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Shawn Miller v. Cory Harcha; Lee Myers; and Jordan Seese

May 14, 2012


The opinion of the court was delivered by: Chief Magistrate Judge Lenihan

Re: ECF No. 52


Presently before the Court is the Motion for Summary Judgment filed by Defendants, Officers Corey Harcha ("Harcha"), Lee Myers ("Myers"), and Jordan Seese ("Seese") (collectively "Defendants"). For the reasons that follow, Defendants' motion will be granted.


Plaintiff, Shawn Miller ("Plaintiff" or "Miller"), is an inmate at the Allegheny County Jail. He initiated this civil action on December 15, 2009, by filing a pro se Complaint (ECF No. 3) pursuant to 42 U.S.C. § 1983 complaining of, inter alia, the use of excessive force by Defendants. On May 5, 2011, this Court issued a Memorandum Opinion and Order, (ECF Nos. 38 & 39) granting Defendants' Motion to Dismiss Plaintiff's Eighth Amendment and Fifth Amendment claims, and offering Plaintiff an opportunity to amend his Complaint in order to state a Fourth Amendment excessive force claim.

Thereafter, Plaintiff filed an Amended Complaint (ECF No. 42) on June 20, 2011. In the Amended Complaint, Plaintiff attempts to state a claim for excessive force pursuant to the Fourth Amendment. Plaintiff also attempts to make out a claim*fn1 for the following: 1) First Amendment retaliation as a result of Defendants' filing criminal charges against him*fn2 ; 2) Fourteenth Amendment taking without just compensation for the taking of his vehicle; 3) a Fourth Amendment claim for the seizure of his vehicle; and 4) an Eighth Amendment claim for deliberate indifference to medical needs.*fn3 Defendants filed an Answer (ECF No. 44) to Plaintiff's Amended Complaint on July 13, 2011. Plaintiff, pro se, filed a Memorandum of Law in Opposition to Defendants' Answer (ECF No. 48) on September 8, 2011. On October 21, 2011, Defendants filed a Motion for Summary Judgment (ECF No. 52) on Plaintiff's Fourth Amendment excessive force claim only. Plaintiff then filed a Brief and exhibits in Opposition to Defendants' Motion for Summary Judgment (ECF No. 60).


Unless otherwise indicated, the following facts are undisputed. On August 18, 2009, at approximately 1:00 a.m., Defendant Officers Myers and Seese were on uniform patrol when they observed Plaintiff fail to stop at a stop sign. These Defendants pulled Plaintiff over for failing to stop. (Amended Complaint, ECF No. 42 at Facts ¶ 1 (hereinafter "ECF No. 42 at ¶ _")); (Defendants' Concise Statement of Material Facts, ECF No. 54 at ¶¶ 1, 2 (hereinafter "ECF No. 54 at ¶ _")); (Pittsburgh Bureau of Police Investigative Report, ECF No. 55 at 8 (hereinafter "ECF No. 55 at __")). Plaintiff stopped, but then fled the scene before the Defendant Officers were able to speak with him. (ECF No. 42 at ¶¶ 1, 2; ECF No. 54 at ¶¶ 3, 4, 5.) Plaintiff's passenger, Paul Barone, indicated to Plaintiff that he was in possession of contraband, so Plaintiff drove away in order for Barone to dispose of the contraband (ECF No. 42 at ¶¶ 1, 2; ECF No. 54 at ¶ 5). In addition, Plaintiff, who was then on probation, drove away because he did not want to violate any of the conditions of his probation. (ECF No. 42 at ¶ 2; ECF No. 54 at ¶ 5.) Myers and Seese pursued Plaintiff, but after a very short time the pursuit was terminated. (ECF No. 42 at ¶ 3; ECF No. 54 at ¶¶ 7, 8.) Defendants claim they terminated their pursuit pursuant to the order of their police sergeant due to Plaintiff's high rate of speed. (ECF No. 54 at ¶ 8.) It is undisputed that Defendant Officers Myers and Seese terminated their pursuit; however, Plaintiff does not concede Defendants' explanation for the termination. After termination of the pursuit, Plaintiff pulled over, exited his vehicle, and Defendant Officer Corey Harcha then came upon Plaintiff. (ECF No. 42 at ¶¶ 3, 4; ECF No. 54 at ¶¶ 9, 10.)

The following events are disputed by the parties. Plaintiff alleges that Officer Harcha got out of his patrol vehicle while holding his gun and started shooting at Plaintiff without warning. (ECF No. 42 at ¶ 4.) Plaintiff further alleges he was forced to get back into his vehicle in order to avoid being shot by Officer Harcha. (ECF No. 42 at ¶ 5.) According to Plaintiff, Officer Harcha then placed his arm inside the passenger window of Plaintiff's car and continued firing his gun and shot Plaintiff in the back of his neck. (ECF No. 42 at ¶ 5.) At this point Defendant Officers Myers and Seese arrived at the scene. Plaintiff avers that, fearing for his life, he attempted to drive off, and all three Defendant Officers fired their guns at Plaintiff's car, and Plaintiff was shot in his right shoulder from behind. (ECF No. 42 at ¶ 6.) Plaintiff avers that, again fearing for his life, he panicked and drove off to save his life from what he perceived as certain death. (ECF No. 42 at ¶ 7.) Plaintiff states that his "run-for-it" ended "when he crashed into a utility pole while being unconscious. At this time[,] Pittsburgh police pulled Plaintiff from his vehicle and repeatedly beat on him." (ECF No. 42 at ¶ 8.)

Defendants contend that when Harcha came upon Plaintiff after the sergeant's termination of Seese and Myers' pursuit, Harcha pulled up next to Plaintiff's parked vehicle. Plaintiff was standing outside of his vehicle. (ECF No. 54 at ¶ 10.) Harcha told Plaintiff to halt, but Plaintiff jumped back into the driver's side of his vehicle and turned on the engine. (ECF No. 54 at ¶ 12a.) In response, Defendant Harcha drew his firearm and told Plaintiff to turn off his engine and step out of his vehicle. (ECF No. 54 at ¶ 12b.) Defendant Harcha further contends that instead of complying, Plaintiff suddenly threw his vehicle into forward gear which caused the front of Plaintiff's vehicle to hit the partially open door of Defendant Harcha's patrol car, trapping Officer Harcha between the two vehicles. (ECF No. 54 at ¶ 12c.) Defendant Harcha contends his right hand slid into Plaintiff's open, front passenger-side window, and his hand sustained injury either upon the entry of Plaintiff's vehicle or upon the exit of Plaintiff's vehicle. (ECF No. 54 at ¶ 12d.) Officer Harcha fired a single shot while his hand was in Plaintiff's open, front passenger-side window. (ECF No. 54 at ¶ 12e); (Supplemental Report, ECF No. 60-2 at 1); (Supplemental Report, ECF No. 60-3 at 1). Defendant Harcha indicated that he discharged his weapon for fear that "he was going to be pinned in between the two vehicles and possibly critically injured." (Supplemental Report, ECF No. 60-3 at 1).

Defendants further assert that Defendant Officers Myers and Seese arrived on the scene and observed Defendant Officer Harcha yelling for help. Defendant Harcha was trapped between his patrol vehicle and Plaintiff's vehicle while Plaintiff continued to drive his vehicle forward. (ECF No. 54 at ¶ 12f.) In an effort to stop Plaintiff from running over Defendant Harcha, both Defendant Officers Myers and Seese fired at Plaintiff's vehicle. (ECF No. 54 at ¶¶ 12f, 12h.) Defendant Seese fired 9 shots, and Defendant Myer fired 16 shots. (Supplemental Report, ECF No. 60-2 at 1). Plaintiff fled the scene and Myers and Seese checked on Harcha before continuing to pursue Plaintiff. (ECF No. 54 at ¶ 13, 14.) Harcha did not join the pursuit because his patrol car door would not close and his hand was injured as a result of the altercation; consequently, he remained to secure the scene. Later, Defendant Harcha was transported to the hospital for treatment of his hand injury. (ECF No. 54 at ¶ 15.) Plaintiff's flight eventually ended when his vehicle struck a telephone pole and stone wall. (ECF No. 54 at ¶ 16.) Defendants contend that by the time Defendant Officers Myers and Seese reached Plaintiff, he had already crashed and was being restrained by other police officers. (ECF No. 54 at ¶ 17.)

It is undisputed that after the altercation between the three Defendant police officers and Plaintiff, Plaintiff fled the scene and continued driving until he crashed into the utility pole and stone wall. (ECF No. 42 at ¶¶ 7, 8; ECF No. 54 at ¶¶ 13, 16.) Plaintiff then contends that Pittsburgh Police Officers pulled Plaintiff from his vehicle and repeatedly beat on him; (ECF No. 42 at ¶ 8) however, Plaintiff does not identity the Pittsburgh Police Officers who allegedly beat him or name them as defendants in this action. Plaintiff was then taken to the hospital for the treatment of a superficial gunshot wound to the neck, and gunshot to the shoulder. (Allegheny Correctional Health Services' Medical Status Report of Plaintiff, ECF No. 60-7 at 1.)

Plaintiff was charged with the following:

a. 18 Pa. C.S. § 2701(a)(2) and (c): Aggravated Assault (serious injury to police, transit officials, firemen, or others);

b. 75 Pa. C.S. § 3733: Fleeing or Attempting to Elude a Police Officer;

c. 35 P.S. ยง 780-113(a): Possession with Intent to Deliver a ...

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