MILLER v. HARCHA et al
Filing
63
MEMORANDUM AND OPINION re Motion for Summary Judgment (ECF NO. 52) filed by Defendants. The Motion for Summary Judgment will be granted on Plaintiff's Fourth Amendment excessive force claim. An appropriate Order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on May 14, 2012. (vad)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SHAWN MILLER,
Plaintiff,
v.
CORY HARCHA; LEE MYERS;
and JORDAN SEESE,
Defendants.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 09-1642
Chief Magistrate Judge Lenihan
Re: ECF No. 52
MEMORANDUM OPINION
Presently before the Court is the Motion for Summary Judgment filed by Defendants,
Officers Corey Harcha (“Harcha”), Lee Myers (“Myers”), and Jordan Seese (“Seese”)
(collectively “Defendants”). For the reasons that follow, Defendants’ motion will be granted.
BACKGROUND
Plaintiff, Shawn Miller (“Plaintiff” or “Miller”), is an inmate at the Allegheny County
Jail. He initiated this civil action on December 15, 2009, by filing a pro se Complaint (ECF No.
3) pursuant to 42 U.S.C. § 1983 complaining of, inter alia, the use of excessive force by
Defendants. On May 5, 2011, this Court issued a Memorandum Opinion and Order, (ECF Nos.
38 & 39) granting Defendants’ Motion to Dismiss Plaintiff’s Eighth Amendment and Fifth
Amendment claims, and offering Plaintiff an opportunity to amend his Complaint in order to
state a Fourth Amendment excessive force claim.
Thereafter, Plaintiff filed an Amended Complaint (ECF No. 42) on June 20, 2011. In the
Amended Complaint, Plaintiff attempts to state a claim for excessive force pursuant to the Fourth
Amendment. Plaintiff also attempts to make out a claim1 for the following: 1) First Amendment
retaliation as a result of Defendants’ filing criminal charges against him2; 2) Fourteenth
Amendment taking without just compensation for the taking of his vehicle; 3) a Fourth
Amendment claim for the seizure of his vehicle; and 4) an Eighth Amendment claim for
deliberate indifference to medical needs.3 Defendants filed an Answer (ECF No. 44) to
Plaintiff’s Amended Complaint on July 13, 2011. Plaintiff, pro se, filed a Memorandum of Law
in Opposition to Defendants’ Answer (ECF No. 48) on September 8, 2011. On October 21,
2011, Defendants filed a Motion for Summary Judgment (ECF No. 52) on Plaintiff’s Fourth
Amendment excessive force claim only. Plaintiff then filed a Brief and exhibits in Opposition to
Defendants’ Motion for Summary Judgment (ECF No. 60).
FACTS
Unless otherwise indicated, the following facts are undisputed. On August 18, 2009, at
approximately 1:00 a.m., Defendant Officers Myers and Seese were on uniform patrol when they
observed Plaintiff fail to stop at a stop sign. These Defendants pulled Plaintiff over for failing to
stop. (Amended Complaint, ECF No. 42 at Facts ¶ 1 (hereinafter “ECF No. 42 at ¶ _”));
(Defendants’ Concise Statement of Material Facts, ECF No. 54 at ¶¶ 1, 2 (hereinafter “ECF No.
54 at ¶ _”)); (Pittsburgh Bureau of Police Investigative Report, ECF No. 55 at 8 (hereinafter
“ECF No. 55 at __”)). Plaintiff stopped, but then fled the scene before the Defendant Officers
were able to speak with him. (ECF No. 42 at ¶¶ 1, 2; ECF No. 54 at ¶¶ 3, 4, 5.) Plaintiff’s
1
The court must liberally construe the factual allegations of Plaintiff’s Complaint because pro se pleadings,
“however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520
(1972).
2
Although Plaintiff attempts to state a First Amendment retaliation claim, Plaintiff avers no facts to suggest that he
was allegedly retaliated against because of his protected speech.
3
This Court dismissed with prejudice Plaintiff’s Eighth Amendment claim at ECF Nos. 38 & 39. Consequently, the
Plaintiff may not include this claim in his Amended Complaint.
2
passenger, Paul Barone, indicated to Plaintiff that he was in possession of contraband, so
Plaintiff drove away in order for Barone to dispose of the contraband (ECF No. 42 at ¶¶ 1, 2;
ECF No. 54 at ¶ 5). In addition, Plaintiff, who was then on probation, drove away because he
did not want to violate any of the conditions of his probation. (ECF No. 42 at ¶ 2; ECF No. 54 at
¶ 5.) Myers and Seese pursued Plaintiff, but after a very short time the pursuit was terminated.
(ECF No. 42 at ¶ 3; ECF No. 54 at ¶¶ 7, 8.) Defendants claim they terminated their pursuit
pursuant to the order of their police sergeant due to Plaintiff’s high rate of speed. (ECF No. 54 at
¶ 8.) It is undisputed that Defendant Officers Myers and Seese terminated their pursuit;
however, Plaintiff does not concede Defendants’ explanation for the termination. After
termination of the pursuit, Plaintiff pulled over, exited his vehicle, and Defendant Officer Corey
Harcha then came upon Plaintiff. (ECF No. 42 at ¶¶ 3, 4; ECF No. 54 at ¶¶ 9, 10.)
The following events are disputed by the parties. Plaintiff alleges that Officer Harcha got
out of his patrol vehicle while holding his gun and started shooting at Plaintiff without warning.
(ECF No. 42 at ¶ 4.) Plaintiff further alleges he was forced to get back into his vehicle in order
to avoid being shot by Officer Harcha. (ECF No. 42 at ¶ 5.) According to Plaintiff, Officer
Harcha then placed his arm inside the passenger window of Plaintiff’s car and continued firing
his gun and shot Plaintiff in the back of his neck. (ECF No. 42 at ¶ 5.) At this point Defendant
Officers Myers and Seese arrived at the scene. Plaintiff avers that, fearing for his life, he
attempted to drive off, and all three Defendant Officers fired their guns at Plaintiff’s car, and
Plaintiff was shot in his right shoulder from behind. (ECF No. 42 at ¶ 6.) Plaintiff avers that,
again fearing for his life, he panicked and drove off to save his life from what he perceived as
certain death. (ECF No. 42 at ¶ 7.) Plaintiff states that his “run-for-it” ended “when he crashed
3
into a utility pole while being unconscious. At this time[,] Pittsburgh police pulled Plaintiff from
his vehicle and repeatedly beat on him.” (ECF No. 42 at ¶ 8.)
Defendants contend that when Harcha came upon Plaintiff after the sergeant’s
termination of Seese and Myers’ pursuit, Harcha pulled up next to Plaintiff’s parked vehicle.
Plaintiff was standing outside of his vehicle. (ECF No. 54 at ¶ 10.) Harcha told Plaintiff to halt,
but Plaintiff jumped back into the driver’s side of his vehicle and turned on the engine. (ECF
No. 54 at ¶ 12a.) In response, Defendant Harcha drew his firearm and told Plaintiff to turn off
his engine and step out of his vehicle. (ECF No. 54 at ¶ 12b.) Defendant Harcha further
contends that instead of complying, Plaintiff suddenly threw his vehicle into forward gear which
caused the front of Plaintiff’s vehicle to hit the partially open door of Defendant Harcha’s patrol
car, trapping Officer Harcha between the two vehicles. (ECF No. 54 at ¶ 12c.) Defendant
Harcha contends his right hand slid into Plaintiff’s open, front passenger-side window, and his
hand sustained injury either upon the entry of Plaintiff’s vehicle or upon the exit of Plaintiff’s
vehicle. (ECF No. 54 at ¶ 12d.) Officer Harcha fired a single shot while his hand was in
Plaintiff’s open, front passenger-side window. (ECF No. 54 at ¶ 12e); (Supplemental Report,
ECF No. 60-2 at 1); (Supplemental Report, ECF No. 60-3 at 1). Defendant Harcha indicated that
he discharged his weapon for fear that “he was going to be pinned in between the two vehicles
and possibly critically injured.” (Supplemental Report, ECF No. 60-3 at 1).
Defendants further assert that Defendant Officers Myers and Seese arrived on the scene
and observed Defendant Officer Harcha yelling for help. Defendant Harcha was trapped
between his patrol vehicle and Plaintiff’s vehicle while Plaintiff continued to drive his vehicle
forward. (ECF No. 54 at ¶ 12f.) In an effort to stop Plaintiff from running over Defendant
Harcha, both Defendant Officers Myers and Seese fired at Plaintiff’s vehicle. (ECF No. 54 at ¶¶
4
12f, 12h.) Defendant Seese fired 9 shots, and Defendant Myer fired 16 shots. (Supplemental
Report, ECF No. 60-2 at 1). Plaintiff fled the scene and Myers and Seese checked on Harcha
before continuing to pursue Plaintiff. (ECF No. 54 at ¶ 13, 14.) Harcha did not join the pursuit
because his patrol car door would not close and his hand was injured as a result of the
altercation; consequently, he remained to secure the scene. Later, Defendant Harcha was
transported to the hospital for treatment of his hand injury. (ECF No. 54 at ¶ 15.) Plaintiff’s
flight eventually ended when his vehicle struck a telephone pole and stone wall. (ECF No. 54 at
¶ 16.) Defendants contend that by the time Defendant Officers Myers and Seese reached
Plaintiff, he had already crashed and was being restrained by other police officers. (ECF No. 54
at ¶ 17.)
It is undisputed that after the altercation between the three Defendant police officers and
Plaintiff, Plaintiff fled the scene and continued driving until he crashed into the utility pole and
stone wall. (ECF No. 42 at ¶¶ 7, 8; ECF No. 54 at ¶¶ 13, 16.) Plaintiff then contends that
Pittsburgh Police Officers pulled Plaintiff from his vehicle and repeatedly beat on him; (ECF No.
42 at ¶ 8) however, Plaintiff does not identity the Pittsburgh Police Officers who allegedly beat
him or name them as defendants in this action. Plaintiff was then taken to the hospital for the
treatment of a superficial gunshot wound to the neck, and gunshot to the shoulder. (Allegheny
Correctional Health Services’ Medical Status Report of Plaintiff, ECF No. 60-7 at 1.)
Plaintiff was charged with the following:
a. 18 Pa. C.S. § 2701(a)(2) and (c): Aggravated Assault (serious injury to police, transit
officials, firemen, or others);
b. 75 Pa. C.S. § 3733: Fleeing or Attempting to Elude a Police Officer;
5
c. 35 P.S. § 780-113(a): Possession with Intent to Deliver a Controlled Substance
(Heroin);
d. 18 Pa. C.S. § 2705: Recklessly Endangering Another Person;
e. 35 P.S. § 780-113(a)(16) and (b): Possession of Controlled Substance, Drugs, Device,
or Cosmetic (Heroin);
f. 75 Pa. C.S. § 1543(a): Driving While Operating Privilege is Suspended or Revoked;
g. 75 Pa. C.S. § 3112: Failure to Obey Traffic Control Signals;
h. 75 Pa. C.S. § 3308: Driving One-Way Roadway (failure to drive in the designated
direction;
i. 75 Pa. C.S. § 3323: Failure to Stop at a Stop Sign;
j. 75 Pa. C.S. § 3324: Signaling Improperly; and
k. 75 Pa. C.S. § 3736: Reckless Driving
(Commonwealth of Pennsylvania v. Miller, Criminal Action No. CC200914508 (Charge
Information Sheet) (ECF No. 55 at 14-16). On August 9, 2011, Plaintiff pled guilty to all of
these charges. (Commonwealth of Pennsylvania v. Miller, Criminal Action No. CC200914508
(Guilty Plea) (ECF No. 55 at 17-19).
LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving
party, “the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment may be
granted against a party who fails to adduce facts sufficient to establish the existence of any
6
element essential to that party’s case, and for which that party will bear the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial
burden of identifying evidence which demonstrates the absence of a genuine issue of material
fact; that is, the movant must show that the evidence of record is insufficient to carry the nonmovant’s burden of proof. Id. Once that burden has been met, the nonmoving party must set
forth “specific facts showing that there is a genuine issue for trial” or the factual record will be
taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
Civ. P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only “if the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v.
Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court
noted the following:
[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial. . . .
[T]here is no issue for trial unless there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for that
party. If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.
Id. at 249-50 (internal citations omitted).
Here, Defendants contend that they are entitled to judgment as a matter of law because
record evidence demonstrates that they are entitled to qualified immunity. Plaintiff responds that
genuine issues of material fact preclude summary judgment because a reasonable jury could
conclude that Defendants used excessive force and thereby violated his Fourth Amendment
rights.
7
ANALYSIS
Section 1983
Section 1983 of the Civil Rights Act 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 any 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. To state a claim for relief under this provision, the Plaintiff must demonstrate
that the conduct in the complaint was committed by a person or entity acting under color of state
law, and that such conduct deprived the Plaintiff of rights, privileges or immunities secured by
the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania,
36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a
remedy for violations of those rights created by the United States Constitution or federal law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
Qualified Immunity
State officials performing discretionary acts enjoy “qualified immunity” from money
damages in § 1983 causes of action when their conduct does not violate “clearly established”
statutory or constitutional rights of which a “reasonable person” would have known at the time
the incident occurred. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533
U.S. 194 (2001), the United States Supreme Court discussed the two-step qualified immunity
inquiry. The Court directed that, in deciding whether a defendant is protected by qualified
immunity, a court first must determine whether, “[t]aken in the light most favorable to the party
8
asserting the injury, . . . the facts alleged show the officer=s conduct violated a constitutional
right.” Id. at 201. If the facts do not establish the violation of a constitutional right, no further
inquiry concerning qualified immunity is necessary. Id. If the plaintiff=s factual allegations do
show a violation of his rights, then the court must proceed to determine whether the right was
“clearly established,” that is, whether the contours of the right were already delineated with
sufficient clarity to make a reasonable officer in the defendant=s circumstances aware that what
he was doing violated the right.4 Id. at 201-02. Recently, in Pearson v. Callahan, 555 U.S. 223
(2009), the United States Supreme Court concluded that while the two-step sequence identified
in Saucier “is often appropriate, it should no longer be regarded as mandatory.” Id. at 236.
In determining whether an officer’s conduct violated a constitutional right for purposes of
qualified immunity at the summary judgment stage, the United States Supreme Court has
instructed that although a court should view the facts and draw reasonable inferences in the light
most favorable to the party opposing the motion, a court should not rely on these facts where
they are “so utterly discredited by the record that no reasonable jury could [believe them].” Scott
v. Harris, 550 U.S. 372, 381 (2007). That is, “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.” Id.
Fourth Amendment Claim
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers and effects, against unreasonable searches and seizures, shall not be
4
Defendants concede that the second prong of the qualified immunity test is satisfied in this case. (ECF No. 53 at 7
n.3.)
9
violated, and no Warrants shall issue, but upon probable cause . . . .” U.S. Const. amend. IV.
This provision has been made applicable to the states through the Fourteenth Amendment. Ker
v. California, 374 U.S. 23, 30 (1963).
The Plaintiff contends that Defendants violated his Fourth Amendment rights when
Defendants allegedly used excessive force in apprehending him. In order to make out a claim for
excessive force as an unreasonable seizure under the Fourth Amendment, Plaintiff must show
that a seizure occurred and that it was reasonable. Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.
1999) (alleged excessive force in course of arrest is analyzed under Fourth Amendment). Here,
the parties do not dispute that there was a seizure of Plaintiff. Consequently, the only issue
before the Court on Defendants’ Motion for Summary Judgment is whether the force used to
effect the seizure was objectively reasonable. Whether the use of force is objectively reasonable
“requires careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In Graham, the United States
Supreme Court cautioned that in applying the objective reasonableness test, “[n]ot every push or
shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” will be deemed
unreasonable. Instead, “[t]he calculus of reasonableness must embody allowance for the fact that
‘police officers are often forced to make split-second judgments – in circumstances that are
tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular
situation.’” Id. at 396-97 (internal quotations omitted). In addition, the United States Supreme
Court has emphasized that each case alleging excessive force must be evaluated under the
totality of circumstances. Id. at 397. Finally, “[w]here a police officer has probable cause to
believe that the suspect poses a threat of serious physical harm, either to the officer or to others,
10
it is not constitutionally unreasonable to prevent escape by using deadly force.” Hill v. Nigro,
266 Fed. Appx. 219, 221 (3d Cir. 2008) (citing Tennessee v. Garner, 471 U.S. 1, 11 (1985)).
Here, Plaintiff’s version of the facts concerning Defendants’ alleged use of excessive
force is “so utterly discredited by the record that no reasonable jury could [believe Plaintiff’s
version].” Scott, 550 U.S. at 381. Consequently, Defendants’ Motion for Summary Judgment on
Plaintiff’s Fourth Amendment excessive force claim must be granted as Defendants are entitled
to qualified immunity.
The first material fact in dispute concerns the degree of force used by Defendant Harcha
when he first came upon Plaintiff after the pursuit by Myers and Seese was terminated. Plaintiff
alleges that Officer Harcha got out of his patrol vehicle while holding his gun and started
shooting at Plaintiff without warning. (ECF No. 42 at ¶ 4.) Plaintiff further alleges he was
forced to get back into his vehicle in order to avoid being shot by Officer Harcha. (ECF No. 42
at ¶ 5.) According to Plaintiff, Officer Harcha then placed his arm inside the passenger window
of Plaintiff’s car and continued firing his gun and shot Plaintiff in the back of his neck. (ECF
No. 42 at ¶ 5.) Record evidence, however, demonstrates that only one round was fired from
Harcha’s gun. That is, in response to Defendants’ Motion for Summary Judgment, Plaintiff
comes forward with a document entitled “Supplemental Report” which details the number of
bullets discharged from each Defendant Officer’s firearm. (ECF No. 60-2.) The Supplemental
Report indicates that Defendant Harcha fired only one shot from his duty weapon. (ECF No. 602 at 1.) Consequently, no reasonable jury could believe that Harcha initially approached Plaintiff
repeatedly firing his weapon, and that he continued to repeatedly fire his weapon after he placed
his arm inside Plaintiff’s passenger window.
11
Next, Plaintiff alleges that Defendant Officers Myers and Seese arrived at the scene, and
fearing for his life, Plaintiff attempted to drive off, and all three Defendant Officers fired their
guns at Plaintiff’s car; Plaintiff alleges he was shot in his right shoulder from behind. (ECF No.
42 at ¶ 6.) Record evidence, however, demonstrates that Defendant Harcha was trapped between
the open door of his patrol car and Plaintiff’s car, and that Plaintiff was attempting to flee the
scene in his vehicle, posing a deadly threat to Officer Harcha. First, Plaintiff concedes that he
pled guilty to every criminal charge relating to the facts in issue. (ECF No. 60 at 2.) Plaintiff’s
guilty plea to all charges (ECF No. 55 at 17-18) renders Plaintiff’s version of the facts incredible;
that is, “under Pennsylvania law, a guilty plea constitutes an admission to all of the facts alleged
in the indictment.” M.B. v. City of Philadelphia, 128 Fed. Appx. 217, 227 (3d Cir. 2005) (citing
Commonwealth Dep’t of Transp. v. Mitchell, 535 A.2d 581, 585 (Pa. 1987)). For instance, the
Information at Criminal Case No. 200914508 (ECF No. 55 at 14-16) in the Court of Common
Pleas of Allegheny County, Pennsylvania, indicates that Plaintiff “attempted to cause or
intentionally, knowingly or recklessly caused serious bodily injury to Corey Harcha a[] Police
Officer, while in the performance of duty, in violation of Section 2702 (a) (2) and (c) of the
Pennsylvania Crimes Code.” Further, Plaintiff admitted that he “recklessly engaged in conduct
which placed or may have place Police Officer Corey Harcha in danger of death or serious
bodily injury, in violation of Section 2705 of the Pennsylvania Crimes Code.” Plaintiff likewise
admitted that he “recklessly engaged in conduct which placed or may have placed Paul Barone
[Plaintiff’s passenger] in danger of death or serious bodily injury,” and that Plaintiff “drove his
vehicle in willful or wanton disregard for the safety of persons or property, in violation of
Section 3736 of the Pennsylvania Vehicle Code.” Further, Plaintiff admitted that he “drove a
motor vehicle and willfully failed or refused to bring his vehicle to a stop, or otherwise fled or
12
attempted to elude a pursuing police officer . . . and/or [] endangered a law enforcement officer
or member of the general public due to the [Plaintiff] engaging in a high-speed chase.” (ECF
No. 55 at 14-16.)5 Consequently, Plaintiff’s own guilty pleas establish that Plaintiff posed a
threat of serious bodily injury to Defendant Harcha, his passenger Paul Barone, and others with
whom he came into contact during the high speed chase. His guilty pleas further establish that
he refused to bring his vehicle to a stop after having been so instructed by Defendant Officers.
In addition, Officers Seese and Myers submitted affidavits indicating that at the time they
arrived on scene, they saw that Plaintiff had pinned Harcha between Plaintiff’s vehicle and
Harcha’s vehicle and Officer Harcha was yelling for help; they fired on Plaintiff’s vehicle in an
attempt to stop Plaintiff from running over Harcha. (ECF No. 55 at 22, 25.)
Photographs taken of Plaintiff’s Impounded Vehicle and Officer Harcha’s Patrol Car
show that Plaintiff’s car is smashed along the front passenger fender; scrapes of a lighter color
appear along the smashed in fender; Harcha’s patrol car is white and the driver’s side patrol door
is damaged. There is also a dent in the driver’s side rear bumper of the patrol car. (ECF No. 55
at 30-32.) These photographs do not support Plaintiff’s alleged facts that he simply drove away
when confronted by Defendants. Instead, the photographs support Defendants’ contentions that
Plaintiff came dangerously close to Harcha when he was standing outside of his patrol car with
the door open. Plaintiff comes forward with absolutely no evidence suggesting otherwise.
Photographs of Plaintiff’s car also reflect serious damage to the front of his vehicle where he
crashed into a utility pole and stone wall. (ECF No. 55 at 30-31.) The outline of the utility
vehicle is clearly visible within the hood of Plaintiff’s car, further supporting the fact that
Plaintiff was driving at a dangerous rate of speed.
5
Plaintiff also pled guilty to several other offenses including possession with intent to deliver heroine, and driving
without a license.
13
Defendants further submit Harcha’s worker’s compensation award establishing that he
suffered injury to his right middle and ring finger in the line of duty and that the injuries were
sustained because his fingers were “caught in window.”6 (“Notice of Compensation Payable,”
ECF No. 55 at 20.) This document supports Harcha’s contention that he was in fear for his own
safety when his hand was caught in Plaintiff’s passenger side window as Plaintiff was attempting
to drive away.
Consequently, record evidence demonstrates that Plaintiff’s version of the facts is
“blatantly contradicted by the record, so that no reasonable jury could believe [Plaintiff’s
version].” See Scott, 550 U.S. at 381. Consequently, the Court will not adopt Plaintiff’s facts
that are contradicted by the record for purposes of ruling on Defendants’ Motion for Summary
Judgment. Instead, record evidence demonstrates that it was objectively reasonable for Officers
Harcha, Seese, and Myers to believe, in light of the totality of circumstances, that the degree of
force used was necessary to prevent Plaintiff’s escape. Further, record evidence demonstrates
that it was objectively reasonable for Defendants to believe that Plaintiff posed a significant
threat of death or serious injury to Officer Harcha and others, and that the degree of force used
by these officers was objectively reasonable in light of this threat of death or serious bodily
injury. Finally, it was objectively reasonable for Defendants Seese and Myers, when
encountering Defendant Harcha trapped between his patrol car and Plaintiff’s car with his hand
caught in Plaintiff’s passenger side window, to conclude that Harcha was in danger of being run
over by Plaintiff as he was attempting to flee the scene, and to use deadly force to prevent this
harm and apprehend Plaintiff.
6
In his response to Defendants’ Motion for Summary Judgment, Plaintiff notes that the date of the injury indicated
in the compensation award is the day before the events in issue. Defendants note, however, that the discrepancy
between the date of reported injury and the date of Plaintiff’s arrest is due to the fact that Harcha would have begun
his patrol shift the evening of August 17, 2009, although Harcha did not sustain his injury until an hour after
midnight. (ECF No. 54 at 6 n.1.)
14
Therefore, no reasonable jury could conclude that Defendants violated Plaintiff’s Fourth
Amendment right against excessive force and Defendants are entitled to qualified immunity as to
this claim.
CONCLUSION
For the reasons discussed above, Defendants are entitled to qualified immunity on
Plaintiff’s Fourth Amendment excessive force claim. Therefore, Defendants’ Motion for
Summary Judgment on this claim will be granted. An appropriate Order will follow.
BY THE COURT:
s/ Lisa Pupo Lenihan
LISA PUPO LENIHAN
Chief United States Magistrate Judge
Dated: May 14, 2012
cc: All counsel of record
Via Electronic filing
SHAWN MILLER
KG6150
SCI Smithfield
PO Box 999
1120 Pike Street
Huntingdon, PA 16652
PRO SE
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?