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Noah Barber v. Stephen Sheppleman


September 26, 2011


The opinion of the court was delivered by: McLaughlin, J.


This action arises out of a confrontation between the plaintiff, Noah Barber, and two off-duty police officers, defendants Sheppleman and Carey. The defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The Court grants the motion in part and denies in part.

I. Factual Background*fn1

Barber was riding in the back of his friend's car on the way to a club. Their car had stopped at a red light near Woodlyn Shopping Center when Sheppleman and Carey pulled up in a car next to them. Defs.' Mot. for Summ. J., Barber Dep. at 45-46, Feb. 28, 2011 (hereinafter "Barber Dep."). After he thought he heard something said from the other car, Barber rolled down his window. One of the officers said they were City of Chester cops. After a brief exchange of words, Barber's car turned and pulled into the Woodlyn Shopping Center parking lot. Id. at 49-50, 56.

The officers decided to follow Barber's vehicle into the parking lot. Defs.' Mot. for Summ. J., Sheppleman Dep. at 111, 113 (hereinafter "Sheppleman Dep."). Meanwhile, Carey called 911 to report that he and Sheppleman were off-duty police officers who had just been threatened to be shot. Defs.' Mot. for Summ. J., Carey Dep. at 74. When both cars stopped in the parking lot, the officers exited their vehicle. Sheppleman ran up to Barber's car and grabbed at the door handle. Carey held a badge while yelling "we're Chester cops." Barber Dep. at 57, 62, 65. The officers were not in uniform. After Barber stepped out of his vehicle, Sheppleman punched him in the face. Id. at 71. At some point, Carey drew a gun and pointed it at Barber. See Sheppleman Dep. at 119-20; Barber Dep. at 76, 78-79. Carey later pointed the gun at Barber's friends. Id. at 81. Sheppleman then grabbed Barber's arm and took him down to the ground in a headlock. Id. at 82-83. One of the officers then handcuffed Barber while each one had a knee on his back to hold him down. Only when Ridley Township police arrived did Sheppleman and Carey then back off. Id. at 88-90.

II. Analysis

A. Legal Standard

Summary judgment is appropriate if 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). The moving party bears the initial burden of informing the court of the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a party files a properly supported motion for summary judgment, the burden shifts to the nonmoving party, who must set forth specific facts showing that there is a genuine issue of material fact for trial. Anderson v. Liberty v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

A fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

B. City of Chester

The plaintiff conceded in its opposition to the motion for summary judgment that "the facts indicate that there is no basis for municipal liability against the City of Chester." Mem. of Law of Pl. in Opp. to Mot. for Summ. J. (hereinafter "Opp.") at 4-5. The motion for summary judgment as to the City of Chester is therefore granted as uncontested.

C. Officers Sheppleman and Carey

1. Capacity

Defendants Sheppleman and Carey argue that Barber asserted federal claims against them only in their official capacities. Defs.' Mot. for Summ. J. at 20. Because Barber has conceded that there is no basis for municipal liability against the City of Chester, official-capacity claims against Sheppleman and Carey would also fail as a matter of law. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (noting that an official-capacity suit is to be treated as a suit against the entity).*fn2

Here, Barber fails to specify in his complaint whether defendants Sheppleman and Carey are sued in their personal or official capacities, or both. The complaint alleges that the actions of the defendants were committed "while acting in their official capacity." Complaint ¶ 35. However, the Court does not read the phrase "acting in their official capacity" to mean that Barber sued the officers only in their official capacities. Rather, in the context of the complaint, the phrase merely reflects Barber's allegation that the officers were acting under color of state law - a wholly distinct legal issue.*fn3

Although courts of appeal in some other jurisdictions require the complaint to identify explicitly the capacity in which the defendant is being sued, the Third Circuit has adopted a more flexible approach. The Third Circuit instructs courts to examine the nature of the relief sought in the complaint and the parties' conduct throughout the "course of the proceedings." Melo v. Hafer, 912 F.2d 628, 635--36 n.7 (3d Cir. 1990), aff'd 502 U.S. 21 (1991); see also Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). Where, as here, the complaint is deficient in failing to indicate whether defendants are being sued in their individual or official capacities, courts must "interpret the pleading to ascertain what [the] plaintiff should have stated specifically." Gregory v. Chehi, 843 F.2d 111, 119 (3d Cir. 1988). Where ambiguity remains, the Third Circuit "resolv[es] doubts in favor of the plaintiff." See id. at 120. This analysis goes to the question of whether a defendant who is being sued in his personal capacity has received "adequate notice" that his personal assets are at stake. See Melo, 912 F.2d at 636 n.7.

Courts in this circuit examine several factors when evaluating whether the complaint should be construed as suing individual defendants in their personal capacities. In Gregory, the Third Circuit found it clear that the defendants were sued personally because the plaintiff sought punitive damages from them, and punitive damages cannot be recovered from official-capacity defendants. See 843 F.2d at 120. In Melo, the Third Circuit found it significant that the defendant raised a qualified immunity defense, which indicated that he was on notice of potential personal liability.*fn4 See 912 F.2d at 636; see also Sullivan v. Warminster Tp., 765 F. Supp. 2d 687, 710 (E.D. Pa. 2011); but see Ospina v. Dep't of Corrs., 749 F. Supp. 572, 576-77 (D. Del. 1990) (finding that raising qualified immunity defense at the motion to dismiss stage was not dispositive). In addition, the Melo court noted that the complaint listed only the individual defendant's name and did not name the entity. Other factors courts have considered include: whether the plaintiff sued the entity in addition to the individual defendant; whether the plaintiff plead Monell liability; whether plaintiff averred particularized allegations of personal involvement by the individuals; and whether plaintiff named the defendant with his official title.*fn5

Applying the factors to the instant case, the Court finds that they do not clearly point in one direction. Here, the caption of the complaint lists the officers' titles and lists their addresses as "c/o Chester Police Dept." The body of the complaint repeats that the officers were employees of the Chester Police Department. Complaint ¶¶ 3, 4. Barber also sued governmental entities and plead Monell liability.*fn6 These factors point toward official-capacity claims against Officers Sheppleman and Carey.

Yet in his complaint, Barber also requests compensatory and punitive damages against the defendants individually and jointly, a factor which the court in Gregory found significant in suggesting an individual-capacity claim. Complaint at 14; 843 F.2d at 120.*fn7 Furthermore, as in Melo, the defendants here raised qualified immunity as a defense, first in their answer and again in their motion for summary judgment. Barber also made particularized allegations regarding the officers' personal involvement in the assault. These factors point toward suit in the officers' individual capacities.

Because the factors point in both directions, the Court follows the Third Circuit in Gregory in resolving doubts in favor of the plaintiff. 843 F.2d at 120. The Court construes the complaint as suing Officers Sheppleman and Carey in their individual capacities and declines to grant summary judgment on the issue of capacity.*fn8

2. Color of Law

To prevail on a § 1983 claim, a plaintiff must show that he was deprived of a constitutional right, and that the alleged deprivation was "committed by a person acting under color of state law." Harvey v. Plains Tp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011). Defendants move for summary judgment on the "color of law" issue.

The inquiry into the question of action under color of law is "fact-specific." Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). Barber argues, and the Court agrees, that there are genuine disputes of material fact about whether the conduct of defendants Sheppleman and Carey constituted action under color of state law. Defendants argue that they were off-duty and not uniformed, that they took no action other than to call 911, and that they acted as private citizens. Yet the fact that defendants were off-duty is not determinative. See Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997) ("[O]ff-duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.").

Furthermore, the summary judgment record, taken in the light most favorable to the plaintiff, shows that defendants Sheppleman and Carey identified themselves as police officers, followed Barber into a parking lot, displayed a badge, brandished a gun, and restrained Barber on the ground until the Ridley Township police arrived. Therefore, the Court finds that there is a genuine issue of material fact regarding whether the officers were acting under color of state law.

3. Qualified Immunity

Finally, Sheppleman and Carey appear to contend that even if they acted under color of law, they are sheltered by qualified immunity because at the time of the incident, the law was not clearly established that their actions constituted state action.*fn9 Defs.' Mot. for Summ. J. at 25-26.

Qualified immunity shields government officials performing discretionary functions from liability for damages when 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 deciding claims for qualified immunity, courts must decide (1) whether the facts alleged make out a violation of a constitutional right and (2) whether the right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 236 (2009); Montanez v. Thompson, 603 F.3d 243, 250 (3d Cir. 2010).

Taking all facts in the light most favorable to the plaintiff, the Court finds that at the time of the confrontation, it was clearly established under decades-long precedent that the off-duty officers' actions constituted action under color of law. The Third Circuit has held that "off-duty police officers who flash a badge or otherwise purport to exercise official authority will generally act under color of state law." Bonenberger, 132 F.3d at 24. Therefore, a reasonable police officer, even if off-duty, would have known that the Officers Sheppleman and Carey's actions in this case constituted actions under color of law.

An appropriate order shall issue separately.

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