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Garay v. Colasardo

United States District Court, M.D. Pennsylvania

July 15, 2015

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

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is Defendants' second Partial Motion to Dismiss (Doc. 28). Defendants move to dismiss, in part, Plaintiff Veronica Garay's Second Amended Complaint (Doc. 27) 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 alleges that the rights of Jonathan Garay were violated when he was shot by a Hazleton City Police Officer and died. Defendants are the City of Hazleton, Officer Michael Colasardo, Officer Scott Nicholas, Hazleton Police Chief Frank DeAndrea, Hazleton Mayor Joe Yannuzzi, and Law Enforcement John Does #1-X. Defendants move to dismiss Count VI (42 U.S.C. § 1983 failure to intervene) as to Defendants Yannuzzi and DeAndrea, Count X (42 U.S.C. § 1981 equal rights) Count XI (42 U.S.C. § 1985 conspiracy), Count XII (42 U.S.C. §§ 1985-1986 equal protection) and Count XVI (state law conspiracy).

Because the Second Amended Complaint sets forth sufficient facts to plausibly state claims of failure to intervene under 42 U.S.C. § 1983, denial of equal rights under 42 U.S.C. § 1981, conspiracy under 42 U.S.C. § 1985, failure to prevent actions under 42 U.S.C. §§ 1985-1986, and state law conspiracy, Defendants' Motion to Dismiss (Doc. 28) will be denied.

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. 27) 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. ( Id. )

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. ( Id. at ¶¶ 5-6.) They were entrusted with power to enforce the law and to protect the constitutional rights of those they encountered. ( Id. ) Officers Colasardo and Nicholas are Caucasian. ( Id. at ¶ 248a.)

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 was at all relevant times 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. ) 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. ( 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. Prior to the Shooting

Plaintiff asserts that the Hazleton Police Department and its officers had a history, culture, custom, and practice of discriminating against members of the latino community. ( Id. at ¶ 246.) Plaintiff alleges that Defendants knew the Garay family, knew that they were Latino, and knew where they lived. ( Id. at ¶ 248f.) Plaintiff contends that prior to the night of October 4, 2013, Defendant Officer Nicholas had interacted with the decedent and members of his family. ( Id., at ¶ 248b.) Specifically, Defendant Nicholas had used racial slurs to Plaintiff's husband, and after Plaintiff's husband was vindicated in a court proceeding, Defendant Nicholas told him "don't worry, I'm going to catch you on something bigger, " and again referred to him using a curse word and a racial slur. ( Id. )

Additionally, Defendant Nicholas had called Plaintiff and Decedent's family "spics, " and told them to "go back to where you came from." ( Id. at ¶ 248c.) He also told them that "you are ruining our town." ( Id. )

Plaintiff maintains that this 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.)

3. 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 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 started 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.)

4. 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, 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 asserts that the day of the shooting, Defendant Nicholas shouted at Decedent's mother to "shut the fuck up you immigrant" and then physically assaulted her. ( Id. at ¶ 248d.) While clearing the house, Defendant Colasardo shouted at Decedent's sisters and young children to "go ...


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