United States District Court, M.D. Pennsylvania
RYAN A. HEILIMANN, Plaintiff
STATE TROOPER THOMAS O'BRIEN, Individually and as a State Trooper for the Commonwealth of Pennsylvania; STATE TROOPER PETER P. NEMSHICK, Individually and as a State Trooper for the Commonwealth of Pennsylvania; CORY MOODY; AGENT CHRISTOPHER CARDONI, Individually and as an employee of the Pennsylvania Gaming Control Board; MOUNT AIRY, NO. 1, LLC d/b/a MT. AIRY CASINO; JOHN DOE CASINO DEFENDANTS #1-25, Individually and as employees of Mt. Airy Casino; and JANE DOE CASINO DEFENDANTS #1-25, Individually and as employees of Mt. Airy Casino, Defendants
M. MUNLEY JUDGE United States District Court
Ryan A. Heilimann (hereinafter “plaintiff”) avers
that two Pennsylvania state troopers, a Pennsylvania Gaming
Control Board (hereinafter “GCB”) agent, and
casino security violated Pennsylvania state law and his civil
rights under 42 U.S.C. § 1983 (hereinafter
“section 1983”) for events related to his
detainment and arrest inside Mount Airy Casino. Before the
court for disposition is Defendants Mount Airy Casino and
casino security officer Cory Moody's (collectively
“the casino defendants”) motion for summary
judgment. (Doc. 42). For the reasons that follow, we will
grant in part and deny in part the motion.
August 25, 2012, plaintiff visited Gypsies nightclub inside
Mount Airy Casino in Mount Pocono, Pennsylvania. (Doc. 53-1,
Pl.'s Additional Statement of Material Facts (hereinafter
“Pl.'s SOF”) ¶ 1). While dancing
with a woman, plaintiff was escorted off the dance floor by
Pennsylvania state troopers and casino employees. (Pl.'s
SOF ¶¶ 2-4). At some point, a verbal exchange
ensued, after which troopers arrested plaintiff and escorted
him to the Pennsylvania State Police office located inside
the casino. (Pl.'s SOF ¶ 5).
parties dispute what happened next. Plaintiff testified that
Defendant State Trooper Thomas O'Brien pushed him face
down into the floor and intentionally twisted his ankle until
it broke. (Doc. 53-2, Dep. of Pl. Ryan A. Heilimann
(hereinafter “Pl. Dep.”) at 24-26). Defendant
Cory Moody, a casino security officer, however, testified
that plaintiff tried to kick State Trooper O'Brien, but
O'Brien caught plaintiff's leg and pushed him down
toward the floor. (Doc. 42-2, Ex. E, Dep. of Def. Cory Moody
(hereinafter “Moody Dep.”) at 32-34).
result of the night's events, the Commonwealth charged
plaintiff with aggravated assault under 18 Pa. Cons. Stat.
Ann. § 2702(a)(3), resisting arrest under 18 Pa. Cons.
Stat. Ann. § 5104, disorderly conduct under 18 Pa. Cons.
Stat. Ann. § 5503(a)(1), harassment under 18 Pa. Cons.
Stat. Ann. § 2709(a)(1), and public drunkenness under 18
Pa. Cons. Stat. Ann. § 5505. (Pl.'s SOF ¶ 14).
A jury found plaintiff not guilty of aggravated assault and
disorderly conduct, and a Monroe County Court of Common Pleas
judge dismissed plaintiff's resisting arrest charge on a
motion for judgment of acquittal. (Pl.'s SOF ¶ 17).
The judge, however, found plaintiff guilty of harassment and
public drunkenness. (Id.)
1, 2014, plaintiff filed a thirteen-count complaint against
Defendant State Troopers O'Brien and Peter P. Nemshick
and Gaming Control Board Agent Christopher Cardoni
(collectively “the Commonwealth defendants”) as
well as the casino defendants. (Doc. 1, Compl.). Counts I,
III, V, VII, and XI allege civil rights violations under
section 1983 against all defendants, excluding Mount Airy
Casino. Counts II, IV, VI, VIII-X, XII also assert
respective Pennsylvania state law assault, battery, false
imprisonment, conspiracy, intentional infliction of emotional
distress, negligent infliction of emotional distress, and
malicious prosecution claims against Defendant Moody. Count
XIII asserts a vicarious liability claim against Defendant
Mount Airy Casino.
March 4, 2016, the casino defendants moved for summary
judgment on all claims. (Doc. 42). The parties have briefed
their respective positions and the matter is ripe for
case is brought pursuant to section 1983 for a violation of
plaintiff's constitutional rights, we have jurisdiction
under 28 U.S.C. § 1331 (“The district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United
States.”). We have supplemental jurisdiction over
plaintiff's state law claims pursuant to 28 U.S.C. §
summary judgment is proper 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 judgment as a matter of law. See
Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997)
(citing Fed.R.Civ.P. 56(c)). “[T]his standard provides
that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party
opposing the motion. Int'l Raw Materials, Ltd. v.
Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990).
The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a
verdict for the nonmoving party. Anderson, 477 U.S.
at 248. A fact is material when it might affect the outcome
of the suit under the governing law. Id. Where the
nonmoving party will bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by
establishing that the evidentiary materials of record, if
reduced to admissible evidence, would be insufficient to
carry the nonmovant's burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Once the moving party satisfies its burden, the burden shifts
to the nonmoving party, who must go beyond its pleadings, and
designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories
demonstrating that there is a genuine issue for trial.
Id. at 324.
casino defendants move for summary judgment on all thirteen
of plaintiff's claims, as well as plaintiff's
punitive damages claim. We address each in turn, beginning
with plaintiff's federal claims.
Section 1983 Claims
casino defendants first move for summary judgment on
plaintiff's section 1983 claims, arguing that they are
not state actors, and therefore, section 1983 does not apply.
Section 1983 does not, by its own terms, create substantive
rights; rather, it provides remedies for deprivations of
rights established elsewhere in the Constitution or federal
law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.
1996). Section 1983 states, in pertinent part,
Every person who, under the color of any statute, ordinance,
regulation, custom, or usage, of any State or territory or
the District of Columbia, subjects, or causes to be
subjected, any citizens of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity or other proper proceeding for redress
. . . .
42 U.S.C. § 1983. Thus, to establish a claim under
section 1983, two criteria must be met. First, the conduct
complained of must have been committed by a person acting
under color of state law. Kaucher v. Cty. of Bucks,
455 F.3d 418 (3d Cir. 2006) (citing Am. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 49-50 (1999)). Second, the
conduct must deprive the plaintiff of rights secured under
the Constitution or federal law. Id. (citing Am.
Mfrs., 526 U.S. at 49-50).
private actors do not act under color of state law, and thus
are not liable under section 1983. Indeed, a private entity
is only liable under section 1983 if it “may fairly be
said to be a state actor.” Lugar v. Edmondson Oil
Co. Inc., 457 U.S. 922, 937 (1982). To that end, the
United States Supreme Court has articulated several tests to
determine whether a private individual may “fairly be
said to be a state actor.”
these state actor tests are the “joint action”
test and the “symbiotic relationship” test. Here,
while the casino defendants argue that they cannot be held
liable under section 1983 pursuant to the “joint
action” test, plaintiff contends that they may be held
liable under both the “joint action” test and the
“symbiotic relationship” test. We address each
test in turn.
Joint Action Test
casino defendants argue that they are not state actors under
the joint action test, and therefore, plaintiff's section
1983 claims must fail as a matter of law. While we agree that
plaintiff has not produced evidence sufficient to pass this
test, plaintiff's section 1983 claims do not warrant
the joint action test, a private party will be deemed a state
actor if it is a “willful participant in joint action
with the State or its agents.” Lugar, 457 U.S.
at 941. Moreover, a private entity may only be deemed a state
actor, and therefore liable under section 1983, for actions
of police officers if: (1) the private entity has a
“prearranged plan” with police officers; and (2)
under the plan, the police officers will “substitute
their [own] judgment” with that of the private
entity's. Cruz v. Donnelly, 727 F.2d 79, 81-82
(3d Cir. 1984).
plaintiff has satisfied the first prong of the joint action
test, but not the second. Initially, the evidence
demonstrates a custom of interdependency between casino
security and state troopers in that they routinely rely on
each other to investigate and resolve potential criminal
activity inside Mount Airy Casino. (Moody Dep. at 8, 10, 15,
21-22; Doc. 42-2, Ex. H, Dep. of Lianne Asbury (hereinafter
“Asbury Dep.”) at 12).
such evidence presents a genuine issue of material fact
regarding the first prong of the joint action test, that is,
whether the casino defendants had a “prearranged
plan” with the Commonwealth defendants, plaintiff has
produced no evidence of the second prong of the joint action
test, that the Commonwealth defendants substituted their own
judgment with that of the casino defendants. To the contrary,
the undisputed evidence establishes that the Commonwealth
defendants, namely State Troopers O'Brien and Nemshick,
were the principal actors throughout the alleged course of
events. Defendant Moody, on the other hand, arrived at the
State Police office after plaintiff had already been detained
and arrested, wrote only a victim/witness statement for the
State Police, banned plaintiff from the casino based on
information from the Commonwealth defendants, and did not
testify at plaintiff's criminal trial. (Moody Dep. at 22,
28, 42-43 & 44).
absence of any evidence suggesting that the State Troopers
substituted their own judgment with that of Defendant
Moody's, the casino defendants cannot qualify as section
1983 state actors under the joint action test. Because the
joint action test is merely one way to determine whether a