NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          ________

                         No. 11-4231
                         _________


                     STEVEN JEWELL,
                               Appellant

                              v.

        RIDLEY TOWNSHIP; ROBERT M. SMITH, JR.;
         ROBERT M. SMITH, SR.; LUIGI DISPIGNO;
       JOSEPH CERRONE; MICHAEL A. BONGIORNO;
            JERRY SCANLON, JOHN DOES 3-10

                          ________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                    (D.C. No. 2-09-cv-04947)
         District Judge: Honorable R. Barclay Surrick

                           _______

          Submitted Under Third Circuit LAR 34.1(a)
                     September 18, 2012

 Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges

                 (Filed: September 19, 2012 )

                           ______

                          OPINION
                           ______
SLOVITER, Circuit Judge.

       This case concerns a tragic accident caused by an eighteen-year-old unlicensed

intoxicated driver who refused to pull over for the police. The pursuit ended when the

drunk driver collided with a vehicle in which the plaintiff Steven Jewell was a passenger.

Jewell suffered serious injuries, including paralysis. He filed a complaint, naming the

officers involved in the pursuit—Corporal Michael A. Bongiorno and Officer Gerard

Scanlan (collectively “the Officers”)—and the Township of Ridley (“Ridley”) as

defendants (collectively “the Defendants”), 1 and asserting claims under both 42 U.S.C.

§ 1983 and Pennsylvania tort law. Despite our sympathy for Jewell, we affirm the

District Court’s grant of summary judgment in favor of the Defendants.

                                            I.

                         Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and

this court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s order granting summary judgment. State Auto Prop. & Cas. Ins. Co.

v. Pro Design, P.C., 

, 89 (3d Cir. 2009). Summary judgment must be granted

only “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).




       1
        The complaint also named various other individuals as defendants, all of whom
have been dismissed from this action.
                                          2
                                             II.

                                        Background

         At approximately 10:45 PM on April 29, 2009, Ridley Township Police received a

tip that eighteen-year-old Robert Smith, Jr. was driving a blue Hyundai Santa Fe while

intoxicated. Corporal Bongiorno, who knew that Smith did not have a valid driver’s

license, and Officer Scanlan, who knew Smith from previous arrests, responded to the tip

by driving in separate vehicles to Smith’s home. While the Officers were sitting in their

parked cars at the street corner, a blue Santa Fe approached with only the parking lights

on. The driver turned the lights off, passed directly by the Officers, and turned away

down another street. Upon recognizing Smith as the driver, Corporal Bongiorno began

pursuing him with activated lights and sirens, and Officer Scanlan followed.

         Smith swerved throughout the pursuit, which wound through just over a mile of

residential streets at speeds between fifteen and thirty-five miles per hour. Neither Smith

nor the Officers stopped at traffic signals or stop signs. Suddenly, Smith accelerated to

about forty-six miles per hour, ran a red light, and collided with a car in the middle of the

intersection. Jewell was a passenger in that car, and he suffered multiple injuries,

including paralysis. Smith’s blood alcohol level was 0.228, which is well above the legal

limit.

         Both Officers had received basic pursuit training at police academies and also

received additional training when beginning work in Ridley. Cf. 37 Pa. Code § 203.1-

203.103 (outlining the administration of the Municipal Police Officers’ Education and
                                              3
Training Program). Both of the Officers were aware of the Ridley policy on police

pursuits, which provides:

      SECTION 17: PURSUITS

      a. Notify Police radio immediately when initiating a pursuit. (State
      the reason)

      b. When notifying radio, state “Emergency Pursuit”. When
      acknowledged by radio, continue as follows:
         1. Pursuit of vehicle
         2. Route taken by fleeing vehicle
         3. Description of vehicle and occupants
          4. Pursuing Police vehicle shall give radio its location
      periodically to assist other units in the apprehension.

      c. Only the Police vehicle initiating the pursuit may use siren when
      in visible pursuit of the fleeing vehicle.

      d. If Police vehicle in pursuit has lost visible contact with the
      fleeing vehicle, the operator shall notify radio of the last known
      location and direction of travel. Police vehicle shall discontinue the
      use of the siren and reduce speed.

      e. If another Police vehicle resumes visible contact with fleeing
      vehicle, operator shall notify radio and may take up pursuit using
      lights and siren.

      f. All pursuits shall be terminated when the violation leading to the
      pursuit is of such minor nature as to make a high risk of a pursuit
      unreasonable.

      g. The Commanding Officer on shift will evaluate and may
      terminate a pursuit at their discretion.

      h. Police vehicles are not to be used as ROAD BLOCKS.




                                            4
J.A. at 686-87 (hereinafter “pursuit policy”). Pursuits are further governed by the

Pennsylvania Motor Vehicle Code. See 75 Pa. Cons. Stat. Ann. § 6342 (requiring every

police department to implement a written policy to govern motor vehicle pursuits).

       Jewell filed a complaint against Ridley Township, Corporal Bongiorno, and

Officer Scanlan, asserting claims under 42 U.S.C. § 1983 and Pennsylvania tort law. The

District Court granted summary judgment for Ridley and the Officers, and Jewell

appealed.

                                             III.

                                          Analysis

A. The § 1983 Claims

       Jewell argues that Ridley violated his constitutional rights by its “failure to have

an adequate policy in place governing police pursuits, its failure to properly train its

officers in the conduct of such pursuits, and its failure to properly supervise its officers

during such pursuits.” Appellant’s Br. at 22. The District Court granted summary

judgment for the Defendants by holding, inter alia, that Ridley’s pursuit policy was not

constitutionally inadequate and that Jewell failed to demonstrate that Ridley exhibited

deliberate indifference through its allegedly inadequate training and supervision.

       1. Pursuit Policy

       A municipality may only be held liable under § 1983 if the plaintiff identifies a

municipal “policy” or “custom” that was the “moving force” behind the injury. Monell v.


                                              5
Dep’t of Soc. Servs., 

, 694 (1978); see also Bd. of Comm'rs of Bryan Cnty. v.

Brown, 

, 400 (1997).

       Ridley’s pursuit policy does not precisely mirror the model policy suggested in the

Pennsylvania Motor Vehicle Code, but it was not the “moving force” behind Jewell’s

injuries. The pursuit policy provides that a pursuit “shall be terminated when the

violation leading to the pursuit is of such minor nature as to make a high risk of a pursuit

unreasonable” and that it is within the commanding officer’s discretion to terminate a

pursuit. J.A. at 687. The Officers both understood the pursuit policy to require a pursuit

to be terminated if it becomes unsafe. The pursuit policy was thus adequate to alert

officers to their duty not to engage in unreasonably dangerous pursuits. We agree with

the District Court that it was Smith who “was without question a danger to the

community,” and that “[t]his unfortunate accident was caused by a drunk driver, not by

an inadequate or deficient pursuit policy.” J.A. at 19.

       2. Training

       Jewell also argues that Ridley failed to adequately train its employees as to how to

conduct police pursuits. In City of Canton v. Harris, the Supreme Court held that “the

inadequacy of police training may serve as the basis for § 1983 liability only where the

failure to train amounts to deliberate indifference to the rights of persons with whom the

police come into contact.” 

, 388-89 (1989) (“Only where a failure to train

reflects a ‘deliberate’ or ‘conscious’ choice by a municipality-a ‘policy’ as defined by our

prior cases-can a city be liable for such a failure under § 1983.”). The Supreme Court has
                                             6
also noted that “[a] pattern of similar constitutional violations by untrained employees is

‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to

train.” Connick v. Thompson, 

, 1360 (2011) (citation omitted).

       Although the Officers did not remember the details of the training they received

about pursuits, both Officers were generally familiar with Ridley’s pursuit policy. The

Ridley Police had assisted pursuits in neighboring towns, but had not been the lead car in

a pursuit for at least four years. Without a pattern of constitutional violations during

police pursuits involving the Ridley police, we cannot conclude that Ridley exhibited

deliberate indifference in its efforts to train its officers when it provided enough training

for its officers to be generally familiar with the pursuit policy. Cf. id at 1363 (“[S]howing

merely that additional training would have been helpful in making difficult decisions

does not establish municipal liability.”). We therefore agree with the District Court’s

holding that Ridley’s training on police pursuits does not reflect deliberate indifference to

the rights of persons with whom the officers come into contact, and that Jewell’s failure-

to-train claim fails.

       3. Supervision

       Jewell argues that Ridley is liable under § 1983 for its failure to supervise its

police officers during pursuits. A municipality may be liable for its failure to supervise

only if it reflects a policy of deliberate indifference to constitutional rights. See

Montgomery v. De Simone, 

, 126-27 (3d Cir. 1998).


                                               7
       Corporal Bongiorno—the supervisor in this pursuit—testified that he “will not do

anything that’s going to put someone in direct risk” unless that person is “in a position

that [he is] going to be able to hurt someone” because “those people have to be stopped.”

J.A. at 153. Corporal Bongiorno’s statements demonstrate his concern for the safety of

the community at large, and that he knows to terminate a pursuit if it becomes too

dangerous. We thus agree with the District Court’s holding that Corporal Bongiorno did

not act with deliberate indifference, and that Jewell’s failure to supervise claim fails.

B. The Negligence Claims

       Jewell’s remaining claims arise under Pennsylvania state law. Jewell argues that

the Officers were negligent in the manner in which they carried out the pursuit while

acting within the scope of their employment, and that the Officers and Ridley are

therefore liable under the Pennsylvania Political Subdivision Tort Claims Act and state

tort law. The District Court held, inter alia, that Jewell failed to demonstrate that the

Officers pursued Smith without due regard for the safety of others, and therefore granted

summary judgment for the Defendants.

       The necessary elements for a negligence claim under Pennsylvania law are “a duty

or obligation recognized by the law, requiring the actor to conform to a certain standard

of conduct; a failure to conform to the standard required; a causal connection between the

conduct and the resulting injury; and the actual loss or damage resulting to the interest of

another.” Matthews v. Konieczny, 

, 511-12 (1987) (internal quotation

marks and citation omitted). Under the Pennsylvania Political Subdivision Tort Claims
                                              8
Act, local agencies are generally not liable “for any damages on account of any injury to

a person or property caused by any act of the local agency or an employee thereof or any

other person,” but an exception to this immunity exists for damages arising from “[t]he

operation of any motor vehicle in the possession or control of the local agency” and

caused by “the negligent acts of the local agency or an employee thereof acting within the

scope of his office or duties.” 42 Pa. Cons. Stat. Ann. §§ 8541 & 8542(a)-(b). Therefore,

all of Jewell’s state law claims require proof that the Officers were negligent.

       Police officers are granted certain privileges under Pennsylvania law “when in the

pursuit of an actual or suspected violator of the law,” which allow the officers to

“[p]roceed past a red signal indication or stop sign . . . after slowing down as may be

necessary for safe operation,” to “[e]xceed the maximum speed limits so long as the

driver does not endanger life or property,” and to “[d]isregard regulations governing

direction of movement, overtaking vehicles or turning in specified directions.” 75 Pa.

Cons. Stat. Ann. § 3105(a)-(b). These privileges only apply when the vehicle’s audible

and visual signals are in use, see 

they do not relieve the driver of “the

duty to drive with due regard for the safety of all persons.” 

the lights and sirens of Corporal Bongiorno’s car were activated during the

pursuit, and the speed of the pursuit did not exceed thirty-five miles per hour until the

final moments when Smith suddenly accelerated. The Officers had reason to believe it

would be dangerous for Smith to continue driving because they suspected he was drunk

and had personally observed his erratic driving. Considering all of the evidence in the
                                              9
light most favorable to Jewell, we conclude that the pursuit was conducted in conformity

with the Officers’ duty to drive with due regard for the safety of all persons.

Accordingly, the Officers were not negligent during the pursuit, and Jewell’s state law

claims fail as a matter of law.

                                            IV.

                                        Conclusion

       For the foregoing reasons, we affirm the District Court’s grant of summary

judgment for the Defendants.




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