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Estep v. Mackey

United States District Court, W.D. Pennsylvania

March 31, 2015

MARY ESTEP, in her own right and as guardian of CRAIG BAUM, an incompetent PERSON, Plaintiff,



I. Introduction

Pending before the Court are two motions for summary judgment filed by Defendants, Police Officer Mackey, Borough of Cresson, Borough of Portage, and Police Officer Donald Wyar (collectively “Defendants”) (ECF No. 74 and 76) pursuant to Rule 56 of the Federal Rules of Civil Procedure. Having reviewed the parties’ briefs and relevant case law, this Court will grant in part and deny in part Defendants’ motions for summary judgment. Specifically, the Court will deny the motions as to Plaintiff’s excessive use of force claims, but will grant the motions as to Plaintiff’s municipal liability claims.

II. Jurisdiction

The Court has subject matter jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331 and 1343. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial portion of the events or omissions giving rise to the claims occurred in the Western District of Pennsylvania.

III. Background

This case arises from an incident that occurred during the evening of September 20, 2009, and continuing into the early morning hours of September 21, 2009, when Defendant Police Officer Mackey (“Officer Mackey”) discharged his Taser, striking Craig Baum (“Baum”) one time, causing him to fall and strike his head and sustain traumatic brain injury. Mary Estep (“Plaintiff”), Baum’s guardian, brought suit against Defendants pursuant to 42 U.S.C. § 1983 for personal injuries suffered by Baum resulting from Officer Mackey’s discharge of his Taser.

The following facts are not disputed, except where noted. Defendant Police Officer Donald Wyar (“Officer Wyar”) received a phone call from a confidential informant that Baum was purchasing a quantity of heroin in Pittsburgh and driving in a green vehicle. (ECF No. 78 ¶¶ 3-4). Plaintiff disputes the reliability of the confidential informant and the substance of the phone call, but Plaintiff’s characterization of the informant’s phone call is not a material fact for the purposes of the present motions. (ECF No. 78 ¶¶ 3-4, ECF No. 82 ¶¶ 3-4).[1] Officer Wyar called Officer Mackey, who was an officer in the Borough of Cresson regarding the information he received about Baum, because he believed Baum was from Cresson Borough. (ECF No. 78 ¶ 6). Officer Mackey did not know Baum, but he knew Ryan Konsavich as a “druggie” who was from Portage Borough. (ECF No. 78 ¶ 7).

Officer Mackey saw Ryan Konsavich with an unidentified male and female in a green car at the Sheetz convenience store in Cresson Borough. (ECF No. 80-2 at 12). Nevertheless, Regina Robine testified that she did not see Officer Mackey at the convenience store. (ECF No. 80-3 at 6-7). It is undisputed that following his observance of Ryan Konsavich with the unknown male and female, Officer Mackey telephoned Officer Wyar to confirm that he had seen Ryan Konsavich in a green car with a male and female, and that the female was driving the car. (ECF No. 78 ¶ 10).

It is undisputed that Officer Wyar later observed the green vehicle swerve and almost hit a road sign, after which he initiated a traffic stop. (ECF No. 78 ¶ 16; ECF No. 82 ¶ 16-17). Officer Wyar activated his lights, after which the vehicle pulled over, and Officer Wyar called the stop into dispatch. (ECF No. 78 ¶ 16; ECF No. 82 ¶ 16-17). Officer Wyar approached the vehicle, identified himself as a police officer, and asked Regina Robine (“Robine”), who was driving the vehicle, to produce her driver’s license, registration, and proof of insurance, which she provided. (ECF No. 78 ¶ 17).

The parties disagree as to what occurred next. According to Defendants, while the vehicle was stopped, Officer Wyar had his flashlight out, and while the driver was looking for the requested documents, he observed a small white bag which he believed to be a “stamp bag” of heroin. (ECF No. 80-1 at 11). Defendants state that Officer Wyar returned to his vehicle and contacted dispatch to request assistance, because he intended to perform a vehicle search based on his observation of the small white bag. (Id . at 11-12). Plaintiff contests that Officer Wyar saw a small white bag in the vehicle. (ECF No. 82 ¶¶ 18-19). Officer Wyar testified at his deposition that he did not remember what he saw when he looked inside the vehicle. (ECF No. 80-1 at 11). However, it is uncontested that Officer Mackey responded to the call from the dispatcher for a request for assistance in Borough of Portage. (ECF No. 78 ¶ 20). When Officer Mackey arrived at the scene of the traffic stop, Officer Wyar was preparing a written warning to Regina Robine for a traffic violation. (ECF No. 78 ¶ 23).

It is undisputed that after Officer Wyar advised Ms. Robine that he was giving her a written warning and had her sign a form, he advised her that she was free to go. (ECF No. 82 at ¶¶ 25-29, ECF No. 78 ¶ 25). However, Wyar and Robine then resumed their conversation. (ECF No. 82 at ¶¶ 25-29, ECF No. 78 ¶ 26). As Robine started to walk back to the car, Officer Wyar asked if she had been in Pittsburgh earlier. (ECF No. 78 ¶ 27). Robine became upset and asked what he was talking about. Officer Wyar then asked if she was under the influence of anything, and Robine told him that she had taken Xanax, for which she had a prescription. (ECF No. 78 ¶ 27). After Robine consented to a search of her vehicle, Officer Wyar removed Baum, who was a passenger, from the vehicle, patted him down for officer safety, and placed him in the rear of the police vehicle. (ECF No. 78 ¶ 29). Baum was not placed in handcuffs. (ECF No. 78 ¶ 30). The search of the vehicle revealed a torn stamp bag and a straw used for snorting heroin. (ECF No. 78 ¶ 31).

The parties dispute the following facts. According to Defendants, Baum and Robine admitted to snorting heroin in the car on the way back from Pittsburgh, and Officer Wyar informed Baum that he was under arrest for public intoxication for the use of a controlled substance. (ECF No. 80-2 at 17, ECF No. 80-1 at 17). Officer Wyar searched the vehicle and failed to find as much heroin as he expected based on the report from the confidential informant. (ECF 80-1 at 14-15). Defendants contend that Officer Wyar then went back to the police vehicle and told Baum that he was under arrest. (Id . at 15). He then asked Baum to voluntarily consent to a strip search even though “consent may not have been necessary since he was under arrest.” (Id .). Officer Wyar believed that it would be better to obtain Baum’s consent to search, so that there could be no possible basis to suppress the results of the search. (Id .). Officer Wyar asked Officer Mackey to conduct the search, and Baum was placed under arrest before Officer Mackey took him to the police station to conduct the search. (Id .). However, Baum was not put in handcuffs. (Id .). Officer Mackey testified that Baum was not put in handcuffs because the police station where the search was to be conducted was only 30 feet away and Officer Mackey would have had to immediately remove the cuffs in order to conduct the strip search. (ECF No. 80-2 at 17).

Plaintiff asserts that Baum was never placed under arrest. (ECF No. 81 ¶39-41). Plaintiff notes that Baum was never placed in handcuffs. (ECF No. 80-1 at 15, ECF No. 80-2 at 17.). Further, a police report prepared by Officer Wyar following the incident does not state that Baum was arrested. (ECF No. 81-8). Rather, the report states, “[Baum] was asked to step out of the unit and asked for consent to search him at which time he stated yes.” (Id . at 3).

It is uncontested that Officer Mackey then advised Baum that he was taking him inside for the strip search. (ECF No. 78 ¶ 43). At that time, he also removed the Taser from his holster and warned Baum that if he ran he would be tased. (ECF No. 78 ¶ 43). Mackey then escorted Baum to the police station with his Taser in his hand. (ECF No. 78 ¶ 43). As Officer Mackey walked Baum to the station, he held onto Baum with his left hand and held his Taser in his right hand, maintaining a grip on Baum’s right arm. (ECF No. 78 ¶ 46). As they approach the door to the police station, Officer Mackey switched hands so that he held Baum with his right hand. (ECF No. 78 ¶ 47). He then let go of Baum to open the door of the station, and Baum jerked away and ran. (ECF No. 78 ¶ 47). Baum ran back across Main Street, and Officer Mackey ran after him. (ECF No. 78 ¶ 48). When Officer Mackey reached the middle of Main Street, Baum was approximately six to eight feet ahead of him. (ECF No. 78 ¶ 48). Officer Mackey discharged his Taser into Baum’s back. Baum fell to the ground and his head struck the curb. (ECF No. 78 ¶ 48).

IV. Standard of Review

Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). Issues of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court’s role is “not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). “In making this determination, ‘a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.’” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp, 32 F.3d 768, 777 (3d Cir. 1994).

The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party opposing summary judgment “may not rest upon the mere allegations or denials” of the pleading, but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)). “For an issue to be genuine, the nonmovant needs to supply more than a scintilla of evidence in support of its position-there ...

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