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Diane Zion, Individually and As v. Trooper Samuel Nassan

June 27, 2012

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

I. Introduction

This action arises out of the fatal shooting of a fleeing motorist by two police officers.

Pending before the court is a motion "for judgment on the pleadings" filed by the defendants pursuant to Federal Rule of Civil Procedure 12(c). ECF No. 165. For the following reasons, that motion will be denied.

II. Background

The instant action concerns the shooting death of Nicholas Haniotakis ("Haniotakis") on the South Side of Pittsburgh, Pennsylvania. (ECF No. 54 ¶¶ 10, 15.) During the early morning hours of March 15, 2009, Haniotakis was shot to death while operating a sport utility vehicle ("SUV") bearing an Ohio license plate. (ECF No. 54 ¶ 10; ECF No. 138 ¶ 11; ECF No. 162 at 5.) The shots were fired by Trooper Samuel Nassan ("Nassan"), a member of the Pennsylvania State Police ("PSP"), and Sergeant Terrence Donnelly ("Donnelly"), a member of the City of Pittsburgh Bureau of Police ("Police Bureau"). (ECF Nos. 54 & 98 ¶ 15.) At the time of the incident, Nassan and Donnelly were patrolling the South Side to ensure that motorists were not illegally driving under the influence of alcohol. (ECF No. 98 ¶ 5.)

Diane Zion ("Zion") is the duly appointed representative of Haniotakis' estate. (ECF No. 54 ¶ 2.) Taylor Haniotakis ("Taylor"), Nikki Haniotakis ("Nikki") and Benjamin Haniotakis ("Benjamin") are Haniotakis' children. (Id. ¶ 3.) Rachel Takes ("Takes") and Dena Zouloufos ("Zouloufos") are Haniotakis' sisters. (ECF No. 1 ¶ 3.) Zion, Taylor, Nikki, Benjamin, Takes and Zouloufos filed the original complaint in this action against Nassan, Donnelly, Colonel Frank Pawlowski ("Pawlowski"), Major Terry Seilhamer ("Seilhamer"), Captain Sheldon Epstein ("Epstein") and Lieutenant David Heckman ("Heckman") on April 1, 2009, alleging that Haniotakis' rights under the United States Constitution and the common law of Pennsylvania were violated on the night of the shooting. (ECF No. 1.) The claims asserted against Nassan and Donnelly were based on the shooting itself. (Id. ¶¶ 10-20.) The claims asserted against Pawlowski, Seilhamer, Epstein and Heckman were predicated on their respective positions within the PSP and their alleged supervisory authority over Nassan. (Id. ¶¶ 6-9, 29-34.) In their complaint, the plaintiffs alleged that Nassan and Donnelly followed Haniotakis' SUV in a police car in order to call his attention to a broken headlight, and that they unconstitutionally "seized" him by employing deadly force after he had already "stopped his vehicle." (Id. ¶¶ 10, 15.) The plaintiffs averred that, at the time of the incident, Haniotakis "posed no threat of harm" to the approaching officers or bystanders, and that the officers were "protected by considerable distance and barriers between Haniotakis and themselves." (Id. ¶¶ 17-18.) It was specifically alleged that Nassan inflicted the fatal blow to Haniotakis by shooting him in the back. (Id. ¶¶ 19-20.)

On August 26, 2009, Nassan and the remaining PSP defendants separately moved for the dismissal of the complaint.*fn1 (ECF Nos. 19 & 21.) In support of his motion to dismiss, Nassan challenged the sufficiency of the plaintiffs' allegations and raised the affirmative defense of qualified immunity. (ECF No. 20.) The other PSP defendants argued, inter alia, that they could not be held liable for Nassan's actions on the night of the shooting. (ECF No. 22 at 3-5.) Discovery was stayed at the request of the defendants. (ECF No. 42.)

The parties advanced their respective positions during a hearing conducted on November 19, 2009. (ECF No. 82.) After entertaining the parties' arguments, the court instructed the plaintiffs to file an amended complaint. (Id. at 92.) The PSP defendants were informed that the filing of the amended complaint would moot their pending motions to dismiss. (Id. at 93.)

On December 3, 2009, Zion, Taylor, Nikki and Benjamin filed their amended complaint. (ECF No. 54.) The amended complaint did not name Haniotakis' sisters, Takes and Zouloufos, as plaintiffs. (Id.) The remaining plaintiffs (hereinafter referred to as the "plaintiffs") again alleged that Haniotakis had "stopped his vehicle" before being shot. (Id. ¶ 15.) They averred that police officers were typically trained to use police vehicles as protective barriers, and that the vehicle used by Nassan and Donnelly to follow Haniotakis' SUV could have been used as a protective barrier at the time of the shooting. (Id. ¶¶ 17-18.) The amended complaint contained more detailed allegations concerning the behavior of the remaining PSP defendants and their supervisory relationships with 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 described the allegations contained in the amended complaint as a "false depiction of events." (Id. ¶ 47.) Specifically, Nassan argued that Haniotakis had not actually "stopped" the SUV prior to the shooting, that the shooting had been necessitated by Haniotakis' use of the SUV as a "weapon," and that the plaintiffs were falsely alleging the factual predicate of a vehicular "stop" in order to overcome the defendants' qualified immunity at the pleadings' stage. (Id. ¶ 46.)

On January 26, 2010, Nassan, Donnelly and the other PSP defendants filed separate motions to dismiss. (ECF Nos. 70, 71 & 73.) The court denied the motion for sanctions and all three motions to dismiss in a memorandum opinion and order dated July 23, 2010. (ECF No. 86.) The defendants were instructed to file their answers on or before August 13, 2010, and the plaintiffs were ordered to reply to the answers within the following twenty-one days. (ECF No. 86 at 41.) The defendants responded by filing three separate motions for reconsideration. (ECF No. 87, 88 & 89.) The motions for reconsideration were denied on October 21, 2010. (ECF No. 94.) The defendants were ordered to file their answers on or before November 11, 2010. (Id. at 13.) The plaintiffs were given an additional twenty-one days to reply to the defendants' answers. (Id.) The court's decision was rendered 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 answer on November 10, 2010. (ECF No. 96.) Nassan and the other PSP defendants filed separate answers the next day. (ECF Nos. 98 & 99.) In their answers, the defendants all denied that Haniotakis had "stopped" the SUV before being shot. (ECF Nos. 96, 98 & 99 ¶ 15.) They alleged that the SUV had "stopped" only after colliding with a parked car during the course of a high-speech chase. (Id.) The defendants alleged that Haniotakis had placed the SUV in "reverse" after the collision for the purpose of backing it into Nassan, and that Haniotakis subsequently placed Donnelly in danger by moving the SUV forward. (Id.) They indicated that Nassan and Donnelly discharged their weapons for the sole purpose of protecting themselves and others from serious bodily injury. (Id. ¶¶ 15, 19.) Nassan's answer included "additional qualified immunity allegations." (ECF No. 98 14-22, ¶¶ 1-47.) On November 23, 2010, the plaintiffs moved to strike the "additional qualified immunity allegations." (ECF No. 103.)

On December 1, 2010, the plaintiffs replied to the answers filed by Donnelly and the supervisory PSP defendants. (ECF Nos. 106 & 108.) On December 2, 2010, they replied to Nassan's answer. (ECF No. 113.) The plaintiffs admitted that Haniotakis' SUV collided with a parked, unoccupied vehicle before coming to a "stopped" position. (ECF Nos. 106, 108 & 113 ¶ 15.) They denied that the SUV posed a threat to the officers and bystanders at the time of the shooting. (Id.) The plaintiffs specifically alleged that Nassan and Donnelly shot Haniotakis while the SUV was "stopped" at an intersection, and that the officers were fifty yards behind the SUV when they discharged their weapons. (Id.)

On December 16, 2010, Nassan filed another motion for reconsideration, asking the court to reverse its prior decision denying his request for sanctions. (ECF No. 122.) He accused the plaintiffs of mischaracterizing the collision between the SUV and the parked vehicle as a "traffic stop" in order to overcome his entitlement to qualified immunity. (Id. at 4.) Nassan also filed a motion for limited discovery. (ECF No. 123.) The motion for discovery sought evidence pertaining to the plaintiffs' basis for alleging that Haniotakis had "stopped" the SUV prior to the shooting. (Id.) The plaintiffs responded to the motion for limited discovery on December 30, 2010. (ECF No. 127.) In their response, the plaintiffs attributed their beliefs about the circumstances surrounding the shooting to statements that were provided to plaintiffs' counsel by individuals who witnessed the incident. (Id. at 5.)

A hearing was held on December 17, 2010. (ECF No. 125.) During the hearing, the court orally denied the plaintiffs' motion to strike Nassan's "additional qualified immunity allegations." (Id. at 30.) In order to give the plaintiffs a fair chance to respond to Nassan's allegations, the court afforded the plaintiffs an opportunity to have an expert view the SUV and ordered the defendants to provide the plaintiffs with access to "investigative files" related to the case. (Id. at 30-31.)

The plaintiffs replied to the "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 evasive responses. (ECF No. 141.) He filed a second motion for sanctions ten days later, claiming that the plaintiffs falsely described the circumstances surrounding the shooting. (ECF No. 144 ¶ 100.)

Nassan's motion for limited discovery was partially granted on May 2, 2011. (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" relevant to the case, along with "a description of the subject matter of that information." (Id.) They were also instructed 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 was denied in all other respects. (Id.) The plaintiffs turned their "witness statements" over to the court on May 10, 2011. (ECF No. 159.) Nassan filed a motion for reconsideration one week later, seeking an order requiring the plaintiffs to provide the defendants with access to the "witness statements" submitted to the court for in camera review. (ECF No. 160.)

In a memorandum opinion and order dated August 25, 2011, the court denied Nassan's first motion for reconsideration and second motion for sanctions. (ECF No. 162 at 24.) The motion for reconsideration pertaining to the "witness statements" was denied to the extent that it sought access to the materials submitted for in camera review. (Id. at 15-16.) Pursuant to an alternative request made by Nassan, the court entered an order requiring the preservation of those materials for the purpose of facilitating appellate review. (Id.) Nassan's motion for a determination that the plaintiffs had "admitted" his factual allegations by failing to provide adequate responses was granted only with respect to the admission that Haniotakis' SUV had made contact with an unoccupied vehicle prior to the shooting. (Id. at 20-21.) The motion was denied in all other respects, and the plaintiffs were granted leave to conform their responses to the requirements of Federal Rule of Civil Procedure 8(b). (Id. at 16-24.)

On September 14, 2011, the plaintiffs amended their responses to Nassan's "additional qualified immunity allegations." (ECF No. 163.) On October 4, 2011, the defendants collectively filed a motion for judgment on the pleadings. (ECF No. 165.) That motion is the subject of this memorandum opinion.

III. Standard of Review

The standard for deciding a motion for judgment on the pleadings filed pursuant to Federal Rule of Civil Procedure 12(c) is not materially different from the standard for deciding a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6). Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010); Christy v. We the People Forms & Serv. Ctrs., USA, Inc., 213 F.R.D. 235, 238 (D.N.J. 2003). Pursuant to Federal Rule of Civil Procedure 8(a)(2), "[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." FED. R. CIV. P. 8(a)(2).

This essentially means that a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Since the matter comes before the court in this posture, the allegations made by the plaintiffs are assumed to be true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

IV. Discussion

The amended complaint contains three counts. In Count I, the plaintiffs allege that Nassan and Donnelly violated Haniotakis' rights under the Fourth and Fourteenth Amendments to the United States Constitution by unreasonably "seizing" him with deadly force. (ECF No. 54 ¶¶ 45-51.) In Count II, they assert similar constitutional claims against Pawlowski, Seilhamer, Epstein and Heckman (the "supervising defendants") based on their alleged failure properly to train and supervise Nassan. (Id. ¶¶ 52-59.) Count III includes state law assault and battery claims against Nassan. (Id. ¶¶ 60-62.)

A. The Fourth Amendment Claims ...


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