judgment, when the nonmoving party has the burden of proof, the moving party is not required "to produce evidence showing the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (emphasis added). Rather, "the burden on the moving party may be discharged by "showing‟-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party‟s case." Id. (emphasis added).*fn4 Once the moving party has pointed out a true absence of evidence, the nonmoving party who bears the burden of proof must "go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file,‟ designate "specific facts showing that there is a genuine issue for trial.‟" Id. at 324.*fn5

Thus, Defendant was entitled to move without supporting affidavits or the like, and may properly simply point out an absence of evidence on the part of the Plaintiff. In accordance with summary judgment procedure therefore, Defendant states that Plaintiff has failed to conduct discovery on the issue of municipal liability, and has not deposed any City official regarding municipal liability. Mot. 6.*fn6 Defendant also notes that Plaintiff has not produced any evidence tending to show a causal link between a City policy and her injuries. Id.*fn7

In response, Plaintiff has failed to go beyond the pleadings to demonstrate that there is a genuine issue for trial. Plaintiff relies solely on allegations in her complaint, and neglects to produce affidavits or references to other discovery materials to refute Defendant‟s assertions and survive summary judgment. There is simply no evidence furnished to support Plaintiff‟s case.

For this reason alone, I can grant Defendant‟s Motion for Summary Judgment on Plaintiff‟s § 1983 claims.*fn8

2.Other Legal Insufficiencies of Plaintiff's Claims

Even if Plaintiff could rely on her complaint at this stage of the litigation, or even if Plaintiff had substantiated her complaint with evidence, her legal arguments fail as a matter of law.

To the extent that Plaintiff is alleging general Monell liability, her claim that a policy or custom causing constitutional rights violations can be inferred from a single incident falls short. Traditional Monell liability arises when a city‟s official policy or custom proximately causes a constitutional deprivation. Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989).*fn9 Thus "[a] plaintiff must identify the challenged policy, attribute it to the city itself, and show a causal link between the execution of the policy and the injury suffered." Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).*fn10

In City of Oklahoma City v. Tuttle, 471 U.S. 808, 821 (1985) (plurality opinion), the Supreme Court struck down a jury instruction that had "allowed the jury to impose liability on the basis of . . . a single incident." The Court found problematic that "the instructions allowed the jury to infer a thoroughly nebulous "policy‟ of "inadequate training‟ on the part of the municipal corporation from the single incident . . . , and at the same time sanctioned the inference that the "policy‟ was the cause of the incident." Id. at 823. The Third Circuit has similarly stated that "[a] single incident by a lower level employee acting under color of law . . . does not suffice to establish either an official policy or a custom." Fletcher, 867 F.2d at 793.*fn11 Indeed, Plaintiff herself references several cases requiring proof of "persistent," "widespread," or "repeated" constitutional violations before an inference of policy or custom is appropriate. Resp. 5-6.

Yet in her Response, Plaintiff attempts to do what the case law forbids, namely imply both policy and causation from a single episode. Plaintiff barely describes the incident in question, and certainly does not provide evidentiary support as to its truth. Then, after noting that Defendant failed to produce any affidavit or other document indicating that the police have a policy or procedure for detaining individuals, Plaintiff claims that it "may be reasonably inferred that Defendant City of Philadelphia failed to provide any appropriate manual and/or guideline for conduct in a matter such as that which occurred on September 8, 2007," and that "[s]uch failure was a proximate cause to the injuries sustained by Dominique Gallashaw." Id. at 4-5. She provides no additional details or evidence as to any policy, or its causal link to her injury. Thus Plaintiff would ask the jury to infer both policy and causation from a single incident that is not clearly described or substantiated. Both Supreme Court and Third Circuit precedent compel the conclusion that Plaintiff‟s § 1983 claims fail as a matter of law on summary judgment.

To the extent that Plaintiff is alleging Monell liability due to failure to train more specifically, her case is even weaker.Failure to train can constitute a policy or custom giving rise to municipal liability under Monell as well, but a plaintiff alleging failure to train must show the added element of deliberate indifference to constitutional rights on the part of the municipality. City of Canton v. Harris, 489 U.S. 378, 392 (1989). In this case, Plaintiff has not demonstrated a failure to train, and there is no evidence of the requisite deliberate indifference.*fn12 Thus, not only do Plaintiff‟s general Monell allegations fail, but so too do any failure to train claims.*fn13

B.State Law Claims

Plaintiff has also brought state law claims of false arrest, false imprisonment, and infliction of emotional distress.*fn14 Defendant argues in its Motion for Summary Judgment that these claims are barred by the Pennsylvania Political Subdivision Tort Claims Act (PSTCA). In her Response, Plaintiff does not directly engage with these arguments, and rather implies that there might be a "special relationship" exception to the PSTCA in this instance.

Defendant is correct that, as a general matter, claims of false arrest, false imprisonment, and intentional infliction of emotional distress are not actionable against the City of Philadelphia. According to the PSTCA, a municipality is not liable for any injury caused by itself or one of its employees. 42 Pa. Cons. Stat. Ann. § 8541 (West 2007). There are eight exceptions to this immunity for acts of negligence, but false arrest, false imprisonment, and intentional infliction of emotional distress are not included. Id. § 8542(b). As for intentional torts, although municipal employees themselves can be held liable for acts of "crime, actual fraud, actual malice or willful misconduct," id. § 8550, the City "cannot be liable for an injury caused by the criminal, fraudulent, malicious, or willful/intentional misconduct of the employee." Hardy v. Big Beaver Falls Sch. Dist., 9 Pa. D. & C.5th 482, 485 (Pa. C.P. 2009) (citing Acker v. Spangler, 500 A.2d 206 (Pa. Commw. Ct. 1985)). Thus, not only is there no employee remaining as a defendant in this case, as the City points out, but the City could not be held liable for his willful acts. For these reasons, it appears that Plaintiff‟s state law tort claims can proceed no further.

Plaintiff fails to circumvent the plain reading of the PSTCA via her "special duty" argument. Plaintiff states vaguely that the concept of "special duty" is an expanding area of the law, and lays out the elements of such a claim. Resp. 6-7. However, Plaintiff makes no attempt to apply those elements to her case. Furthermore, the cases Plaintiff cites are inapposite.*fn15 Thus, I find no "special duty" exception to the PSTCA in this case. In sum, Plaintiff‟s claims of false arrest, false imprisonment, and intentional infliction of emotional distress are barred as against the City of Philadelphia by the PSTCA, and I will grant Defendant‟s Motion for Summary Judgment on this point as well.


For the reasons set forth above, I will grant Defendant‟s Motion for Summary Judgment.


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