CYNTHIA M. RUFE, District Judge.
Plaintiff filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 against the Spring Township and Township employees Chief Bryan D. Ross, Detective Stephen Brock, Detective Robert Long, Officer Jarrod Schappell, and Officer Nathan Getz ("Spring Township Defendants") and against Berks County and the Berks County Sheriff Eric J. Weaknecht ("Berks County Defendants").
For purposes of summary judgment, the following facts are undisputed. On March 20, 2012, the Spring Township Police attempted to arrest Plaintiff, pursuant to an arrest warrant, for violation of parole. His parole was related to a 2006 conviction. Detective Brock received information that Plaintiff was at 3995 Pennsylvania Avenue, Sinking Spring, Pennsylvania, and that he was driving a 2011 Dodge Avenger (black). Plaintiff was staying at that address, the home of a friend, rather than at his own residence, because he was "absconding from state parole authorities."
When Officer Schappell stepped out of his car and walked towards Plaintiff's car, Plaintiff began to flee the scene by making a u-turn. In a statement to the state police, Officer Schappell stated that Plaintiff was driving directly towards Detective Brock, who was on foot, and Detective Brock fired his service weapon twice towards Plaintiff's car.
Plaintiff has asserted that the officers were never directly in the path of his car. However, at a hearing before the Honorable Thomas G. Parisi in the Court of Common Pleas of Berk County on May 13, 2013, Hojnowski admitted that he placed the officers in danger of death or serious injury in his attempt to flee.
After being shot, Plaintiff continued to drive away, and the officers pursued him in their vehicles. After a pursuit, Plaintiff pulled over in front of 2049 Cleveland Avenue, his grandparents' home, where Plaintiff resided. He stepped out of his car, and removed his shirt to show the officers he had been shot. He was handcuffed by Officer Getz, and left lying on the sidewalk for a few minutes while the officers secured the occupants of 2049 Cleveland Avenue (Plaintiff's father and elderly grandparents).
Plaintiff was discharged from the hospital on March 25, 2012, at approximately 2 p.m., into the custody of the Berks County Sheriff's Department. Before he was discharged, he was given a dose of pain medication, and a prescription to obtain additional pain medications (Lidoderm, Oxycodone, and Tylenol). The Oxycodone and Tylenol could be taken every 4 hours for pain. His discharge papers recommended that his bandages be changed the next day. From the hospital, he was transported directly to Berks County Central Booking. There, he was held, shackled at the legs, and with his hands handcuffed to a chain around his waist, in a holding cell, while awaiting transportation to the Berks County Prison. All other detainees were similarly restrained. By 6 or 7 p.m., the pain medication he had been given at the hospital had worn off. Over the next several hours, he notified two or three Berks County employees that he was in pain and needed pain medication. The individuals to whom he complained did not arrange for any medical evaluation or treatment.
He was not seen by Berks County medical staff until he arrived at the Berks County Prison at approximately 3 a.m. on March 26, 2012, approximately 13 hours after being released from the hospital. His bandages were immediately changed, but he was not provided with pain medication until approximately 9 a.m.
On September 25, 2013, Plaintiff initiated this lawsuit. His Complaint asserted constitutional and state law claims against the Spring Township Defendants and constitutional claims against the Berks County Defendants. Both the Spring Township Defendants and the Berks County defendants filed motions to dismiss. Because the Spring Township Defendants' motion asked the Court to consider documents outside the pleadings which could not be considered without converting the motion to a motion for summary judgment, the Court determined that its ruling on the Spring Township Defendants' motion should await the development of a complete factual record. Therefore, the Court denied the Spring Township motion without prejudice and without reaching the merits. The Court reached the merits of the Berks County Defendants' motion to dismiss, however. The Court dismissed certain claims against the Berks County Defendants but allowed Plaintiff to proceed with his deliberate indifference/failure to render medical aid claims against Berks County arising from the events of March 25-26, 2012, when he was transported from the hospital to Berks County Central Booking.
Summary judgment is appropriate if "the materials in the record" show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."
The defense of qualified immunity is available to governmental officials when they are sued in their individual capacity. Qualified immunity shields officers from suit (not just liability) when their actions do not constitute constitutional violations, and also shields officers from suit for actions "that, even if constitutionally deficient, reasonably misapprehend[] the law governing the circumstances [he] confronted."
There is no respondeat superior liability under § 1983.
In limited circumstances, a township can also be held liable for failure to train its employees. However, the failure to train must demonstrate a deliberate indifference to an obvious need for training in order to prevent constitutional violations.
In Count I, Plaintiff alleges a claim for excessive force by Defendants Brock and Schappell, and a Monell claim against Chief Ross and the Township based upon the use of excessive force. Count I also asserts state law claims for assault and battery against Defendants Brock and Schappell. Count II alleges that Detective Long failed to intervene when fellow officers were using excessive force. Count III asserts a negligence claim and a deliberate indifference claim against Officer Getz for failure to promptly render medical aid, and also asserts Monell claims against Chief Ross and the Township for the alleged constitutional injury.
The Spring Township Defendants have moved for summary judgment, arguing that the officers' use of force was reasonable under the circumstances presented, and that medical aid was promptly provided. They also argue that the individual defendants are entitled to qualified immunity. Finally, they argue that the Police Chief and Township cannot be held liable for any constitutional violations by the officers, as the alleged constitutional deprivation was not pursuant to any policy, practice, or custom of the Township or the police department.
When a government official is sued in his official capacity, the suit "generally represents only another way of pleading an action against an entity of which an officer is an agent."
The Fourth Amendment prohibits the use of excessive force in the context of an arrest.
In this case, after initially pulling over and stopping for the police, Plaintiff made an illegal u-turn and began to flee, without regard to the fact that his car was surrounded by four police cars, and that police officers were approaching his car on foot. Defendants assert that they fired their weapons because Plaintiff was driving straight towards them, while he was attempting to flee the scene and avoid arrest. They felt they or others were in immediate danger, both based on the present circumstances, and based upon Plaintiff's history with firearms, which was known to them. Even after four shots were fired at his vehicle, Plaintiff left the scene at a high rate of speed (up to 50 miles per hour, according to Plaintiff), and he admits to violating traffic laws, including ignoring stop signs, as he drove away.
The doctrine of qualified immunity provides an alternative basis for dismissing the excessive force claims against Spring Township defendants Brock and Schappell. In an excessive force case, qualified immunity protects officers operating on the "sometimes `hazy border between excessive and acceptable force.'"
There is no respondeat superior liability under § 1983.
Plaintiff also asserts state law claims for assault and battery against Brock and Schappell, stemming from those officers' use of potentially lethal force during his arrest. Under Pennsylvania's Political Subdivision Tort Claims Act, municipal defendants and their employees are provided immunity from state law tort claims, subject to certain exceptions.
The Pennsylvania Supreme Court has held that when a police officer is alleged to have committed an intentional tort, tort liability will not attach unless there is a determination that the officer: 1) committed the acts in question; and 2) that it doing so he willfully went beyond the bounds of the law.
Count II, alleging that Detective Long failed to intervene when his fellow officers were using excessive force, must also be dismissed. He was under no duty to intervene if the actions of his fellow officers were objectively reasonable under the totality of the circumstances, as the Court has held. Furthermore, Plaintiff has failed to put forth any evidence suggesting that Detective Long had a realistic opportunity to intervene before the shots were fired.
Plaintiff has also alleged that Officer Getz failed to promptly render medical aid after Plaintiff stepped out of his car and was placed under arrest, instead opting to assist the other officers on the scene as they secured the adjacent house. The Supreme Court has interpreted the Fourteenth Amendment due process clause to require the relevant government entity "to provide medical care to persons. . . who have been injured while being apprehended by the police."
Plaintiff has put forth evidence that he immediately removed his shirt after exiting his car, so that the police officers could see that he had been shot in the upper torso. Defendant Getz, and the other police officers who had been pursuing him, did not immediately provide first aid, but instead entered the nearby home to secure it. Plaintiff was left on the sidewalk until backup arrived. There is an issue of material fact as to whether, under the circumstances, leaving Plaintiff alone on the sidewalk for a brief time manifested deliberate indifference to his serious medical condition.
The Court holds that the duty to provide medical care to persons injured during an arrest was a clearly established duty at the time of this incident, and it was also a clearly established principle that the delay of medical treatment for non-medical reasons was unconstitutional.
The Court must then determine whether Spring Township can be held liable should a jury find that Officer Getz violated Plaintiff's constitutional rights. As discussed above, Spring Township cannot be held liable under a theory of respondeat superior or vicarious liability.
Finally, Plaintiff set forth an allegation of negligence against Officer Getz, alleging that he negligently failed to render aid to Plaintiff when he had a duty to render aid. Under Pennsylvania law, public employees are immune from suit for negligence unless the acts fall within certain categories.
The Berks County Defendants have filed a motion for summary judgment on the single remaining claim against them: the claim of deliberate indifference to a serious medical need/failure to render medical aid in violation of the constitutional prohibition on cruel and unusual punishment. They argue, inter alia, that Plaintiff has not set forth sufficient evidence to create a genuine issue of material fact as to the asserted Monell claim against the County and its Sheriff.
The Berks County Defendants argue, in their reply brief, that Plaintiff's response to their Motion should be stricken as untimely, and their Motion for Summary Judgment should be treated as unopposed. Because the Court must reach the merits of even an unopposed motion for summary judgment, and because, in his sur-reply, Plaintiff, who is incarcerated and proceeding pro se, presented good cause as to why his response was filed late, the Court will not strike the response but will consider it in ruling on the Motion.
The Berks County Defendants also argue, in their reply brief, that Plaintiff attempts to manufacture a material dispute by setting forth certain facts in his response which are inconsistent with his prior testimony and the record in this case. Defendants ask the Court to disregard these new assertions.
The Court finds that the record evidence and the assertions set forth in Plaintiff's response to the Motion for Summary Judgment are not inconsistent with earlier-presented evidence. For example, in his deposition testimony, Plaintiff indicated that he was in pain while in the holding cell. In his response to the Motion, he stated that the position in which his arms were handcuffed put pressure on his wound and his broken rib, causing pain. Although the latter is a more specific statement, it is not contradictory to or inconsistent with his deposition testimony.
Plaintiff asserts that Berks County and Sheriff Weaknecht, who is responsible for setting and enforcing Sheriff's department policy, should be held liable for violations of his constitutional rights, as, pursuant to certain County policies or practices, County employees failed to provide timely medical care after Plaintiff was discharged from the hospital into the County Sheriff's Department's custody.
Plaintiff was discharged from the hospital, five days after being shot and undergoing surgery, with a prescription for three pain medications which were to be administered every four hours. Notwithstanding the medical orders, Plaintiff has put forth evidence that he spent more than twelve hours in Berks County Central Booking, where no pain medication could be administered, and was left shackled and in pain despite multiple complaints to County employees. Even after his belated transfer to the prison medical unit, he was not provided with pain medication for another six hours. Plaintiff asserts that there was no legitimate medical (or penological) reason for the delay in providing medical treatment, and thus the delay was unconstitutional.
The Third Circuit recognizes that when a delay in or denial of the provision of adequate medical care results in "unnecessary and wanton infliction of pain," Plaintiff may be able to state a constitutional claim for deliberate indifference to a serious medical need.
As noted above, to establish that Berks County is liable for constitutional violations in a claim pursuant to 42 U.S.C. § 1983, Plaintiff must allege facts supporting the inference that there exists a County policy or custom
The policy Plaintiff has identified is the Berks County Sheriff's Department Hospital Detail Policy.
The term "cellblock" is not defined. No other guidance regarding the transportation of arrestees after a hospital discharge is provided in this policy.
Emphasizing the term "may then transport," Defendants argue that the Hospital Detail Policy allows some discretion, and does not require a Deputy to take an arrestee to Central Booking if he requires medical treatment that can only be provided in the prison. Therefore, it asks the Court to infer that the policy could not be the source or cause of Plaintiff's injury. However, it is by no means clear whether the policy is discretionary. Furthermore, even assuming that the transportation policy permits a Deputy Sheriff to decide to which facility a prisoner should be transported, the policy provides no guidance as to when and in what circumstances the assigned Deputy should exercise any discretion to transport an ill or injured arrestee to the prison rather than to Central Booking after a hospital discharge. Because it is foreseeable that a recently discharged hospital patient will require follow-up medical treatment, which the County admits cannot be provided in Central Booking, a reasonable jury could infer that the failure of the policy to provide clear directives to Deputy Sheriffs regarding the transportation of arrestees requiring follow-up medical care demonstrates deliberate indifference to serious medical needs. As the jury could also find that Sheriff Weaknecht is responsible for developing or implementing the policies which govern the Sheriff's Department, such as the Hospital Detail Policy, both the Sheriff and the County could be found liable for any constitutional violation.
Plaintiff also implicates the policies and procedures followed at Berks County Central Booking, after his transport there from the hospital. For example, he states that the practice of cuffing arrestees' hands to a chain fastened around their waists caused him pain, as his arms put pressure on and exacerbated the pain from his broken rib and bullet wound. Defendants acknowledge that shackling an arrestee in this manner is the common practice in Central Booking, but in response to an interrogatory, the County indicated that it permits exceptions to the general requirement that arrestees be handcuffed and shackled as Plaintiff was, when those restraints pose a threat to a serious medical condition, and that it trains its employees with regard to this exception. Defendants have not submitted a written policy or training materials for the Court to review.
Plaintiff also argues that he was held in Central Booking for twelve hours without regard to his more immediate need for medical treatment pursuant to a policy or practice of holding arrestees in Central Booking until there are a number of prisoners requiring transport from Central Booking to the prison. Defendants do not dispute the existence of such a policy or practice, but argue that Plaintiff cannot establish causation because it is also the policy of the Berks County Sheriff's Department to promptly provide for the evaluation of any arrestee in Central Booking who requests medical attention, and, if medical treatment is necessary, an arrestee can be immediately transported to the hospital or the prison. However, again, Defendant has not provided a copy of such a policy to the Court; the evidence for such a policy is contained in a response to an interrogatory. Therefore, the precise guidance provided by any such policy is unavailable to the Court.
Plaintiff was not provided with an evaluation and was not promptly transported for treatment, despite coming to Central Booking from the hospital with medical orders to provide pain medication every four hours. Because he has put forth evidence that he complained of pain and requested his prescribed pain medication multiple times, the Court finds a material issue of fact as to whether Plaintiff's alleged injury resulted from either an insufficient policy regarding arrestees in need of medical attention or a failure to adequately train employees with regard to the policy.
Plaintiff concedes that his request for punitive damages against Berks County and against Sheriff Weaknecht must be dismissed.
For the reasons set forth herein, the Spring Township Defendants' Motion for Summary Judgment will be granted as to Plaintiff's excessive force and failure to intervene claims and his state law claims. The Motion will be denied as to Plaintiff's deliberate indifference to serious medical need claims against Officer Getz, but granted as to the Monell claims against Spring Township. The Berks County Defendants' Motion for Summary Judgment will be denied, except as to Plaintiff's request for punitive damages. An appropriate order follows.
It is not clear that Plaintiff's complaint asserted a failure to train theory of liability. To the extent that Plaintiff intended to assert a claim for failure to adequately train its employees regarding the use of deadly force, it would fail even if the evidence supported a conclusion that the officers' decisions to fire their weapons crossed the line between justified and excessive force. Given the quickly evolving circumstances and the absence of bright line rules to govern such situations, the Court cannot infer from the record that the Township failed to provide its officers with adequate training on the use of deadly force. Additionally, Plaintiff has failed to point to any evidence from which the Court could infer that Spring Township was on notice, prior to this shooting, that the training it was providing its officers with regard to the use of deadly force was inadequate. Accordingly, the Monell claims must be dismissed.
