United States District Court, W.D. Pennsylvania
MAURICE B. COHILL, Jr. Senior District Judge.
On September 9, 2011, the Clerk of Courts for the United States District Court for the Western District of Pennsylvania received from Plaintiff Jhen Scutella a Motion for Leave to Proceed in forma pauperis. The Motion was granted on September 19, 2011 and Plaintiff's Complaint against Defendants City of Erie Bureau of Police ("Erie Police") and Erie Police officers Matthew Eicher ("Officer Eicher"), Michael Brown ("Officer Brown"), and James Cousins, II ("Officer Cousins") was filed. Plaintiff then filed an amended complaint against the same Defendants on March 8, 2012 and on March 19, 2012 Defendants filed a Motion to Dismiss Plaintiff's Complaint.
Magistrate Judge Baxter filed a Report and Recommendation with respect to the Motion to Dismiss, and we adopted that Report and Recommendation with modifications. Specifically, we granted Defendants' Motion as to Plaintiff's malicious prosecution claim as well as his excessive use of force claim to the extent it is premised on the Eighth and Fourteenth Amendments, but ruled that Plaintiff's excessive use of force claim could proceed under the Fourth Amendment. We also granted Defendants' motion as to Plaintiffs municipal liability claim against the Erie Police, without prejudice to his right to file a second amended complaint to allege further allegations in support of such claim. The remainder of Defendants' motion to dismiss was denied.
Thereafter, in accordance with our Order, Plaintiff filed a second amended complaint on or about June 14, 2012 [ECF No. 35]. In this Complaint, Plaintiff added three new Defendants, who have been identified as Erie Police officers Jerry Stevens ("Officer Stevens"), William Goozdich ("Officer Goozdich"), and Sgt. Noble ("Sergeant Noble") in addition to Defendants Eicher, Brown and Cousins and alleged claims against these officers for "Excessive force, Deliberate Indifference of Medical Needs, Inadequate Medical care, Delay of Medical Care, violation of Due Process under the 14th and 4th amendments of U.S. Const."as well as state law claims for "Assault and Battery, Official Oppression, Intentional infliction of Emotional Distress and Conspiracy. Amended Complaint, ¶¶ 16-17. Plaintiff further alleged a 42 U.S.C. § 1983 municipal liability claim against the Erie Police on the basis that "they had a policy or custom of assaults by their employees against its citizens and for failing to train or monitor or supervise them. They are aware of numerous recent publicized reports of assaults against other citizens for excessive force and this is their policy to not correct it." Id. at ¶ 18. See also 19 ("this claim is brought under Municipal liability to enforce regulations on excessive force and a lack of or custom of using excessive force...."). All of the claims are related to event that occurred in the early morning hours of August 25, 2011.
On December 30, 2013, Defendants filed a motion for summary judgment, arguing that Plaintiff is unable to demonstrate that he was deprived of any of his constitutional rights and that Defendants are entitled to qualified immunily [ECF No. 73]. On August 29, 2014, Magistrate Judge Baxter issued a Report and Recommendation ("R&R") in which she recommended that
Defendants' Motion for Summary Judgment should be granted with respect to Plaintiff's municipal liability claim against the Erie Police and otherwise denied for a variety of reasons that will be addressed in turn.
Rule 72(b)(3) of the Federal Rules of Civil Procedure provides: "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id . Objections to the R&R were due no later than September 15, 2014. Plaintiff filed Objections on September 10, 2014 and Defendants filed objections on September 12, 2014. Plaintiff then filed a Reply to the Defendants' Objections on September 15, 2014.
I. Plaintiff's Objections to the R&R.
Plaintiff's Objections to the R&R are addressed to Magistrate Judge Baxter's recommendation that the defendants' Motion for Summary Judgment should be granted with respect to Plaintiff's Section 1983 municipal liability claim against the Erie Police. Magistrate Judge Baxter's recommendation was based upon her conclusion that:
Plaintiff has simply stated in conclusory fashion that the Erie Police "should be held liable because they had a policy or custom of assaults by their employees against its citizens and for failing to train or monitor or supervise them." (ECF No. 35, Second Amended Complaint, at ¶ 18). Plaintiff alleges further that the Erie Police "are aware of numerous recent publicized reports of assaults against other citizens for excessive force and this is their policy to not correct it." (Id.). Such vague and conclusory statements fail as a matter of law to establish the existence of a policy or custom upon which a claim of municipal liability may be based.
Report and Recommendation, p. 8.
In support of his Section 1983 claim against the Erie Police Plaintiff presented a newspaper article from 2011 "where a female was assaulted by these same officers or if not others all employed by the city" as well as a case from this District, Barnes v. City of Erie Bureau of Police "in which these same actions arise [-] I do believe MS Barnes was also tased in which she ended up passing away, " such that he has presented three instances from 2011 where the officers employed by the Erie Police engaged in excessive force, which raises a genuine issue of material fact as to whether the Erie Police had a custom of using excessive force. Objection, p. 1. He also contends that this incident was not his first incident with the police. Id . "I [h]ave been arrested before and have been treated the same way every time whether it's being roughed up slammed and one time I was dragged across the ground while handcuffed not merely one incident that happened and I make a claim that this is their custom it has happened numerous times." Id.
Having reviewed the newspaper article cited to by Plaintiff [See ECF #29, p. 9], the filings in Barnes et al. v. City of Erie Police Department et al., 13-cv-111E, Plaintiff's unsupported statement about how he has been treated by Erie police officers in the past, and the facts underling this case, we conclude that even viewing this evidence in a light most favorable to Plaintiff as the non-moving party, we agree with Magistrate Judge Baxter's recommendation that summary judgment should be granted on Plaintiffs §1983 municipal liability claim against the Erie Police. We so find because this evidence does not create a genuine issue of material fact as to whether the Erie Police have a policy or custom of engaging in excessive force or of failing to train or monitor or supervise their officers with respect to the use of force/excessive force. Specifically, in the Barnes case, the parties never got past the pleadings stage of the litigation before the claims against all defendants were dismissed by the plaintiffs, such that there was not any evidence, let alone evidence of excessive force by an Erie police officer or of the Erie Police Department failing to train or monitor or supervise their officers with respect to the use of force/excessive force, ever produced in the litigation. Second, while viewed in a light most favorable to Plaintiff, the article produced by Plaintiff certainly shows that in one instance an Erie police officer used excessive force during an arrest, that one instance, along with Plaintiff's unsupported statement about how he has been treated by Erie police officers in the past and the facts underlying this case, is not enough to create a genuine issue of material fact as to whether the Erie Police have a policy or custom of engaging in excessive force or of failing to train or monitor or supervise their officers with respect to the use of force/excessive force. We agree with Magistrate Judge Baxter's determination that the Defendants' motion for summary judgment with respect to Plaintiff's § 1983 claim against the Erie Police Department should be granted.
II. Defendants' Objections to the R&R.
A. Plaintiffs "Misconduct."
The Defendants' first objection to Magistrate Judge Baxter's R&R is that: "[t]he R[&]R is in error in that the request for summary judgment based on the Plaintiff's misconduct was improperly denied. The R[&]R includes a mischaracterization of the statements made by the Plaintiff and the argument based on them. The misconduct is so egregious that it requires dismissal of this lawsuit." Defendants' Objections, p. 2. The Magistrate Judge's position on this issue was:
Aside from the foregoing, Defendants have failed to move for summary judgment with regard to Plaintiff's conspiracy, Fourteenth Amendment inadequate medical care, and pendent state law claims, on a particular basis. Instead, Defendants cite Plaintiff's misconduct throughout the proceedings in this case as a general basis for granting summary judgment in their favor on all claims. According to Defendants, such misconduct largely consists of offering deposition testimony and filing pleadings that contradict his guilty pleas and conviction. Although the Court finds such alleged dishonesty reprehensible and does not, in any way, condone such behavior, it is not willing to dismiss all claims as a consequence, especially in light of the seriousness of the claims raised in the case. Defendants' objections are more suitable for pretrial motions, such as motions in limine, rather than as a basis for bad faith dismissal.
R&R, pp. 12-13.
The Defendant describe Plaintiffs "misconduct" as follows:
This lawsuit was filed during the pendency of the underlying criminal prosecution, prior to the Plaintiff's guilty pleas. While the Plaintiff was litigating his claims, through his defense counsel, he entered into a plea bargain with the Commonwealth in which he entered pleas to numerous traffic offenses, public intoxication, disorderly conduct, driving under the influence (with refusal of blood testing), and resisting arrest. The charges of aggravated assault and fleeing and eluding were nolle prossed as part of the plea agreement. The Plaintiff, as criminal defendant, was under oath ...