Bridges v. Ashland Borough et al
MEORANDUM and ORDER granting in part and denying in part 27 Motion for Partial Summary Judgment;GRANTED re Dft Ashland Borough and DENIED in all other respects. Signed by Honorable James M. Munley on 11/18/11 (sm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASHLAND BOROUGH and
MARK O’HEARN (Individually
and as a Police Officer for
Before the court for disposition is the motion for partial summary
judgment filed by Defendant Ashland Borough and Defendant Mark
O’Hearn. The matter has been fully briefed is ripe for disposition.
Plaintiff suffers from an array of medical problems and is totally
disabled due to diabetes, heart problems, end stage renal disease and
kidney failure. (Doc. 30-3, Pl. Dep. at 41 - 42). He and his fiancee, Laurie
Grose, have leased and lived in the same residence since July 2008. (Doc.
29, Def. Stmt. of Mat. Facts (“SOF”) ¶ 4).1 Grose works as an in-home
caretaker for plaintiff through the Anthracite Regional Center for
Independent Living, an area independent living company. (Id. ¶ 5).
On September 30, 2009, a dispute arose between Grose and
For this brief factual background section, we will cite to the
defendant’s statement of material facts as to which no genuine issue
remains to be tried. (Doc. 29). The facts which we cite to are generally
admitted by the plaintiff. (See Doc. 31, Pl.’s Ans. to SOF).
plaintiff. (Id. ¶¶ 7-9). Grose called 911 to report that plaintiff had a
sledgehammer and a butcher knife and that he was going to damage her
car and smash her toes. (Id. ¶ 15). Defendant Mark O’Hearn, a patrolman
with the Ashland Borough Police Department, reported to the residence.
(Id. ¶ 16). When he arrived, O’Hearn drew his service weapon and
ordered plaintiff to relinquish the sledgehammer and butcher knife and to
lay face down on the ground. (Id. ¶ 18). O’Hearn arrested plaintiff. Grose
told O’Hearn that plaintiff’s left arm had restrictive movement; thus,
O’Hearn handcuffed plaintiff in front with two sets of handcuffs linked
together instead of cuffing him behind his back with one set of handcuffs.
(Id. ¶ 19). After defendants arrested and processed plaintiff, they allowed
him to return to Grose. (O’Hearn Dep. 29).
On the next day, plaintiff and Grose had another dispute. (SOF ¶
22). Plaintiff struck Grose in the hip and leg area with a metal cane. (Id. ¶
¶ 23-25). Then plaintiff himself called the police. (Id. ¶ 26). When the
police arrived, Hearn proceeded to plaintiff’s bedroom where he was
receiving kidney dialysis. (O’Hearn Dep. 49). Plaintiff had not taken his
prescribed anti-depressant medication on that day or the day before. (SOF
¶ 32). He screamed at O’Hearn and Grose who repeatedly asked him to
calm down. (Id. ¶ 35). The parties dispute what happened next.
Defendants claim that plaintiff swung his fist at Defendant O’Hearn. (SOF
¶ 38). Plaintiff claims that he never took a swing at O’Hearn and that such
an act would have been impossible while he was hooked to the dialysis
machine. (Pl. Cntrstmt. of Mat. Facts (“CSOF”) ¶ 39). Defendants
indicate that O’Hearn then informed plaintiff the he was under arrest and
injured his arm will trying to handcuff him. (SOF ¶¶ 40-41). Plaintiff
maintains that O’Hearn never advised plaintiff that he was under arrest and
never tried to handcuff him. (CSOF ¶ 39). Rather, according to plaintiff,
O’Hearn grabbed him from behind and twisted his arm up behind his head
until the arm bones snapped and cracked. (Id.) Plaintiff asserts that
O’Hearn intentionally broke his arm. (Id. ¶ 40).
Based upon these facts, the plaintiff instituted the instant case by
filing a complaint on May 19, 2010. (Doc. 1). Plaintiff filed an amended
complaint on July 21, 2010, which asserts three causes of action. (Doc. 6).
Count 1 is brought pursuant to 42 U.S.C. § 1983 and for violation of the
plaintiff’s Fourth Amendment rights. (Doc. 6). He asserts that the
excessive and unreasonable force used by Defendant O’Hearn constituted
an unreasonable search and seizure. Count II asserts a state law cause of
action for assault and Count III alleges a state law cause of action for
battery. Counts I is asserted against both defendants and Counts II and
III are against Defendant O’Hearn in his individual capacity. Plaintiff seeks
compensatory damages and attorneys’ fees. He also seeks punitive
damages on Counts II and III.
Defendants move for summary judgment on Count I with respect to
Ashland Borough and for summary judgment with respect the punitive
damages claims in Counts II and III. The matter has been fully briefed,
bringing the case to its present posture.
As this case is brought pursuant to 42 U.S.C. § 1983, the court has
jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”). We have supplemental jurisdiction over
the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Standard of review
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. See
Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P.
56(c)). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d
946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate
that the evidence is such that a reasonable jury could not return a verdict
for the non-moving party. Anderson, 477 U.S. at 248. A fact is material
when it might affect the outcome of the suit under the governing law. Id.
Where the non-moving party will bear the burden of proof at trial, the party
moving for summary judgment may meet its burden by showing that the
evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the non-movant's burden of proof at trial. Celotex v.
Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories showing that there
is a genuine issue for trial. Id. at 324.
Defendants raise two issues in their motion for partial summary
judgment. First they argue that Defendant Ashland cannot be held liable
as a matter of law. Second, they argue that judgment should be granted to
them on the issue of punitive damages. We will address these issues in
I. Defendant Ashland
Defendants argue that Ashland Borough cannot be held liable for the
alleged constitutional violations in the instant case. Generally, section
1983 of Title 42 of the United States Code offers private citizens a cause of
action for violations of the United States Constitution by state officials. See
42 U.S.C. § 1983. In pertinent part, section 1983 provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
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[.]
42 U.S.C. § 1983.
When suing a municipality, such as Defendant Ashland Borough, for
a civil rights violation, a plaintiff cannot rely on respondeat superior liability.
Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978).
Rather, in order to hold a municipality liable, a plaintiff must establish that
the municipality’s policy or custom caused the constitutional violation. Id.
The law provides that a custom or practice for Monell liability may be
demonstrated where a decision-maker issues an official proclamation or
decision. Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990).
In the absence of such an official proclamation:
[t]here are three situations where acts of a
government employee may be deemed to be the
result of a policy or custom of the governmental
entity for whom the employee works, thereby
rendering the entity liable under § 1983. The first is
where “the appropriate officer or entity promulgates
a generally applicable statement of policy and the
subsequent act complained of is simply an
implementation of that policy.” Bryan County, 520
U.S. at 417, 117 S.Ct. 1382 (Souter, J., dissenting).
The second occurs where “no rule has been
announced as policy but federal law has been
violated by an act of the policymaker itself.” Id.
Finally, a policy or custom may also exist where
“the policymaker has failed to act affirmatively at all,
[though] the need to take some action to control the
agents of the government ‘is so obvious, and the
inadequacy of existing practice so likely to result in
the violation of constitutional rights, that the
policymaker can reasonably be said to have been
deliberately indifferent to the need.’ ” Id. at 417-18,
117 S.Ct. 1382 (quoting City of Canton, Ohio v.
Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989)); see also Berg, 219 F.3d at
276 (holding that plaintiff must “demonstrat[e] that
the municipal action was taken with ‘deliberate
indifference’ to its known or obvious
Natale v. Camden Cnty Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)
(footnote omitted) .
Thus, the acts of a government employee can be deemed “policy or
custom” where: 1) a policy exists and the employee merely carries out that
policy; 2) the employee is the final policymaker himself; and 3) the need for
a policy is obvious that the policymaker can be said to be deliberately
indifferent for not implementing a policy.
Defendant Ashland argues that none of these categories apply and
thus it cannot be held liable for Defendant O’Hearn’s actions. Plaintiff, on
the other hand, argues that O’Hearn was the policymaker for Ashland
regarding the executionof patrolman duties and arrests in this specific
instance. Therefore, Ashland can be held responsible for his actions.
Specifically, plaintiff argues: “Here, O’Hearn, the policymaker, made the
decisions at issue with regard to Plaintiff. Therefore, Ashland may also be
held liable. Accordingly, because evidence exists from which a reasonable
jury could conclude O’Hearn was the policymaker and that his actions
violated Plaintiff’s constitutional rights, summary judgment would be
inappropriate.” (Doc. 32, Pl. Br. at 11). After a careful review, we
The record reveals that at the time of the incident, Ashland Borough
employed three full-time police officers, Patrolman O’Hearn, Sergeant
Michael Aulenbach and Police Chief Adam Bernodin. (Doc. 30-5, O’Hearn
Dep. at 12). The Borough also employed approximately fifteen part-time
police officers. (Id.) Plaintiff’s position is that as the only patrolman for
Ashland, O’Hearn is the sole policymaker for carrying out patrolman duties
The determination of whether an official is an final policy maker is a
question of state law. See Santiago v. Warminster Twp., 629 F.3d 121,
134 n.11 (3d Cir. 2010). Santiago is very similar to the instant case. The
plaintiff asserted that the police chief was the final policymaker for
purposes of Monell liability. The court held, however, that as a matter of
Pennsylvania state law, a township Police Chief is not a final policymaker.
Id. The court examined Pennsylvania law, the Second Class Township
Code, and found that the law vested authority and supervision over a
township’s police officers with the township board of supervisors. Id.; 53
PA. STAT. ANN. § 66902. The court further noted that the United States
Supreme Court has “forbidden courts from ‘assuming that municipal
policymaking authority lies somewhere other than where the applicable law
purports to put it.’” Id. quoting City of St. Louis v. Praprotnik, 485 U.S. 112,
125 n.1, 126 (1988).
In the instant case, the plaintiff asserts that a police patrolman of a
borough is a final policymaker official. The Pennsylvania Borough Code,
however, indicates that in a borough “[t]he mayor of the borough shall have
full charge and control of the chief of police and the police force[.]” 53 PA.
STAT. § 46121. Accordingly, as a matter of Pennsylvania state law a
patrolman is not a final policymaking official with regard to police affairs.
That final policymaking authority is vested in the mayor. In the instant
case, the plaintiff presents no evidence that the mayor instituted a policy
that violated the plaintiff’s rights. Accordingly, the borough cannot be held
liable for the alleged constitutional violations and the court will grant
summary judgment to Defendant Ashland Borough.
II. Punitive Damages
Plaintiff’s amended complaint seeks punitive damages against
Defendant O’Hearn. Defendants move for summary judgment on the
issue of punitive damages. After a careful review, the motion will be
As a general matter, because the court is sitting in diversity, the
substantive law of Pennsylvania, including the law regarding punitive
damages, shall apply to the instant case. Chamberlain v. Giampapa, 210
F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78
(1938)). In Pennsylvania, “ ‘[p]unitive damages may be awarded for
conduct that is outrageous, because of the defendant's evil motive or his
reckless indifference to the rights of others.’” Hutchinson ex rel. Hutchinson
v. Luddy, 870 A.2d 766, 770 (Pa. 2005) (quoting Feld v. Merriam, 485 A.2d
742, 747 (Pa.1984)). Since “punitive damages are penal in nature,” they
are available “only in cases where the defendant’s actions are so
outrageous as to demonstrate willful, wanton or reckless conduct.” Id. In
determining whether to award punitive damages, “one must look to ‘the act
itself together with all the circumstances including the motive of the
wrongdoers and the relations between the parties.’” Feld, 485 A.2d at 748.
A party may be liable for punitive damages by acting with “reckless
indifference.” Medvecz v. Choi, 569 F.2d 1221 (3d Cir.1977). As such, “a
punitive damages claim must be supported by evidence sufficient to
establish that (1) a defendant had a subjective appreciation of the risk of
harm to which the plaintiff was exposed and that (2) he acted, or failed to
act, as the case may be, in conscious disregard of that risk.” Hutchinson,
870 A.2d at 772.
Defendant argues that plaintiff cannot demonstrate that he was
motivated by evil motive or intent because the record indicates that he was
merely interceding in a violent domestic dispute between plaintiff and
Grose. The court disagrees. Viewing the facts in the light most favorable
to the nonmoving party it appears that O’Hearn can be found to have
violently and unnecessarily used physical force against plaintiff while he
was attached to a dialysis machine. He grabbed the plaintiff’s arm and
twisted it up behind plaintiff’s back and neck so that it gave way to his force
and snapped. He took these action despite his awareness of plaintiff’s
problems with his arms, from the previous visit to plaintiff’s residence. The
jury may view this evidence and decide that punitive damages are
appropriate against Defendant O’Hearn.
In conclusion, the defendants’ motion for partial summary judgment
will be granted in part and denied in part. The motion will be granted with
respect to Defendant Ashland Borough, and the motion will be denied with
respect to the punitive damages claim. An appropriate order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ASHLAND BOROUGH and
MARK O’HEARN (Individually
and as a Police Officer for
AND NOW, to wit, this 18th day of November 2011, the defendants’
motion for partial summary judgment (Doc. 27) is GRANTED with regard to
Defendant Ashland Borough and DENIED in all other respects.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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