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Bynum v. Trustees of University of Pennsylvania

United States District Court, E.D. Pennsylvania

January 6, 2017

BRANDON BYNUM Plaintiff
v.
TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, et al Defendant

          MEMORANDUM OPINION

          DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Brandon Bynum (“Plaintiff” or “Bynum”) brings this action against the University of Pennsylvania Police Officers Gary Cooper (“Officer Cooper”), Nicole Michel (“Officer Michel”), Charles Ritterson (“Officer Ritterson”), and Thomas DeVore (“Officer DeVore”), and Sergeant David Adler (“Sgt. Adler”) (collectively, the “Penn Police Defendants” or “Defendants”), alleging constitutional and state law violations.

         Presently before the Court is the Motion of Defendants, Gary Cooper, Nicole Michel, Charles Ritterson, Thomas DeVore, and David Adler, for Summary Judgment (“Def. Mot.”) and accompanying Memorandum (“Def. Br.”) (Doc. 44); Statement of Material Facts in Support of Motion of Defendants, Gary Cooper, Nicole Michel, Charles Ritterson, Thomas DeVore, and David Adler, for Summary Judgment (“SMF”) (Doc. 44-1); Plaintiff, Brandon Bynum's, Memorandum of Law in Response to Defendants, Gary Cooper, Nicole Michel, Charles Ritterson, Thomas DeVore, and, David Adler's Motion for Summary Judgment (“Pl. Br.”) (Doc. 46-2); Plaintiff, Brandon Bynum's, Response to Defendants' Statement of Undisputed Material Facts (“RSUMF”) (Doc. 46) and Counterstatement (“CSUMF”) (Doc. 46-1); and the Reply Brief in Support of Motion of Defendants, Gary Cooper, Nicole Michel, Charles Ritterson, and Thomas DeVore, for Summary Judgment (“Def. Reply”) (Doc. 47). By this motion, Defendants assert that “the undisputed facts dictate that Plaintiff's federal civil rights claims and state law tort claims fail as a matter of law.” (Def. Br. at 6.)

         Upon consideration of the materials presented and the extensive oral argument held on December 9, 2016, we first conclude that Plaintiff's claims against Defendants Officers Ritterson, Michel, and Devore and Sgt. Adler are not precluded by time bar. We then deny Defendants' motion as to the use of excessive force and state law assault and battery claims against Defendants Officers Ritterson, Michel, and DeVore, but grant the motion as to all claims against Officer Cooper and Sgt. Adler and the remaining claims against Officers Ritterson, Michel, and DeVore.

         II. FACTUAL AND PROCEDURAL HISTORY

         On August 14, 2012, Bynum and a friend, Dayan Brown, were operating dirt bikes westbound in the eastbound lane of traffic and on the sidewalk at and near the intersection of 38thand Market Street in Philadelphia. (RSUMF at ¶ 5; Pl.'s Dep. at 66:17-70:03.) These actions were observed by patrolling Officer Cooper who intervened and attempted to engage Bynum. (SMF at ¶¶ 7-10.) Bynum was attempting to pull off of the road as his bike had cut off. (RUSMF at ¶ 5.)

         The parties dispute the particulars of what next occurred. Defendants assert that as Officer Cooper approached Market Street from 38th Street, he heard and saw the dirt bikes going in the wrong direction, and “believed that the two men had driven their bikes through a red light, among other traffic violations.” (SMF at ¶¶ 7-8.) In an effort to stop Bynum, Officer Cooper pulled his police car over to the side of the road and told Plaintiff to get off of his bike. (SMF at ¶ 9.) Bynum did not comply. (SMF at ¶¶ 9-11.) Officer Cooper then attempted to stop Bynum again after he drove his bike onto the sidewalk but Plaintiff reportedly did not comply this second time, revved his motor, and moved in the direction of Officer Cooper. (SMF at ¶¶ 11-12.) Officer Cooper stepped out of the way and Plaintiff left his bike, ran across Market Street and hopped onto the back of Brown's bike as they both rode away from the police. (SMF at ¶¶ 13-16.) At this point, Officer Cooper requested assistance by radio. (SMF at ¶ 17.)

         Plaintiff challenges Officer Cooper's account, asserting that surveillance videos of the intersection reveal that it was not possible for him to see the intersection of 38th and Market Streets as he gets to that point only after Bynum and Brown have taken off. (RSUMF at ¶ 7.) Bynum also asserts that he did not run a red light at this point, as shown in the intersection video. (RSUMF at ¶ 8.)

         While Officer Cooper stayed with Bynum's dirt bike, Officers Michel, Ritterson, and DeVore responded to Officer Cooper's radio call and chased Bynum, who was still a passenger on Brown's bike, to 34th and Wallace Streets. (SMF at ¶ 18; CSUMF at ¶ 60.) During the pursuit, the officers saw Plaintiff and Brown run through red lights and stop signs and drive the wrong way on one-way streets. (SMF at ¶ 21.) Sgt. Adler called to break off the pursuit but after Officer Michel told him that the passenger was right in front of her, riding slowly, and possibly running out of gas, Sgt. Adler ordered her to break it off after another block. (SMF at ¶ 22; RSUMF at ¶ 22.) Officer Michel, however, continued the pursuit after the one block because she believed she could continue to do it in a safe manner. (RSUMF at ¶ 23.) The officers also turned off their lights and sirens. (RSUMF at ¶ 25.) Bynum alleges that the officers were trying to swerve into their bike and to hit them with their ASPs. (RSUMF at ¶ 24.) Bynum claims that he was forced to jump off the bike, which caused him to land awkwardly and break a bone in his leg. (CSUMF at ¶ 62.) He asserts that Officers Michel, Ritterson, and DeVore then caused further injury by using unreasonable and unnecessary force against him by putting more pressure on his broken leg in an attempt to control him, dragging him to the police wagon and throwing him on the floor of the back of the wagon, and driving to the hospital in such a manner as to toss him around in the back of the wagon. (CSUMF at ¶¶ 97-101.) Plaintiff was treated at Presbyterian Hospital for his injuries. (SMF at ¶ 32.)

         On July 31, 2014, Bynum filed his first lawsuit concerning this incident naming the Trustees of the University of Pennsylvania, the University of Pennsylvania, University of Pennsylvania Police Officer Gary Cooper, and ten John Doe defendants. (Compl. at ¶ 1; see Bynum v. Trustees of the University of Pennsylvania et al., Civ. No. 14-04548 (“Bynum I”).) In Bynum I, the Court dismissed all counts against the Trustees of the University of Pennsylvania as well as the official capacity claims against Officer Cooper. See Civ. No. 14-04548, Doc. 12. The parties stipulated to the dismissal of the University of Pennsylvania and the state law claim of “interference with state constitutional rights.” (Civ. No. 14-04548, Doc. 5.) Bynum continued to pursue his claims against Officer Cooper and the John Doe Defendants. He did not learn the identities of the officers directly involved in the apprehension until Officer Cooper produced his initial disclosures in Bynum I on January 27, 2015. (Pl. Br. at 3.) He further learned of the other officers involved in Officer Cooper's response to a request for a production of documents on February 20, 2015. (Compl. at ¶ 10.)

         Once Bynum learned the identities of the other officers involved, he asked defense counsel to consent to have the officers' identities substituted for the John Does listed in Bynum I. (Pl. Br. at 3.) Penn refused, noting that the two year limitation period had run. (Id.) On March 23, 2015, Bynum then filed the present action against the Trustees of the University of Pennsylvania and Officers Michel, Ritterson, and DeVore, Supervisor John Peterson, and Sergeant Adler (“Bynum II”). In response to a motion, this Court dismissed the Monell claims against the Trustees (Counts I and II), a claim for “denial of access to courts” (Count V), and a claim for “interference with state constitutional rights” (Count VI). (Doc. 20.) As a result, Defendant Supervisor John Peterson was dismissed, as the only claims brought against him were under Count I and Count V. The claims remaining against Officers Cooper, Michel, Ritterson, and DeVore, and Sgt. Adler are brought pursuant to Section 1983 for claims of excessive force, unlawful seizure, false arrest, and false imprisonment, as well as state law claims for assault and battery, false imprisonment, abuse of process, negligent infliction of emotional distress, negligence, and gross negligence.

         III.SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if the evidence is such that, if accepted, “a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id.

         In a summary judgment analysis, “[t]he moving party has the initial burden of demonstrating that no genuine issue of material fact exists.” Josey v. John R. Hollingsworth, Corp., 996 F.2d 632, 637 (3d Cir. 1993) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). After the initial burden is met, “the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial.” Id. (citing Celotex Corp., 477 U.S. at 324). When deciding whether there is a genuine issue for trial, “the inferences drawn from the underlying facts in the materials must be viewed in the light most favorable to the party opposing the motion.” U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). While the inferences are viewed in “the light most favorable” to the nonmoving party, they “must do more than show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, where “reasonable minds can differ as to the import of proffered evidence that speaks to an issue of material fact, summary judgment should not be granted.” Gelover v. Lockheed Martin, 971 F.Supp. 180, 181 (E.D. Pa. 1997).

         IV. DISCUSSION

         Defendants structure their arguments as the basis for their summary judgment motion in three sections. First, they argue that the claims against Officers Michel, Ritterson, and Devore, and Sgt. Adler are time-barred as the limitation period had expired by the time he named them in this action (Bynum II) and that Plaintiff failed to undertake a diligent effort to discover the proper identities of the John Does. (Def. Br. at 7.) Second, they assert that they are entitled to qualified immunity thereby precluding Plaintiff's Section 1983 claims for excessive force, unlawful seizure, false arrest, and false imprisonment from going forward. (Def. Br. at 9-16.) They also assert that Plaintiff failed to establish personal involvement by specifically identified Defendants as to the Section 1983 claims, that the unlawful seizure, false arrest, and false imprisonment claims fail in light of probable cause justifying their actions, and that the force used in the apprehension of Plaintiff was objectively reasonable. (Def. Br. at 16-21.) Third, Defendants assert that even if the Court chooses to exercise supplemental jurisdiction over Plaintiff's state law claims for negligence, gross negligence, negligent infliction of emotional distress, abuse of process, assault and battery, false arrest, and false imprisonment, these claims fail as a matter of law. (Def. Br. at 22-26.)

         We will address Defendants' arguments in the order in which they were presented.

         A. Time Bar - Officers Ritterson, Michel, and DeVore and Sgt. Adler

         1. Setting

         The precise issue before us here is whether Plaintiff's claims against Officers Ritterson, Michel, and DeVore, and Sgt. Adler (“the Officers”) were timely filed. The parties agree that the limitation period of two years began to run on August 14, 2012. (See Pl. Br. at 2.) On July 31, 2014, Plaintiff filed Bynum I naming the Trustees, the University, Officer Cooper, and ten John Doe defendants. (Compl. at ¶ 1.) Following a dismissal of certain claims by Judge Dalzell, Plaintiff was left to pursue his remaining claims against Officer Cooper and the John Doe Defendants, alleging Section 1983 and state law claims. Bynum v. Trustees of the University of Pennsylvania, et al., 2014 WL 6473344, *6 (E.D. Pa. Nov. 18, 2014) (Dalzell, J.). On January 27, 2015, Plaintiff received Officer Cooper's initial disclosures revealing the identities of Officers Ritterson, Michel, DeVore, and Sgt. Adler. (Doc. 20, at 4.) On March 23, 2015, more than 7 months after the limitation period had run Plaintiff filed Bynum II against the Trustees and the newly identified officers. We must determine whether Plaintiff may be excused from his late filing by the application of Pennsylvania state law tolling principles.

         Plaintiff relies upon this Court's July 23, 2015 ruling on the Defendants' motion to dismiss the newly named officers, where Judge Dalzell held that Plaintiff's claims were timely as the limitations period had been tolled.[1] (Doc. 20, at 13.) Judge Dalzell found that he was “entitled to the benefit of Pennsylvania's discovery rule, ” which tolls the statute of limitations when a plaintiff, despite the exercise of due diligence, is unable to know of the existence of an injury and its cause. (Id.) As applies here, Plaintiff was certainly aware of his injury but he could not know its cause without establishing the identities of those involved. Judge Dalzell held that Plaintiff had proceeded with “reasonable diligence” by filing Bynum I within the two year limitation period, responding to Defendants' motion to dismiss, attending the Rule 16 conference, and beginning to exchange discovery with Defendants. (Doc. 20 at 12.) Moreover, once Plaintiff learned the identities of the remaining Defendants from Officer Cooper's initial disclosure on January 27, 2015, he promptly filed Bynum II naming the officers.[2] (Id.)

         Defendants reject this argument stating that Plaintiff failed to meet his burden of showing he exercised diligence in determining who was responsible for his injuries. (Def. Mem. at 8.) Defendants rely on Plaintiff's deposition, taken during discovery, where he disclosed that he made no “effort after [the] incident to identify any of the other officers at the scene.”[3]Defendants assert that Plaintiff failed not only to undertake “reasonable diligence” to learn the identities of the officers involved before the limitations period ran, but failed to do any diligence whatsoever. (Def. Mem. at 9.) Moreover, Defendants contend that Judge Dalzell's denial at the motion to dismiss phase does not foreclose a contrary ruling at this time now that discovery is completed.[4] (Def. Reply at 7.) As such, Defendants assert that the limitations period should not be tolled and the claims against the officers dismissed. (Id.)

         2. Analysis

         Bynum II would only be considered timely filed if Plaintiff establishes that he is entitled to the benefit of a tolling principle. As state law controls the length of a limitation period for a Section 1983 claim, state tolling rules apply. Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). Pennsylvania's discovery rule and fraudulent concealment doctrines are the two tolling principles in play here. The discovery rule tolls the limitations period when a plaintiff, despite the exercise of due diligence, is unable to know of the existence of an injury and its cause. Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991). Under the doctrine of fraudulent concealment, the statute of limitations is tolled where “through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate from the right of inquiry.” (Id. at 925 (quoting Ciccarelli v. Carey Canadian Mins, Ltd., 757 F.2d 548 556 (3d Cir. 1985).) Whether either the discovery rule or the fraudulent concealment doctrine applies, the statute of limitations is tolled until the plaintiff knew or using reasonable diligence should have known of the claim in question. Id. at 925-26. While a jury is typically tasked with this determination, the commencement of the limitation period may be determined as a matter of law “where the facts are so clear that reasonable minds cannot differ.” Knopick v. Connelly, 639 F.3d 600, 611 (3d Cir. 2011) (quoting Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 307 (3d Cir. 2001)).

         We are mindful of the proposition that where a ruling has already been made on a specific issue the law of the case doctrine provides that the court's initial decision should be respected by a subsequent judge on the same case. Carmichaels Arbors Assocs. v. U.S. Through Dep't of Hous. & Urban Dev., 789 F.Supp. 683 (W.D. Pa. 1992). While there are exceptions to this rule they are quite narrow and are reserved for situations “‘where there has been an intervening change in the law, where new evidence has become available, or… reconsideration is necessary to prevent clear error or a manifest injustice.'” In re Engel, 124 F.3d 567, 584 (3d. Cir. 1997) (quoting AL Tech Specialty Steel Corp. v. Allegheny Int'l Credit Corp., 104 F.3d 601, 605 (3d Cir. 1997)). We acknowledge Defendants' argument that Plaintiff's deposition was not before Judge Dalzell when he ruled on the motion to dismiss and we accept that Bynum's deposition testimony that he exercised no diligence could qualify as “new evidence.” We note however that Judge Dalzell in concluding that Bynum exercised due diligence relied upon his (1) filing of Bynum I within the applicable statute of limitations, (2) responding to Defendant's motion to dismiss, (3) attending the Rule 16 conference, (4) beginning to exchange discovery with Officer Cooper, and (5) promptly filing a new lawsuit once Plaintiff discovered the remaining officers' names from Officer Cooper's initial disclosure. (Doc. 20, at 12.) Judge Dalzell found these steps to be adequate to excuse the late filing. Plaintiff's deposition evidence does not challenge or negate any of these steps that Judge Dalzell found to constitute “reasonable diligence.” We will not disturb his decision. Defendants' motion based upon application of the limitation argument is denied.

         B. Constitutional Claims

         We proceed next with a consideration of Plaintiff's claims of constitutional deprivation first with respect to Plaintiff's unlawful seizure claim and the related claims of false arrest and false imprisonment, and then with respect to his claims of excessive force. Before doing so, however, we address the question of qualified immunity.

         1. Qualified Immunity

         Defendants argue that they are entitled to qualified immunity in that their conduct did not violate Plaintiff's clearly established Fourth Amendment constitutional right to be free from unlawful seizure, false arrest, false imprisonment, and excessive force. (Def. Br. at 9-16.) The doctrine of qualified immunity protects government officials sued in their individual capacity “from liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Gilles v. Davis, 427 F.3d 197, 203 (3d Cir. 2005) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Supreme Court has set out the following two-prong inquiry to guide courts in determining whether qualified immunity applies: (1) in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right; and (2) if the first step is satisfied, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 207 (2001). However, “when qualified immunity depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro v. City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006). While qualified immunity is generally a question of law, when a genuine dispute of material fact exists, it will preclude summary judgment on qualified immunity. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

         Defendants argue there are no constitutional violations for excessive force because their actions were objectively reasonable. (Def. Br. at 11.) Moreover, they assert that there are no constitutional violations for unlawful seizure, false arrest, or false imprisonment because they had probable cause to arrest Plaintiff on the day in question. (Id.) Plaintiff rejects these arguments, asserting that there are questions of material fact for a jury to resolve. (Pl. Br. at 11.)

         We review each Section 1983 claim separately below and conclude that, where there are factual issues in dispute - as here with respect to Plaintiff's excessive force claim - we must await a jury determination of the factual issues before we apply the principles of qualified immunity. See Monteiro, 436 F.3d at 405; Giles, 571 F.3d at 322. We also conclude, as we set out in the next section, that there are no material factual questions in dispute with respect to ...


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