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El v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

August 3, 2018



          Nora Barry Fischer, United States District Judge

         This is an excessive force case initiated by a pair of brothers, Plaintiffs Will El and Beyshaud El (collectively the “El Brothers”), against the City of Pittsburgh (the “City”) and three of its officers: Reyne Kacsuta (“Lieutenant Kacsuta”), Frank Welling (“Officer Welling”), and Ryan Warnock (“Officer Warnock”) (collectively the “individual officer Defendants”). Pending before the Court is the motion for summary judgment filed by the City and the individual officer Defendants with respect to all counts contained in the second amended complaint filed against them by the Plaintiffs. (Docket No. 106). Count I of the second amended complaint alleges a 42 U.S.C. § 1983 (“§ 1983”) Fourth Amendment excessive force claim against the individual officer Defendants. Count II of the second amended complaint alleges a Monell v. Dep't of Soc. Serv. of City of N.Y, 436 U.S. 658 (1978) § 1983 municipal liability claim against the City. Count III of the second amended complaint alleges a state law assault and battery claim against the individual officer Defendants.

         The Defendants filed their motion for summary judgment and supporting documents on January 19, 2018. (Docket Nos. 106-109). The Plaintiffs filed their brief in opposition and related documents on March 12, 2018. (Docket Nos. 116, 118-119). Because the Plaintiffs' filings did not include a responsive concise statement of facts as required by Local Rule 56, the Court ordered them to file same no later than April 2, 2018. (Docket No. 120). The Defendants filed their reply brief on March 23, 2018. (Docket No. 122). On March 28, 2018, the Plaintiffs filed their “counter opposition” to Defendants' concise statement of facts, (Docket No. 123), and the Defendants filed an errata regarding their appendix to include inadvertently omitted deposition testimony of Beyshaud El, Will El, and Lieutenant Kacsuta. (Docket No. 124). The Plaintiffs filed their surreply on March 30, 2018. (Docket No. 125). Oral argument was held on the motion for summary judgment on April 12, 2018. (Docket No. 129). The Defendants filed a supplemental brief on April 20, 2018. (Docket No. 130). The Plaintiffs filed a supplemental brief on April 27, 2018. (Docket No. 132). Defendants filed a supplemental concise statement of material fact in support of their motion for summary judgment on May 4, 2018. (Docket No. 133). Plaintiffs filed a response in opposition to Defendants' supplemental concise statement of material facts on May 13, 2018. (Docket No. 134). The motion for summary judgment, thus, is ripe for adjudication.

         I. Standard of Review

         Summary judgment is appropriate when “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986). “When confronted with cross-motions for summary judgment, the ‘court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard.'” Anderson v. Franklin Institute, 185 F.Supp.3d 628, 635 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America, 269 F.Supp.2d 612, 615 n. 1 (E.D. Pa. 2003); Charles A. Wright, Arthur R. Miller et al., 10A Fed. Prac. and Proc. § 2720 (3d ed. 1998).

         In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See Id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

         II. Dash-Cam Video evidence

         As explained in greater detail below, much of the events at issue in this action were videotaped by a Dash-Cam attached to a police vehicle that arrived on the scene driven by Officer Siara Lawniczak (“Officer Lawniczak”). The video from Officer Lawniczak's Dash-Cam (‘the “Dash-Cam Video”) was introduced and entered into evidence at the April 12, 2018 oral argument on the motion for summary judgment, was shown to the Court during oral argument, and has been reviewed repeatedly by the Court in deciding the pending motion for summary judgment.

         In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007), the United States Supreme Court reviewed the lower courts' denial of the defendant police officer's motion for summary judgment with respect to the plaintiff's § 1983 use of excessive force in violation of the Fourth Amendment claim on the basis of qualified immunity. In support of the police officer's motion, the officer had submitted a videotape that captured the events in question. Scott, 550 U.S. at 379. In discussing how to review the videotape in the context of deciding the pending motion for summary judgment, the Scott Court explained:

The first step in assessing the constitutionality of [the police officer's] actions is to determine the relevant facts. As this case was decided on summary judgment, there have not yet been factual findings by a judge or jury, and [the plaintiff's] version of events (unsurprisingly) differs substantially from [the police officer's] version. When things are in such a posture, courts are required to view the facts and draw reasonable inferences “in the light most favorable to the party opposing the [summary judgment] motion.” In qualified immunity cases, this usually means adopting (as the Court of Appeals did here) the plaintiff's version of the facts.
There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question. There are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals. . . .
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” “[T]he 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.” When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. [The plaintiff's] version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Id. at 380-81 (citations and footnote omitted). Consistent with the Supreme Court's mandate in Scott, in reviewing the motion for summary judgment, to the extent that they are relevant, the Court will view the events shown in the videotape “in the light depicted by the videotape.” See also Ickes v. Grassmeyer, Civ. No. 3:13-208, 2016 WL 4272358, at *4 n. 3 (W.D. Pa. Aug. 11, 2016), aff'd sub nom. Ickes v. Grassmyer, 704 Fed.Appx. 190 (3d Cir. 2017) (although plaintiff had testified that no one asked him to get out of the car, where this command could be heard clearly on the dash cam video of the incident, court determined, “[b]ecause no reasonable juror could conclude that Plaintiff was never asked to get out of the car, the Court will view this fact in the light depicted in the dash cam video for purposes of deciding the pending motions for summary judgment.”) (citing Scott, 550 U.S. at 380).

         III. Relevant Facts

         Following is a recitation of the facts relevant to the Defendants' motion for summary judgment. On July 2, 2013, Lieutenant Kacsuta observed the El Brothers leaving the “One Stop” convenient store in the Homewood neighborhood of Pittsburgh. (Docket No. 109-3 at 2). Beyshaud El, who was 18 years old at the time, was holding “a green foil object” in his hand “in front of his body.” (Id.). In light of current undercover police reports that the “One Stop” store was illegally selling synthetic marijuana, Lieutenant Kacsuta was suspicious that the object in Beyshaud El's hand was illegally purchased synthetic marijuana. (Id. at 3-4).

         Lieutenant Kacsuta approached the El Brothers in her cruiser and asked to speak to them; they declined and crossed the street away from her. (Docket No. 109-2 at 6). This apparently increased Lieutenant Kacsuta's suspicion that the El Brothers illegally possessed synthetic marijuana, so she turned her car around to investigate them for same. (Docket No. 109-3 at 28).

         Lieutenant Kacsuta got out of her car, stopped the El Brothers, and asked them to sit down on the stoop of a vacant storefront; they complied (Docket No. 109-5 at 17). She asked Will El for identification, Will El gave it to her, emptied his pockets onto the sidewalk, and told Beyshaud El to do the same so that Lieutenant Kacsuta knew they did not have anything on them and they were not doing anything. (Docket Nos. 190-2 at 6, 109-5 at 2). At that point, the El Brothers were not free to leave. (Docket No. 116-2 at 16).

         It became clear to Lieutenant Kacsuta that the El Brothers did not have synthetic marijuana in their possession. (Docket 116-2 at 21). Nevertheless, Lieutenant Kacsuta did not release the El Brothers because a tobacco product had come out of the store with the El Brothers. (Id. at 21-22). Beyshaud El was 18 years old and Will El was 22 years old, so this would not be illegal. Beyshaud El, however, did not have a form of identification on him. (Docket No. 124-3 at 3). Given his youthful appearance and lack of identification, Lieutenant Kacsuta now suspected that the store illegally sold Beyshaud El a tobacco product or he illegally possessed a tobacco product. (Docket No. 116-2 at 21-22).

         Lieutenant Kacsuta had called for back-up prior to getting out of her car. (Id. at 22). She knew that Officers Welling and Warnock were in the area. (Id.). Officers Welling and Warnock arrived on the scene together in less than two minutes. (Id.). Ultimately, five additional officers reported to the scene to support Lieutenant Kacsuta. (Dash Cam Video 13:47:21).

         Upon arrival at the scene of the stop of the El Brothers, Officer Welling did not know why the Plaintiffs had been stopped by Lieutenant Kacsuta. (Docket No. 116-4 at 12). He just knew they were under investigation and detained for whatever reason Lieutenant Kacsuta had stopped them. (Docket No. 116-4 at 12). Officer Warnock also did not know why the El Brothers had been stopped by Lieutenant Kacsuta. (Docket No. 116-5 at 2). Lieutenant Kacsuta did not tell Officer Warnock to make sure they remained seated. (Id.).

         While the El Brothers were seated on the curb, Lieutenant Kacsuta picked up Will El's identification from the ground, looked at it, and dropped it on the ground. (Docket No. 124-1 at 6; Dash Cam Video 13:46:43). When Beyshaud El reached to pick up his brother's license, Lieutenant Kacsuta stepped on it. (Dash Cam Video 13:46:43). Throughout this time period, the El Brothers were complaining that they were being harassed. (Docket Nos. 116-2 at 23, 116-3 at 3).

         According to Will El, in response to his complaint of being harassed, Officer Welling stated, “do you want to know what it feels like to be harassed?” (Docket No. 124-3 at 5). Will El then stood up, “to make sure the lieutenant [Kacsuta] heard what [Officer Welling] said to [him].” (Id. at 14). Will El took one or two small steps in the direction of Lieutenant Kacsuta and Officer Warnock. (Dash-Cam Video at 13:47:05). In response to Will El's movement, Officer Welling grabbed Will El by his wrist and neck and slammed him back into the wall of the vacant storefront on which stoop the El Brothers had been seated, and on to the pavement.[1] (Id. at 13:47:06-07).

         Beyshaud El was seated on the storefront stoop immediately next to where Officer Welling and Will El were located when Officer Welling grabbed Will El by his wrist and neck. (Id. at 13:47:06). Upon seeing Officer Welling grab his brother, Beyshaud El immediately stood up, turned towards Officer Welling, and attempted to punch Officer Welling and otherwise defend his brother. (Id. at 13:47:07). In response, Officer Warnock deployed his taser into Beyshaud El's side for five seconds, causing Beyshaud El to fall to the ground. (Id. at 13:47:08; Docket No. 109-6 at 8).

         Both Will and Beyshaud El on the pavement and not resisting, six officers then handcuffed and placed the El Brothers under arrest. (Id. at 13:47:19 and 13:47:27). This was the first time Officer Warnock had deployed a taser in the field. (Docket No. 116-5 at 11).

         Beyshaud El was taken to the hospital and then to jail. (Docket No. 109-6 at 9). Will El was taken directly to jail. (Id.). After his release from jail, on July 7, 2013, Will El went to the emergency room of a local hospital because of lower back pain. (Docket No. 109-5 at 9). He was told at the emergency room that he had a hip contusion, which he understood to be a deep bruise on his bone. (Id. at 9-10).

         The El Brothers were initially charged with aggravated assault on a police officer, but Allegheny County District Attorney Stephen Zappala later amended these charges to summary charges. (Docket No. 93 at 2). Will El was charged with summary disorderly conduct. See 18 Pa.C.S. § 5503(a)(4) (“A person is guilty of disorderly conduct if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he … creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”).

         Beyshaud El was charged with summary harassment. See 18 Pa.C.S. § 2709(a)(1) (A person is guilty of harassment when, “with intent to harass, annoy, or alarm another, ” he “strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same.”).

         On April 14, 2014, the Honorable Kevin Sasinoski of the Court of Common Pleas of Allegheny County (“Judge Sasinoski”) presided over Will El and Beyshaud El's joint bench trial. (Docket No. 109-7). Prior to the trial, by order only and without issuing an opinion, Judge Sasinoski denied the Plaintiffs' “Motion to Suppress and Dismiss Charges.” (Docket No. 109-8). At the trial, Judge Sasinoski responded to defense counsel's statement that she did not see a punch in the video, as follows:

I did. And I'm the factfinder. It is obvious that one of them wound up and took a swing at the officer. That punch is clear. I ...

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