YOHN, District Judge.
In the early morning hours of April 22, 2012, Kenyado Newsuan was naked, high on PCP, and causing a commotion outside of his girlfriend's home in north Philadelphia. Police Officer Thomas Dempsey responded to the scene, where he and Newsuan thereafter engaged in a violent altercation that ended with Dempsey fatally shooting Newsuan. Geraldine Johnson, Newsuan's sister and the administratrix of his estate, subsequently filed this lawsuit against Dempsey and the City of Philadelphia under a variety of federal and state causes of action. Essentially, Johnson claims that Dempsey used excessive force against Newsuan and that the city failed to properly train and supervise its officers in handling such a situation. The defendants filed a motion for summary judgment, to which the plaintiff responded. Because the undisputed facts show that Dempsey did not act unreasonably in his use of lethal force, all of plaintiff's claims must fail. Accordingly, I will enter judgment in favor of defendants.
For summary judgment purposes, the court views the facts in the light most favorable to the nonmoving party, which means that in cases such as this one, the court "adopt[s] ... the plaintiff's version of the facts." Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Here, that account can be found in plaintiff's reply to defendants' statement of undisputed facts, see Pl.'s Reply (Doc. No. 12) at 2-7, as well as in plaintiff's own statement of facts, see id. at 8-11.
On the morning of Sunday, April 22, 2012, Officer Thomas Dempsey was on solo patrol in a radio car in the city's 35th police district, which generally covers the Olney neighborhood of north Philadelphia. Dempsey Dep. 20:20-21:14, Oct. 28, 2014. While on duty, Dempsey was armed with an ASP baton, a taser, and his service weapon, a nine-millimeter handgun. Id. at 62:17-19; 63:1-3; 123:11-18. The handgun was kept in a belt holster with a locking mechanism designed to impede its accidental or improper removal. Id. at 123:19-124:7. At approximately 2:00 AM, Dempsey received a radio call about a naked man in public on the 5800 block of North Mascher Street. Id. at 85:17-23. Dempsey responded to the call along with two other officers who were also on patrol in the district at that time. Id. at 84:8-11.
At approximately 6:00 AM, while he was writing a parking ticket on the 6000 block of North Mascher Street, Dempsey was flagged down by a passing motorist, who informed him that there was a naked man at North Mascher Street and Nedro Avenue. Id. at 95:13-18. Dempsey radioed in the information and drove to the 5800 block of North Mascher Street. Id. at 97:9100:15. There, Dempsey saw a naked black man standing in the street. Id. at 101:7-9. The man, who would later be identified as Kenyado Newsuan, began walking toward the building in which his girlfriend lived. Id. at 104:21-24. Dempsey did not radio in to dispatch that he had arrived on the scene. Id. at 106:3-8.
Dempsey exited his patrol car and ordered Newsuan to come toward him. Defs.' Statement of Undisputed Facts (Doc. No. 10-1) at 3 ¶ 20; Pl.'s Reply at 4 ¶ 20. Dempsey saw that Newsuan was completely naked and appeared to be holding nothing in his hands. Pl.'s Reply at 4 ¶ 18. Newsuan then briefly entered and exited the building at 5834 North Mascher Street. Id. at 5 ¶ 21. Newsuan then moved toward Dempsey, and as he approached, Dempsey fired his taser at Newsuan. Defs.' Statement of Undisputed Facts at 3 ¶ 22; Pl.'s Reply at 4 ¶ 22. Plaintiff admits that at this point, the eyewitness most sympathetic to plaintiff's account — Newsuan's girlfriend, Christina La Torre — went back into her house and "did not see any further struggle between Newsuan and Officer Dempsey." Defs.' Statement of Undisputed Facts at 3 ¶ 25; Pl.'s Reply at 5 ¶ 25; La Torre Dep. 43:4-47:16, Nov. 10, 2014.
By plaintiff's own admission, being hit with a taser did not stop Newsuan from continuing to approach Dempsey, as Newsuan came up and grabbed Dempsey by the shirt. Pl.'s Reply at 10. Plaintiff admits that Newsuan then "began to struggle" with Dempsey. Id. at 5 ¶ 26.
Newsuan next began pulling at the gun in Dempsey's belt holster. Dempsey Dep. 131:16-18. He attempted to take Officer Dempsey's gun. Defs.' Statement of Undisputed Facts at 3-4 ¶¶ 27, 30; Pl.'s Reply at 6 ¶¶ 30-31. Dempsey asserts that Newsuan "had a grip" and was "trying to pull on it" Id. at 132:3-4.
At this point, Dempsey removed the handgun from his holster and fired it at Newsuan, taking two shots, then, after the first volley did not appear to bring him down, taking two more. Pl.'s Reply at 6 ¶¶ 31-32. According to an autopsy report from the medical examiner's office, Newsuan was struck twice in the chest and once in the abdomen, and he died as a result of these injuries. See Office of the Medical Examiner's Autopsy Report (Doc. No. 10-6) at 1-3. The medical examiner's office also produced a toxicology report, which found the drug phencyclidine (commonly known as PCP) present in Newsuan's blood. See Office of the Medical Examiner's Toxicology Report (Doc. No. 10-7) at 1.
"The court shall grant summary judgment 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). "Material facts are those that could affect the outcome of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Roth v. Norfalco, LLC, 651 F.3d 367, 373 (3d Cir.2011) (citations and internal quotation marks omitted). To establish the existence or absence of a genuine dispute as to any material fact, a party must "cit[e] to particular parts of materials in the record" or "show[] that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B).
"In evaluating the motion, `the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'" Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 772 (3d Cir.2013) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). More specifically, as the Third Circuit has noted, "a court ruling on summary judgment in a deadly-force case should be cautious ... to ensure that the officer[is] not taking advantage of the fact that the witness most likely to contradict [his] story — the person shot dead — is unable to testify. Thus, a court should avoid
Johnson, as administratrix of Newsuan's estate, brings five claims stemming from Newsuan's death. First is an action under 42 U.S.C. § 1983 against Dempsey, on the ground that Dempsey violated Newsuan's Fourth amendment rights. Second is a Monell action against the City of Philadelphia, under the theory that the city failed to train and/or supervise its police officers. Third is a common law assault and battery claim against Dempsey. Fourth is an action against both defendants under Pennsylvania's Wrongful Death Act. Fifth is an action against both defendants under Pennsylvania's Survival Act.
Johnson's first claim is brought against Dempsey under § 1983, which provides for the imposition of liability on any person who, acting under color of state law, deprives another of rights, privileges, or immunities secured by the Constitution or laws of the United States. The statute is not itself a source of substantive rights, but instead provides "a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quotation marks omitted). At issue here is Newsuan's Fourth Amendment right to be free of unreasonable seizure. As the Third Circuit has explained:
Lamont, 637 F.3d at 182-83 (citations omitted). In determining whether a seizure by use of lethal force was reasonable, the Third Circuit has further advised that "[i]t is unreasonable for an officer to use deadly force against a suspect unless the officer has good reason `to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.'" Id. at 183 (quoting Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). As the Supreme Court has stated, "The `reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. 1865. Indeed, "[t]he calculus of
The record here falls far short of that bar. It is undisputed that, as Newsuan moved toward Dempsey on North Mascher Street, being hit with a taser did not stop his approach. It is undisputed that Newsuan proceeded to grapple with Dempsey and attempted to strike him in the head — and eyewitness testimony confirms that Newsuan did succeed in slamming Dempsey's head into the windshield of the police car. He also threw Officer Dempsey against the side of a car with such force that his body created a 2-3 foot dent in the side panel. Most importantly, it is undisputed that, in the course of this struggle, Newsuan attempted to grab hold of Dempsey's gun. Presented with this evidence, no reasonable jury could find that a reasonable officer in Dempsey's position lacked "good reason to believe that [Newsuan] pose[d] a significant threat of death or serious physical injury." Lamont, 637 F.3d at 183. Particularly in view of Newsuan's attempt to take Officer Dempsey's firearm, after an already significant physical struggle, any reasonable police officer would be in fear of death or serious bodily injury. In other words, no reasonable jury could find that Dempsey's actions were unreasonable under the circumstances, and since the use of force was not unreasonable, it did not amount to a violation of the Fourth Amendment. The § 1983 claim against Dempsey must fail at this stage, therefore, because "the evidence is [in]sufficient to permit a reasonable jury to return a verdict" for plaintiff. Roth, 651 F.3d at 373.
Plaintiff raises two main counterarguments, but neither is availing. First, plaintiff asserts that Dempsey "knew that it was virtually impossible for Newsuan" to gain control of his gun, because "Dempsey was carrying a PPD issued police gun and holster which prevents a person from taking the gun out of the holster who is not trained in the special method of how to draw a gun from the holster," adding, "It is very difficult, if not impossible, for a person who is not the officer wearing the holster to remove the gun from the holster." Pl.'s Reply at 10. For one thing, Dempsey's subjective beliefs are irrelevant: as the Supreme Court has remarked, "An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Graham, 490 U.S. at 397, 109 S.Ct. 1865. The relevant, objective criterion is what a reasonable officer in Dempsey's position would have believed. For another, the low odds of successfully removing a gun from a police officer's holster are not dispositive here. Even before Newsuan grabbed for Dempsey's gun, Newsuan repeatedly struck Dempsey in the head and slammed him into the windshield of his patrol car, all after having been unaffected by a taser. A reasonable officer in that position has good reason to believe that he faces a significant threat of death or serious bodily injury — regardless of how difficult (though not impossible, as plaintiff admits) it may be for the person that he is grappling with to remove the gun from the officer's holster.
Second, plaintiff argues that the court must look beyond "those few seconds when
Id. at 186 (citation and internal quotation marks omitted). The same must be said in this case. Dempsey's decisions not to wait for fellow officers and not to retreat into his vehicle were not the proximate cause of Newsuan's death. Rather, Newsuan brought about his death through his own violent conduct — in particular, his attempt to take Dempsey's gun.
Plaintiff next brings a Monell claim against the City of Philadelphia for failing to properly train and/or supervise its police officers in dealing with persons in Newsuan's situation. Under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a municipality can be found liable when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694, 98 S.Ct. 2018. But as the Supreme Court has held, a municipality cannot be found liable on a Monell claim where there has been no underlying violation of rights under § 1983. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986). Here, the evidence shows that Dempsey did not violate Newsuan's Fourth Amendment rights. See supra Part III.A. Without that underlying violation, plaintiff cannot maintain a Monell claim against the city for its alleged failure to train and supervise its officers. See Kneipp v. Tedder, 95 F.3d 1199, 1212 n. 26 (3d Cir.1996) ("[H]ad there not been an underlying constitutional violation in the first instance, plaintiff's `failure to train' claim against the City would not stand."). Defendants are therefore entitled to judgment on this claim as well.
The evidence likewise fails to support plaintiff's common law assault and battery claim against Dempsey. As defendants rightly argue, this claim is barred by Pennsylvania's Political Subdivision Tort Claims Act ("Tort Claims Act"), 42 Pa. Cons.Stat. Ann. §§ 8541 et seq. The Tort Claims Act provides to municipal employees acting within the scope of their employment immunity from suit "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." Id. The Tort Claims Act does contain several exceptions, however, and plaintiff argues that one applies here: the exception for "willful misconduct." Id. § 8550.
The Commonwealth Court of Pennsylvania directly addressed the applicability of the "willful misconduct" exception to a claim of assault and battery against police officers in Lucas v. City of Philadelphia, No. 1778 C.D. 2011, 2012 WL 8691954 (Pa.Commw.Ct. June 6, 2012). As the court explained:
Id. at *3 (citations and internal quotation marks omitted). Applying that standard, the court affirmed a grant of summary judgment for defendants where "the undisputed material facts support the determination that both officers used a reasonable amount of force ... under the circumstances." Id. at *5 (citing Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289 (1994)).
Here, for all the reasons discussed in detail above, the undisputed facts — in particular, plaintiff's admission that Newsuan attempted to strike Dempsey in the head and tried to take his gun — likewise support the determination that Dempsey used a reasonable amount of force against Newsuan under the circumstances. Thus, plaintiff has not shown a material issue of fact as to whether Dempsey's actions amounted to "willful misconduct," and as a result, I must conclude that Dempsey has immunity from plaintiff's assault and battery claim under state law.
Finally, plaintiff brings claims against both defendants under Pennsylvania's Wrongful Death Act, 42 Pa. Cons. Stat. Ann. § 8301, and the state's Survival Act, § 8302. But "wrongful death and survival actions are not substantive causes of action; rather, they provide a vehicle through which plaintiffs can recover for unlawful conduct that results in death." Sullivan v. Warminster Twp., 765 F.Supp.2d 687, 707 (E.D.Pa.2011); see also Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9, 10-11 (1964) ("The cause of action created by the survival statute is strictly derivative.... It is grounded upon an existing personal cause of action which the deceased could have but did not institute during his or her lifetime."), overruled on other grounds by Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085 (1985); Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390-91 (2002) ("A wrongful death action is derivative of the injury which would have supported the decedent's own cause of action and is dependent upon the decedent's cause of action being viable at the time of death."), aff'd, 576 Pa. 22, 838 A.2d 662 (2003). In other words, just as plaintiff's Monell claim cannot survive without having shown an underlying violation of rights, plaintiff's Wrongful Death Act and Survival Act claims must fall without having adduced evidence of a viable claim on one or more of the underlying causes of action.
For the reasons set forth above, I will enter judgment for defendants on all claims. An appropriate order follows.
Id. at 38 (emphasis added). Likewise, plaintiff quotes Directive 136 as stating that "`aggressive action will not be taken by police personnel.'" Id. at 22. In Directive 136, the sentence reads: "Aggressive action will not be taken by police personnel, unless there is an immediate threat to life or physical danger to the SMDP, the police, or other civilians present." Id. at 38. Second, assuming arguendo that Dempsey violated Directive 136, in Lamont the Third Circuit affirmed the district court's granting of summary judgment to the officers on the basis that their initial use of deadly force was reasonable even where they allegedly "violated standard police procedures." Lamont, 637 F.3d at 185; see also Manigault v. King, 339 Fed.Appx. 229, 232 (3d Cir.2009) (nonprecedential) ("Although the officers were trained to maintain a distance of at least 21 feet when facing a suspect carrying a knife, their abandonment of this protocol cannot form the basis for a remedy under § 1983 or deprive them of qualified immunity.").
