MCNEILL et al v. BOROUGH OF FOLCROFT et al

Filing 18

MEMORANDUM. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/12/2014. 11/13/2014 ENTERED AND COPIES E-MAILED.(jmg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARK G. MCNEILL, et al.
v.
BOROUGH OF FOLCROFT, et al.

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CIVIL ACTION

NO. 13-3592

MEMORANDUM
Bartle, J.

November 12, 2014
Plaintiffs, the administrators of the estates of Mark

Richard McNeill (“McNeill”) and Michael J. Taylor (“Taylor”), bring
this action against three defendants:

the Borough of Folcroft, its

Police Chief Robert Ruskowski, and Police Officer Michael Fiocco.
Their complaint alleges violations of 42 U.S.C. § 1983 against the
Borough and Ruskowski and of 42 U.S.C. § 1985 against Ruskowski.
They also assert supplemental state law negligence claims against
all three defendants under the Pennsylvania Wrongful Death and
Survival statutes, 42 Pa. Cons. Stat. Ann. §§ 8301 and 8302.1
We previously dismissed Count I of the complaint insofar
as that Count asserted a claim against Ruskowski under § 1983 for
substantive due process violations under the Fourteenth Amendment

1.
Plaintiffs’ complaint contains negligence counts against
all three defendants as well as separate counts under the
Pennsylvania Wrongful Death Act and the Pennsylvania Survival
Act. We previously dismissed plaintiffs’ negligence claim
against Ruskowski but left intact their negligence claims
against Fiocco and the Borough. For present purposes we are
treating plaintiffs’ Wrongful Death Act and Survival Act counts
as part of plaintiffs’ negligence claims against the Borough and
Fiocco.

based on a state-created danger and on supervisory liability as a
participant in any violation of the decedents’ rights.2

We also

dismissed Count I insofar as it asserted a claim against Ruskowski
Finally, we dismissed Count III of the complaint, which asserted a
negligence claim against Ruskowski.

Because Counts VI and VII of

the complaint asserted an entitlement to statutory damages based
upon common-law negligence claims, and because we have dismissed
plaintiffs’ negligence claim against Ruskowski, Counts VI and VII
are no longer in issue insofar as they are based on Ruskowski’s
alleged negligence.
Before the court is the motion of defendants for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, on plaintiffs’ § 1983 claim against Ruskowski and the
Borough, and their negligence claims against Fiocco and the
Borough.
I.
Summary judgment is appropriate “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.

2. In their complaint, plaintiffs charged defendants with
Fourteenth Amendment substantive due process violations as well
as violations of the Fourth and Eighth Amendments to the United
States Constitution as incorporated by the Fourteenth Amendment.
However, plaintiffs have since voluntarily withdrawn the Fourth
and Eighth Amendment claims. As a result, the only remaining
basis for their § 1983 claim is a Fourteenth Amendment
substantive due process violation.
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P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).3
A dispute is genuine if the evidence is such that a
reasonable factfinder could return a verdict for the nonmoving
party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

Summary judgment is granted where there is insufficient record
evidence for a reasonable factfinder to find for the plaintiffs.
Id. at 252.

“The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insufficient; there
must be evidence on which the factfinder could reasonably find for
the plaintiff.”

Anderson, 477 U.S. at 252.

When ruling on a motion for summary judgment, we may
only rely on admissible evidence.

See, e.g., Blackburn v. United

Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999).

3.

We view the

Rule 56(c) states:
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by ... citing to particular parts of materials
in the record, including depositions,
documents, electronically stored information,
affidavits or declarations, stipulations ...,
admissions, interrogatory answers, or other
materials; or ... showing 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).

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facts and draw all inferences in favor of the nonmoving party.

In

re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).
However, “an inference based upon a speculation or conjecture does
not create a material factual dispute sufficient to defeat entry of
summary judgment.”

Robertson v. Allied Signal, Inc., 914 F.2d 360,

382 n.12 (3d Cir. 1990).
II.
The following facts are undisputed or viewed in the
light most favorable to the plaintiffs as the nonmovants.

Michael

Fiocco completed six months of training at the police academy at
Delaware County Community College in June 2011 and was hired in
August 2011 to work on a part-time basis for the Borough of
Millbourne.

In November 2011 the Borough of Folcroft hired him to

work on a part-time basis.

By the time he began his employment

with Folcroft, Fiocco had completed some 100 to 150 hours of onthe-job training provided by Millbourne.
During his time at the police academy, Fiocco received
training in the proper conduct of high-speed pursuits.

Folcroft

provided no additional formal training on this subject and had no
standard training curriculum.

Instead, new officers including

Fiocco received “on-the-job training,” accompanying more
experienced officers as they responded to various incidents.
When he began working for Folcroft, Fiocco was provided
with a written copy of its pursuit policy (the “pursuit policy”),
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along with copies of its other policies and procedures.

The

pursuit policy defined “vehicular pursuit” as follows:
“VEHICULAR PURSUIT” – An active attempt by a
police officer operating a motor vehicle to
apprehend one or more occupants of a motor
vehicle when the driver of the motor vehicle
is resisting the apprehension by maintaining
or increasing their speed or by ignoring the
police officer’s audible and visual signals to
stop.
The pursuit policy stated in relevant part that “[p]ursuing officer
shall immediately make use of both emergency lights and siren” and
“[t]he officer shall immediately notify dispatch” of the details of
the pursuit.

No Folcroft employee ever discussed or reviewed the

pursuit policy with Fiocco, and it was not the police department’s
standard procedure to do so.
At approximately 9:30 p.m. on the evening of December 9,
2011, Fiocco was on duty and had stopped at a red light in his
patrol car when he observed a vehicle traveling at a high rate of
speed.

After activating his car’s lights and siren, he followed

the vehicle and caught up to it near the intersection of Chester
Pike and East Boone Avenue.

In response, the vehicle’s driver,

Marquis Thompson, pulled his vehicle over to the side of the road,
and Fiocco pulled over behind it.

Fiocco turned off the police

car’s siren but left on his overhead emergency lights.
activated his vehicle’s spotlight.

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He also

Fiocco noticed that Thompson’s

brake lights were on.

To Fiocco, this meant that Thompson had not

put his vehicle in park.
Fiocco picked up the microphone of his patrol car’s
radio and prepared to advise the Delaware County Communications
Center (“DelCom”) that he had stopped a vehicle.

At this point,

Fiocco saw Thompson look into his rearview mirror and then the
driver’s side mirror, activate his left turn signal, and drive back
onto the highway.

Still holding the radio microphone in one hand,

Fiocco maneuvered his car onto the highway and began to pursue
Thompson, who rapidly accelerated his vehicle to speeds well above
the posted speed limit.

Fiocco followed directly behind him.

Knowing that he could not communicate on his police radio and
operate his vehicle’s siren at the same time, Fiocco used his radio
to contact DelCom and alert them to the pursuit.

Fiocco never

re-activated his siren after the initial stop.
Approximately thirteen to fifteen seconds after Fiocco
began his pursuit of Thompson following the initial stop, Thompson,
still traveling at a high rate of speed, ran a red light.

As he

did so, his vehicle struck two pedestrians, Mark McNeill and
Michael Taylor.

Taylor was pronounced dead at the scene of the

accident while McNeill died at the hospital the next day.

Both

McNeill and Taylor were fifteen years old at the time of their
deaths.

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III.
We first address plaintiffs’ claim against Robert
Ruskowski, Folcroft’s Police Chief, under 42 U.S.C. § 1983 for a
violation of substantive due process under the Fourteenth Amendment
based on his supervisory liability in his role as a policymaker.
It is plaintiffs’ position that Ruskowski can be held liable under
§ 1983 for a violation of substantive due process on the ground
that he maintained a policy of not instructing his officers on the
proper conduct of high-speed chases and that he failed properly to
train the officers in the conduct of such pursuits.

Plaintiffs

argue that it was this policy that resulted in the deaths of
McNeill and Taylor.
Although § 1983 does not create substantives rights, it
provides a remedy for deprivations of constitutional rights or
other rights established under federal law.4
F.3d 1199, 1204 (3d Cir. 1996).

Kneipp v. Tedder, 95

A plaintiff seeking relief under

§ 1983 must demonstrate that he or she has been subjected to such a
4.

In relevant part, § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or
causes to be subjected, any citizen of the
United States or other person within the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress.
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deprivation and that the deprivation was committed by a person who
acted under color of state law.

Id. (internal citations omitted).

Section 1983 creates liability against state actors
“only for their own unconstitutional conduct,” not for that of
their subordinates.

Barkes v. First Corr. Med., Inc., 766 F.3d

307, 316 (3d Cir. 2014).

However, a supervisor-defendant may be

held liable for the unconstitutional acts of his subordinates in
two separate contexts.

Id.

First, “a supervisor may be personally

liable under § 1983 if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or as the
person in charge, had knowledge of and acquiesced” in the
violations.

Id. (citing A.M. ex rel. J.M.K. v. Luzerne Cnty.

Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).

Second, a

supervisor-defendant may be held liable “if it is shown that such
defendant[], ‘with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.’”
rel. J.M.K., 372 F.3d at 586).

Id. (citing A.M. ex

This second type of liability is

generally considered to encompass “failure to train” and “failure
to supervise” claims.

Id.

At issue is whether Ruskowski falls

within this second category.

We have previously dismissed the

complaint as to allegations that Ruskowski participated in the
violation of the decedents’ rights.

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The parties dispute whether Ruskowski can properly be
considered a policymaker for the purpose of holding him
individually liable under § 1983.

Defendants urge that he is not,

and that § 1983 liability on the basis of his supervisory liability
as a policymaker is therefore inappropriate.
resolve this issue.

However, we need not

Even if Ruskowski is a policymaker as

plaintiffs urge, his conduct does not meet the remaining
requirements for supervisory liability under § 1983.
Our Court of Appeals has established a four-part test
for determining whether an official may be held liable under § 1983
for failure to supervise.

In addition to identifying a

“supervisory policy or practice” that the defendant failed to
employ, a plaintiff must prove that:
(1) the policy or procedures in effect at the
time of the alleged injury created an
unreasonable risk of a constitutional
violation; (2) the defendant-official was
aware that the policy created an unreasonable
risk; (3) the defendant was indifferent to
that risk; and (4) the constitutional injury
was caused by the failure to implement the
supervisory practice or procedure.
Barkes, 766 F.3d at 317 (citing Sample v. Diecks, 885 F.2d
1099, 1118 (3d Cir. 1989); Brown v. Muhlenberg Twp., 269 F.3d
205 (3d Cir. 2001)).

A failure properly to train subordinates

may constitute the “supervisory policy or practice” at issue.
See Brown, 269 F.3d at 217.

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The record contains no evidence that Ruskowski
failed to employ a “supervisory policy or practice” – a
threshold requirement under the Third Circuit’s framework.
Plaintiffs argue that Ruskowski failed to employ a practice of
training his officers on proper high-speed pursuit procedures.
This argument fails because there is nothing in the record to
support it.

To the contrary, the record shows that it was

Ruskowski’s policy to provide copies of the pursuit policy to
new officers and instruct them to read it.
receiving a copy of this policy.

Fiocco recalls

Plaintiffs do not dispute

that the pursuit policy was appropriate or that it met the
statutory requirements set forth by the state’s motor vehicle
code.

Although Ruskowski did not review the pursuit policy

with new officers or provide specific training on pursuits, he
reasonably relied on the training received by his officers
including Fiocco at the police academy.

Fiocco himself had

completed his police academy training less than six months
before the incident at issue and had also received between 100
and 150 hours of training in Millbourne Borough, albeit this
training was not specific to pursuits.

A practice of

providing new officers with a proper written pursuit policy
and instructing them to read it, coupled with a reliance on
the recent training those officers had previously received on
this subject, cannot be characterized as a “failure to train.”
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For this reason, we conclude that plaintiffs have failed to
identify a “supervisory policy or practice” that would give
rise to supervisory liability under § 1983.

See Barkes, 766

F.3d at 317.
Even if we were to conclude that plaintiffs had
properly identified a “supervisory policy or practice,” there
are no facts in the record to satisfy the four-prong test
necessary for a finding of supervisory liability.

The record

does not support a conclusion that Ruskowski’s policy “created
an unreasonable risk of a constitutional violation.”
Barkes, 766 F.3d at 317.

See

To the contrary, it is clear that

the pursuit policy was adequate and that Fiocco was provided
with a copy of it.

There is also no evidence that Ruskowski

was aware of, or indifferent to, any unreasonable risk.
id.

Finally, there is no proof that any failure to train by

Ruskowski was the cause of McNeill and Taylor’s deaths.
id.

See

See

Nothing in the record indicates that Fiocco was unaware

of the importance of siren use in high-speed pursuits.

Nor

does the record contain support for plaintiffs’ contention
that Ruskowski’s failure to train prevented Fiocco from
properly identifying the chase as a pursuit and thereby caused
Fiocco’s failure to employ his vehicle’s siren.

In sum, no

reasonable jury could find Police Chief Ruskowski liable under
§ 1983.
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Defendants also argue that Ruskowski is entitled to
qualified immunity.

The qualified immunity doctrine “protects

government officials ‘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.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

The qualified

immunity analysis is “composed of two constituent questions:
first, whether the plaintiff suffered a deprivation of a
constitutional or statutory right; and second, if so, whether that
right was ‘clearly established’ at the time of the alleged
misconduct.”

Barkes, 766 F.3d at 326.

A defendant is entitled to

qualified immunity if the answer to either question is “no.”

Id.

Thus, the question “whether plaintiff’s allegations, if true,
establish a constitutional violation” is a threshold issue in the
qualified immunity analysis.

Hope v. Pelzer, 536 U.S. 730, 736

(2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

Having

determined that the record is devoid of any evidence to support a
constitutional claim against Ruskowski, we need not reach the issue
of qualified immunity.
IV.
We next turn to plaintiffs’ § 1983 substantive due
process claim against the Borough of Folcroft.

Plaintiffs take the

position that Folcroft, like Ruskowski, maintained a policy of
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failing to train police officers on proper conduct during police
pursuits.

They urge that this omission prevented Fiocco from

recognizing the incident at issue as a pursuit, thereby resulting
in his failure to activate his vehicle’s siren.
While “a city may not be held vicariously liable under
§ 1983 for the actions of its agents,” a municipality can be held
liable nonetheless “if its policy or custom is the ‘moving force’
behind a constitutional violation.”

Sanford v. Stiles, 456 F.3d

298, 314 (3d Cir. 2006) (citing Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 691 (1978); Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397,
400 (1997)).

For such liability to exist, there must be a “direct

causal link between a municipal policy or custom and the alleged
constitutional violation.”

Brown v. Pa. Dep’t of Health Emergency

Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003)
(citing Canton v. Harris, 489 U.S. 378, 385 (1989)).

In a case

such as this one, where a substantive due process claim arises out
of a police pursuit, a municipality may be found liable even if no
individual officer violated the Constitution, so long as there has
been an underlying violation of the plaintiff’s constitutional
rights.

Brown, 318 F.3d at 482; Fagan v. City of Vineland, 22 F.3d

1283, 1291-92 (3d Cir. 1994).

For the reasons explained in the

discussion of Ruskowski, there is no evidence in the record which
can support a claim against the Borough under § 1983.

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V.
Finally, plaintiffs have pending supplemental state law
negligence claims against Fiocco and the Borough under the
Pennsylvania Wrongful Death and Survival Acts.

Both defendants

move for summary judgment on these claims.
Plaintiffs take the position that Fiocco was negligent
in improperly initiating a pursuit, failing to activate his
vehicle’s siren, proceeding with the pursuit even though doing so
presented a risk of harm, failing to maintain a proper lookout,
failing to make proper observations, and driving too fast.

They

also assert that he was negligent per se because his conduct
violated 75 Pa. Cons. Stat. Ann. § 3105.

The Pennsylvania

Political Subdivision Tort Claims Act, which generally provides
immunity from suit to local agencies and their agents and employees
acting within the scope of their official duties, has an exemption
from immunity where injuries are caused by the operation of a
vehicle in the possession or control of the agency.
Stat. Ann. §§ 8541, 8542(b)(1), 8545.

42 Pa. Cons.

Having reviewed the

record, we conclude that genuine disputes of material fact exist
with respect to plaintiffs’ claims that Fiocco was negligent.
will therefore deny defendant’s motion for summary judgment on
plaintiffs’ negligence claim against Fiocco.
Plaintiffs’ negligence claim against Folcroft is
grounded on several theories.

There is an absence of facts to
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We

support plaintiffs’ negligence claim against the Borough, except
with regard to plaintiffs’ theory that the Borough is vicariously
liable for Fiocco’s alleged negligence.

As a result, defendant’s

motion for summary judgment on plaintiffs’ negligence claim against
the Borough will be granted except insofar as that claim alleges
negligence based on a theory of vicarious liability.

See

Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. Cons.
Stat. Ann. § 8541 et seq.
VI.
In sum, we will grant the motion of defendants for
summary judgment in part, and we will deny it in part.

We will

grant summary judgment as to Count I, which asserts liability under
42 U.S.C. § 1983 against Police Chief Ruskowski, and as to Count
II, which asserts municipal liability under 42 U.S.C. § 1983
against the Borough of Folcroft.

We will also grant summary

judgment as to Count IV, plaintiffs’ negligence claim against the
Borough, except insofar as Count IV asserts negligence based on a
theory of vicarious liability.

We will deny summary judgment as to

Count IV, plaintiffs’ negligence action against the Borough,
insofar as it alleges negligence based on a theory of vicarious
liability, and we will deny summary judgment as to Count V, which
asserts a negligence claim against Fiocco.

With respect to Counts

VI and VII, which assert claims for statutory damages under the
Pennsylvania Wrongful Death Act and Survival Act, we will grant
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summary judgment insofar as these counts relate to plaintiffs’
negligence claim against the Borough of Folcroft based on any
theory other than vicarious liability.

We will deny summary

judgment as to Counts VI and VII insofar as they relate to
plaintiffs’ negligence claim against the Borough based on a theory
of vicarious liability and to plaintiffs’ negligence claim against
Police Officer Michael Fiocco.

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