Sauers v. Borough of Nesquehoning et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry) re 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Officer Stephen Homanko Signed by Honorable James M. Munley on 2/14/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SAUERS, Individually and
as Administrator of the ESTATE OF
CAROLA R. SAUERS, Deceased,
Plaintiff

:
No. 3:16cv811
:
:
(Judge Munley)
:
:
v.
:
:
STEPHEN HOMANKO, BOROUGH OF :
NESQUEHONING, and SEAN SMITH :
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Michael Sauers (hereinafter “plaintiff”) avers that a local
police officer violated his and his late wife’s civil rights under 42 U.S.C.
§ 1983 (hereinafter “section 1983”) when he lost control of his police cruiser
and collided with plaintiff’s automobile. Before the court for disposition is
the police officer’s motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief can be
granted. (Doc. 11). For the following reasons, the court will deny the
motion.
Background
On May 12, 2014, Nesquehoning police officer Stephen Homanko
(hereinafter “Defendant Homanko”), on duty in his 2009 Ford Crown
Victoria police cruiser, was travelling in the southbound lane of Route 209

in Nesquehoning, Pennsylvania. (Doc. 1, Compl. (hereinafter “Compl.”) ¶
10). At some point, he observed a yellow Dodge Neon commit what he
believed to be a potential summary traffic offense in the northbound lane of
Route 209. (Id. ¶ 11). Based on his observation, Defendant Homanko
turned his police cruiser around and pursued the Neon. (Id. ¶ 12). To
catch up to and apprehend the Neon’s driver, Defendant Homanko at times
reached speeds over 100 miles-per-hour. (Id. ¶ 14). While attempting to
negotiate a curve in the road, Defendant Homanko lost control of his police
cruiser and collided with a 2007 Toyota Yaris traveling southbound on
Route 209 and driven by Plaintiff Michael Sauers. (Id. ¶¶ 15, 9). Plaintiff
endured extensive injuries as a result of the collision, and his wife, who was
travelling in the front passenger seat of the vehicle, died as a result of her
injuries. (Id. ¶¶ 9, 17-18).
On May 6, 2016, plaintiff filed a seven-count complaint against
Defendant Homanko, the Borough of Nesquehoning, and Nesquehoning
police chief Sean Smith. Counts I, II, and III allege civil rights violations
under section 1983 against all defendants. Counts IV, V, VI, and VII also
assert respective Pennsylvania state law negligence, wrongful death,
survival, and vicarious liability claims.

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On July 11, 2016, Defendant Homanko moved to dismiss plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief can be granted. (Doc. 11). The parties
have briefed their respective positions and the matter is ripe for disposition.
Jurisdiction
As this case is brought pursuant to section 1983 for a violation of
plaintiff’s constitutional rights, we have 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 plaintiff’s state law claims pursuant to 28
U.S.C. § 1367.
Standard of Review
Defendant Homanko filed a motion to dismiss plaintiff’s complaint
under Federal Rule of Civil Procedure 12(b)(6). The court tests the
sufficiency of the complaint’s allegations when considering a Rule
12(b)(6) motion. All well-pleaded allegations of the complaint must be
viewed as true and in the light most favorable to the non-movant to
determine whether, “‘under any reasonable reading of the pleadings, the
plaintiff may be entitled to relief.’” Colburn v. Upper Darby Twp., 838 F.2d
663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cty. of
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York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe
“‘enough facts to raise a reasonable expectation that discovery will reveal
evidence of’ [each] necessary element” of the claims alleged in the
complaint. Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Moreover, the plaintiff must allege facts that “justify moving the case
beyond the pleadings to the next stage of litigation.” Id. at 234-35. In
evaluating the sufficiency of a complaint, the court may also consider
“matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations
omitted). The court need not accept legal conclusions or unwarranted
factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
Discussion
Defendant Homanko moves to dismiss plaintiff’s complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon
which relief can be granted. Specifically, Defendant Homanko argues that
plaintiff has not pled facts sufficient to satisfy the elements of his section
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1983 claim. Alternatively, Defendant Homanko contends that he is entitled
to qualified immunity. We address these issues in turn.
I. Section 1983: State-Created Danger
Count II of plaintiff’s complaint asserts a section 1983 claim against
Defendant Homanko. Section 1983 provides a civil remedy for the
“deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983. “To state a claim under section
1983, a plaintiff must demonstrate that ‘some person has deprived
him of a federal right . . . [and] that the person who has deprived
him of that right acted under the color of state or territorial law.’” Halsey v.
Pfeiffer, 750 F.3d 273, 290 (3d Cir. 2014) (quoting Gomez v. Toledo, 446
U.S. 635, 640 (1980)). Thus, “[t]he threshold issue in any [section]
1983 lawsuit is whether the plaintiff has sufficiently alleged a deprivation of
a constitutional right.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 241 (3d
Cir. 2016). In the instant case, plaintiff alleges that Defendant Homanko, a
Nesquehoning police officer who undisputedly acted under the color state
law, violated his right to bodily integrity and his wife’s right to life protected
by the Due Process Clause of the Fourteenth Amendment.
“Generally, the Due Process Clause does not impose an affirmative
duty upon the state to protect citizens from the acts of private individuals.”
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Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 2006) (citing DeShaney v.
Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 198-200 (1989)).
“There are, however, two exceptions to this rule: the ‘special relationship’
exception and the ‘state-created danger’ exception.” Jiminez v. All Am.
Rathskeller, Inc., 503 F.3d 247, 255 (3d Cir. 2007). Here, plaintiff argues
only the state-created danger exception.
Under the state-created danger exception, liability under section 1983
can attach “when the harm incurred is a direct result of state action[.]” Ye
v. U.S., 484 F.3d 634, 637 (3d Cir. 2007); see also Kneipp v. Tedder, 95
F.3d 1199, 1210-11 (3d Cir. 1996). A plaintiff must establish the following
four elements to successfully plead a state-created danger claim:
(1) the harm ultimately caused was foreseeable and fairly
direct;
(2) a state actor acted with a degree of culpability that
shocks the conscience;
(3) a relationship between the state and the plaintiff
existed such that plaintiff was a foreseeable victim of the
defendant’s acts, or a member of a discrete class of
persons subjected to the potential harm brought about by
the state’s actions, as opposed to a member of the public
in general; and
(4) a state actor affirmatively used his or her authority in a
way that created a danger to the citizen or that rendered
the citizen more vulnerable to danger than had the state
not acted at all.
L.R., 836 F.3d at 242 (quoting Bright v. Westmoreland Cty., 443 F.3d 276,
281 (3d Cir. 2006)). Defendant Homanko challenges only the second and
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third factors of plaintiff’s state-created danger claim. We address each in
turn.
A. Culpability that Shocks the Conscience
The second factor of a state-created danger claim requires plaintiff to
establish that Defendant Homanko acted with a degree of culpability that
shocks the conscience. L.R., 836 F.3d at 242 (quoting Bright, 443 F.3d at
281). “The exact degree of wrongfulness necessary to reach the
‘conscience-shocking’ level depends upon the circumstances of a particular
case.” Vargas v. City of Phila., 783 F.3d 962, 976 (3d Cir. 2015) (quoting
Miller v. City of Phila., 174 F.3d 368, 375 (3d Cir. 1999) (internal quotations
omitted)). “The time in which the government actors had to respond to an
incident is of particular significance[,]” and “[t]he level of culpability required
to shock the conscience increases as the time state actors have to
deliberate decreases.” Phillips, 515 F.3d at 240 (citation omitted).
For example, in hyper-pressurized environments requiring a state
actor’s instant judgment, the plaintiff must establish that the state actor
acted with the intent to cause harm. Sanford, 456 F.3d at 309. Where
state actors must act with some urgency but have some time to deliberate,
the plaintiff must establish gross negligence or arbitrariness. Id. at 309310. Finally, where state actors have time to deliberate and make
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unhurried judgments, the plaintiff must establish deliberate indifference. Id.
at 309. “In any event, ‘[m]ere negligence is not enough to shock the
conscience.” Vargas, 783 F.3d at 974 (quoting Sanford, 456 F.3d at 311).
Thus, the Third Circuit Court of Appeals has identified three standards to
determine whether state action shocks the conscience: (1) intent to cause
harm; (2) gross negligence or arbitrariness; and (3) deliberate indifference.
Phillips, 515 F.3d at 241 (citing Sanford, 456 F.3d at 306).
In the instant matter, Defendant Homanko argues that the “intent to
cause harm” standard applies because his police pursuit of a traffic
offender amounted to a hyper-pressurized situation requiring his instant
judgment. Plaintiff avers that the “gross negligence or arbitrariness”
standard applies because Defendant Homanko had at least some time to
deliberate before and during his police pursuit. After a careful review, we
agree with the plaintiff.
The United States Supreme Court has held that “high-speed chases
with no intent to harm suspects physically or to worsen their legal plight do
not give rise to liability under the Fourteenth Amendment, redressible by an
action under § 1983.” Cty. of Sacramento v. Lewis, 523 U.S. 844, 854
(1998) (emphasis added). Expanding Lewis from injured suspects to
injured bystanders, the Third Circuit Court of Appeals has determined that
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“if a police officer is justified in giving chase, that justification insulates the
officer from constitutional attack, irrespective of who might be harmed or
killed as a consequence of the chase.” Davis v. Twp. of Hillside, 190 F.3d
167, 170 n.2 (3d Cir. 1999) (emphasis added) (citations omitted).
In Lewis, police officers in separate patrol cars began their pursuit of
two boys on a motorcycle after observing the motorcycle driving at a high
speed. 523 U.S. at 836. After one of the officers turned on his vehicle’s
rotating lights and yelled at the boys to pull over, the boys sped off. Id. at
836-37. A high-speed chase ensued that lasted “[f]or 75 seconds over a
course of 1.3 miles in a residential neighborhood” with “the motorcycle
[weaving] in and out of oncoming traffic[.]” Id. Both the patrol cars and the
motorcycle reached speeds up to 100 miles an hour. Id. The chase ended
when the motorcycle approached a sharp left turn and tipped over. Id.
One of the officers, unable to stop his vehicle, skidded into one of the boys
and killed him on scene. Id.
In Davis, police officers in separate patrol cars observed a car
stopped “in a traffic lane at a stop sign” for “an unusually long time.” 190
F.3d at 169. Noting damage to the car’s rear end, one officer moved
alongside the car to pull it over. Id. At that point, the damaged car sped
away. Id. A high-speed chase ensued where both the police cars and the
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damaged car reached speeds “up to seventy miles an hour[.]” Id.
Eventually, one of the patrol cars bumped the damaged car, causing its
driver to hit his head on the steering wheel and pass out. Id. The
damaged car then spun out of control and collided with two other cars, one
of which propelled into and injured a bystander standing on the sidewalk.
Id.
Here, plaintiff’s allegations do not amount to a high-speed chase for
three reasons. First, unlike the police officers in Lewis and Davis,
Defendant Homanko did not pursue a fleeing suspect. Rather, when he
viewed a yellow Dodge Neon “commit a potential summary traffic
offense[,]” Defendant Homanko “turned his vehicle around and began a
pursuit[.]” (Compl. ¶¶ 11-12). Plaintiff does not allege that the Neon fled
from police after recognizing Defendant Homanko’s pursuit, which is the
underlying fact that led to the high-speed chases in Lewis and Davis.
Indeed, the hyper-pressurized situations confronting police officers in those
cases resulted from the potential offenders’ respective flights from justice.
As the Lewis Court explained,
A police officer deciding whether to give chase must
balance on one hand the need to stop a suspect and
show that flight from the law is no way to freedom, and,
on the other, the high-speed threat to all those within
stopping range, be they suspects, their passengers, other
drivers, or bystanders.
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523 U.S. at 853. In the instant matter, plaintiff does not allege any facts
indicating a flight from justice. To the contrary, he avers that police officers
from a neighboring borough “pull[ed] over the yellow Dodge Neon . . . but
they did not arrest the driver or charge her with any traffic violation or any
other crime[,]” (Compl. ¶ 13), thus inferring no flight from justice
whatsoever. Simply stated, plaintiff’s averments do not amount to a
“balance” by Defendant Homanko that appeared so critical to the Court in
Lewis. Therefore, we cannot conclude at this point that Defendant
Homanko encountered the same hyper-pressurized situations confronting
police officers in Lewis and Davis.
Second, unlike the police officers and offenders in Lewis and Davis,
only Defendant Homanko drove at high speeds. Specifically, plaintiff avers
that only Defendant Homanko “accelerated . . . to a speed in excess of 100
mph[,]” an allegation he supports by asserting that “members of the public
observed . . . Homanko driving careless and at a high rate of speed for no
apparent reason[.]” (Compl. ¶¶ 14, 10) (emphasis added). Again, the
hyper-pressurized situations confronting police officers in Lewis and Davis
resulted from both the officers and offenders engaging in the kinds of
dangerous conduct commensurate with high-speed chases. Specifically,
the Lewis chase involved officers and offenders “reach[ing] speeds up to
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100 miles an hour” and the offenders weaving “in and out of oncoming
traffic” on a motorcycle. 523 U.S. at 836. Similarly, the Davis chase
involved officers and offenders reaching speeds “up to seventy miles an
hour[,]” and culminated when one patrol car intentionally bumped the
offender’s car, causing it to veer off the road. 190 F.3d at 169. Here,
plaintiff’s allegations are not analogous, as only Defendant Homanko drove
at high speeds.
Finally, unlike the police officers in Lewis and Davis, plaintiff alleges
that Defendant Homanko had at least some time to deliberate. In
particular, after observing the yellow Dodge Neon “commit a potential
summary traffic offense” and “turn[ing] his vehicle around[,]” Defendant
Homanko “decided to radio ahead to the Jim Thorpe Police Department to
request that they apprehend the yellow Dodge Neon when it arrived in Jim
Thorpe Borough.” (Compl. ¶¶ 11-13). Plaintiff’s complaint does not
indicate that Defendant Homanko needed to make the pre-chase instant
judgments required of police officers who encounter fleeing suspects, like
in Lewis and Davis. Moreover, plaintiff does not allege that Defendant
Homanko had to make an instant judgment during his pursuit, such as
bumping a car off the roadway like in Davis.

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Viewing the complaint’s allegations as true and in a light most
favorable to plaintiff, we find that plaintiff has pled facts sufficient to
distinguish Defendant Homanko’s pursuit of a potential offender from the
high-speed chases in Lewis and Davis, both of which required instant
judgment from police officers. While discovery may yield a different
outcome, plaintiff has established at the pre-discovery phase that
Defendant Homanko had at least some time to deliberate, and that his
actions amount to “gross negligence or arbitrariness.”1
B. State-Created Danger Relationship
The third factor of a state-created danger claim requires plaintiff to
establish that a relationship between the state and the plaintiff existed such
that plaintiff was a foreseeable victim of Defendant Homanko’s acts, or a
member of a discrete class of persons subjected to the potential harm
brought about by the state’s actions, as opposed to a member of the public
in general. L.R., 836 F.3d at 242 (quoting Bright, 443 F.3d at 281). In the
instant matter, Defendant Homanko argues that he had no pre-existing
relationship with plaintiff, and therefore, plaintiff’s complaint must be

1

Defendant Homanko contends only that the “intent to cause harm”
standard applies to plaintiff’s section 1983 state-created danger claim. He
does not challenge whether plaintiff’s allegations satisfy the “gross
negligence or arbitrariness” standard, and therefore, we do not address it in
any detail.
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dismissed. Plaintiff contends that he need not establish the existence of a
“pre-existing” relationship, but merely “some relationship.” We agree with
plaintiff.
To adequately allege the existence of a relationship in a state-created
danger claim, “a plaintiff need not plead facts that show the same
‘special relationship’ basis for constitutional liability.” Phillips, 515 F.3d at
242 (citing Morse, 132 F.3d at 912). Instead, a plaintiff need only establish
that this relationship “contemplates some contact such that the plaintiff was
a foreseeable victim of the defendant’s acts in a tort sense.” Id. (quoting
Morse, 132 F.3d at 912) (internal quotations omitted). This relationship
“can be ‘merely’ that the plaintiff was a foreseeable victim, individually or as
a member of a distinct class.” Id. (citing Rivas v. City of Passaic, 365 F.3d
181, 202 (3d Cir. 2004)). Such a relationship may also exist “where the
plaintiff was a member of a discrete class of persons subjected to the
potential harm brought about by the state’s actions.” Id. (citing Morse, 132
F.3d at 913; Rivas, 365 F.3d at 197).
Here, plaintiff has pled facts sufficient to establish a relationship such
that plaintiff was a foreseeable victim of Defendant Homanko’s actions.
Specifically, plaintiff avers that Homanko “accelerated . . . to a speed in
excess of 100 mph” while pursuing a potential traffic offender. (Compl. ¶
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14). While travelling at this high rate of speed, Defendant Homanko “lost
control of his police cruiser . . .[,] started to spin in a clockwise direction and
crossed completely over the center line into the southbound lane of travel
directly into the path of [plaintiff’s vehicle[.]” (Id.) In a tort sense, anyone
lawfully traveling in that southbound lane of travel could be struck and
injured by Defendant Homanko’s police cruiser as a result of Defendant
Homanko losing control of the cruiser. Plaintiff and his wife were,
therefore, foreseeable victims of Defendant Homanko’s acts. Thus, plaintiff
has established the existence of a relationship between he and his wife and
Defendant Homanko, the third element of his state-created danger claim.
Viewing the complaint in a light most favorable to plaintiff, we find that
plaintiff has alleged facts sufficient to establish a state-created danger
claim under section 1983.
II. Qualified Immunity
In the alternative, Defendant Homanko argues that the doctrine of
qualified immunity shields him from liability under section 1983. “Qualified
immunity shields government actors from suit ‘insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Zaloga v. Borough of Moosic, 841
F.3d 170, 174 (3d Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
15

818 (1982)). “Thus, we ask: (1) whether the facts alleged by the plaintiff
show the violation of a constitutional right; and (2) whether the law was
clearly established at the time of the violation.” Kelly v. Borough of Carlisle,
622 F.3d 248, 253 (3d Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001)). Notably, “qualified immunity will be upheld on a 12(b)(6) motion
only when the immunity is established on the face of the complaint.”
Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001) (internal quotations and
citations omitted).
We have previously concluded that plaintiff has alleged sufficient
facts to establish a violation of constitutional rights, namely his own right to
bodily integrity and his wife’s right to life protected by the Due Process
Clause of the Fourteenth Amendment. Thus, Defendant Homanko’s
entitlement to qualified immunity turns on whether these rights were “clearly
established” at the time of his actions. Estate of Lagano v. Bergen Cty.
Prosecutor’s Office, 769 F.3d 850, 858 (3d Cir. 2014).
A government actor’s conduct violates clearly established law when,
at the time of the challenged conduct, the contours of a right are sufficiently
clear that every reasonable official would have understood that what he is
doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987);
Mammaro v. N.J. Div. of Child Prot. and Permanency, 814 F.3d 164, 169
16

(3d Cir. 2016). This doctrine “gives government officials breathing room to
make reasonable but mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.” City and Cty. of San
Francisco, Calif. v. Sheehan, — U.S. —, 135 S.Ct. 1765, 1774, 191
L.Ed.2d 856 (2015) (per curiam) (internal quotations and citations omitted);
George v. Rehiel, 738 F.3d 562, 572 (3d Cir. 2013).
Here, plaintiff has pled facts sufficient to demonstrate that his and his
wife’s rights were clearly established. As previously stated, plaintiff alleges
that Defendant Homanko did not pursue a fleeing suspect, only Defendant
Homanko drove at high speeds, and Defendant Homanko had at least
some time to deliberate before pursuing the potential traffic offender.
(Compl. ¶¶ 10-14). Thus, any reasonable officer would have known that
pursuing a potential traffic offender in excess of 100 miles-per-hour under
these circumstances gives rise to a state-created danger claim.
Accordingly, at this juncture, viewing plaintiff’s allegations as true and
absent a fully developed factual record, qualified immunity fails to shield
Defendant Homanko from individual liability under section 1983.
Conclusion
For the foregoing reasons, the court will deny Defendant Homanko’s

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motion to dismiss. An appropriate order follows.

Date: February 14, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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