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Martin v. City of Reading

United States District Court, E.D. Pennsylvania

July 31, 2015

CITY OF READING; READING POLICE DEPARTMENT; WILLIAM HEIM, Chief of Police of the Reading Police, individually and in his official capacity; OFFICER BRIAN ERRINGTON, individually and in his official capacity; CAPTAIN DAMON [1] KLOC, individually and in his official capacity; PA STATE TROOOPER MICHAEL PAVELKO; JOHN DOES 1-9, Defendants

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JOSEPH F. LEESON, JR., United States District Judge.

Plaintiff's Motion for Partial Summary Judgment, ECF No. 86 -- Denied Defendant Michael Pavelko's Motion for Summary Judgment, ECF No. 84 -- Granted Defendants City of Reading et al.'s Motion for Summary Judgment, ECF No. 87 -- Granted in Part and Denied in Part

I. Introduction

Presently before the Court is Plaintiff Ernest Martin's Motion for Partial Summary Judgment, ECF No. 86, Defendant Michael Pavelko's Motion for Summary Judgment, ECF No. 84, and Defendants City of Reading, Reading Police Department,[2] William Heim, Damond Kloc, and Brian Errington's (" Reading Defendants" ) Motion for Summary Judgment, ECF No. 87. For the following reasons, the Court denies Plaintiff's Motion, grants Defendant Pavelko's Motion, and grants the Reading Defendants' Motion in part and denies the Motion in part.

II. Factual Background and Procedural History

On April 19, 2012, Plaintiff fell from the West Shore Bypass, an elevated portion of U.S. Route 422 that passes through the Borough of West Reading, Pennsylvania and landed forty feet below on a concrete surface. See Am. Compl. ¶ 29, ECF No. 21. This action arises out of the circumstances that led to his fall.

Plaintiff claims that Defendant Brian Errington, a police officer employed by the City of Reading, caused him to fall after Defendant Errington " shot Plaintiff with a taser/stun gun while Plaintiff stood at the side of the West Shore Bypass." Id. ¶ ¶ 7, 29. Plaintiff claims that he suffered serious and permanent injuries, including permanent damage to his liver, a fracture to his pelvis, and numerous fractured ribs. Id. ¶ 30. He was treated for his injuries in the intensive care unit at Reading Hospital and Medical Center and has undergone a number of surgical procedures. Id. ¶ 31. At the time of his complaint, he alleged that he was dependent upon a ventilator

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and a feeding tube and expected months of additional hospitalization. See id.

After the incident, Plaintiff claims that Captain Dante Orlandi, Commanding Officer of Troop " L" of the Pennsylvania State Police, Defendant Michael Pavelko, a Pennsylvania State Trooper, and other Pennsylvania State Troopers,[3] together with the City of Reading, the Reading Police Department, and various City of Reading police officers, including Defendant Errington,[4] commenced an investigation into the circumstances surrounding Plaintiff's fall. Id. ¶ ¶ 6-22, 33. Plaintiff claims that during the course of this investigation, these individuals and entities attempted to " cover-up and hide the facts surrounding the unlawful cause of Plaintiff's fall[,] . . . intentionally fail[ed] to properly preserve physical evidence at the scene," and " intentionally fail[ed] to obtain/retain the names and contact information of, and intentionally fail[ed] to properly question, eye witnesses at the scene." See id. ¶ 33. Plaintiff also claims that Captain Orlandi, " by and through Defendant Pavelko" and two unknown Pennsylvania State Troopers and " in concert with" the Reading Defendants, " threaten[ed] a witness with criminal perjury charges if the witness would not corroborate" their version of the events. See id. ¶ 33.

In addition to these alleged investigatory missteps, Plaintiff claims that Defendants " provided false and misleading statements to local media outlets" suggesting that Plaintiff intentionally jumped from the West Shore Bypass--statements that Plaintiff alleges were then published by those local media outlets. See id. ¶ ¶ 41-42.

Based on these events, Plaintiff advances the following claims: (1) pursuant to 42 U.S.C. § 1983, a claim that Defendant Errington used excessive force against him in violation of his Fourth Amendment rights, as incorporated against the states by the Fourteenth Amendment; (2) tort claims against Defendant Errington for assault, battery, and intentional infliction of emotional distress; (3) pursuant to § 1983, a claim that Defendant City of Reading, Defendant Heim, and Defendant Kloc were each deliberately indifferent to a need to train and supervise the City of Reading police officers to avoid the constitutional harm Plaintiff alleges he suffered; (4) pursuant to § 1983, a claim that all Defendants violated a protected liberty interest of Plaintiff under the Fourteenth Amendment

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by virtue of Defendants' alleged investigatory misconduct; and (5) tort claims against all Defendants, with the exception of Defendant Pavelko,[5] for defamation, false light invasion of privacy, and intentional infliction of emotional distress arising out of the publication of allegedly false statements about Plaintiff by local media outlets.[6] See id. ¶ ¶ 49-110.

Defendants cast Plaintiff's claims in a starkly different light. According to the Reading Defendants, Plaintiff's arrival on the West Shore Bypass was the culmination of a series of alleged criminal acts Plaintiff committed that day. Defendants assert that Plaintiff stole a car, was located by City of Reading police officers a few hours later--still in possession of the stolen vehicle--and proceeded to lead the officers on a chase " through the city streets of Reading in an attempt to flee apprehension." See Reading Defs.' Br. 1-2. Once on U.S. Route 422, Plaintiff " crashed the stolen car, . . . ran through traffic on Route 422 eastbound, climbed over the median barrier and began to run onto the westbound lanes of Route 422." Id. at 2. At this point in time, according to the Reading Defendants, Defendant Errington issued a verbal warning to stop and warned Plaintiff that he would deploy his Taser if Plaintiff did not comply. Id.

There is no dispute that Defendant Errington deployed his Taser, but the Reading Defendants claim that the Taser " did not connect" with Plaintiff. Id. After that failed attempt to halt Plaintiff's flight, the Reading Defendants state that Plaintiff " took several additional steps to the overpass abutment beyond the shoulder and then jumped over the barrier," leading to Plaintiff's fall forty feet to the ground. Id. The Reading Defendants allege that Plaintiff leapt from the roadway to evade the officers, either misjudging the distance to the ground, misjudging his proximity to the Schuylkill River, which travels alongside that portion of the West Shore Bypass, or acting in disregard of the possible harm he might suffer from the fall. Id. The Reading Defendants, therefore, maintain that Defendant Errington's discharge of his Taser played no role in Plaintiff's fall from the Bypass. See id. at 3. With respect to Plaintiff's other claims, the Reading Defendants contend that Defendant has failed to produce sufficient facts to survive summary judgment. See id.

On May 29, 2015, Plaintiff, Defendant Pavelko, and the Reading Defendants each filed their respective motions that are presently before the Court.

III. Standard of Review -- Motions for Summary Judgment

Summary judgment is appropriate if the moving party " shows 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). A fact is material if the fact " might affect the outcome of the suit under the governing law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and a dispute is genuine if " the

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evidence is such that a reasonable jury could return a verdict for the nonmoving party," id. When the evidence favoring the nonmoving party is " merely colorable" or " not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted). The parties must support their respective contentions--that a fact cannot be or is genuinely disputed--by " citing to particular parts of materials in the record" or by " showing that the materials cited do not establish the absence or presence of a genuine dispute." Fed.R.Civ.P. 56(c)(1). " The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3).

IV. Claims against Defendant Officer Brian Errington

A. § 1983 Claim for use of Excessive Force in Violation of Plaintiff's Fourth Amendment Rights

1. There is a Genuine Dispute over the Material Facts Concerning Whether Defendant Errington Violated Plaintiff's Fourth Amendment Rights.

The Fourth Amendment guarantees the " right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Excessive force claims that " arise in the context of an arrest or investigatory stop" invoke the protections conferred by the Fourth Amendment, because the " 'reasonableness' of a particular seizure depends . . . on how it is carried out." Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). " Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).

Evaluating a claim of excessive force demands " careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. Because the Fourth Amendment's standard of " reasonableness" " is not capable of precise definition or mechanical application," see id. (quoting Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)), the totality of the circumstances must be considered to determine if the seizure was justified, see id. (quoting Garner, 471 U.S. at 8-9). The inquiry is objective: the reasonableness of a seizure must be evaluated " in light of the facts and circumstances confronting [the officers], without regard to their intent or motivation." Id. at 397 (citing Scott v. United States, 436 U.S. 128, 137-39, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978); Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). But those facts and circumstances " must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. at 396 (citing Terry, 392 U.S. at 20-22). This is so because the standard of reasonableness imposed by the Fourth Amendment accounts for the fact that " police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." See id. at 397.

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In addition to those factors enumerated by the Supreme Court in Graham, the United States Court of Appeals for the Third Circuit has acknowledged other considerations that may be relevant, including " the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time." See Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997), abrogated on other grounds by Curley v. Klem, 499 F.3d 199, 209-11 (3d Cir. 2007). In addition, " the fact that the physical force applied was of such an extent as to lead to injury is indeed a relevant factor to be considered." Id. But none of these factors are alone controlling: " [t]he Supreme Court made clear in Graham that each case alleging excessive force must be evaluated under the totality of the circumstances." See id.

The evidence the parties have cited in connection with Defendant Errington's Motion for Summary Judgment on this claim show the existence of a genuine dispute over the material facts bearing on the reasonableness of Defendant Errington's use of force, and Defendant Errington's Motion for Summary Judgment with respect to this claim will therefore be denied.

Plaintiff cites the deposition testimony of Alexis Vidal, who was present at the time Defendant Errington discharged his Taser. She testified that she was driving her car on U.S. Route 422 as another car, driven by Plaintiff, " came flying up on the right lane past [her] and eventually crashed into the back of a Budweiser truck." See Pl.'s Resp. Reading Defs.' Statement Undisputed Facts ¶ 13, ECF No. 92-2. She stated that Plaintiff emerged from the car, crossed the median of Route 422, " and kind of hobbled and limped to the side" where he " stopped just, like, right before the railing" on the edge of the elevated roadway. Id. She continued:

[T]here was like, police officers everywhere. They came behind me. I had my window down, so I could hear everything. I could see everything. I didn't have any music on. And then one of the police officers shot [Plaintiff] with a taser gun--a stun gun in the back. And I saw his hands go up. And he kind of--he fell forward, but he was so close to the railing that it hit his mid-section. And he just flipped over the railing kind of like a rag doll.

Id. If a reasonable jury finds Ms. Vidal's testimony to be credible, that jury could find that Defendant Errington's decision to use his Taser on Plaintiff posed a risk of serious injury or death, and such use of force under the circumstances violated Plaintiff's Fourth Amendment rights.

The use of Tasers by law enforcement has proved to be an active area of litigation for claims alleging excessive uses of force. In this district alone, dozens of cases have been filed based on claims that police officers improperly used Tasers during the course of arrests or other investigatory stops. See, e.g., Hill v. Borough of Doylestown, No. 14-2975, 2015 WL 1874225 (E.D. Pa. Apr. 23, 2015); Geist v. Ammary, 40 F.Supp.3d 467 (E.D. Pa. 2014); Stroud v. Boorstein, No. 10-3355, 2014 WL 2115499 (E.D. Pa. May 20, 2014); Boyden v. Twp. Of Upper Darby, 5 F.Supp.3d 731 (E.D. Pa. 2014); Dotterer v. Pinto, No. 13-06903, 2014 WL 535156 (E.D. Pa. Feb. 11, 2014); Garey v. Borough of Quakertown, No. 12-0799, 2013 WL 3305222 (E.D. Pa. July 1, 2013). The question usually presented by these cases is whether the infliction of pain caused by the electrical charge of the Taser is reasonable in light of the need for the use of force to effect a Fourth Amendment seizure. See Brown v. Cwynar, 484 Fed.Appx. 676, 681 (3d Cir. 2012) (observing

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that, at the time of the arrest at issue in that case, " multiple courts of appeals had approved the use of taser guns to subdue individuals who resist arrest or refuse to comply with police orders" ) (citations omitted). Here, however, Plaintiff's claim arises not out of the harm inflicted by the electrical charge of the Taser but by the decision of Defendant Errington to use the Taser at the place he sought to effectuate Plaintiff's arrest.

Thus, the focus of this action is not on the harm the discharge from a Taser is capable of inflicting but on the context in which the Taser was used. See Scott v. Harris, 550 U.S. 372, 384, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (recognizing that the use of the front bumper of a police car to impact the rear bumper of a fleeing vehicle in an attempt to bring the vehicle to a stop posed, in the context of a high-speed chase, " a high likelihood of serious injury or death" to the fleeing motorist). While the electrical discharge of a Taser may only " constitute an 'intermediate or medium, though not insignificant, quantum of force'" under ordinary circumstances, see Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1168 (E.D. Cal. 2008)), the amount of force the use of a Taser represents changes when the Taser is used under circumstances that pose a risk of serious injury or death. See Harper v. Perkins, 459 Fed.Appx. 822, 826 (11th Cir. 2012) (" While the Defendants point to case law suggesting that tasers emit a moderate, non-lethal level of force, none of the cases deal with its use on a suspect standing with his hands in the air and at least four feet off the ground in a tree, which clearly exacerbated the risk of serious injury resulting from the application of the taser." ); see also Brown v. Burghart, No. 10-3374, 2012 WL 1900603, at *8 (E.D. Pa. May 25, 2012) (" [T]he level of force must take into account the totality of the circumstances, not simply the type of force usually associated with a particular weapon. . . . [I]n a normal situation, a shove would be a very insignificant amount of force, but when a suspect is perched on the ledge of a building, a shove can be deadly force." ) (citing Snauer v. City of Springfield, No. 09-CV-6277, 2010 WL 4875784, at *4-5 (D. Or. Oct 1, 2010), report and recommendation adopted by 2010 WL 4861135 (D. Or. Nov. 23, 2010)).

In Patrick v. Moorman, the Court of Appeals for the Third Circuit recognized that the circumstances under which a Taser is used bears on the reasonableness of the decision to use the Taser. The court observed that a sheriff deputy's use of the Taser conformed to the sheriff department's policy on Taser usage, which " warn[ed] against aiming a taser at a suspect's head and against taser use if a running suspect might 'fall from a significant height,' 'fall into the path of oncoming vehicles or into operating machinery,' or 'fall into water where the suspect is likely to drown.'" See 536 Fed.Appx. 255, 257, 259 (3d Cir. 2013). The court determined that the decision of the deputy to use a Taser in that case was reasonable in part because " there was no risk of [the arrestee] falling from a significant height or into oncoming traffic or water." [7] See id. at 259. Plaintiff here has cited to evidence that the Reading Police Department has in place a similar policy, which requires officers to " consider the severity of the offense, the subject's threat level to others,

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and the risk of serious injury to the subject before deciding to use the [electronic control weapon] on a fleeing subject." See Pl.'s Resp. Reading Defs.' Statement Undisputed Facts ¶ 18. Specifically, the policy forbids officers from using a Taser " [w]hen the subject is in a position where a fall may cause substantial injury or death." [8] Id.

The Reading Defendants cite to various cases, including Patrick, for the proposition that Plaintiff's injuries " have little bearing" on whether Defendant Errington's use of force was constitutionally permissible, but Defendants read these cases too broadly. The principle these cases espouse is that an evaluation of a use of force is an " objective analysis [that] cannot be skewed by 20/20 hindsight since courts must appreciate that officers are forced to make split-second decisions." See Patrick, 536 Fed.Appx. at 259. Thus, when an officer's use of force results in " tragic, unforeseen consequences" that the officer " could not have reasonably anticipated," those unforeseen consequences do not bear on the reasonableness of the officer's conduct. See Mohney v. Hageter, No. 11-340, 2013 WL 391155, at *9 (W.D. Pa. Jan. 30, 2013) (concluding that the use of a Taser did not constitute an excessive use of force where the electrical discharge from the Taser appeared to have ignited a fire that led to the arrestee's death after the arrestee, unbeknownst to the officers, had placed gasoline on his clothes). These cases do not stand for the proposition that the decision to deploy force under circumstances in which an officer would have reasonably recognized that the force would pose a risk of serious injury or death should not be evaluated in light of that risk. See Mohney, 2013 WL 391155, at *9 (concluding that the officers " could not have reasonably anticipated that the use of the taser would result in [the plaintiff's] death" ). Rather, " in judging whether [Defendant Errington's] actions were reasonable, [this Court] must consider the risk of bodily harm that [Defendant's] actions posed to [Plaintiff] in light of the threat to the public that [Defendant] was trying to eliminate." See Scott, 550 U.S. at 383-84.[9]

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A case decided in this district provides a more appropriate analogy. In Brown v. Burghart, the court confronted a claim of excessive force arising out of an officer's use of a Taser following a " relatively low-speed chase" involving a motorist operating a motor scooter. 2012 WL 1900603, at *1. During the chase, the motorist fell from the motor scooter, and when the motor scooter fell to the ground, the gas cap detached, causing gasoline to spill from the scooter. Id. When an officer used his Taser on the motorist, who was near the overturned motor scooter, the motorist became engulfed in flames. Id. at *2. In response to the motorist's claim that he used excessive force, the officer argued that " he should not be held responsible for [the motorist's] extraordinary injuries." Id. at *7-8. But as the court explained, the risk that the Taser may ignite a fire " may well have been foreseeable by a reasonable officer."Id. at *8. The court observed that while ...

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