EDUARDO C. ROBRENO, District Judge.
I. INTRODUCTION ............................................................484
II. FACTS ...................................................................485
III. APPLICABLE LEGAL STANDARDS ..............................................490
A. Summary Judgment Standard ...........................................490
B. Determining Genuine Disputes of Material Fact .......................490
C. Plaintiffs Alleged Genuine Disputes of Material Fact ................492
1. Contested Facts as to Baier .....................................492
2. Contested Facts as to Baran and Winik ...........................493
IV. SECTION 1983 CLAIMS AGAINST WINIK, BARAN, AND BAIER .....................498
A. Plaintiffs Unlawful Search and Excessive Force Claims ...............498
1. Warrantless Entry of Pagano's Apartment .........................501
2. Baran's Use of Pepper Spray .....................................504
3. Winik's Use of Deadly Force .....................................505
B. Remaining Eighth and Fourteenth Amendment Claims ....................507
1. Denial of Medical Care Claim ....................................507
2. State Created Danger and Generalized Substantive Due Process
Claims ........................................................508
V. MONELL AND FAILURE-TO-TRAIN CLAIMS ......................................512
VI. CONCLUSION ..............................................................514
In the early afternoon of February 25, 2009, Randall Pagano, a twenty-seven year old male on probation for domestic violence was fatally shot inside his apartment by Bristol Township Police Officer Tiffany Winik. Winik, along with Officer John Baran, had responded to a call for assistance from Bucks County Probation Officer Michael Baier. Baier had concluded that Pagano was inside his apartment and possibly experiencing medical difficulties, requiring a well-being check.
Upon arriving at the scene, Winik, Baran, and Baier executed a warrantless entry into Pagano's apartment, where they ultimately confronted Pagano in a narrow hallway. Whether the officers were justified in entering Pagano's home without a warrant, and what happened inside the apartment that lead to the police officers' use of pepper spray and deadly force on Pagano are the issues in this case. Ultimately, the Court must determine whether, under these circumstances, the officers' claim to qualified immunity is justified.
On May 11, 2012, Baier filed a Motion for Summary Judgment. Def. Baier's Mot. for Summ. J., ECF No. 99. Plaintiff filed a response thereto. Pl.'s Resp. to Def. Baier's Mot. for Summ. J., ECF No. 106. On May 14, 2012, Officer Defendants collectively filed a Motion for Summary Judgment. Officer Defs.' Mot. for Summ. J., ECF No. 101. Plaintiff filed a response thereto. Pl.'s Resp. to Officer Defs.' Mot. for Summ. J., ECF No. 108. Officer Defendants filed a Motion for Leave to File a Reply. Officer Defs.' Reply, ECF No. 110.
Baier was the probation officer assigned to supervise Pagano. Pagano was on probation for a domestic violence incident. According to the parties, Baier's previous interactions with Pagano, albeit brief, were cordial. Hr'g Tr. 36:4-12; 48:4-22, Apr. 17, 2013, ECF No. 115.
According to Baier, on February 25, 2009, at approximately 1:19 p.m., Baier went to Pagano's apartment, located at the Mills Crossing Apartments, for a prescheduled probation contact meeting. Officer Defs.' Mem. in Support of Mot. for Summ. J. ("Officer Defs.' Mem.") Ex. F, Baier Dep. 26:17-28:21. Whether February 25, 2009, was the prescheduled appointment date is a contested issue of fact.
Upon arrival, Baier used his cell phone to call Pagano's home number. According to Baier, as he finished leaving a voicemail Pagano answered, terminating the answering machine recording, and said, "This is Randall. I'm having very serious problems
Thereafter, Baier attempted to contact Pagano in person by knocking on Pagano's apartment door and ringing the doorbell. Id. at 50:9-19. Upon receiving no response, Baier contacted police radio and requested assistance for a well-being check. Id. at 48:12-23.
Winik was the first to respond to the radio call, which notified her that a probation officer needed assistance checking on a parolee. Officer Defs.' Mem. Ex. B, Winik Dep. 32:1-35:21.
According to Winik, upon arrival Baier told her that he had spoken to Pagano, and that "he had reason to believe [Pagano] was in the apartment and having some kind of medical emergency. He said [Pagano] was — sounded like he was slurring his words and then he said, `I'm having a real problem here. I'm having a problem here.'" Id. at 38:1-7. As the officer dispatched to the scene and the first to arrive, Winik assumed control of the scene. Id. at 54:8-20.
Shortly thereafter, Baran arrived on the scene. Officer Defs.' Mem. Ex. G, Baran Dep. 14:4-14. According to Baran, aside from the initial radio request, the only other information he had was relayed to him by Winik, regarding "a potential medical emergency." Id. at 17:13-24, 26:1-8.
The officers proceeded to Pagano's apartment, and Winik knocked on Pagano's door, calling out "Randall, Randall." Winik Dep. 51:6-16; accord Baier Dep. 53:24-54:2 (stating that police knocked and said, "Randall, this is [the] police, are you ok?").
Upon receiving no response, Baran contacted Bucks County Radio and requested assistance from the apartment complex maintenance staff. Officer Defs.' Mem. Ex. I, Recording of Bucks County Radio Transmissions; Baran Dep. 26:10-14. But shortly thereafter, a maintenance person, Carl Newton, happened to pass the scene and, upon the officers' request for assistance, unlocked Pagano's apartment door. Baran Dep. 26:14-24.
Winik and Baran attempted to enter, but were only able to force Pagano's apartment door open a few inches. Baran Dep. 28:4-9. Winik squeezed through the partially-opened door, withdrew her service weapon, quickly scanned the living room, and then cleared the sofa and chairs that were blocking the apartment door so that Baran and Baier could enter the apartment.
Winik noted that Pagano's apartment was in disarray. Winik Dep. 72:8-73:12. Photographs of Pagano's kitchen on the day in question also show several syringes scattered on the tabletop. Officer Defs.' Mem. Ex. K, Photographs; see also Officer Defs.' Reply Ex. P, Photographs (Exhibits K and P, collectively, "Photographs").
During their initial search, the officers did not find Pagano. While Winik checked the living room and kitchen area, Baran checked the bathroom and behind the shower curtain. Winik Dep. 72:2-73:5. According to Baran, he called out Pagano's name as he proceeded down the hallway and into Pagano's bedroom. Baran Dep. 34:2-22.
As the search continued, Baran discovered Pagano in his bedroom closet, and the officers approached with service weapons drawn. Winik Dep. 77:10-82:20.
According to Baran, he wanted to check on Pagano's well-being, and ordered him to come out of the closet. Baran Dep. 40:14-46:24. Believing that he was hiding in the closet, Baran stated that he wanted to approach Pagano, but because he could not see Pagano's hands he determined that it was unsafe to do so. Id. at 47:8-48; see also Officer Defs.' Reply Ex. O, Report of John J. Ryan ("Ryan Report") 20-21. According to Baran, Pagano did not respond to show-hands commands. Baran Dep. 46:18-51:16. Baran then deployed his pepper spray into the closet, in Pagano's direction. Id. at 47:6-9. Pagano did not respond to the pepper spray. Id. at 47:6-49:2. At that point, Baran still could not see Pagano's hands, and again ordered Pagano to show his hands. Id. Baran then concluded that the first spray was blocked by clothing hanging in the closet, and deployed his spray a second time, this time hitting Pagano on the chest. Id. at 49:12-22. Whether Baran ordered Pagano to show his hands prior to deploying the pepper spray is a contested issue of fact. Pl.'s Resp. Mem.-Officer Defs. 23.
According to Baran, after removing the tote from the closet, he was able to observe both of Pagano's hands, at which point he and Winik holstered their service weapons and prepared to enter the closet to remove Pagano. Baran Dep. 59:1-20. Before the officers could do so, Pagano broke an empty aquarium tank in the closet and grabbed a large shard of glass.
Now in the hallway and with their weapons raised, Baran and Winik ordered Pagano several times to stop and drop the piece of glass. Id. at 128:24-129:1; Baran Dep. 72:24-73:2; Baier Dep. 85:4-10. According to the officers, Pagano failed to comply and continued towards the officers, at which point Winik ordered Pagano, "Stop, or we'll shoot." Winik Dep. 164:10-16.
Winik estimated that as Pagano crossed the threshold of the bedroom and into the hallway — which is approximately eleven feet long — she discharged her service weapon once, striking Pagano in the mid to lower right side. Id. at 129:16-136:4. Plaintiff disputes this distance. Pl.'s Resp. Mem-Officer Defs. 23. Winik and Baran stated that Pagano then stopped and dropped the glass, spun backwards and fell back onto the bedroom floor, where he lay unmoving. Id.; Officer Defs.' Mem. Ex. K, Scene Diagram. Immediately thereafter, Baran notified Bucks County radio dispatch that shots had been fired, and requested an ambulance. Recording of Bucks County Radio Transmissions 6:25, 7:07-7:12.
Meanwhile, Evans had responded to Baran's earlier radio call for assistance, and was the third police officer to arrive on the scene to assist. Officer Defs.' Mem. Ex. L, Evans Dep. 5:21-6:4. According to Evans, as he proceeded up the stairs to Pagano's apartment, he heard a single gunshot. Id. at 6:8-18. As he entered the apartment, Evans heard Baran giving commands for Pagano to show his hands while Pagano was on the ground. Id. at 6:21-7:4. While Baran kept his service weapon pointed at Pagano, Evans handcuffed Pagano's hands behind his back. Id. at 11:20-22; Officer Defs.' Mem. Ex. D, McAndrews Dep. 66:6-22 (explaining that handcuffs were used to secure Pagano and secure scene for emergency medical personnel). Upon turning Pagano over, Baran and Evans realized that he was bleeding, so they removed the handcuffs and Baran applied pressure to Pagano's wounds until emergency personnel arrived, approximately three minutes and forty-three seconds after Baran's request. Baran Dep. 81:2-82:17; Recording of Bucks County Radio Transmissions 10:08. Pagano was taken to the hospital, where he later died.
On the date in question, there were in effect several relevant procedures and training scenarios instituted by the Bristol Township Police Department.
Second, the Department had protocol regarding dealing with a barricaded person. Pl.'s Resp. Mem.-Def. Baier Ex. 13, Bristol Township General Order E-02, Barricaded Persons and Hostage Situations ("General Order E-02"). The parties agree that this protocol leaves undefined the phrase "barricaded individual." Pl.'s Resp. Mem.-Officer Defs. 66; Officer Defs. Reply 14. Baran and Winik both received a copy of the department's barricaded person policy, but never received individualized training on the matter. Pl.'s Resp. Mem.-Officer Defs. 70-78.
According to McAndrews' deposition testimony, he relies on his officers' discretion in determining whether a situation involves a barricaded individual. Relevant here, Winik and Baran did not follow the protocol under General Order E-02, stating that they did not believe Pagano was a barricaded individual. Officer Defs.' Mem. 17 (citing depositions of Winik, Baran, and McAndrews).
And third, Winik described tactical training she received regarding a suspect armed with an edged weapon, wherein she was taught that the suspect could close a distance of twenty-one feet before the officer could draw a weapon (the "Twenty-One Foot Rule"). Winik Dep. 168:7-169:18. Relevant here, Winik estimated that the hallway in Pagano's apartment was approximately twelve to fifteen feet long. Id.; Scene Diagram (documenting length of hallway as eleven feet); see also Photographs. Winik also described herself on the date in question as five feet and four inches tall and weighing approximately one hundred and five pounds, and estimated that Pagano was over six feet tall. Winik Dep. 180:12-181:4.
Prior to the date in question, Baier was the probation officer assigned to supervise Pagano. In that capacity, Baier had only met with Pagano on one previous occasion, for an initial contact meeting. During that meeting, Pagano completed a Parole Department Client Information Sheet. Def. Baier Mem. Ex. 2, Parole Department Client Information Sheet ("Client Information Sheet"). In this Client Information Sheet, Pagano indicated no current drug use, but did indicate a prior drug history, as well as current medications, which included, among others, Suboxene, for a heroin addiction, and Lexapro. Id.
Additionally, Baier acknowledges that, during the meeting, Pagano mentioned having received prior medical treatment
Summary judgment is appropriate if there are no genuine disputes as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or nonexistence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "The judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the nonmoving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
In accordance with the appropriate standard of review, the Court views the contested facts in the light most favorable to Plaintiff, as the non-moving party. The Court notes preliminarily that Officer Defendants have provided a detailed recitation of the facts, based largely upon the depositions and radio transmissions of Winik, Baran, Evans, and Baier, each of whom were present during the incident in question. Given that Pagano is deceased, he is obviously not personally available to contradict Defendants' account. However, Plaintiff has had the opportunity to depose Defendants, and in certain instances has proffered a conflicting account. Where relevant and material, the Court will address these conflicts.
Motions for summary judgment in cases involving qualified immunity raise unique challenges. Specifically, courts are confronted with the often thorny task of ascertaining what, if any, contested facts undercut an officer's entitlement to qualified immunity, and whether those facts are material, rendering summary judgment inappropriate.
Regardless of this difficulty, the Supreme Court has encouraged disposition of a case involving qualified immunity at the earliest stage possible. This is so because qualified immunity is not merely a defense to liability; rather, the doctrine results in immunity from suit, "effectively lost if a case is erroneously permitted to go to trial." Scott v. Harris, 550 U.S. 372, 376 n. 2, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Illustrative is Scott v. Harris,
Id. at 380, 127 S.Ct. 1769 (internal citations omitted).
Moreover, in cases involving deadly force, the search for genuine disputes of material fact becomes even more complicated, especially where non-police officer witnesses are unavailable to provide the decedent's version. Indeed, the Third Circuit has recognized this challenge:
Lamont v. New Jersey, 637 F.3d 177, 181-82 (3d Cir.2011) (internal quotation marks, editorial marks, and citations omitted).
Accordingly, to satisfy the mandate from the Supreme Court and the Third Circuit, Plaintiff may not rely on a general challenge to the credibility of the officers' account. Instead, Plaintiff must point to contradictions in the testimony of eye witnesses, or between or among the various officers on the scene, or incompatibility of the testimony of the witnesses with the physical or forensic evidence at the scene, or any other direct or circumstantial evidence that raises a genuine dispute of material fact or casts doubt on the veracity of the officers' testimony. Therefore, as to each contested fact to which Plaintiff points, the Court will examine whether the contested fact is material and whether it is genuinely disputed.
The Court notes the following facts, each of which Plaintiff argues are both material and in genuine dispute and as to which Plaintiff points to allegedly contradictory evidence of record supporting her claims. Regarding Baier's motion for summary judgment, Plaintiff disputes the following: (1) whether February 25, 2009, was indeed the pre-scheduled date of the probation appointment, or whether Baier appeared unannounced; (2) whether Pagano said to Baier, "This is Randall. I'm having very serious problems up here"; and (3) Baier's subjective awareness of Pagano's drug and mental health history, prior to the incident in question. Regarding Officer Defendants' motion for summary judgment, Plaintiff disputes the following: (1) whether Baran issued verbal warnings to Pagano prior to deploying pepper spray; and (2) precisely where Pagano was and whether he was advancing toward the officers when Winik fired. For the reasons stated below, none of these contested issues presents a genuine dispute of material fact requiring resolution at trial.
As to Baier, Plaintiff first disputes whether February 25, 2009, was in fact the correct pre-scheduled appointment date. Plaintiff points to a business card showing an appointment date of February 26, 2009. Pl.'s Resp. Mem.-Def. Baier 2 (citing Ex. 4, Business/Appointment Card from Probation Officer Baier). During oral argument, counsel for Plaintiff referenced Baier's calendar, which was produced during discovery. The calendar appeared to have certain entries erased and/or modified and on which "Date with Pagano" appeared listed for February 25, 2009. Hr'g Tr. 43:10-23. In his deposition, Baier maintained that the appointment, rescheduled from an earlier date, was for February 25, 2009. Def. Baier's Mem. 5. Although initially arguing that Baier was acting with a bad motive,
Second, Plaintiff challenges whether Baier ever actually spoke with Pagano that day, and whether Pagano said to Baier, "This is Randall. I'm having very serious problems up here."
The best that can be said of Plaintiff's argument is that there is an inconsistency between Baier's initial recollection of this conversation, as memorialized in Warren Grant's email, and Baier's later deposition testimony concerning the relative gravity of the situation Baier encountered. Be that as it may, the Court must ultimately judge Baier's conduct based on a reasonable probation officer under the circumstances. Because, as discussed below, even accepting Plaintiff's version — that Grant's email, taken closer to the incident, is more accurate than Baier's later recollection during his deposition — under the circumstances, Baier would have been justified in making an on-the-spot decision to seek police assistance. Therefore, this contested fact is not material.
And third, notwithstanding Baier's representation that he only discovered the nature and extent of Pagano's drug abuse and mental health issues during discovery in this case,
As to Baran and Winik, Plaintiff first disputes whether Baran ever ordered Pagano
And second, Plaintiff disputes precisely where Pagano was and whether he was advancing toward the officers when Winik fired her weapon.
The forensic evidence to which Plaintiff cites is consistent with the officers' account of the shooting; namely, that Pagano, armed with a shard of glass, moved from the closet towards the doorway, where he was shot in the mid to lower right side. Pagano then took a few steps backwards, ultimately landing in an area by his bed. See Officer Defs.' Mem. 14 (citing depositions of Winik, Baran, and Baier, each offering consistent recollection of precipitating events); see also Photographs; Scene Diagram; Photographs of Glass. Thus, Plaintiff fails to demonstrate a genuine dispute as to this fact.
Having examined all the disputed facts, the Court concludes that none raises a genuine issue of material fact in this case. Thus, the Court will now address whether
Plaintiff asserts several claims based on 42 U.S.C. § 1983. To state a viable claim for relief under § 1983,
First, the Court will address Defendants' motions for summary judgment as to Plaintiff's unlawful search and excessive force claims. And second, the Court will address Defendants' motions as to Plaintiff's remaining Eighth and Fourteenth Amendment claims.
Plaintiff advances the following violations of Pagano's Fourth Amendment rights: (1) Winik, Baran, and Baier entering Pagano's apartment without his consent and without a warrant, constituting an unlawful search; (2) Baran's use of pepper spray, constituting excessive force; and (3) Winik's use of deadly force, also constituting excessive force.
Here, the officers do not dispute that they entered Pagano's home without his consent, and without a warrant. Nor do they dispute that Baran used force — namely, the pepper spray — against Pagano, or that Winik used deadly force against Pagano. As to the "reasonableness" of the officers' use of force, such a determination "is normally an issue for the jury." See Rivas, 365 F.3d at 198. However, because qualified immunity protects government officials from suit, not just from liability, the Court must first determine whether the officers are entitled to qualified immunity. Entitlement to qualified immunity is an issue of law for the Court to decide based on the facts of record. See Curley v. Klem, 499 F.3d 199, 211 (3d Cir.2007) (citation omitted); see also Bartholomew v. Pennsylvania, 221 F.3d 425, 428 (3d Cir.2000). If upon the facts of record, the officers are entitled to qualified immunity, then summary judgment must be granted. See Curley, 499 F.3d at 211; Bartholomew, 221 F.3d at 428.
"The doctrine of qualified immunity insulates government officials who are performing discretionary functions `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
This doctrine balances the competing interests of holding public officials accountable if and when they exercise their power irresponsibly, while protecting officials from liability when they execute their duties reasonably. Pearson v. Callahan, 555 U.S. 223, 231-32, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). "The protection of qualified immunity applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact." Id. at 231, 129 S.Ct. 808 (internal quotation marks and citation omitted). Indeed, "[t]his inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Id. at 244, 129 S.Ct. 808 (internal quotation marks and citation omitted).
Accordingly, qualified immunity shields officers in the ordinary exercise of their discretionary duties. This protection, however, is forfeited where the action complained of is in contravention of "clearly established statutory or constitutional
In Saucier v. Katz, the Supreme Court articulated a general two-step test for determining whether a government official, such as a police officer, is entitled to qualified immunity. 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), limited by Pearson, 555 U.S. at 223, 129 S.Ct. 808. The first step of the Saucier framework asks whether the officer's conduct violated a constitutional or federal right. 533 U.S. at 201, 121 S.Ct. 2151. As the Third Circuit has characterized it, "[t]his is not a question of immunity, but whether there is any wrong to address." Ray, 626 F.3d at 174 (citation omitted).
The second step asks whether the right that was violated was "clearly established," meaning that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151. "If the officer made a reasonable mistake about the legal constraints on his actions, then qualified immunity should protect him from suit." Ray, 626 F.3d at 174 (internal quotation marks and citation omitted); see also Lamont, 637 F.3d at 182 (noting that under Saucier step two, right must have been clearly established in particularized sense; namely, "a reasonable official would [have understood] that what he [wa]s doing violate[d] that right" (citation omitted)).
As to the use of force, the parties agree that the Court must judge the reasonableness of an officer's conduct based on the totality of the circumstances and "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Pl.'s Resp. Mem.-Officer Defs. 10 (internal quotation marks omitted) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see also Officer Defs.' Reply 7 (citing Graham's objective reasonableness test as appropriate Fourth Amendment standard). Indeed, reviewing courts must "keep in mind that a threat that may seem insignificant to us in the security of our chambers may appear more substantial to a reasonable officer whose own life or security is at stake." Mellott v. Heemer, 161 F.3d 117, 122 (3d Cir.1998).
Upon revisiting the Saucier framework, the Supreme Court held that the two-step analysis need not be addressed in sequence. Pearson, 555 U.S. at 236, 129 S.Ct. 808 (noting that sequential analysis "is often beneficial," but that courts may exercise discretion where application would result in unnecessary litigation and determination of constitutional issues, ultimately "disserv[ing] the purpose of qualified immunity" and resulting in "substantial expenditure of scarce judicial resources"). Accordingly, the purpose of qualified immunity analysis, the Court will assume, without deciding, that the warrantless entry into Pagano's apartment and the alleged use of excessive and deadly force violated Pagano's Fourth Amendment right to be free from unreasonable searches and seizures and will proceed to step two of the Saucier framework, assessing whether it would have been clear to reasonable officers that their conduct was unlawful in the situation they confronted.
The Court will first address the warrantless entry into Pagano's apartment.
Winik, Baran, and Baier indeed entered Pagano's apartment without his consent, and without a warrant. True enough, as Plaintiff argues, such an entry is presumptively unreasonable and violates the Fourth Amendment. But here, Baier contacted the police to conduct a "well-being check" as part of the "community caretaking function" exception to the Fourth Amendment's warrant requirement.
Prior to the 2010 case Ray v. Township of Warren, the Third Circuit had not addressed the issue of whether this exception — originally applied in the automobile context — would also justify a warrantless entry into a home. In Ray, the plaintiff's wife had gone to his house to pick up their youngest daughter for court-ordered visitation. Ray, 626 F.3d at 171. Upon seeing someone moving about in the home, but receiving no response to ringing the doorbell or knocking on the door, she called the police. Once they arrived, the wife relayed to the responding officers what had transpired and that she was concerned for her daughter's well-being — a concern which the officers shared. Id. at 172. The responding officers, some of whom were aware of the acrimonious divorce proceedings and child-custody dispute between the couple, also knocked on the door and called the residence, but likewise received no response. Id. Thereafter, and without a warrant,
The Third Circuit ultimately held that the community caretaking function, which the Supreme Court recognized in the automobile context in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), did not extend to warrantless entries into homes. Ray, 626 F.3d at 177. However, the Third Circuit also held that the responding officers were protected by qualified immunity, reasoning:
Id. at 177; see also Hope, 536 U.S. at 741, 122 S.Ct. 2508 (holding that officer is entitled to qualified immunity unless, at time of alleged constitutional violation, state of law gave officer fair warning that his conduct was unconstitutional).
Here, the Third Circuit's holding in Ray is dispositive.
The record supports this conclusion. Similar to the wife in Ray, here Baier arrived for what he believed to be a prescheduled appointment.
In fact, calling for police assistance was entirely reasonable given Baier's perception of exigent circumstances. Indeed, as
As to Winik and Baran, the evidence of record supports that they, too, acted reasonably under the circumstances. Upon Winik's arrival, Baier told her that he had talked to Pagano, who was slurring his words and had said, "I'm having a real problem here. I'm having a problem here," and was no longer responding. Winik Dep. 38:1-7, 40:19-41:2. Winik subsequently relayed this information to Baran. Neither Winik nor Baran had reason to doubt that the circumstances were as Baier had relayed them.
Plaintiff's alternative argument that, in failing to treat Pagano as a barricaded individual, the officers violated Bristol Township Police Department policy and thus acted objectively unreasonably likewise fails.
Here, General Order E-02 called for the officers to exercise their discretion in determining whether a barricaded individual situation exists. That, at the outset, Winik and Baran did not perceive Pagano to be a barricaded person was not unreasonable: he did not tell the officers to stay out or threaten to harm himself, or another; in fact, he did not respond to the officers at all. The officers' judgment is consistent with the guidance in the International Association of Chiefs' of Police Training Keys on barricaded persons, which provides training scenarios identifying factors to be considered when declaring a barricaded individual scenario.
Regrettably, that the events inside the apartment later unfolded as they did does not render the officers' initial decision unreasonable. The Third Circuit has expressly disapproved of trial courts judging officers' conduct depending on the outcome of their decisions. Indeed, the parties recognize that the Court must review each officer's actions from the perspective of an objectively reasonable officer under the circumstances, and must avoid hindsight. See Graham, 490 U.S. at 396, 109 S.Ct. 1865; Ray, 626 F.3d at 174. Accordingly, the Court finds that, as their conduct did not violate clearly established constitutional or statutory law, Winik, Baran, and Baier are entitled to qualified immunity for their warrantless entry into Pagano's apartment.
The Court will now address whether Baran is entitled to qualified immunity for his use of pepper spray. The Court finds that Baran is entitled to qualified immunity.
Plaintiff argues that because Baran failed to use less intrusive verbal commands first, his use of pepper spray violated department policy and was thus against the law.
First, the Court finds that, based on the circumstances he encountered once inside Pagano's apartment, a reasonable officer in Baran's circumstances could have perceived a heightened emergency situation. The Court highlights that, upon entering Pagano's apartment and seeing the state of disarray and the syringes, together with Pagano's failure to respond, the officers had no additional information regarding the nature of the perceived emergency or of Pagano's status.
Once they discovered him in the closet, the officers stated that Pagano was hidden behind a tote, his hands were not visible, and he was still not responding — which Plaintiff does not contest. At this point, a reasonable officer in Baran's circumstances could have perceived a danger to himself and the other officers.
And second, the Court finds that an officer in Baran's circumstances reasonably could have believed that his conduct comported with Bristol Township Police Department policy and would not have violated Pagano's constitutional rights.
The Court will now address whether Winik is entitled to qualified immunity for her use of deadly force. Here too, the Court finds that qualified immunity applies.
Abraham v. Raso, 183 F.3d 279, 289 (3d Cir.1999) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865) (reversing district court's summary judgment disposition of excessive force claim, finding genuine issues of material fact based on inconsistencies in officer's testimony and forensic evidence, and thus finding issue of credibility for fact-finder to determine at trial). Where, as here, the proffered justification is self-defense or the defense of other officers, the threshold inquiry is likewise whether it was "objectively reasonable for an officer in [Winik's] position" to believe she was in danger, "giving due regard to the pressures of the moment." See Raso, 183 F.3d at 293. When assessing the reasonableness of an officer's use of deadly force, courts have considered, among other factors, "whether the suspect poses an immediate threat to the safety of the officers or others, ... the duration of the officer's action, ... [and] the possibility that the suspect may be armed." Couden, 446 F.3d at 496-97 (internal quotation marks and citations omitted); see also Bennett v. Murphy, 274 F.3d 133, 136-37 (3d Cir. 2002) (noting that use of deadly force contravenes Fourth Amendment's reasonableness standard where individual does not pose immediate threat to safety of officer or others).
The Court finds that an officer in Winik's circumstances reasonably could have believed that the use of deadly force was necessary. Even accepting Plaintiff's version of the events — namely, that Pagano was shot closer to where he fell — this minimal difference in distance, which, according to the forensic evidence and the Scene Diagram, could only have been a matter of a few feet, would not undermine the objective reasonableness of Winik's actions.
The evidence of record establishes that Pagano was armed with an edged weapon,
Pagano's death, while tragic, did not result from unreasonable action by the police. Indeed, based on her training and the circumstances before her — namely, an officer, at approximately five-four and one hundred and five pounds and faced with an approximately six-feet tall suspect armed with an edged weapon, operating in narrow quarters and in a fast-developing and unpredictable situation — a reasonable officer in Winik's situation could have perceived an imminent threat to her safety and that of her fellow officers. Under these circumstances, Winik's use of deadly force did not violate clearly established constitutional or statutory law. Accordingly, Winik is entitled to qualified immunity.
Having found that qualified immunity protects the officers' warrantless entry into Pagano's apartment, Baran's use of pepper spray, and Winik's use of deadly force, the Court will grant Defendants' motions for summary judgment on all Fourth Amendment-based § 1983 claims against the individual officers.
Having resolved Plaintiff's Fourth Amendment claims, the Court will now address Plaintiff's remaining Eighth and Fourteenth Amendment claims, alleging the denial of medical care, a state created danger, and a violation of Pagano's substantive due process rights.
First, the Court will summarily address Plaintiff's Eighth
The Court will now address Plaintiff's collective-liability theories: a state-created danger claim; and a generalized substantive due process claim.
The parties agree that, to successfully plead the state-created danger claim, Plaintiff must demonstrate: (1) the harm ultimately caused was foreseeable and a fairly direct result of Defendants' actions; (2) Defendants acted with willful disregard or deliberate indifference to Pagano's safety; (3) a relationship existed between the state and Pagano; and (4) Defendants used their authority to create an opportunity for harm that otherwise would not have existed. See Estate of Smith, 430 F.3d at 153 ("[T]he second element of this test is only satisfied by conduct that `shocks the conscience.' Although this requirement is but one element of the test, it is often the most difficult for a plaintiff to show, and thus our ultimate conclusion frequently turns on our determination of whether given conduct `shocks the conscience.'"); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir.1996).
Under the second element of the state-created danger claim and at the heart of the generalized substantive due process claim under the Fourteenth Amendment, to survive summary judgment Plaintiff must point to evidence of record suggesting that the officers' conduct was so outrageous as to "shock the conscience." Cnty. of Sacramento v. Lewis,
Recently, the Court rehearsed the Third Circuit's jurisprudence regarding the "shock the conscience" standard.
Customers Bank, et al. v. Mun. of Norristown, et al., 942 F.Supp.2d 534, 541-42, No. 12-2471, 2013 WL 1789772, at *5 (E.D.Pa. Apr. 26, 2013) (Robreno, J.).
Here, Plaintiff argues that — at every stage — Winik and Baran escalated, rather than de-escalated the situation. As to Baier, specifically, Plaintiff argues that he "put the wheels in motion," unreasonably escalating the situation that ultimately lead to Pagano's death. Pl.'s Resp. Mem.-Def. Baier 46-47. Accordingly, even though he did not pull the trigger, Plaintiff argues that Baier is also liable for Pagano's death.
To the extent that Plaintiff seeks to aggregate Defendants' actions as a means of showing that, collectively, their conduct shocks the conscience, such an attempt fails. The "shock the conscience" standard is intentionally narrow, and Plaintiff's claims as to each Defendant must stand or fall based on the conduct of each Defendant individually. See Estate of Smith, 430 F.3d at 151. Under § 1983, there is no respondeat superior or vicarious liability. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).
As to Winik and Baran, in light of the safety concerns present once the police officers encountered Pagano crouched in the closet, the record shows that they made an effort to communicate without harming him, beginning with verbal orders, and followed by non-lethal force. Once Pagano armed himself with the shard of glass, the police officers first retreated and then issued several orders to stop and drop the glass before Winik discharged her weapon. The Court recognizes that, at various points during the incident in question, the responding officers had more, and sometimes less, time to deliberate regarding their response. But by any measure — whether it be deliberate indifference, gross negligence or arbitrariness, or intent to cause harm — the police officers' conduct does not suggest a conscience-shocking
Likewise, the record suggests that Baier also acted out of concern for Pagano's well-being. As noted above, during oral argument, counsel for Plaintiff acknowledged that Baier only had limited contact with Pagano and did not harbor any ill will toward him. Hr'g Tr. 36:4-12; 48:4-22. Plaintiff fails to point to evidence of record from which a jury could conclude that Baier intentionally fabricated the communication with Pagano and then, knowing the nature and extent of Pagano's difficulties, deliberately misled the police.
Nor can it be suggested that, in calling the police for assistance, Baier acted with deliberate indifference, gross negligence or arbitrariness, or intent to cause Pagano harm.
For all of the reasons stated above, the Court finds that the actions of Winik, Baran, and Baier fail to "shock the conscience." Thus, the Court will grant Defendants' motions for summary judgment as to Counts I and II.
Next, the Court will address Plaintiff's Monell and failure-to-train claims against Bristol Township and McAndrews. In sum, Plaintiff alleges that Bristol Township and the Bristol Township Police Department failed to implement and adequately train the officers regarding a barricaded individual situation. Pl.'s Resp. Mem.-Officer Defs. 66. Plaintiff's claims cannot survive summary judgment.
Municipalities and other government entities are subject to suit under § 1983 for constitutional rights violations. Monell, 436 U.S. at 690-92, 98 S.Ct. 2018. Commonly known as a "Monell" claim, liability is imposed only when the government, "under color of some official policy, `causes' an employee to violate another's constitutional rights." Id. Liability will not be imposed on a respondeat superior theory. Id. at 692, 98 S.Ct. 2018. To plead a Monell claim, a plaintiff must show that: (1) the municipality had a policy or custom that deprived Pagano of his constitutional rights; (2) the municipality acted deliberately and was the moving force behind the deprivation; and (3) that Pagano's injury was caused by the identified policy or custom. Bd. of the Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397,
Similarly, to plead a failure-to-train claim, a plaintiff must show that "a failure to train reflects a `deliberate' or `conscious' choice by a municipality." City of Canton, 489 U.S. at 389, 109 S.Ct. 1197. A court must assess "the adequacy of the training program in relation to the tasks the employees must perform." Id. at 389-90, 109 S.Ct. 1197. Mere allegations that the municipality could have or should have incorporated different training programs are insufficient; so too are mere allegations that "a particular officer may be unsatisfactorily trained." Id. at 389-91, 109 S.Ct. 1197. Rather, "deliberate indifference" requires facts showing "a deliberate choice to follow a course of action [that] is made from among various alternatives" without regard to the known or obvious consequences. Id. at 389, 109 S.Ct. 1197; Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir.2000). "When city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program." Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1361, 179 L.Ed.2d 417 (2011). The Supreme Court has stated that "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train." Id. at 1359.
Plaintiff's sole theory for both claims appears to be that Bristol Township and the Bristol Township Police Department were deliberately indifferent to the alleged constitutional violations resulting from their failure to implement an adequate policy regarding barricaded individuals, and consequentially their failure to train on such a policy. Pl.'s Resp. Mem.-Officer Defs. 65. Plaintiff argues that this claim should withstand summary judgment because she has produced facts tending to show that the consequences of Bristol Township's and Bristol Township Police Department's actions were so obvious that their conduct "can only be characterized as deliberate indifference." Id. (citing Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir.1990)).
The record suggests otherwise. First, as to Plaintiff's Monell claim, it is undisputed that, on the date in question, the Department had an official policy regarding barricaded individuals — General Order E-02. That policy did not define "barricaded individual"; rather, the policy left such a determination to the discretion of the responding officers. As discussed above, declining to apply the barricaded individual policy to this situation was not unreasonable. Pagano did not tell the officers to stay out; in fact, he did not respond at all. Other than the positioning of the couch against the door and the status of his apartment, which the officers only observed once they were inside, Pagano had not communicated in any way that he would resist the officers if they came into his apartment. Rather, the officers were operating under the belief that a medical emergency was in progress.
But even assuming that the police officers should have treated Pagano as a barricaded individual, Plaintiff fails to demonstrate that, as drafted, General Order E-02 was so deficient as to render the policy-makers deliberately indifferent to its application.
And second, as to Plaintiff's failure-to-train claim, it is undisputed that the officers received training materials regarding General Order E-02. Plaintiff argues, however, that Bristol Township and the Bristol Township Police Department should have incorporated additional training regarding a barricaded-individual scenario, and that Winik was insufficiently trained. But in concluding that General Order E-02 is deficient because it does not define "barricaded individual," Plaintiff fails to point to what additional training the officers should have been provided to guide the exercise of discretion when confronted with a potential barricaded individual scenario, and — most importantly — how that additional training would have altered the officers' actions in this case.
For the foregoing reasons, the Court will grant Defendants' motions as to Counts I to IV. And, having dismissed all federal claims, the Court will decline to exercise supplemental jurisdiction over the remaining state-law claims, in Counts V to VII.
The Court has reviewed the proffered reports. The Court finds that, by virtue of his education and experience, Dr. McCauley is qualified to render an opinion regarding police administration, operations, and policies based on facts and data of record in this case. His opinion is reliably based upon Bristol Township Police Department policies, as well as best practices of police and law enforcement management and operations, and fits the facts of the case. See Fed.R.Evid. 702; In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 751 (3d Cir.1994) (holding that, under Rule 702, a witness may qualify as an expert if three requirements are satisfied: (1) the witness must have "sufficient knowledge, skills, and training in the relevant field"; (2) the testimony must be the product of reliable principles and methods; and (3) the testimony must fit the facts of the case so that it assists the trier of fact).
Likewise, the Court finds that Mr. Ryan, by virtue of his education and experience, is qualified to render an opinion regarding law enforcement practices based on facts and data of record in this case. His opinion is reliably based upon Bristol Township Police Department policies, as well as best practices of police and law enforcement management and operations, and fits the facts of the case. See Fed.R.Evid. 702; In re Paoli R.R. Yard PCB Litig., 35 F.3d at 751. Accordingly, the Court will reference the expert opinions of Dr. McCauley and Mr. Ryan as applicable.
42 U.S.C. § 1983 (2012).
To the extent that Plaintiff proceeds against the individual officers in their official capacity, those claims are addressed below. See Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (citing Monell, 436 U.S. at 690 n. 55, 98 S.Ct. 2018) (holding that suits against defendant officials in their official capacity are "only a duplication of the counts asserted against the Township [defendant] itself").
Plaintiff also looks to United States v. Coles, 437 F.3d 361, 365 (3d Cir.2006), arguing that — in addition to relying on an invalid exception — the officers also lacked the requisite probable cause. This argument likewise fails.
In their motion for summary judgment, Officer Defendants point to the 911 Call Log, showing that Baran called for an ambulance within minutes of shots having been fired. Officer Defs.' Mem. 28 (citing Recording of Bucks County Radio Transmissions 6:25). The only other conduct arguably related to this claim includes Evans' initial use of handcuffs to secure Pagano after he was shot. The handcuffs, used to secure the scene for emergency medical personnel, were only on for one to two minutes before Evans removed them and rendered medical assistance until the ambulance arrived. Id. at 16 (citing Evans Dep. 11:20-22; McAndrews Dep. 66:6-22). Moreover, Plaintiff has conceded that Evans is entitled to summary judgment on all claims. See supra n. 1.
In responding to Officer Defendants' motion, Plaintiff appears to abandon this claim, in that Plaintiff offers neither facts nor even argument to contradict the Officer Defendants' evidence. Thus, Plaintiff's deprivation of medical care claim cannot survive summary judgment. See, e.g., Seals v. City of Lancaster, 553 F.Supp.2d 427, 432-33 (E.D.Pa.2008).
Moreover, Plaintiff offers no evidence demonstrating a "meeting of the minds" to violate Pagano's rights among Baier and the police officers, as each arrived on the scene. Plaintiff argues that Baier was an "overzealous probation officer who was determined to enter the apartment no matter what." Even assuming, arguendo, that this was true, and that the officers' warrantless entry, Baran's use of pepper spray, and Winik's use of deadly force constituted actionable constitutional violations, Plaintiff points to no evidence of record demonstrating an agreement or mutual understanding between the officers. Thus, to the extent advanced, a civil conspiracy theory cannot survive summary judgment.
In reaching its decision, the Lewis Court contrasted the police officers' conduct with that of prison officials facing liability under the Eighth Amendment for their deliberate indifference to the medical needs of prisoners. 523 U.S. at 851, 118 S.Ct. 1708. The Court reasoned that "in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare." Id. The Court held that the "[r]ules of due process are not ... subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another ..." Id. at 850, 118 S.Ct. 1708.
In applying the "deliberate indifference" test, the Third Circuit has looked to the definition of "deliberate indifference" employed in Eighth Amendment jurisprudence — that is, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Nicini v. Morra, 212 F.3d 798, 811 (3d Cir.2000) (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). The Third Circuit, however, has not yet decided whether an objective or subjective standard of liability should apply in substantive due process cases. Id. ("This case does not require us to determine whether an official's failure to act in light of a risk of which the official should have known, as opposed to failure to act in light of an actually known risk, constitutes deliberately indifferent conduct in this setting."). The Court need not reach a determination on this issue in the instant action, as the officers were neither objectively, nor subjectively deliberately indifferent.
In Morse v. Lower Merion School District, the Third Circuit recognized, alternatively, that a state-created danger theory could proceed where, instead of particularized knowledge of vulnerability, a plaintiff belongs to an "identifiable and discrete class of persons subject to the harm the state allegedly has created." 132 F.3d at 914 (citing Reed v. Gardner, 986 F.2d 1122 (7th Cir.1993) (recognizing state-created danger claim on definable class of persons theory, where police arrested driver but left behind intoxicated passenger with keys to vehicle and passenger subsequently drove and collided with plaintiffs' vehicle, killing or injuring occupants)). However, Plaintiff fails to point to evidence suggesting that Baier knew Pagano belonged to any such identifiable discrete class, thereby rendering Probation Officer Baier's conduct "deliberately indifferent" to "foreseeable" harm.
Nor does Plaintiff find support among cases in which the state actor allegedly created the source of harm by an affirmative act. C.f. Sciotto v. Marple Newtown Sch. Dist., 81 F.Supp.2d 559 (E.D.Pa.1999) (denying summary judgment as to state-created danger theory of liability against school district, where wrestling coach invited alumnus — a twenty-two-year-old college wrestler, weighing approximately 150 pounds — to assist in practice, who wrestled with and injured a sixteen-year-old high school wrestler, weighing approximately 110 pounds, and in addition to inherent dangerousness of tradition, prior injury had occurred under similar circumstances, rendering sixteen-year-old's injury arguably "foreseeable"). Here, Plaintiff points to no facts suggesting either the inherent dangerousness of a well-being check or that Defendants were on notice of any particular circumstances rendering Pagano's conduct, and ultimately death, foreseeable.
Moreover, Winik later received specialized training focusing on mentally ill subjects, but testified in her deposition that nothing she learned in that training would have changed her actions on the date in question. Officer Defs.' Reply 15.
