The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Defendant Michael Paige's ("Officer Paige") Motion for Summary Judgment,*fn1 and Defendant City of Philadelphia's (the "City") Motion for Summary Judgment. For the reasons set forth below, Officer Paige's Motion will be denied and the City's will be granted.
On May 7, 2008, Plaintiff James Harris ("Harris") filed a Complaint against Officer Paige and the City of Philadelphia (the "City") alleging that Officer Paige, who was employed as a Philadelphia police officer at the time of the alleged incident, sexually assaulted Harris by forcing him to engage in oral sex and other sexual acts under the show of authority, while on duty as a Philadelphia police officer, and under the color of state law. (Compl. ¶ 2.)
In the early morning hours of March 16, 2007, Officer Paige was working the overnight shift as a City police officer. He was a uniformed officer assigned to patrol areas within the 92nd Police District, which included area of Fairmont Park in the City. At approximately 2:00 a.m., Officer Paige came upon Harris and another man sitting in a car and he had seen them "kissing." (Officer Paige Dep. at 119-120.) Harris alleges that under the pretense of conducting a traffic stop, Officer Paige ordered him and the other man out of his car, and after Officer Paige discovered that he did not have a driver's license, he ordered him to take the other man home and return to the park. (Compl. ¶¶ 16, 41.) When he returned to the park, Harris asserts that Officer Paige ordered him into the front seat of his patrol car. Officer Paige then drove to a locked and secluded area of Fairmont Park and forced Harris to perform unprotected oral sex on him three times while Officer Paige attempted to place his fingers in Harris' anus. (Id. ¶¶ 51-54, 60-64.) Officer Paige ejaculated into Harris' mouth and Harris spit the semen onto the ground of Fairmont Park. (Id. ¶¶ 77-78.) Officer Paige then drove Harris back to another area of Fairmont Park and released him. (Id. ¶ 106.) Harris gagged and/or vomited into a Styrofoam cup while driving home, and he promptly reported the incident to the District Attorney's Office. (Id. ¶ 110.) The Internal Affairs Department ("IA") of the Philadelphia Police Department ("PPD") was later able to recover this cup. After taking DNA samples from both Officer Paige and Harris, the contents of the cup were tested and found to contain sperm mixed with Harris' saliva. (Id. ¶¶ 107-109.) Internal Affairs conducted an investigation and issued its findings on June 15, 2007 concluding:
The allegation that Officer Michael Paige sexually assaulted
Mr. James Harris is SUSTAINED. Officer Paige withheld the paperwork for
the vehicle belonging to Mr. Harris through intimidation in his
position as a law enforcement officer, with the knowledge that Mr.
Harris would have to return to the location of the stop. Officer Paige
ordered Mr. Harris, upon his return, into his police car and drove to
a secluded location not open to the general public and forced Mr.
Harris to perform oral sex on him. (Pl.'s Resp. Mot. Summ. J., Ex.
33.) Officer Paige was then arrested on April 30, 2007 and charged
with assault, indecent sexual contact, kidnaping, false imprisonment,
and unlawful restraint. (Officer Paige's Mot. Summ. J., Ex. 11.) He
was also formally dismissed from the PPD on May 15, 2007. (City's Mot.
Summ. J., Ex. N.) Officer Paige was subsequently found not guilty in a
bench trial before Judge Rose Marie Nastasi-Defino of the Philadelphia
Court of Common Pleas.*fn2 (Pl.'s Resp. Mot. Summ. J.,
Ex. 37 at 150.) After the acquittal, the Fraternal Order of Police
("FOP") filed a grievance with the City on behalf of Officer Paige
over his discharge. Thomas McConnell Jr. was appointed as arbitrator
(the "Arbitrator"). He stated in his decision that the issue to be
decided was "Whether the City had just cause for the discharge of the
grievant? If not, what shall the remedy be?" (Officer Paige Mot. Summ.
J., Ex. 8 at 2.) In an
opinion dated March 30, 2009, the Arbitrator determined that "The
evidence makes clear that Mr. Harris did perform oral sex on Mr. Paige
on March 17, 2007, sometime between 2:30 a.m. and 5:00 a.m. Though
this is denied by Mr. Paige, the DNA test results of sperm found in a
Styrofoam cup Mr. Harris spat into after the oral sex, when combined
with Mr. Harris' testimony, proves oral sex took place."*fn3
(Id. at 18.) The Arbitrator stated further that "The more
difficult question relates to whether the sexual encounter between Mr.
Paige and Mr. Harris was consensual, or whether as Mr. Harris claims
this was a sexual assault." (Id. at 19.) The Arbitrator concluded that
the City had not met its burden of proving that a sexual assault
occurred. (Id. at 23.) He further concluded that the "evidence
constitutes a 'course of conduct' which shows that Mr. Paige had
little or no regard for his duties as a police officer, and that thus
Mr. Paige is found in violation of Section 1.75 of the Disciplinary
Code." (Id. at 28.) Despite this finding, the Arbitrator issued the
The grievance is sustained in part and denied in part consistent with the foregoing opinion. The dismissal is reduced to a 30 day suspension. The City is ordered to offer the grievant immediate reinstatement to his former position as a police officer. The City is further ordered to restore the grievant's full seniority, and to make the grievant whole for any loss of wages (minus the 30 day suspension), benefits or other emoluments of employment flowing from the dismissal. The City is further ordered to adjust the grievant's personnel records to reflect the reduced discipline, and to remove reference to the dismissal.*fn4 (Id. at 31.)
Thereafter, Harris filed a Complaint in this Court averring violations
under the Civil Rights Act of 1871, 42 U.S.C. § 1983,*fn5
against the City and Officer Paige by depriving him of "the
rights and privileges secured to him by the United States Constitution
and the laws of the United States under the color of State law."
(Compl. ¶¶ 119- 153.) He also averred violations of the United States
Constitution and the Pennsylvania Constitution against the City and
Officer Paige, and state law claims of sexual assault, false
imprisonment, battery, and infliction of emotional distress against
Officer Paige. (Id. ¶¶ 154-178.) Officer Paige filed a Motion to
Dismiss on August 12, 2009. We filed a Memorandum and Order on
September 22, 2009 granting this Motion in part and denying it in
part. We determined that Harris' claim for damages based on violations
of the Pennsylvania Constitution be dismissed. See Harris v. Paige,
No. 08-2126, 2009 WL 3030216, at * 1 (E.D. Pa. Sept. 22, 2009).
Officer Paige filed this instant
Motion on January 21, 2011 and the City filed its Motion on January
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).
Summary judgment must be granted "against a party who fails to make a showing 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, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.
1. Municipal Liability Under § 1983
"A municipality cannot be held liable solely because it employs a tortfeasor." Monell v. N.Y. City Dept. of Soc. Serv., 436 U.S. 658, 691 (1978). Instead, the plaintiff must assert that an actual policy or custom of the municipality was the cause of the constitutional deprivation. Id. In order to sufficiently allege "custom" for Monell purposes, a plaintiff must allege that the "practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law." Id.
A government policy or custom can be established in two ways. Policy is made when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" as to virtually constitute law. Monell, 436 U.S. at 690; see also Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990).
Moreover, in actions involving police officers, 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." Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (citing City of Canton v. Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference is the result of "a deliberate choice to follow a course of action [that] is made from among various alternatives by city policymakers." City of Canton, 489 U.S. at 389 (quoting Pembaur, 475 U.S. at 483-84). "It is a particularly wilful type of recklessness that is inherent in the deliberate indifference standard." Simmons, 947 F.2d 1042, 1060 n.13 (3d Cir. 1991). That indifference must be attributed to "lawmakers or other officials with the authority to make municipal policy." Id. at 1059. The Third Circuit has held that "neither [an unconstitutional municipal policy or custom] could be established absent conscious decisionmaking or acquiescence in a longstanding custom or practice on the part of a policymaker."Id. at 1064 (citing Andrews, 895 F.2d 1481). Negligence on the part of state officials is not enough to impute liability under § 1983. See Daniels v. Williams, 474 U.S. 327 (1986). Accordingly, to survive summary judgment under this standard, the plaintiff must produce facts tending to show the City knew of a pattern of constitutional violations or that such consequences were so obvious that the City's conduct can only be characterized as deliberate indifference. SeeBielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 1990).
In addition, plaintiff must prove causation. The Third Circuit explained that "proof of the existence of a policy or custom alone is insufficient to maintain a § 1983 action. The plaintiff bears the burden of proving that the municipal practice was the proximate cause of the injuries suffered." Beck v. City if Pittsburgh, 89 F.3d 966, 972 n. 6 (citing Bielevicz, 915 F.2d at 850). Thus, in order to sustain a § 1983 claim for municipal liability, a plaintiff "must simply establish a municipal custom coupled with causation-i.e., that policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to their injury." Id. at 972.
Here, Harris asserts that the City is liable to him for the unlawful actions performed against him by Paige. He contends that the City was "deliberately indifferent to the consequences of its strict disciplinary actions against Defendant Paige." (Pl.'s Resp. Mot. Summ. J. at 17.) Harris states further that Paige's disciplinary record shows the City's "deliberate indifference to the obvious consequences of its policies. Citizens were robbed, beat, raped, and possibly murdered by Defendant Paige." (Id.) We disagree, and find that the City is not liable for the actions of Paige.
In addressing the issue of municipal liability on the part of the City, we are of the opinion that it is necessary to first outline Paige's disciplinary history since he became a Philadelphia police officer in October 1989. The ...