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Johnston v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

June 16, 2014



ROBERT C. MITCHELL, Magistrate Judge.


Presently for disposition is Defendants' Pittsburgh Police Sergeant William Kunz and the City of Pittsburgh's joint motion for summary judgment. [ECF No. 55]. For the following reasons, Defendants' motion is granted in part and temporarily denied in part.[1]


Plaintiffs Blaine Johnston and Matthew Mazzie are individuals residing in Allegheny County, Pennsylvania. Defendants are the City of Pittsburgh (the "City"), Pittsburgh Police Officer Garrett Brown ("Officer Brown") and Pittsburgh Police Sergeant William Kunz ("Sergeant Kunz"). The instant action stems from an altercation that took place between Plaintiffs and Officer Brown on November 18, 2010 at approximately 3:30 AM. Plaintiff Johnston was driving a delivery van eastbound on Fifth Avenue in the Oakland neighborhood in Pittsburgh, Pennsylvania with Plaintiff Mazzie as his passenger. Plaintiffs were en route to deliver baked goods from a local bakery to Children's Hospital of Pittsburgh. At the same time, Officer Brown, off-duty at the time, was traveling westbound on Fifth Avenue in the same vicinity as Plaintiffs. Officer Brown was driving a dark colored pick-up truck that was not marked as a police vehicle. The following is Plaintiffs' account of the events that occurred. Plaintiffs claim that Plaintiff Johnston was making a left-hand turn onto Morewood Avenue and Officer Brown was traveling at an excessive rate of speed coming toward the Plaintiffs in the opposite direction. After Plaintiffs made the left-hand turn, Officer Brown began to follow Plaintiffs' vehicle. Officer Brown then overtook Plaintiffs' vehicle on the left hand side by entering the opposing traffic lane and yelled profanities at Plaintiffs. Officer Brown then pulled his vehicle back behind Plaintiffs' vehicle, overtook them again and threw a handful of coins at Plaintiffs' vehicle as the parties continued driving on Morewood Avenue. Plaintiffs and Officer Brown came to a subsequent traffic light and Officer Brown exited his vehicle and approached Plaintiffs' car, again yelling profanities at Plaintiffs and at one point reached behind him and placed his hand on his waistband while walking toward Plaintiffs' vehicle. Officer Brown then punched and broke the driver's side mirror with his fist, punched the driver's side window, punched the back side of Plaintiffs' van, opened the driver's side door and violently grabbed Plaintiff Johnston by his left arm. Plaintiffs immediately drove away and turned left onto Baum Boulevard. Officer Brown pursued. Officer Brown again overtook Plaintiff's vehicle and drove the right side of his vehicle into the left driver side of Plaintiffs' vehicle thereby forcing Plaintiffs' vehicle off of the road and onto the adjacent sidewalk. Officer Brown again exited his vehicle and approached Plaintiffs' vehicle. In an effort to escape, Plaintiff Johnston immediately reversed the van, and in doing so, collided with Officer Brown's side rear bumper and nearly tore it from Officer Brown's vehicle. Plaintiffs drove away from the scene to their original destination of Children's Hospital of Pittsburgh, which Officer Brown again followed. Plaintiff Mazzie contacted "911" from his cellular phone to report the incident and to request an officer to meet Plaintiffs at Children's Hospital. Officer Brown followed Plaintiffs to Children's Hospital and parked his vehicle behind Plaintiffs. It is undisputed that at no time during this altercation did Officer Brown announce or identify himself as a police officer and Plaintiffs did not witness a badge, uniform or other indication that he was a police officer. While there is no testimony of record on behalf of Officer Brown, he generally alleges (as evidenced by the police report authored by Sergeant Kunz) that Plaintiffs hit him from behind while he was stopped at a stop light and fled from the scene. Apparently Officer Brown also contacted "911" to report the incident.

Upon arrival at Children's Hospital, Plaintiffs informed a security guard of the events that took place. The security guard spoke to Officer Brown briefly and then informed Plaintiffs that Officer Brown was a City of Pittsburgh Police Officer. Pittsburgh Police officers arrived at the scene shortly thereafter. Officer Perry was the first to arrive to the scene. Plaintiffs allege that they informed Officer Perry of their account of the road rage incident and that Brown had rammed their car and tried to run them off of the road and they fled the scene of the accident because they were in fear for their safety and lives.[2] Subsequently, Defendant Sergeant Kunz arrived at the scene and took a brief statement from Plaintiffs. Plaintiffs allege that the only question that Sergeant Kunz asked them was why they rear ended Officer Brown's vehicle, he quickly inspected Plaintiffs' vehicle and continued speaking with Officer Brown. Sergeant Kunz and other police officers who had arrived at the scene then engaged in a lengthy conversation with Officer Brown. Plaintiffs allege that during this conversation, the Defendants conferred and conspired to prevent Officer Brown from facing department internal discipline, civil and criminal liability for his road rage incident and subsequently aided Officer Brown in making and collecting an automobile insurance claim.

On or about November 19, 2012, Sergeant Kunz swore an Affidavit of Probable Cause, based upon Officer Brown's statement, which Plaintiffs allege he knew to be false, and filed a criminal complaint and summons and/or warrant for the arrest of Plaintiff Johnston for an alleged violation of 75 P.S. § 3743(a), titled "Accidents Involving Damage to Attended Vehicle or Property, " a misdemeanor of the third degree, punishable by a fine of $2, 500 or imprisonment of not more than one year, or both.[3] Plaintiffs claim that Defendants refused to investigate their claims that Officer Brown had acted in a violent and aggressive manner, rammed into Plaintiffs' vehicle and ran Plaintiffs off of the road.

Plaintiff Johnston pled not guilty to the charge filed against him. The charge was ultimately dropped against him and the criminal case dismissed because Officer Brown failed to appear at several preliminary hearings.

As a result of the events that occurred with Plaintiffs, Officer Brown was criminally charged with the following: Theft by Deception (18 Pa.C.S.A. § 3922(A)(1)), False, Fraudulent or Incomplete Insurance Claim (18 Pa.C.S.A. § 3922(A)(2)), False Report-Falsely Incriminating Another (18 Pa.C.S.A. § 4906(A)), and two counts of Recklessly Endangering Another Person (18 Pa.C.S.A. § 2705). See also Defs.' Br. in Supp. of Mot. for Summ. J. Ex. D Allegheny County Criminal Docket No. CP-02-CR-0001768-2012 [ECF No. 56-4]. Officer Brown was acquitted of all charges on May 20, 2013 following a jury trial. Sergeant Kunz testified for the prosecution against Officer Brown at his criminal trial.

The City subsequently terminated Officer Brown as a police officer, but he was later reinstated by the arbitrator because the arbitrator found that Officer Brown was not on duty at the time of the incident and was therefore not acting under color of state law. See Arbitrator Opinion, [ECF No. 56-7].

Plaintiffs filed the instant action in this Court on November 16, 2012 alleging the following claims against, inter alia, the City and Sergeant Kunz[4]: 42 U.S.C. § 1983 claim for violations of their Fourth and Fourteenth Amendment rights, 42 U.S.C. § 1983 claim for malicious prosecution of Plaintiff Johnston by Sergeant Kunz, and indemnification. Additionally, this Court construed Plaintiffs' complaint as alleging a claim for conspiracy under 42 U.S.C. § 1983. As for the section 1983 claim against the City, Plaintiffs claim that the City had actual or constructive knowledge of Officer Brown and Sergeant Kunz's propensity to make unwarranted and unlawful vehicle stops and arrests, often while off duty, without reasonable suspicion or cause and their propensity to utilize excessive force and that the City failed to adequately investigate, train or discipline Officer Brown and adequately deter and prevent his improper and unlawful behavior. Plaintiffs claim that the City's conduct in this circumstance is part of a wide-ranging acquiescence on the City's behalf to fail to train its officers such that it maintained an official policy and/or custom that condoned police misconduct. Specifically, Plaintiffs maintain that the City failed to properly train, supervise and discipline Officer Brown and Sergeant Kunz with regard to the unauthorized vehicle stops and use of excessive force and to prevent a code of silence that discourages and prevents officers from relating information to authorities concerning the improper conduct of other officers who engaged in improper vehicle stops, used excessive force, maliciously prosecuted citizens or abuse the legal process and authority of their positions as police officers.

On February 11, 2013, the City filed its Answer and Affirmative Defenses and on March 14, 2013 this Court denied Sergeant Kunz's Motion to Dismiss. See Def.'s Ans. [ECF No. 18]; Memo. Op. and Order [ECF No. 22]. Default was entered against Officer Brown on May 13, 2013. Clerk's Entry of Default [ECF No. 34]. As of this date, Officer Brown has not attempted to lift the entry of default against him or has entered his appearance in this case.

On February 21, 2014, the City and Sergeant Kunz (collectively "Defendants") filed a joint motion for summary judgment as to all claims set forth by Plaintiffs. Defs.' Mot. for Summ. J. [ECF No. 55]. Defendants offer the following arguments in support of their motion for summary judgment: (1) that plaintiffs have failed to establish that the actions taken by Officer Brown were taken under the color of law and therefore do not create liability on the City; (2) plaintiffs failed to establish a Monell theory of liability based on any action, custom or policy by the City; (3) plaintiffs have failed to produce any evidence supporting a malicious prosecution cause of action; (4) plaintiffs have failed to produce any evidence to establish a cause of action for conspiracy; (5) plaintiff Mazzie has not produced evidence that his constitutional rights were violated, or that he incurred damages based on the defendants' conduct; and (6) Sergeant Kunz is entitled to qualified immunity. Each argument will be addressed in turn.


Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if "there is no genuine issue as to any material fact and... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A moving party is entitled to summary judgment if he demonstrates that "the nonmoving party has failed to make a sufficient showing of an essential element of [his] case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party bears the burden of adducing palpable evidence "establishing that there is a genuine factual dispute for trial" and may not merely rely upon "bare assertions or conclusory allegations" to survive summary judgment. Hogan v. Twp. of Haddon, 278 F.Appx. 98, 101 (3d Cir. 2008) (citing Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982)). "A motion for summary judgment will not be defeated by the mere existence' of some disputed facts, but will be denied [only] when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if proof of its existence or non-existence might affect the outcome of the case. Anderson, 477 U.S. at 248. Thus, the dispute must be material, by affecting the outcome of the case, and must be genuine, meaning there is evidence such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248. "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 407 (E.D.Pa. 2000). The court should draw inferences "in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) cert. denied 507 U.S. 912 (1993).


1. 42 U.S.C. ...

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