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Garay v. Colasardo

United States District Court, M.D. Pennsylvania

January 30, 2015

VERONICA GARAY, Plaintiff,
v.
OFFICER MICHAEL COLASARDO, et al., Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 19). Defendants Michael Colasardo et al. move to dismiss, in part, Plaintiff Veronica Garay's Amended Complaint (Doc. 18) for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Plaintiff Garay is the administratrix of the estate of her brother, Jonathan Garay. Plaintiff Garay alleges that the rights of Jonathan Garay were violated when he was shot by a Hazleton City Police Officer. She brings suit pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986, the Pennsylvania Constitution, and pendent state tort law. Because the amended complaint fails to set forth claims of § 1985 conspiracy and failure to prevent actions taken under § 1985 (counts XI and XII), a claim of civil conspiracy (count VII) against Defendants Mayor Joe Yannuzzi, Police Chief Frank DeAndrea, and John/Jane Doe; claims of state constitutional violations, assault and battery, and trespass, false arrest, and illegal imprisonment (counts XIII, XIV and XV) for monetary damages; and state law conspiracy (count XVI) against Defendants City of Hazleton and Doe, Defendants' Motion to Dismiss (Doc. 19) will be granted with respect to these claims. Because the amended complaint states sufficient facts to establish all other challenged claims, Defendants' Motion to Dismiss will be denied with respect to these claims.

I. Background

Plaintiff Veronica Garay ("Ms. Garay, " "Plaintiff Garay") brings suit individually and as the administratrix of the estate of her brother, Jonathan Garay ("the decedent, " "Mr. Garay"). The defendants are the City of Hazleton ("Hazleton"), Hazleton Police Officers Michael Colasardo and Scott Nicholas, Chief of Hazleton Police Frank DeAndrea, Mayor of Hazleton Joe Yannuzzi, and John/Jane Doe #1-X, member(s) of Hazleton law enforcement. All defendants are sued individually and in their official capacities.

A. Factual Background

The facts as alleged in the Amended Complaint (Doc. 18) are as follows:

1. The Parties

Defendant City of Hazleton ("Hazleton, " "City") is a municipal corporation and governmental entity within the Commonwealth of Pennsylvania. ( Id. at ¶ 10.) It is empowered to establish, regulate, and control its police department in the enforcement of laws and ordinances within its jurisdiction, and for the purpose of protecting and preserving the persons, property and constitutional rights of individuals within its jurisdiction.

Defendants Officer Michael Colasardo and Officer Scott Nicholas are sworn officers of the Hazleton Police Department, and at all relevant times were serving in their official capacity. (Doc. 18, ¶ 5-6.) They were entrusted with power to enforce the law and to protect the constitutional rights of those they encountered. ( Id. )

Defendant Frank DeAndrea was at all relevant times the Police Chief for the Hazleton Police department, and was responsible for the formulation and implementation of practices, policies, and procedures. ( Id. at ¶ 7.) He is also responsible for discipline and assignment of officers, hiring and firing, and the daily operation, command, and control of the police department. ( Id. ) At all relevant times, he was acting within the scope of his duties and authority. ( Id. ) He supervised or controlled one or more of the other defendants herein. ( Id. ) Plaintiff avers that Defendant DeAndrea, along with Defendant Yannuzzi, are the ultimate authority for staffing, promotions, discipline and operational functions of the police department, with the final decision-making authority of a policymaker. ( Id. )

Defendant Joe Yannuzzi is the elected Mayor of Hazleton. ( Id. at ¶ 8.) He directly supervises the police department and its members. ( Id. ) He oversees the selection of the supervisory personnel for the police department, who are, through him, responsible for the formulation and implementation of practices, policies, customs and procedures, as well as the day to day operation, command, and control of all segments of the police department. ( Id. ) Mayor Yannuzzi is responsible for promulgating and enforcing laws, rules and regulations concerning the police department. ( Id. ) At all relevant times, he was acting within the scope of his duties and authority, and supervised or controlled one or more of the defendants herein. ( Id. ) Yannuzzi exercises authority over the selection, staffing, retention, training, promotions, discipline and operational functions of the police department. ( Id. )

Defendant(s) John/Jane Doe #1-X ("Doe") are law enforcement officers. Defendant(s) was/were at all relevant times serving in their official capacity as (a) sworn officer(s), and had the power to enforce city and state laws. ( Id. at ¶ 9.)

2. The Shooting

On or about the night of October 4, 2013, into the early morning of October 5, the decedent, Jonathan Garay, was socializing with friends in Hazleton. ( Id. at ¶ 11.) Mr. Garay, who is Latino, was nearby his home, which is located at 521 Alter Street in Hazleton, Pennsylvania. ( Id. at ¶ 12.) At approximately 2:30 a.m. on October 5, 2013, a fight involving around 10-15 people occurred outside of the Capri Bar on Alter Street in Hazleton. ( Id. at ¶ 13-14.) Mr. Garay was not one of the people involved in this fight. ( Id. at ¶ 16.) This was told to Defendants Nicholas and Colasardo, though it is not clear at what point. ( Id. ) Hazleton Police were called in response to this fight. ( Id. at ¶ 15.)

While the police arrived at Capri Bar, Mr. Garay walked on Alter Street toward his home at 521 Alter Street. ( Id. at ¶ 17.) Mr. Garay and a friend turned off of Alter Street onto First Street, and entered the backyard of Mr. Garay's home, enclosed by a gated fence. ( Id. at ¶ 18.) Police were clearing the area on Alter Street near the fight. ( Id. at ¶ 19.) No one requested that Mr. Garay or his friend remain on Alter Street. ( Id. )

The fence surrounding Mr. Garay's backyard had thatching on it, so one could not see into the backyard from the street. ( Id. at ¶ 20.) After Mr. Garay and his friend entered the backyard, he latched the gate behind him and proceeded to his back door. His friend walked to the opposite side of the yard. ( Id. at ¶ 21.) Mr. Garay walked up his back steps, opened the screen door, placed his keys into the lock of his door, and tried to open it. ( Id. at ¶ 22.)

Plaintiff alleges that at the same time, Defendant Nicholas entered Mr. Garay's backyard through the closed gate, without permission. ( Id. at ¶ 23.) Defendant Nicholas approached Mr. Garay from behind, and assaulted him on the back porch and inside the doorway to Mr. Garay's home. ( Id. at ¶ 27.) At approximately the same time, Defendant Colasardo entered Mr. Garay's backyard and drew and fired his weapon, hitting him twice, in the head and body. ( Id. at ¶ 28-29.)

Plaintiff asserts that one of the bullets entered Mr. Garay's head on the left side and exited from the left lateral chin area, fracturing the decedent's left mandibular ramus. ( Id. at ¶ 30-31.) The bullet traveled downward, slightly from left to right, with "essentially no change of direction from front to back or back to front." ( Id. at ¶ 32.) No stippling or gunpowder residue from the bullet was found in the surrounding soft tissue or skin. ( Id. at ¶ 33.) The other bullet entered Mr. Garay's right posterior flank, traveling right to left and slightly downward and slightly forward. ( Id. at ¶ 34.) Mr. Garay was shot in the back. ( Id. at ¶ 35.) The bullet was found in the soft tissue of decedent's left pelvis. ( Id. at ¶ 36.)

Mr. Garay was taken to hospital, where he was admitted at 3:23 a.m. ( Id. ) He was pronounced dead at 3:35 a.m. on October 5, 2013. ( Id. at ¶ 38.) Dr. Gary Ross, M.D. performed an autopsy of the decedent that morning. ( Id. at ¶ 39.) After this autopsy, the Luzerne County Coroner ruled his death a homicide, with multiple gunshot wounds the cause of death. ( Id. at ¶ 40-41.)

3. After the Shooting

After Mr. Garay was shot, he was lying on the floor of the kitchen of his home, bleeding heavily, when police and paramedics arrived. ( Id. at ¶ 58.) Mr. Garay's family members were present while he was bleeding in the kitchen, and heard him speak prior to his death. ( Id. at ¶ 59.) Immediately following the shooting, while Mr. Garay was on the kitchen floor, one of the defendant officers removed a firearm from Mr. Garay's waistband and threw it to the side. ( Id. at ¶ 60.) Plaintiff argues that this shows that Mr. Garay did not remove his firearm from his waistband. ( Id. at ¶ 61.) Mr. Garay had a valid license to carry a firearm. ( Id. at ¶ 62.)

After the shooting, police officers kicked in the bedroom door of Mr. Garay's brother, who was asleep upstairs. ( Id. at ¶ 65.) Officers woke him from sleep, put him on the ground, and used a taser on him. ( Id. ) All of Mr. Garay's family members were forcibly removed by the defendants and other law enforcement from the kitchen, and were not permitted to help Mr. Garay as he bled to death in the kitchen. ( Id. at ¶ 63.) Plaintiff alleges that the occupants of Mr. Garay's home were "corralled" in the "family room, " feet away from Mr. Garay. ( Id. at ¶ 64.) Plaintiff asserts that at this time, police department members insulted the Garay family, and forced them remain in the living room as Mr. Garay bled heavily. ( Id. at ¶ 68.) Plaintiff alleges that Hazleton Police Department members, including Defendants, had harassed members of the Garay Family prior to the shooting, and also did so following the shooting. ( Id. at ¶ 69-70.)

Plaintiff maintains that this conduct is typical of the Hazleton Police Department's treatment of racial minorities. ( Id. at ¶ 66.) Plaintiff alleges that Defendants Colasardo and Nicholas have "a history of violence and Constitutional violations that were known to their supervisors and Defendant City." ( Id. at ¶ 71.) Plaintiff asserts that Colasardo and Nicholas were not disciplined for past acts, which amounted to condonation and encouragement from their supervisors and the City to continue to engage in constitutional violations. ( Id. ) Plaintiff alleges that further evidence of these unconstitutional acts was destroyed by Defendant(s) Doe. ( Id. at ¶ 74.)

No discipline was issued by supervisors following the shooting of Garay, which Plaintiff asserts further demonstrates that the city and police supervisors condoned and encouraged such behavior. ( Id. at ¶ 72.)

Plaintiff argues that the Police Department and the City provided no training to the defendants on appropriate entry onto private property, the appropriate use of force in given circumstances, the use of deadly force, or the safe handling of firearms. ( Id. at ¶ 75-76.) Plaintiff alleges that many Hazleton police officers "routinely" use excessive force, and have been nominally disciplined, if at all. ( Id. at ¶ 77.)

Plaintiff alleges that prior to the death of Mr. Garay, the police department had no written policies regarding the appropriate use of force in circumstances regularly encountered by law enforcement. ( Id. at ¶ 78.) If such policies did exist, it was the department's common practice to ignore them. ( Id. ) Plaintiff asserts that there were repeated incidents of and complaints about excessive use of force by Hazleton police officers prior to this event, and despite this, no significant efforts were made to establish use of force standards or to ensure constitutional rights were not violated. ( Id. at ¶ 79.) Plaintiff maintains that many of these incidents and complaints involved people of a racial minority. ( Id. at ¶ 80.) Plaintiff argues that this shows a deliberate indifference to the rights of individuals.

Plaintiff asserts that the defendant supervisors, city administration, and the mayor ignored citizens' repeated complaints about officers' repeated violations of constitutional rights, and ignored these violations ( Id. at ¶ 80.) Plaintiff alleges that they failed to adopt and enforce policies and procedures to end the culture of abuse and indifference to the rights and safety of others. ( Id. at ¶ 89). Plaintiff maintains that Defendants encouraged the custom and practice of indifference to constitutional rights by: rewarding improper actions; failing to promulgate appropriate rules, regulations and policies; failing to enforce existing rules and regulations; failing to discipline illegal conduct; inappropriate hiring, training supervision and promotions; and reinforcing the culture of deliberate ...


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