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Diane Zion, Individually and As Personalrepresentative of the Estate of v. Trooper Samuel Nassan

August 25, 2011

DIANE ZION, INDIVIDUALLY AND AS PERSONALREPRESENTATIVE OF THE ESTATE OF NICHOLASHANIOTAKIS,
TAYLOR HANIOTAKIS, NIKKI HANIOTAKIS, AND BENJAMIN HANIOTAKIS, PLAINTIFFS,
v.
TROOPER SAMUEL NASSAN, SGT. TERRENCE DONNELLY, LT. DAVID HECKMAN, CAPT. SHELDON EPSTEIN, COMMISSIONER FRANK PAWLOWSKI, AND MAJOR TERRY SEILHAMER, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

I. Introduction

Pending before the court are four separate motions filed by Trooper Samuel Nassan

("Nassan"), who is a defendant in this action. (ECF Nos. 122, 141, 144, 160.) For the reasons that follow, the first motion for reconsideration and the second motion for sanctions (ECF Nos.122, 144) will be denied; the second motion for reconsideration (ECF No. 160) will be granted to the extent that it seeks the preservation of the materials submitted for in camera review and denied in all other respects; and the motion for an order declaring "certain allegations set forth in Nassan‟s answer" to be deemed admitted (ECF No. 141) will be granted to the extent that it seeks an extension of the deadline for the filing of motions for judgment on the pleadings, granted in part with respect to paragraph 28 of Nassan‟s "additional qualified immunity allegations" (and the plaintiffs‟ responses thereto), and denied in all other respects.

II. Background

This case arises out of the March 15, 2009, shooting death of Nicholas Haniotakis

("Haniotakis") on the South Side of Pittsburgh, Pennsylvania. (ECF No. 54 at ¶¶ 10, 15.) Plaintiff Diane Zion ("Zion") is the duly appointed personal representative of Haniotakis‟ estate. (Id. ¶ 2.) Plaintiffs Taylor Haniotakis ("Taylor"), Nikki Haniotakis ("Nikki") and Benjamin Haniotakis ("Benjamin") are the children of Haniotakis. (Id. ¶ 3.) Nassan is a police officer employed by the Pennsylvania State Police ("PSP"). Sergeant Terrence Donnelly ("Donnelly") is a police officer employed by the City of Pittsburgh Bureau of Police ("Police Bureau"). (Id. ¶ 5.) Colonel Frank Pawlowski ("Pawlowski") serves as the Pennsylvania State Police Commissioner. (Id. ¶ 6.) In this capacity, Pawlowski commands the PSP‟s 4,600 officers. (Id.) Major Terry Seilhamer ("Seilhamer"), an Area Commander for the PSP, is responsible for supervising three different "troops." (Id. ¶ 7.) Among the troops under Seilhamer‟s command is Troop B. (Id.) Nassan works as a member of Troop B. (Id.) Captain Sheldon Epstein ("Epstein") serves as Troop B‟s Commanding Officer. (Id. ¶ 8.) He is directly under Seilhamer in the PSP‟s chain of command. (Id.) Lieutenant David Heckman ("Heckman"), a station commander for the PSP, is Nassan‟s direct supervisor. (Id. ¶ 9.)

Although the parties contentiously dispute the factual circumstances surrounding the incident in question, it is undisputed that Haniotakis was fatally shot in the back by either Nassan or Donnelly in the early morning hours of March 15, 2009. The plaintiffs*fn1 commenced this § 1983 action against the defendants on April 1, 2009, contending, inter alia, that Nassan and Donnelly violated Haniotakis‟ rights under the Fourth and Fourteenth Amendments to the United States Constitution. (ECF No. 1 ¶¶ 35-47.) It was alleged that Nassan and Donnelly unconstitutionally "seized" Haniotakis by shooting him after he had already "stopped his vehicle," and that a bullet fired by Nassan struck Haniotakis in the back and took his life. (Id. ¶ 15.) The plaintiffs further alleged that, at the time of the shooting, Haniotakis "posed no threat of harm" to the officers or bystanders, and that the officers were "protected by considerable distance and barriers between Haniotakis and themselves." (Id. ¶¶ 17-18.)

Nassan and the remaining PSP defendants*fn2 filed separate motions to dismiss the plaintiffs‟ complaint on August 26, 2009. (ECF Nos. 19, 21.) Nassan argued that the plaintiffs failed to allege properly a constitutional violation, and that he was entitled to qualified immunity. (ECF No. 20.) The other PSP defendants contended, inter alia, that the complaint did not contain sufficient allegations of their personal involvement in the shooting to warrant the imposition of liability under 42 U.S.C. § 1983. (ECF No. 22 at 3-5.) At the request of the defendants, discovery was stayed pending the resolution of the motions to dismiss. (ECF No. 42.)

A hearing was conducted on November 19, 2009. Counsel for the plaintiffs argued that the court could not dismiss the complaint without holding that it was "no longer unlawful for police officers to shoot people in cars during a traffic stop." (ECF No. 82 at 59.) Nassan‟s counsel characterized the allegation that Haniotakis "stopped his vehicle" before the shooting as a false statement, claiming that the shooting actually occurred during the course of a "vehicular pursuit." (Id. at 64.) The plaintiffs‟ counsel was accused of deliberately "withholding facts" surrounding the events in question for the purpose of overcoming the defendants‟ qualified immunity at the pleadings stage. (Id. at 67.) The court advised the plaintiffs‟ counsel that the allegation concerning "considerable distance and barriers" between Haniotakis‟ vehicle and the approaching officers was not sufficiently clear to facilitate a meaningful evaluation of the factual allegations. (Id. at 88-91.) The plaintiffs were instructed to file an amended complaint. (Id. at 92.) The defendants were informed that the filing of the amended complaint would moot their motions to dismiss. (Id. at 93.)

The plaintiffs filed their amended complaint on December 3, 2009. (ECF No. 54.) They again alleged that Nassan and Donnelly shot Haniotakis after he had already "stopped his vehicle." (Id. ¶ 15.) It was further alleged that police officers were typically trained "to use their vehicle as a barrier when needed or necessary for protection," and that a police vehicle could have been used as a "barrier" to protect Nassan and Donnelly at the time of the shooting. (Id. ¶¶ 17-18.) The amended complaint also included more detailed allegations concerning the alleged actions and omissions of the remaining defendants in relation to their supervision of Nassan. (Id. ¶¶ 6-9.)

On December 29, 2009, Nassan filed a motion for sanctions pursuant to Federal Rule of Civil Procedure 11. (ECF No. 63.) He argued that Haniotakis did not actually "stop" his vehicle before the shooting, that the shooting was necessitated by Haniotakis‟ use of the vehicle as a "continuing weapon of harm," and that the plaintiffs were falsely alleging the factual predicate of a vehicular "stop" in order to avoid the dismissal of the amended complaint at the pleadings stage. (Id. ¶ 46.) Nassan‟s motion described the allegations contained in the amended complaint as a "false depiction of events." (Id. ¶ 47.)

Nassan, Donnelly and the remaining PSP defendants filed three separate motions to dismiss on January 26, 2010. (ECF Nos. 70, 71, 73.) In a memorandum opinion and order dated July 23, 2010, the court denied the motion for sanctions and the three motions to dismiss. (ECF No. 86.) The defendants were directed to file answers to the amended complaint on or before August 13, 2010, and the plaintiffs were instructed to reply to the factual allegations contained in the answers within the ensuing twenty-one days.*fn3 (ECF No. 86 at 41.) The defendants separately filed three motions for reconsideration in August 2010. (ECF Nos. 87, 88, 89.) The motions were denied in a memorandum opinion and order dated October 21, 2010. (ECF No. 94.) The court ordered the defendants to file their answers on or before November 11, 2010. (Id. at 13.) The plaintiffs were again directed to reply to the defendants‟ factual allegations within the following twenty-one days. (Id.) The court‟s ruling was issued without prejudice to the ability of the defendants to move for a judgment on the pleadings after receiving the plaintiffs‟ replies. (Id.)

Donnelly filed his reply on November 10, 2010. (ECF No. 96.) The remaining defendants filed their replies one day later. (ECF Nos. 98, 99). The defendants all denied that Haniotakis‟ vehicle "stopped" prior to the shooting. (ECF Nos. 96, 98, 99 ¶ 15.) They alleged that Haniotakis‟ vehicle, which was described as a sport utility vehicle ("SUV"), "stopped" only after crashing into a parked car during the course of a high-speed chase. (Id.) The defendants alleged that Haniotakis placed the SUV in "reverse" after the collision for the purpose of backing it into Nassan, and that he subsequently caused the SUV to move forward, thereby placing Donnelly in danger. (Id.) The defendants indicated that Nassan and Donnelly discharged their weapons only to protect themselves and others from serious bodily injury. (Id. ¶¶ 15, 19.) Nassan‟s answer included "additional qualified immunity allegations." (ECF No. 98 at 14-22.)

The plaintiffs responded on November 23, 2010, by filing a motion to strike the "additional qualified immunity allegations." (ECF No. 103.)

The plaintiffs replied to the answers filed by Donnelly and the supervisory PSP defendants on December 1, 2010. (ECF Nos. 106 , 108.) They replied to Nassan‟s answer on December 2, 2010. (ECF No. 113.) In their replies, the plaintiffs admitted that Haniotakis‟ SUV collided with a parked, unoccupied vehicle before coming to a "stopped" position. (ECF Nos. 106, 108 , 113 ¶ 15.) Nevertheless, they denied that the SUV posed a threat to the officers and bystanders at the time of the shooting. The plaintiffs went on to allege that Nassan and Donnelly subsequently shot Haniotakis while the SUV was "stopped" at an intersection, and that the officers were fifty yards behind the SUV at the time of the shooting. (Id.) These allegations were specifically attributed to accounts which were provided by witnesses to the incident. (Id.)

On December 16, 2010, Nassan filed another motion for reconsideration, asking the court to reverse the July 23, 2010, decision denying his request for sanctions. (ECF No. 122.) In support of his motion, Nassan argued that the plaintiffs‟ counsel purposefully mischaracterized the collision between the SUV and the unoccupied vehicle as a "traffic stop" in order to defeat his entitlement to qualified immunity. (Id. at 4.) That same day, Nassan filed a motion requesting limited discovery relating to the plaintiffs‟ basis for contending that the SUV was in a "stopped" position at the time of the shooting. (ECF No. 123.) The plaintiffs filed their response to Nassan‟s motion for limited discovery on December 30, 2010. (ECF No. 127.) In their response, the plaintiffs stated that witnesses to the shooting provided accounts supporting their allegations. (Id. at 5.)

The court orally denied the plaintiffs‟ motion to strike during the course of a hearing conducted on December 17, 2010. (ECF No. 125 at 30.) In order to provide the plaintiffs with a fair chance to respond to Nassan‟s "additional qualified immunity allegations," the court ordered the defendants to turn over "investigative files" related to the case and afforded the plaintiffs an opportunity to have an expert view Haniotakis‟ SUV. (Id. at 30-31.)

The plaintiffs replied to Nassan‟s "additional qualified immunity allegations" on February 14, 2011. (ECF No. 138.) On March 15, 2011, Nassan moved for a determination that the plaintiffs "admitted" some of his allegations by filing ambiguous responses. (ECF No. 141.) Nassan filed a second motion for sanctions on March 25, 2011, accusing the plaintiffs‟ counsel of falsely claiming that Haniotakis was shot to death while sitting in a "stopped" vehicle. (ECF No. 144 ¶ 100.)

On May 2, 2011, the court partially granted Nassan‟s earlier motion for limited discovery. (ECF No. 158.) The plaintiffs were ordered to provide the defendants with the name, address and telephone number of "each person likely to have discoverable information," as well as "a description of the subject matter of that information." (Id.) They were further directed to submit to the court, for in camera review, "all witness statements relied upon in their response to the motion for limited discovery." (Id.) The motion for limited discovery was denied in all other respects. (Id.) The plaintiffs provided the court with access to their "witness statements" on May 10, 2011, in accordance with the order issued eight days earlier. (ECF No. 159.) Nassan filed a motion for reconsideration on May 17, 2011, seeking an order requiring the plaintiffs to provide the defendants with unredacted copies of the "witness statements" submitted to the court for in camera review. (ECF No. 160.)

III. Standard of Review

"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)(citing Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 664 (N.D. Ill. 1983)). A motion for reconsideration is ordinarily granted only where there is "an intervening change in the controlling law," the presentation of "new evidence" that was not available at the time of the ruling in question, or a "need to correct a clear error of law or fact or to prevent manifest injustice." Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Such a motion should typically address matters that the court has overlooked in rendering a prior decision. Glendon Energy Co. v. Borough of Glendon, 836 F.Supp. 1109, 1122 (E.D.Pa. 1993). A motion for reconsideration is not properly grounded in a desire to have a court "rethink" a decision that has already been made. Williams v. City of Pittsburgh, 32 F.Supp.2d 236, 238 (W.D.Pa. 1998).

IV. Discussion

a. The Motions for Reconsideration and Sanctions

(ECF Nos. 122, 144) The present controversy can only be understood by reference to the legal principles underlying the claims asserted by the plaintiffs and the defenses raised by the defendants. The plaintiffs bring their federal constitutional claims pursuant to 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws [of the United States], shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

42 U.S.C. § 1983. This statutory provision does not create substantive rights. Maher v. Gagne, 448 U.S. 122, 129 n.11 (1980). A plaintiff cannot prevail in action brought under § 1983 without establishing an underlying violation of a federal constitutional or statutory right. Blessing v. Freestone, 520 U.S. 329, 340 (1997).

The United States Supreme Court has explained that "Section 1983 is to be read in harmony with general principles of tort immunities and defenses rather than in derogation of them." Imbler v. Pachtman, 424 U.S. 409, 418 (1976) (citing Tenney v. Brandhove, 341 U.S. 367 (1951)). For this reason, the "qualified immunity" that was available to executive officials at common law may be invoked by executive officials sued under § 1983. Hafer v. Melo, 502 U.S. 21, 28-29 (1991). In this vein, state officials performing discretionary duties are generally "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In order for a federal right to be "clearly established" for purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Qualified immunity is not only a defense to liability, but also "an entitlement not to stand trial or face the other burdens of litigation. . . ." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Consequently, the Supreme Court has repeatedly "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam).

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly ...


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