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John Snowden, As Plenary Guardian of the Person and Estate of Kahlif v. City of Philadelphia

October 4, 2012

JOHN SNOWDEN, AS PLENARY GUARDIAN OF THE PERSON AND ESTATE OF KAHLIF SNOWDEN, INCAPACITATED PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET. AL. DEFENDANTS.



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

MEMORANDUM

Currently pending before the Court are the Cross-Motions for Summary Judgment of Plaintiff John Snowden and Defendants City of Philadelphia, Charles Ramsey, Commissioner of the Philadelphia Police Department, Officer Michael Walsh, Officer Robert Shaw, Officer Donald Vandermay, Officer Kevin McNicholas, and Sgt. James Morace, Jr. For the following reasons, Plaintiff's Motion is denied and Defendants' Motion is granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter involves the arrest of Kahlif Snowden on February 18, 2011, during which his airway ended up being obstructed and as a result of which he suffered permanent brain damage. John Snowden, Kahlif's father and Plenary Guardian of the Estate and Person of Kahlif, brings suit on his behalf alleging civil rights violations under § 1983.

On the evening of February 18, 2011, Officers Michael Walsh and Donald Vandermay, along with Sergeant David Armstrong, were working as undercover narcotics officers as part of the Philadelphia Police Department's Narcotics Enforcement Team (NETS) unit. (Defs.' Mot. Summ. J., Ex. B., Written Statements of Officers McNicholas, Walsh, Vandermay, Shaw, and Sgt. Morace ("Officers's Statements").) At approximately 8:00 P.M., the officers were traveling in an unmarked Ford Taurus when they observed Kahlif on the 2900 block of Hartville Street in Philadelphia. (Id.) The officers believed that they observed a hand to hand narcotics transaction taking place between Kahlif and a female. (Id.) Officer Walsh and Sgt. Armstrong exited the car while Officer Vandermay stayed inside. (Defs.' Mot. Summ. J., Ex. D., Deposition of Michael Walsh ("Walsh Dep."), 42:9--19, Jul. 16, 2012.) Officer Walsh announced "police" and told Kahlif to "come here." (Id. at 44:17--45:3.) After Officer Walsh spoke, Kahlif then discarded a pill bottle and began to run away. (Id. at 45:13--15; Defs.' Memo in Opposition to Summ. J., Ex.

B., Internal Affairs Interview of David Armstrong.) Officer Walsh began to pursue Kahlif on foot while Officer Vandermay followed from inside the unmarked Ford Taurus. (Id. at 46:2--8; Defs.' Motion for Summ. J., Ex. C, Deposition of Donald Vandermay ("Vandermay Dep."), 73:13--74:22, Jul. 16, 2012.) Kahlif was finally caught by Officer Walsh several blocks away at the corner of Gransback Street and Indiana Avenue, where he was tackled to the ground by Officer Walsh. (Officers's Statements; Walsh Dep. 21:8--22:7.) Shortly thereafter, Officer Vandermay exited the Ford Taurus and assisted Officer Walsh in attempting to apprehend Kahlif. (Vandermay Dep. 77:15--23.)

While attempting to handcuff Kahlif, Officer Vandermay observed Kahlif place what appeared to be a clear plastic bag inside of his mouth. (Id. at 92:23--93:19.) Officer Vandermay believed that the bag contained smaller pink packets containing a white substance. (Id.) Officer Vandermay then attempted to get Kahlif to spit out the bag by grabbing his throat area and pinching the skin underneath the chin for one to two seconds. (Id. at 106:14--21.) Soon thereafter, Officers Robert Shaw, Kevin McNicholas, and William Schlosser, uniformed bicycle officers, arrived at the scene to assist Officers Walsh and Vandermay in apprehending Kahlif. (Officers's Statements; Defs.' Mot. Summ. J., Ex. E, Deposition of Robert Shaw ("Shaw Dep."), 8:14--11:9, Jul. 16, 2012.) All officers present on the scene stated that they were unable to get Kahlif's left hand out from under his body in order to handcuff him. (Officers' Statements; Shaw Dep. 11:3--12:20.) Officer McNicholas instructed Officer Shaw to use his TASER on Kahlif in order to make Kahlif give up his left arm. (McNicholas Dep. 37:2--38:11.) Officer Shaw then announced to Kahlif that he was going to use his TASER device on him. (Id. 39:19--23; Shaw Dep. 37:15--22.) At this point, Officer Shaw took his TASER device and used it in "drive stun mode" on the back of Kahlif's neck.*fn1 (Id. 38:4--8). According to Shaw, this was done to force Kahlif to give up his left arm. (Id.) Shaw pulled the TASER trigger four times in a span of forty-three seconds, with each trigger pull lasting five seconds. (Defs.' Mot. Summ. J., Ex. F, TASER Report ("Taser Report").) Officer Shaw was aware at the time he used the TASER that Kahlif had something inside his mouth. (Shaw Dep. 12:21--13:5.)

After Shaw used his TASER on Kahlif's neck, Sergeant James Morace arrived on the scene. (Defs.' Mot. Summ. J., Ex. G, Deposition of James Morace ("Morace Dep"), 19:23--20:18, Mar. 6, 2012.) After Morace's arrival, the officers were finally able to get Kahlif's left hand in handcuffs. (Id. at 22:12--19.) At this point, Kahlif was on his stomach, but was rolled over onto his side afterwards. (Id. at 22:8--19; Vandermay Dep. 124:15--16.) Officer Vandermay then noticed and announced that Kahlif was not breathing. (Vandermay Dep. 124:17--24.) Kahlif was then placed on his back while Officer Shaw began to do chest compressions on him. (Id. at 127:1-7.) Sergeant Morace then broadcast a request over the police radio for the Philadelphia Fire Department's rescue squad to come and assist at the location. (Morace Dep. 25:5--14.)

After approximately "a minute or so," when he did not hear or see any rescue lights, Sergeant Morace decided to transport Kahlif to Temple University Hospital in his patrol vehicle. (Id. at 26:9--24.) He then instructed the police radio dispatcher to alert the hospital that the officers were coming in with an unresponsive male. (Id.) The trip to the hospital took approximately three to five minutes, during which Sergeant Morace had his vehicle's lights and sirens activated. (Id. at 27:19-23; Defs.' Mot. Summ. J. Exh. H., Deposition of Kevin McNicholas ("McNicholas Dep."), 15:2--5, Mar. 6, 2012.) Upon arrival at the hospital, Dr. Gerrard Carroll removed a small plastic bag from Snowden's airway. (Defs.' Mot. Summ. J. Exh. I., Deposition of Gerard Carroll ("Carroll Dep."), 24:6--22, Feb. 27, 2012.) As a result of the airway blockage, Kahlif suffered irreversible anoxic brain damage. (Id. at 45:2--7.)

Plaintiff filed suit on behalf of his son in state court, and Defendants removed the case to federal court on August 5, 2011. Plaintiff brought numerous counts under 42 U.S.C. § 1983 asserting (1) violation of civil rights against all defendants, (2) failure of the City to implement appropriate policies, customs, and practices to prevent officers from making false arrests, using excessive force, and giving proper medical care to detainees, (3) use of excessive force by the officers, (4) false arrest, (5) failure of the officers to provide adequate detainee medical care, (6) negligence, and (7) assault and battery. Both Plaintiff and Defendants filed Motions for Partial Summary Judgment on August 15, 2012. Plaintiff and Defendants filed Responses on August 31. In his response, Plaintiff noted that he was dropping his claims for negligence and dropping all claims against Police Commissioner Charles Ramsey in his individual capacity.

II. STANDARD OF REVIEW

Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, the moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145--46 (3d Cir. 2004). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermkts., Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party must establish an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]he non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). If the non-moving party "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 at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Moreover, ...


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