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Wisneski v. Denning

United States District Court, W.D. Pennsylvania

April 30, 2014

OFFICER SHAWN DENNING, et al., Defendants.


JOY FLOWERS CONTI, Chief District Judge.

In this civil rights case Edward Wisneski ("Wisneski") accuses the City of Greensburg ("City") and several of its police officers of violating his constitutional rights during his July 4, 2010 arrest. Specifically, Wisneski brings claims, pursuant to 42 U.S.C. § 1983, alleging that the officers at the scene of his initial traffic stop and eventual arrest violated his Fourth Amendment rights by subjecting him to excessive force. Wisneski seeks compensatory damages against the officers in their official and individual capacities, and punitive damages against them in their individual capacities. (ECF No. 1 ¶¶ 41-48.) Wisneski also contends that the City and certain supervisory officers violated § 1983 due to an alleged custom, policy, or practice of violating citizens' Fourth Amendment rights, and seeks compensatory damages against these defendants. (Id. ¶¶ 49-55.)

As a result of the events occurring on the night of July 4, 2010, a jury empaneled by the Criminal Division of the Court of Common Pleas of Westmoreland County, Pennsylvania, convicted Wisneski of a) driving under the influence, b) escape, c) fleeing or attempting to elude an officer, d) recklessly endangering another person, and e) resisting arrest. On December 16, 2011, Wisneski was sentenced to between 21 and 42 months imprisonment on the most serious of those charges, i.e., escape, to be served concurrently with the lesser sentences imposed for the remaining four criminal convictions. After he was incarcerated and while his direct appeal was pending, Wineski filed the instant civil rights case.

Defendants Officer Shawn Denning ("Denning"), Officer Regina DePelligrin ("DePelligrin"), Officer Jason K. Dieter ("Dieter"), Lieutenant Douglas Marcoz ("Marcoz"), Chief Walter J. Lyons ("Lyons"), Captain George Seranko ("Seranko"), and the City (collectively, "defendants") filed a joint motion for summary judgment. (ECF No. 27.) Defendants filed a brief in support of the motion, (ECF No. 29), a concise statement of material facts, (ECF No. 28), and a reply brief, (ECF No. 39). Wisneski filed a response to defendants' concise statement of facts, (ECF No. 32), and an opposition brief. (ECF No. 34). After the close of briefing, the parties submitted a joint concise statement of material facts. (ECF No. 40.) As requested by the court, defendants subsequently filed a complete copy of the transcript of Wisneski's criminal trial. (ECF No. 41.)

In their motion, defendants argue that Wisneski's § 1983 claims cannot proceed because proof thereof would "call into question the lawfulness of [Wisneski's] conviction or confinement" or "render [Wisneski's] conviction or sentence invalid, " in violation of the rule announced in Heck v. Humphrey , 512 U.S. 477, 483, 486-87 (1994). (ECF No. 29 at 2-14.) Defendants argue, alternatively, that judgment must be entered in their favor because the officers are entitled to qualified immunity, and Wisneski failed to produce any evidence to support a reasonable jury finding that Wisneski was subjected to excessive force or that the City or its supervisors had a custom, policy, or practice of violating citizens' Fourth Amendment rights. (Id. at 14-20.)

In opposition, Wisneski contends that defendants' reliance on Heck is "misplaced" because a favorable result in this case is not necessarily inconsistent with his criminal convictions. (ECF No. 34 at 5-9.) According to Wisneski, the jury in the Westmoreland County criminal case failed to resolve several factual disputes that are crucial to determining whether or not the force used against him on the night of his arrest was objectively reasonable. (Id. at 2-3, 9-11.) In response to defendants' alternative arguments, Wisneski contends that the officers are not entitled to qualified immunity, and that there is sufficient evidence to support reasonable jury determinations that he was subjected to excessive force on the night of July 4, 2010, and that the City, and its supervisory officers, failed to train its officers with respect to when to use a stun gun. (Id. at 11-13.)

For the reasons that follow, defendants' motion will be granted. Wisneski's excessive force claims arising out of the initial traffic stop are barred by the Heck rule. Although the Heck rule does not bar Wisneski's claims that he was subjected to excessive force at the scene of his arrest, no reasonable jury could find, based upon this record, even viewed in the light most favorable to Wisneski, that he was the victim of excessive force during his arrest. To the extent Wisneski brings a claim based upon an alleged denial of medical care, Wisneski failed to produce evidence sufficient to overcome entry of judgment as a matter of law on this legal claim. There being no underlying constitutional violation, Wisneski's claims for municipal and supervisory liability fail. Judgment will be entered in each defendant's favor on all claims and this case will be closed.


All material facts set forth herein are undisputed unless otherwise indicated. Additional material facts may be discussed elsewhere in this memorandum opinion, in context.

A. The July 4, 2010 Incident

At approximately 7:00 p.m. on July 4, 2010, Denning observed a blue Pontiac sedan that was driving ahead of him on West Pittsburgh Street, in the City of Greensburg, Pennsylvania, swerve, cross over into the second lane of travel, and almost hit another car. (ECF No. 40 ¶ 22.) Denning activated his siren and emergency lights in order to initiate a traffic stop to determine if the driver was under the influence of drugs or alcohol. (Id. ¶¶ 23, 25.) After the cars were stopped, Denning approached the Pontiac sedan, asked that the driver shut off the vehicle, which the driver did, and asked the driver to produce his driver's license, which he did, after fumbling with his wallet. (Id. ¶¶ 26-27.) Wisneski blamed his swerving on potholes in the road, but Denning told Wisneski that he was directly behind him and that there were no potholes and that the roadway was recently paved. (Id. ¶ 29.) During this interaction, Denning observed a strong odor of alcohol coming from the car and that Wisneski slurred his speech when answering Denning's questions. (Id. ¶ 27.) Wisneski drank twelve to fifteen beers in a three- to four-hour period prior to being pulled over by Denning. (Id. ¶ 19.)

After obtaining Wisneski's driver's license, Denning recognized Wisneski to be the same man Denning recently arrested for driving under the influence ("DUI") on March 14, 2010. (Id. ¶¶ 8-9, 28.) During the March 2010 traffic stop, Wisneski was arrested after agreeing to take a field sobriety test. (Id. ¶¶ 8-9.) Wisneski pleaded guilty to the DUI charges stemming from his March 14, 2010 arrest. (Id. ¶ 11.)

Denning directed Wisneski to get out of his vehicle and advised him that he was going to conduct some field sobriety tests, to which Wisneski replied "this is going to be a long ride." (Id. ¶ 30.) Denning contends that Wisneski reached toward the ignition of the car, causing Denning to reach into the car with his left hand in an attempt to remove the keys, resulting in a physical scuffle between the men. (Id. ¶¶ 31-32.) According to Denning, during the altercation, he punched Wisneski in the left side of his face in order to free himself from Wisneski's grasp. (Id. ¶ 34.) Wisneski contends that he does not remember reaching for the ignition, grabbing Denning's arm, or having his hands on Denning at all, and asserts that he never attempted to start the car. (Id. ¶¶ 31-34.) According to Wisneski, Denning punched him in the face in an unprovoked attack after Denning realized who Wisneski was from his driver's license, and Wisneski made the comment that "this is going to be a long ride." (Id.)

Around the time that Wisneski handed Denning his driver's license and began to struggle with Denning, DePelligrin arrived at the scene. (Id. ¶ 35.) It is common practice for a second officer to act as backup for a traffic stop, and DePelligrin, who was working the 3:00 p.m. to 11:00 p.m. shift for the City's police department that night, heard Denning's report of the traffic stop over the radio and proceeded to the scene to assist Denning. (Id. ¶¶ 20, 24, 34, 36.) As DePelligrin exited her vehicle, she saw Denning reach into Wisneski's car and get pulled in. (Id. ¶ 37.) DePelligrin realized there was a struggle taking place and ran to assist Denning, pulling out her stun gun[1] as she ran. (Id.) According to DePelligrin and Denning, Wisneski had the car running at this time. (Id. ¶ 38.) Wisneski contends that when DePelligrin arrived, his car was not running. (Id.)

There is no dispute that upon arriving at Wisneski's car DePelligrin pressed her stun gun against Wisneski's upper left arm and activated it for several seconds, while Wisneski was seated behind the steering wheel of his car. (Id. ¶¶ 38-39, 42.) DePelligrin deployed her weapon in drive stun mode, which is when the head of the gun is pressed against someone's skin or clothing in order to gain compliance by temporarily incapacitating the person with an electrical shock lasting not more than six seconds. (Id. ¶¶ 39-40.) The other way to use a stun gun is to fire the weapon such that wires, with probes at the end, are propelled from the gun and either hit or are embedded in a subject's skin. (ECF No. 28-10 at 4.) There is no dispute that the stun gun was used on Wisnesk only in drive stun mode. It is also undisputed that after being stunned, Wisneski slapped at DePelligrin "in self-defense, " yelled at her to "get off" him, and reached for the gear shift at which time DePelligrin stunned Wisneski a second time on his left side. (ECF No. 40 ¶ 42.) After this second stun, Wisneski drove away while DePelligrin's arms, shoulders, and head were still inside the driver's side window of Wisneski's car. (Id. ¶ 43.) DePelligrin was able to extricate herself from the car as Wisneski drove off. (Id. ¶ 44.)

After Wisneski drove away, DePelligrin and Denning got into their respective police cars, activated their emergency lights and sirens, and began to chase Wisneski. (Id. ¶ 45.) DePelligrin and Denning were later joined in their pursuit of Wisneski by Dieter and Marcoz, who were each in separate cars and heard radio transmissions about the incident. (Id. ¶¶ 54-55.) The officers followed Wisneski for a distance of at least two and a half miles at speeds exceeding the posted speed limit, and attempted various maneuvers to stop Wisneski's vehicle before Dieter was able to block the roadway with his car. (Id. ¶¶ 46-53, 57-58, 72.) Wisneski drove into an embankment in front of a house located on Locust Valley Road. (Id. ¶¶ 57-58.) Officers Denning, DePelligrin, and Dieter exited their vehicles and approached Wisneski's car. (Id. ¶¶ 59-60.) Denning yelled at Wisneski to stop the car and get out. (Id. ¶ 59.)

The record is disputed with respect to whether Wisneski placed the car in park immediately after driving into the embankment, or whether one of the officers placed the car in park for him. (Id.) Wisneski claims that after he drove into the embankment, he "placed his forehead on top of the steering wheel in a position of submission." (Id. ¶ 60.) It is undisputed that officers Denning and DePelligrin reached into the car through an open window in order to remove the keys from the ignition and unlock the door. (Id. ¶¶ 60, 62-63.) They could only open the door partially because it was against the embankment. (Id. ¶ 62.) It is undisputed that Wisneski did not exit the car voluntarily, and that Dieter forcibly had to pull Wisneski from the car. (Id. ¶¶ 60, 62-63.) Wisneski does not deny that while being pulled out of the partially-opened car door he slapped, smacked, and grabbed the officers' hands and arms. (Id.) According to Wisneski, a stun gun was again used on him before he was forcibly removed from his car. (Id. ¶ 60.)

As stated, the officers physically had to pull Wisneski out of his car, initially attempting to do so through the driver's side window, while, unbeknownst to the officers, Wisneski was still being secured by his seat belt, and eventually through the partially-opened driver's side door. (Id. ¶ 61-63.) The officers placed Wisneski on the pavement and handcuffed him. (Id. ¶ 64.) Wisneski did not physically resist the officers after he was placed in handcuffs, and it is undisputed that no force was used on Wisneski after he was placed in handcuffs. (Id. ¶¶ 66-68.) Wisneski was placed in the back of Denning's police car after he was handcuffed. (Id. ¶ 63.) Marcoz, who was the other three officers' supervisor and had joined in the pursuit of Wisneski, arrived at the scene after Wisneski was in custody. (Id. ¶¶ 21, 71.)

Wisneski was driven by Denning from Locust Valley Road to the Greensburg police station where he was photographed and fingerprinted by Marcoz. (Id. ¶ 76.) At the time he was processed, Wisneski was not wearing a shirt and Marcoz did not notice any injuries to Wisneski's torso. (Id. ¶ 77.) Denning, who completed the incident report, initially indicated that Wisneski suffered no injuries as a result of his arrest, but changed the report immediately after completing it upon realizing that Wisneski had scratches on his legs. (Id. ¶ 75.) Wisneski contends that he had one discussion while at the police station "about could I seek some medical attention" with an unidentified police officer, which, he asserts, was ignored. (Id. ¶ 74.) Wisneski was released no more than four hours after arriving at the police station to the custody of Brenda Cunningham ("Cunningham"), his girlfriend, and Aaron Mascherma ("Mascherma"), a personal friend. (Id. ¶¶ 80, 116-17.)

Upon being released from police custody, Wisneski went home and did not seek medical treatment until he went to the emergency room at Westmoreland Hospital on July 5, 2010, more than twenty-four hours after his arrest. (Id. ¶¶ 81-82.) Wisneski insisted that hospital personnel take photographs of his injuries, which photographs show scrapes and bruises on Wisneski's lower leg, right temple, left back, and buttocks. (Id. ¶¶ 83, 118, 121.) Medical records indicate that emergency room personnel could not obtain a complete accurate history on what happened because Wisneski reported that he was intoxicated at the time of the incident and could not recall what happened. (Id. ¶ 85.) There is no evidence in the record that Wisneski sought follow-up treatment after visiting the hospital on July 5, 2010. (Id. ¶ 84.)

Several days after the incident, on July 9, 2010, Wisneski went to the Westmoreland County District Attorney's Office to file a complaint against the City's police department with respect to the July 4, 2010 incident. (Id. ¶ 86.) Detective Terry Kuhns ("Kuhns") met with Wisneski and Cunningham, who accompanied him on the day that he walked into the district attorney's office to file a complaint, and prepared a written report about their meeting. (Id. ¶ 86; ECF No. 28-2 (Wisneski Depo.) at 48-52.) Kuhns, who had the authority to investigate and file charges of police brutality and misconduct, determined that charges should not be filed against the police as a result of the July 4, 2010 incident. (ECF No. 40 ¶ 89.)

B. The Criminal Proceedings

As a result of the July 4, 2010 incident, Wisneski was charged with numerous crimes in the Criminal Division of the Court of Common Pleas of Westmoreland County, Pennsylvania, including a) DUI, b) escape, c) fleeing or attempting to elude an officer, d) recklessly endangering another person, e) resisting arrest, f) failure to stop at a red signal, g) disregarding traffic lane (single), and h) reckless driving. (ECF No. 40 ¶ 13; Docket No. CP-65-CR-0003102-2010, Charges.[2]) The last three charges were withdrawn, and a jury trial was held on the first five charges on September 28 and 29, 2011. (ECF No. 40 ¶ 14; Docket No. CP-65-CR-0003102-2010, Disposition Sentencing/Penalties.) On September 29, 2011, the jury returned guilty verdicts on all five charges. (ECF No. 40 ¶ 16; Docket No. CP-65-CR-0003102-2010, Disposition Sentencing/Penalties; ECF No. 41 (State Criminal Trial Transcript) at 291, 298-99.) The Pennsylvania Superior Court affirmed Wisneski's convictions, without opinion, and the Pennsylvania Supreme Court denied his petition for allowance of appeal. (ECF No. 40 ¶¶ 17-18.)

1. The Trial

Wisneski was represented by counsel during a two-day jury trial held before a state court trial judge in the Criminal Division of the Court of Common Pleas of Westmoreland County, Pennsylvania. The Commonwealth presented testimony from Kuhns, Marcoz, DePelligrin, Dieter, and Denning, three medical professionals who interacted with Wisneski during his July 5, 2010 visit to the emergency room, and the owner of the property on Locust Valley Road where Wisneski's car hit the embankment. (ECF No. 41 at 4-5.) The owner had observed Wisneski being arrested. (Id. at 133-38.) Wisneski called three witnesses: Cunningham, Mascherma, and David Trump, a friend who saw Wisneski after he returned home from the police station on the night of his arrest. (Id. at 5.) None of Wisneski's witnesses were present at the scene of the initial traffic stop or Wisneski's arrest. Wisneski did not testify at his criminal trial.

The jury was asked to return verdicts on five criminal charges: (1) DUI; (2) escape; (3) fleeing or attempting to elude an officer; (4) recklessly endangering another person; and (5) resisting arrest. (Id. at 279-93.) If the jury found Wisneski guilty of escape, then they were asked to determine additionally whether Wisneski employed force, threat, deadly weapon, or dangerous instrumentality or action to affect the escape. (Id. at 282-83.) If the jury found Wisneski guilty of fleeing or attempting to elude a police officer, then they were asked to determine additionally whether Wisneski did so while driving under the influence of alcohol, thereby making the crime a felony. (Id. at 12-13, 283-84.) After deliberating for less than two hours, the jury found Wisneski guilty on all five charges and answered each of the additional questions in the affirmative.

It is clear from Wisneski's counsel's opening statement, that the circumstances surrounding Wisneski being punched and drive stunned twice during the initial traffic stop, and Wisneski's resulting motivation for driving away from the scene, were critical questions of fact in the criminal trial.

I know in her opening [the Commonwealth's attorney] told you that the officer had to strike Mr. Wisneski. Well, in his affidavit, he himself says I punched him in the head. And I believe that punch in the head, if I'm correct, I may be wrong, from what I read in the affidavit is to, using the driver's seat, is to his left side of the head. So, he's punched in the head. And you'll have to listen to Officer Denning's testimony both on direct and cross-examination as to why he punched him in the head. The vehicle was stopped. So that's a question.
Then shortly thereafter, although Mr.Wisneski has not taken off, has not brandished a weapon, doesn't yield a knife, didn't do anything, the next thing you know Mr. Wisneski, who is by the way not a large man, he's getting Tasered by Officer DePelligrin. He was Tasered twice. There is a Taser report that she filed. It appears from that that she Tasered him at the neck and I think the upper arm but, again, you'll hear from her and we'll find out together where exactly that Taser occurred.
With regard to him being Tasered, again, questionable. Why is this man being Tasered? Put yourself in his position, what is he thinking? He's gotten punched on the side of the head, he's been Tasered with electric current that's now affecting his nervous system, and now he's supposed to just sit there and get out of the car and operate as to what is going to happen to him next?
No, he doesn't do that. But he leaves.
Again, this is a man who has been punched, then he's Tasered, and he's going to get out and do [field sobriety tests] in the context of this stop where he says I swerved because I avoided a pot hole?
He left that scene. He left it because he was afraid. Not because he was willfully fleeing. Not because he was escaping. And this is what you're going to have to decide ultimately when you go in to deliberate.

(Id. at 43-45, 46, 49.)

Wisneski's counsel's closing argument reiterates that the jury was being asked to find that Wisneski left the scene of the initial traffic stop because he had been attacked by the police without justification, and was afraid of further police brutality from Denning and DePelligrin.

And, again, we have to sit and think about what does Mr. Wisneski think at this point. He's been punched and he's been stun drived twice. Bolts of electricity have gone through this body. He has originally - I want you to consider the fact that he willfully stopped at that original stop. He didn't take off. But after the Taser and after the punching, he decides to turn his car on and go.
I submit to you, if you believe in your hearts that he took off that day because he was afraid, because he had been punched and because he was Tasered twice, then he can't be - you can't find [him guilty of escape].
So, why would he leave? Because he's trying to elude and flee the police officers willfully when he stopped originally? The only conclusion you can come to ...

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