United States District Court, E.D. Pennsylvania
MICHAEL V. ROBERTS, Plaintiff,
OFFICER MATT NIEBEL; OFFICER WILFREDO RAMIREZ; OFFICER CHRISTOPHER A. CORTAZZO; OFFICER JAMES T. KENNEDY; and THE CITY OF READING, Defendants
HENRY S. PERKIN, Magistrate Judge.
This matter is before the Court on Defendants City of Reading, Officer Matt Niebel, Officer Wilfredo Ramirez, Officer Christopher Cortazzo and Officer James T. Kennedy's Motion for Summary Judgment on Plaintiff's Claims Against Defendants and the Counterclaim of Officer Kennedy Against Plaintiff, which motion was filed August 1, 2014. Plaintiff's Brief in Opposition to Defendants' Motion for Summary Judgment was filed September 15, 2014. With leave of Court, Defendants City of Reading, Officer Wilfredo Ramirez, Officer Christopher Cortazzo, Officer Matt Niebel, and Officer James T. Kennedy's Reply Brief in Support of Their Motion for Summary Judgment was filed October 6, 2014. Having reviewed and considered the contentions of the parties, the Court is prepared to rule on this matter.
On April 15, 2013, Plaintiff Michael V. Roberts ("Roberts") initiated this matter by filing a civil rights Complaint pursuant to 42 U.S.C. §1983 against Defendants Officer Matt Niebel ("Officer Neibel"), Officer Wilfredo Ramirez ("Officer Ramirez"), Officer Christopher A. Cortazzo ("Officer Cortazzo"), Officer James T. Kennedy ("Officer Kennedy"), and The City of Reading ("Reading") in the United States District Court for the Eastern District of Pennsylvania.
According to his Complaint, Roberts contends that the named Reading police officers use of force violated his rights under the Fourth Amendment to the Constitution of the United States to be free of excessive and unnecessary force when being taken into custody by law enforcement officers. More specifically, Roberts contends that on or about shortly after midnight August 31, 2011 these Reading police officers used excessive and unnecessary force by firing their service revolvers over and over again into his back, as he laid face down in his car following a car chase.
On July 8, 2013, Defendants' Answer and Affirmative Defenses to Plaintiffs' Complaint was filed in this matter. With leave of Court, Defendants filed a counterclaim on behalf of Officer Kennedy on October 2, 2013. In the counterclaim, Officer Kennedy contends that he was assaulted when Roberts struck him with his vehicle, and continued to drive with him on the hood of the vehicle.
The parties engaged in discovery and the Court, by virtue of its April 14, 2014 Amended Rule 16 Scheduling Order, directed that all dispositive motions (including a separate, short and concise statement of material facts) be filed on or before August 1, 2014.
Based upon the record papers, exhibits, depositions, and the parties' statements of the facts,  the pertinent facts to this Court's determination are as follows:
On August 30, 2011, Roberts, who was under the influence of various medications, imbibed approximately three to six shots of vodka while he was at Al's Diamond Cabaret, a gentleman's club located in Reading Pennsylvania. At some point, Roberts was instructed to leave Al's Diamond Cabaret, and he was escorted out by staff. A bouncer flagged down Officer Hutchinson, who was on duty in his patrol car, and advised him that Roberts had been thrown out of the bar, was highly intoxicated, got in his vehicle (a black Ford Edge), and drove away.
Based on this information, Officer Hutchinson began following the Roberts vehicle, and observed it swaying in and out of the travel lane. Officer Hutchinson activated his lights, sirens, and air horn to initiate a traffic stop. Roberts initially would not stop, but eventually did pull his vehicle over. After Roberts pulled over, Officer Hutchinson approached the Roberts vehicle on foot, instructed Roberts to turn off his car, and roll down his window. Roberts did not comply, and, instead, drove away at a high rate of speed. Officer Hutchinson began a pursuit of the Roberts vehicle, and Roberts began driving in a dangerous manner at a high rate of speed. Because of Roberts's dangerous driving, Officer Hutchinson broke off his pursuit.
Officer Dinger and his trainee, Officer Sneeringer, who were backing up Officer Hutchinson, and had participated in the pursuit of Roberts, noticed a black SUV with its brake lights flashing down Schmecks Lane off of Route 12. Officer Santiago, who was also backing up Officer Hutchinson, also noticed a black SUV pulled over on Schmecks Lane. Officer Ramirez, who also responded when Officer Hutchinson radioed in the pursuit of Roberts, also identified a black SUV with its brake lights on located off of Schmecks Lane. All of the responding officers proceeded to a Sunoco gas station approximately an eighth of a mile past Schmecks Lane to make a U-turn to investigate the black SUV seen down Schmecks Lane. All four police vehicles proceeded back to Schmecks Lane, and upon seeing the black SUV, Officer Hutchinson notified his fellow officers that the black SUV was in fact the vehicle he had been pursuing, i.e. the Roberts vehicle.
Officer Ramirez was the first police vehicle to enter Schmecks Lane. Officer Ramirez turned on his spotlight and immediately thereafter, Roberts began to drive his vehicle down Schmecks Lane. Officer Ramirez followed Roberts, sounding his air horn and emergency siren. Roberts did not stop his vehicle. Officer Santiago proceeded with his police vehicle down Schmecks Lane after Officer Ramirez. Officer Dinger and Officer Sneeringer were behind Officer Santiago in their own police vehicle, proceeding down Schmecks Lane.
Roberts drove his vehicle into a residential backyard, and got stuck in a flower bed. Officer Ramirez exited his police vehicle, drew his gun, and walked to the front driver's side of the Roberts vehicle. Officer Santiago exited his police vehicle after Officer Ramirez, proceeded to the passenger side of the Roberts vehicle, and drew his weapon while yelling commands at Roberts to shut off the vehicle. Officer Dinger and Officer Sneeringer exited their police vehicle and proceed to the front of the Roberts vehicle with their weapons drawn, also shouting commands to Roberts for him to shut off his vehicle.
Instead of obeying the officers' verbal commands, Roberts was revving the engine in an attempt to free his vehicle. The officers continued to give Roberts verbal commands, instructing him to get out of the vehicle, and show his hands, but Roberts continued to rev the engine, causing the front wheels to spin. Roberts's vehicle proceeded to gain traction, and once freed, Roberts drove his vehicle directly at Officer Ramirez, Officer Dinger, and Officer Sneeringer, putting them in fear of being struck. Officer Dinger, in an attempt to disable Roberts's vehicle, fired shots at the front tire and drive train. Officer Ramirez, in fear of being struck by Roberts, jumped out of the way of the moving vehicle, and fired shots aimed towards the driver's side of the vehicle. Roberts continued to drive his vehicle back up Schmecks Lane, with Officer Ramirez giving chase on foot.
At this time, Officer Cortazzo, Officer Kennedy, and Officer Niebel, arrived on the scene in an unmarked Ford Explorer. As they proceeded down Schmecks Lane, they heard gunshots fired. Officer Kennedy believed that his fellow officers already on scene were taking on gunfire. The Roberts vehicle was seen driving directly toward the unmarked Ford Explorer at a speed of approximately 25-35 miles per hour. Officer Niebel exited the Ford Explorer, and began to run towards the road following Roberts, who was still attempting to flee in his vehicle. Officer Kennedy also exited the Ford Explorer from the driver's side passenger door.
According to Officer Kennedy's deposition testimony, once he exited the Ford Explorer, he saw the Roberts vehicle coming towards him, and fearing that he would be run over, he jumped up, and landed on the hood of the Roberts vehicle. The Roberts vehicle continued to move. Fearing for his life, Officer Kennedy fired shots through the windshield of the Roberts vehicle. Officer Kennedy then jumped from the hood of the Roberts vehicle, and fired additional shots at the driver's side of the vehicle as it continued to drive away.
Roberts drove his vehicle over a metal fence, and crashed into a chicken coop. Officer Niebel, who continued to pursue the Roberts vehicle on foot, came up on the passenger side front of the vehicle, drew his weapon, and repeatedly gave verbal orders directing Roberts to turn off his vehicle and show his hands. Officer Neibel saw that Roberts was sitting up straight in his vehicle, and had his hands on the steering wheel. Roberts ignored the verbal commands of Officer Neibel. Officer Kennedy also pursued the Roberts vehicle on foot, and came up on the passenger side with his weapon drawn. Officer Cortazzo exited the Ford Explorer and ran to the Roberts vehicle on foot, proceeding to the rear driver's side of the car. Upon approaching the rear of the Roberts vehicle, Officer Cortazzo slipped and fell behind the vehicle. Despite being surrounded by Officers Neibel, Kennedy, and Cortazzo, Roberts continued to rev the engine in an attempt to free his vehicle as he had done previously.
Roberts refusal to comply, continued revving of the engine, and concern for their own safety and that of their fellow officers, led Officer Cortazzo, Officer Niebel, and Officer Kennedy to fire shots at the Roberts vehicle. According to Officer Neibel, he fired a series of rounds, and then saw Roberts fall to his right over the center console of the vehicle at which time he and the other officers ceased fire. The officers maintained a position of cover until they were able to get the passenger side door open, secure the Roberts vehicle, and pull Roberts from his vehicle. Officer Neibel advised a resident of the area to call 911.
Roberts was taken to Reading Hospital where he received treatment, including surgery on his right hand, treatment for clavicle and scapular fractures, and embolization. Roberts was stable for discharge to police custody on September 5, 2011. Officer Kennedy was taken to Reading Hospital where he was evaluated and received treatment for a contusion to his knee as a result of being struck by the vehicle Roberts was driving.
Roberts admits that when Officers Ramirez, Neibel, Cortazzo, and Kennedy fired their weapons on August 31, 2011, each of them were in fear for his own life as well as the lives of their fellow officers. In addition, the Pennsylvania State Police completed a thorough investigation of the incident, including forensic testing and numerous interviews, and determined that throughout the course of the incident, Roberts displayed an extreme disregard for the safety and life of all of the officers involved in the incident.
On March 30, 2012, Roberts pled guilty to aggravated assault of a police officer, recklessly endangering another person, fleeing and eluding police, and driving under the influence. Roberts accepted a sentence of 3 years and 3 months to 7 years for those crimes. In his statement that accompanied his request to enter a guilty plea, Roberts set forth the factual basis for his plea by stating that he "knowingly caused bodily injury to Officer Kennedy when [he] failed to stop [his] car and hit him." Roberts also admitted that he was driving his car while intoxicated, and that he failed to stop his car after both visual and auditory signals by police to do so. Roberts further admitted that "[w]hile [he] attempted to flee [he] endangered the officers, [and] could have seriously injured them."
Standard of Review
Summary judgment is appropriate where the record and evidence, taken in the light most favorable to the non-moving party, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The essential inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson, 477 U.S. at 249. A factual dispute is material only if it might affect the outcome of the suit under governing law. Id. at 248.
To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must cite "to particular parts of materials in the record" showing that there is a genuine dispute for trial. Fed.R.Civ.P. 56(c). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex, 477 U.S. at 325). The non-moving party has the burden of producing evidence to establish prima facie each element of its claim. Celotex, 477 U.S. at 322-323. If the court, in viewing all reasonable inferences in favor of the non-moving party, determines that there is no genuine dispute as to any material fact, then summary judgment is proper. Id. at 322; Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987). When the non-moving party will bear the burden of proof at trial, the moving party's burden can be ...