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Grant v. Winik

United States District Court, Third Circuit

June 11, 2013

TRACY GRANT, Plaintiff,
TIFFANY WINIK, et al., Defendants.



I. INTRODUCTION .............................................. 2

II. FACTS ..................................................... 4

III. APPLICABLE LEGAL STANDARDS ............................. 15

A. Summary Judgment Standard .............................. 15
B. Determining Genuine Disputes of Material Fact .......... 16
C. Plaintiff’s Alleged Genuine Disputes of Material Fact .. 20
1. Contested Facts as to Baier ......................... 21
2. Contested Facts as to Baran and Winik ............... 24


A. Plaintiff’s Unlawful Search and Excessive Force Claims . 32
1. Warrantless Entry of Pagano’s Apartment ............. 38
2. Baran’s Use of Pepper Spray ......................... 45
3. Winik’s Use of Deadly Force ......................... 49
B. Remaining Eighth and Fourteenth Amendment Claims ....... 53
1. Denial of Medical Care Claim ........................ 53
2. State Created Danger and Generalized Substantive Due Process Claims ...................................... 54

V. MONELL AND FAILURE-TO-TRAIN CLAIMS ....................... 64

VI. CONCLUSION ............................................... 69


In the early afternoon of February 25, 2009, Randall Pagano, a twenty-seven year old male on probation for domestic violence was fatally shot inside his apartment by Bristol Township Police Officer Tiffany Winik. Winik, along with Officer John Baran, had responded to a call for assistance from Bucks County Probation Officer Michael Baier. Baier had concluded that Pagano was inside his apartment and possibly experiencing medical difficulties, requiring a well-being check.

Upon arriving at the scene, Winik, Baran, and Baier executed a warrantless entry into Pagano’s apartment, where they ultimately confronted Pagano in a narrow hallway. Whether the officers were justified in entering Pagano’s home without a warrant, and what happened inside the apartment that lead to the police officers’ use of pepper spray and deadly force on Pagano are the issues in this case. Ultimately, the Court must determine whether, under these circumstances, the officers’ claim to qualified immunity is justified.

Plaintiff Tracy Grant, as Administratrix of the Estate of Randall Pagano, brings this action against Police Officer Defendants Tiffany Winik, John Baran, and Todd Evans, [1] the Township of Bristol, the Bristol Township Police Department, and Police Chief James McAndrews (collectively, “Officer Defendants”), and Bucks County Probation Officer Michael Baier, in his official and individual capacity (Officer Defendants and Baier, collectively, “Defendants”).[2] Plaintiff’s Complaint consists of seven counts: Counts I and II allege various violations of Pagano’s civil rights, pursuant to 42 U.S.C. § 1983, against Winik, Baran, Evans, and Baier; Counts III and IV allege Monell claims against the Township of Bristol and McAndrews; and Counts V to VII allege Pennsylvania wrongful death, survival, and assault and battery claims against Winik, Baran, Evans, McAndrews, and Baier. Pl.’s Compl., ECF No. 1.

On May 11, 2012, Baier filed a Motion for Summary Judgment. Def. Baier’s Mot. for Summ. J., ECF No. 99.

Plaintiff filed a response thereto. Pl.’s Resp. to Def. Baier’s Mot. for Summ. J., ECF No. 106. On May 14, 2012, Officer Defendants collectively filed a Motion for Summary Judgment. Officer Defs.’ Mot. for Summ. J., ECF No. 101. Plaintiff filed a response thereto. Pl.’s Resp. to Officer Defs.’ Mot. for Summ. J., ECF No. 108. Officer Defendants filed a Motion for Leave to File a Reply. Officer Defs.’ Reply, ECF No. 110.[3]Baier recently filed a Motion for Leave to File a Reply. Def. Baier’s Reply, ECF No. 113. Defendants’ motions are now ripe for disposition. For the reasons that follow, the Court will grant Defendants’ motions as to Counts I to IV. And, having dismissed all federal claims, the Court will decline to exercise supplemental jurisdiction over the remaining state-law claims, in Counts V to VII.


Baier was the probation officer assigned to supervise Pagano. Pagano was on probation for a domestic violence incident. According to the parties, Baier’s previous interactions with Pagano, albeit brief, were cordial. Hr’g Tr. 36:4-12; 48:4-22, Apr. 17, 2013, ECF No. 115.[4]

According to Baier, on February 25, 2009, at approximately 1:19 p.m., Baier went to Pagano’s apartment, located at the Mills Crossing Apartments, for a prescheduled probation contact meeting. Officer Defs.’ Mem. in Support of Mot. for Summ. J. (“Officer Defs.’ Mem.”) Ex. F, Baier Dep. 26:17-28:21. Whether February 25, 2009, was the prescheduled appointment date is a contested issue of fact.

Upon arrival, Baier used his cell phone to call Pagano’s home number. According to Baier, as he finished leaving a voicemail Pagano answered, terminating the answering machine recording, and said, “This is Randall. I’m having very serious problems up here.” Id. at 34:19-21.[5] Whether Baier spoke with Pagano, and whether Pagano said “This is Randall. I’m having very serious problems up here, ” are contested issues of fact.

Thereafter, Baier attempted to contact Pagano in person by knocking on Pagano’s apartment door and ringing the doorbell. Id. at 50:9-19. Upon receiving no response, Baier contacted police radio and requested assistance for a well-being check. Id. at 48:12-23.

Winik was the first to respond to the radio call, which notified her that a probation officer needed assistance checking on a parolee. Officer Defs.’ Mem. Ex. B, Winik Dep. 32:1-35:21.[6] Winik estimated that she arrived on the scene at approximately 1:41 p.m. Id.[7]

According to Winik, upon arrival Baier told her that he had spoken to Pagano, and that “he had reason to believe [Pagano] was in the apartment and having some kind of medical emergency. He said [Pagano] was—sounded like he was slurring his words and then he said, ‘I’m having a real problem here. I’m having a problem here.’” Id. at 38:1-7. As the officer dispatched to the scene and the first to arrive, Winik assumed control of the scene. Id. at 54:8-20.

Shortly thereafter, Baran arrived on the scene. Officer Defs.’ Mem. Ex. G, Baran Dep. 14:4-14. According to Baran, aside from the initial radio request, the only other information he had was relayed to him by Winik, regarding “a potential medical emergency.” Id. at 17:13-24, 26:1-8.

The officers proceeded to Pagano’s apartment, and Winik knocked on Pagano’s door, calling out “Randall, Randall.” Winik Dep. 51:6-16; accord Baier Dep. 53:24-54:2 (stating that police knocked and said, “Randall, this is [the] police, are you ok?”).

Upon receiving no response, Baran contacted Bucks County Radio and requested assistance from the apartment complex maintenance staff. Officer Defs.’ Mem. Ex. I, Recording of Bucks County Radio Transmissions; Baran Dep. 26:10-14. But shortly thereafter, a maintenance person, Carl Newton, happened to pass the scene and, upon the officers’ request for assistance, unlocked Pagano’s apartment door. Baran Dep. 26:14-24.

Winik and Baran attempted to enter, but were only able to force Pagano’s apartment door open a few inches. Baran Dep. 28:4-9. Winik squeezed through the partially-opened door, withdrew her service weapon, quickly scanned the living room, and then cleared the sofa and chairs that were blocking the apartment door so that Baran and Baier could enter the apartment. Winik Dep. 68:5-71:10. As Baran entered, he too withdrew his service weapon. Baran Dep. 31:8-9.

Winik noted that Pagano’s apartment was in disarray. Winik Dep. 72:8-73:12. Photographs of Pagano’s kitchen on the day in question also show several syringes scattered on the tabletop. Officer Defs.’ Mem. Ex. K, Photographs; see also Officer Defs.’ Reply Ex. P, Photographs (Exhibits K and P, collectively, “Photographs”).

During their initial search, the officers did not find Pagano. While Winik checked the living room and kitchen area, Baran checked the bathroom and behind the shower curtain. Winik Dep. 72:2-73:5. According to Baran, he called out Pagano’s name as he proceeded down the hallway and into Pagano’s bedroom. Baran Dep. 34:2-22.

As the search continued, Baran discovered Pagano in his bedroom closet, and the officers approached with service weapons drawn. Winik Dep. 77:10-82:20.[8] According to the officers, they announced their presence and instructed Pagano to show his hands, but Pagano failed to comply. Id. at 91:3-22. At this point, Baier knocked on the wall and said “Mr. Pagano, probation officer, Michael Baier. At this point you will be under arrest.” Pl.’s Mem. in Opp’n to Def. Baier’s Mot. for Summ. J. (“Pl.’s Resp. Mem.—Def. Baier”) Ex. 2, Baier Dep. 136:17-137:2.

According to Baran, he wanted to check on Pagano’s well-being, and ordered him to come out of the closet. Baran Dep. 40:14-46:24. Believing that he was hiding in the closet, Baran stated that he wanted to approach Pagano, but because he could not see Pagano’s hands he determined that it was unsafe to do so. Id. at 47:8- 48; see also Officer Defs.’ Reply Ex. O, Report of John J. Ryan (“Ryan Report”) 20-21. According to Baran, Pagano did not respond to show-hands commands. Baran Dep. 46:18-51:16. Baran then deployed his pepper spray into the closet, in Pagano’s direction. Id. at 47:6-9. Pagano did not respond to the pepper spray. Id. at 47:6-49:2. At that point, Baran still could not see Pagano’s hands, and again ordered Pagano to show his hands. Id. Baran then concluded that the first spray was blocked by clothing hanging in the closet, and deployed his spray a second time, this time hitting Pagano on the chest. Id. at 49:12-22. Whether Baran ordered Pagano to show his hands prior to deploying the pepper spray is a contested issue of fact. Pl.’s Resp. Mem.—Officer Defs. 23.

According to Baran, after removing the tote from the closet, he was able to observe both of Pagano’s hands, at which point he and Winik holstered their service weapons and prepared to enter the closet to remove Pagano. Baran Dep. 59:1-20.

Before the officers could do so, Pagano broke an empty aquarium tank in the closet and grabbed a large shard of glass.[9] Id. at 62:17-22. Baran alerted Winik of what Pagano had done and also alerted Bucks County Radio dispatch that they needed back-up. Recording of Bucks County Radio Transmissions 4:28-4:52. According to the police officers, they then withdrew their service weapons and retreated into the hallway. Winik Dep. 113:18-126:22.

Now in the hallway and with their weapons raised, Baran and Winik ordered Pagano several times to stop and drop the piece of glass. Id. at 128:24-129:1; Baran Dep. 72:24-73:2; Baier Dep. 85:4-10. According to the officers, Pagano failed to comply and continued towards the officers, at which point Winik ordered Pagano, “Stop, or we’ll shoot.” Winik Dep. 164:10-16.

Winik estimated that as Pagano crossed the threshold of the bedroom and into the hallway—which is approximately eleven feet long—she discharged her service weapon once, striking Pagano in the mid to lower right side. Id. at 129:16-136:4. Plaintiff disputes this distance. Pl.’s Resp. Mem-Officer Defs. 23. Winik and Baran stated that Pagano then stopped and dropped the glass, spun backwards and fell back onto the bedroom floor, where he lay unmoving. Id .; Officer Defs.’ Mem. Ex. K, Scene Diagram. Immediately thereafter, Baran notified Bucks County radio dispatch that shots had been fired, and requested an ambulance. Recording of Bucks County Radio Transmissions 6:25, 7:07-7:12.

Meanwhile, Evans had responded to Baran’s earlier radio call for assistance, and was the third police officer to arrive on the scene to assist. Officer Defs.’ Mem. Ex. L, Evans Dep. 5:21-6:4. According to Evans, as he proceeded up the stairs to Pagano’s apartment, he heard a single gunshot. Id. at 6:8-18. As he entered the apartment, Evans heard Baran giving commands for Pagano to show his hands while Pagano was on the ground. Id. at 6:21-7:4. While Baran kept his service weapon pointed at Pagano, Evans handcuffed Pagano’s hands behind his back. Id. at 11:20-22; Officer Defs.’ Mem. Ex. D, McAndrews Dep. 66:6-22 (explaining that handcuffs were used to secure Pagano and secure scene for emergency medical personnel). Upon turning Pagano over, Baran and Evans realized that he was bleeding, so they removed the handcuffs and Baran applied pressure to Pagano’s wounds until emergency personnel arrived, approximately three minutes and forty-three seconds after Baran’s request. Baran Dep. 81:2—82:17; Recording of Bucks County Radio Transmissions 10:08. Pagano was taken to the hospital, where he later died.

On the date in question, there were in effect several relevant procedures and training scenarios instituted by the Bristol Township Police Department.[10] First, the Department had instituted protocol regarding the use of pepper spray, permitting its use where officers are confronted with “resistant individuals, ” or “when it is unsafe for an officer to approach a suspect within contact range.” Pl.’s Resp. Mem.—Def. Baier Ex. 14, Bristol Township General Order B-09, Use of Less-Than-Lethal Force, Oleoresin Capsicum (OC) Spray and OC Pepperball System (“General Order B-09”). This protocol authorizes the use of pepper spray after exhausting reasonable means and instructs that, whenever practical and reasonable, an officer should first issue a verbal warning prior to using pepper spray against a suspect. General Order B-09.

Second, the Department had protocol regarding dealing with a barricaded person. Pl.’s Resp. Mem.—Def. Baier Ex. 13, Bristol Township General Order E-02, Barricaded Persons and Hostage Situations (“General Order E-02”). The parties agree that this protocol leaves undefined the phrase “barricaded individual.” Pl.’s Resp. Mem.—Officer Defs. 66; Officer Defs. Reply 14. Baran and Winik both received a copy of the department’s barricaded person policy, but never received individualized training on the matter. Pl.’s Resp. Mem.—Officer Defs. 70-78.

According to McAndrews’ deposition testimony, he relies on his officers’ discretion in determining whether a situation involves a barricaded individual. Relevant here, Winik and Baran did not follow the protocol under General Order E-02, stating that they did not believe Pagano was a barricaded ...

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