EL et al v. CITY OF PITTSBURGH et al
Filing
136
MEMORANDUM OPINION indicating that the Defendants' motion for summary judgment 106 is granted as to the Plaintiffs' § 1983 Fourth Amendment excessive force claim against Defendant Warnock, the Plaintiffs' Monell § 1983 muni cipal liability claim against the City, and the Plaintiffs' state law assault and battery claims against Lieutenant Kacsuta, and is otherwise denied; An appropriate Order will follow (details more fully stated in said Memorandum Opinion). Signed by Judge Nora Barry Fischer on 8/3/2018. (bdk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILL EL AND BEYSHAUD EL,
Plaintiffs,
vs.
CITY OF PITTSBURGH, REYNE
KACSUTA, FRANK WELLING, and
RYAN WARNOCK,
Defendants.
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Civil Action No. 15-834
Judge Nora Barry Fischer
Memorandum Opinion
This is an excessive force case initiated by a pair of brothers, Plaintiffs Will El and
Beyshaud El (collectively the “El Brothers”), against the City of Pittsburgh (the “City”) and three
of its officers: Reyne Kacsuta (“Lieutenant Kacsuta”), Frank Welling (“Officer Welling”), and
Ryan Warnock (“Officer Warnock”) (collectively the “individual officer Defendants”). Pending
before the Court is the motion for summary judgment filed by the City and the individual officer
Defendants with respect to all counts contained in the second amended complaint filed against
them by the Plaintiffs. (Docket No. 106). Count I of the second amended complaint alleges a 42
U.S.C. § 1983 (“§ 1983”) Fourth Amendment excessive force claim against the individual officer
Defendants. Count II of the second amended complaint alleges a Monell v. Dep’t of Soc. Serv. of
City of N.Y, 436 U.S. 658 (1978) § 1983 municipal liability claim against the City. Count III of the
second amended complaint alleges a state law assault and battery claim against the individual
officer Defendants.
The Defendants filed their motion for summary judgment and supporting documents on
January 19, 2018. (Docket Nos. 106-109). The Plaintiffs filed their brief in opposition and related
documents on March 12, 2018. (Docket Nos. 116, 118-119). Because the Plaintiffs’ filings did not
include a responsive concise statement of facts as required by Local Rule 56, the Court ordered
them to file same no later than April 2, 2018. (Docket No. 120). The Defendants filed their reply
brief on March 23, 2018. (Docket No. 122). On March 28, 2018, the Plaintiffs filed their “counter
opposition” to Defendants’ concise statement of facts, (Docket No. 123), and the Defendants filed
an errata regarding their appendix to include inadvertently omitted deposition testimony of
Beyshaud El, Will El, and Lieutenant Kacsuta. (Docket No. 124). The Plaintiffs filed their surreply
on March 30, 2018. (Docket No. 125). Oral argument was held on the motion for summary
judgment on April 12, 2018. (Docket No. 129). The Defendants filed a supplemental brief on April
20, 2018. (Docket No. 130). The Plaintiffs filed a supplemental brief on April 27, 2018. (Docket
No. 132). Defendants filed a supplemental concise statement of material fact in support of their
motion for summary judgment on May 4, 2018. (Docket No. 133). Plaintiffs filed a response in
opposition to Defendants’ supplemental concise statement of material facts on May 13, 2018.
(Docket No. 134). The motion for summary judgment, thus, is ripe for adjudication.
I.
Standard of Review
Summary judgment is appropriate when “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. P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective position
by “citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV.
2
P. 56(c)(1)(A). In other words, summary judgment may be granted only if there exists no genuine
issue of material fact that would permit a reasonable jury to find for the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986). “When confronted
with cross-motions for summary judgment, the ‘court must rule on each party’s motion on an
individual and separate basis, determining, for each side, whether a judgment may be entered in
accordance with the Rule 56 standard.’” Anderson v. Franklin Institute, 185 F. Supp. 3d 628, 635
(E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America, 269 F. Supp. 2d 612, 615 n. 1
(E.D. Pa. 2003); Charles A. Wright, Arthur R. Miller et al., 10A Fed. Prac. and Proc. § 2720 (3d
ed. 1998).
In reviewing the evidence, the court draws all reasonable inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v. Procter
& Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the
court’s role to weigh the disputed evidence and decide which is more probative, or to make
credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d
241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if
a reasonable jury could possibly hold in the non-movant’s favor with regard to that issue. See id.
“Where the record taken as a whole could not lead a reasonable trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587; Huston, 568
F.3d at 104.
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II.
Dash-Cam Video evidence
As explained in greater detail below, much of the events at issue in this action were
videotaped by a Dash-Cam attached to a police vehicle that arrived on the scene driven by Officer
Siara Lawniczak (“Officer Lawniczak”). The video from Officer Lawniczak’s Dash-Cam (‘the
“Dash-Cam Video”) was introduced and entered into evidence at the April 12, 2018 oral argument
on the motion for summary judgment, was shown to the Court during oral argument, and has been
reviewed repeatedly by the Court in deciding the pending motion for summary judgment.
In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007), the United States Supreme Court
reviewed the lower courts’ denial of the defendant police officer’s motion for summary judgment
with respect to the plaintiff’s § 1983 use of excessive force in violation of the Fourth Amendment
claim on the basis of qualified immunity. In support of the police officer’s motion, the officer had
submitted a videotape that captured the events in question. Scott, 550 U.S. at 379. In discussing
how to review the videotape in the context of deciding the pending motion for summary judgment,
the Scott Court explained:
The first step in assessing the constitutionality of [the police officer’s] actions is to
determine the relevant facts. As this case was decided on summary judgment, there
have not yet been factual findings by a judge or jury, and [the plaintiff’s] version
of events (unsurprisingly) differs substantially from [the police officer’s] version.
When things are in such a posture, courts are required to view the facts and draw
reasonable inferences “in the light most favorable to the party opposing the
[summary judgment] motion.” In qualified immunity cases, this usually means
adopting (as the Court of Appeals did here) the plaintiff's version of the facts.
There is, however, an added wrinkle in this case: existence in the record of a
videotape capturing the events in question. There are no allegations or indications
that this videotape was doctored or altered in any way, nor any contention that what
it depicts differs from what actually happened. The videotape quite clearly
contradicts the version of the story told by respondent and adopted by the Court of
Appeals.
...
At the summary judgment stage, facts must be viewed in the light most favorable
4
to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed.
Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has
carried its burden under Rule 56(c), its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts .... Where the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no ‘genuine issue for trial.’” “[T]he 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.” When 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.
That was the case here with regard to the factual issue whether respondent was
driving in such fashion as to endanger human life. [The plaintiff’s] version of events
is so utterly discredited by the record that no reasonable jury could have believed
him. The Court of Appeals should not have relied on such visible fiction; it should
have viewed the facts in the light depicted by the videotape.
Id. at 380-81 (citations and footnote omitted). Consistent with the Supreme Court’s mandate in
Scott, in reviewing the motion for summary judgment, to the extent that they are relevant, the Court
will view the events shown in the videotape “in the light depicted by the videotape.” See also Ickes
v. Grassmeyer, Civ. No. 3:13-208, 2016 WL 4272358, at *4 n. 3 (W.D. Pa. Aug. 11, 2016), aff’d
sub nom. Ickes v. Grassmyer, 704 F. App’x 190 (3d Cir. 2017) (although plaintiff had testified that
no one asked him to get out of the car, where this command could be heard clearly on the dash
cam video of the incident, court determined, “[b]ecause no reasonable juror could conclude that
Plaintiff was never asked to get out of the car, the Court will view this fact in the light depicted in
the dash cam video for purposes of deciding the pending motions for summary judgment.”) (citing
Scott, 550 U.S. at 380).
III.
Relevant Facts
Following is a recitation of the facts relevant to the Defendants’ motion for summary
judgment. On July 2, 2013, Lieutenant Kacsuta observed the El Brothers leaving the “One Stop”
convenient store in the Homewood neighborhood of Pittsburgh. (Docket No. 109-3 at 2). Beyshaud
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El, who was 18 years old at the time, was holding “a green foil object” in his hand “in front of his
body.” (Id.). In light of current undercover police reports that the “One Stop” store was illegally
selling synthetic marijuana, Lieutenant Kacsuta was suspicious that the object in Beyshaud El’s
hand was illegally purchased synthetic marijuana. (Id. at 3-4).
Lieutenant Kacsuta approached the El Brothers in her cruiser and asked to speak to them;
they declined and crossed the street away from her. (Docket No. 109-2 at 6). This apparently
increased Lieutenant Kacsuta’s suspicion that the El Brothers illegally possessed synthetic
marijuana, so she turned her car around to investigate them for same. (Docket No. 109-3 at 28).
Lieutenant Kacsuta got out of her car, stopped the El Brothers, and asked them to sit down
on the stoop of a vacant storefront; they complied (Docket No. 109-5 at 17). She asked Will El for
identification, Will El gave it to her, emptied his pockets onto the sidewalk, and told Beyshaud El
to do the same so that Lieutenant Kacsuta knew they did not have anything on them and they were
not doing anything. (Docket Nos. 190-2 at 6, 109-5 at 2). At that point, the El Brothers were not
free to leave. (Docket No. 116-2 at 16).
It became clear to Lieutenant Kacsuta that the El Brothers did not have synthetic marijuana
in their possession. (Docket 116-2 at 21). Nevertheless, Lieutenant Kacsuta did not release the El
Brothers because a tobacco product had come out of the store with the El Brothers. (Id. at 21-22).
Beyshaud El was 18 years old and Will El was 22 years old, so this would not be illegal. Beyshaud
El, however, did not have a form of identification on him. (Docket No. 124-3 at 3). Given his
youthful appearance and lack of identification, Lieutenant Kacsuta now suspected that the store
illegally sold Beyshaud El a tobacco product or he illegally possessed a tobacco product. (Docket
No. 116-2 at 21-22).
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Lieutenant Kacsuta had called for back-up prior to getting out of her car. (Id. at 22). She
knew that Officers Welling and Warnock were in the area. (Id.). Officers Welling and Warnock
arrived on the scene together in less than two minutes. (Id.). Ultimately, five additional officers
reported to the scene to support Lieutenant Kacsuta. (Dash Cam Video 13:47:21).
Upon arrival at the scene of the stop of the El Brothers, Officer Welling did not know why
the Plaintiffs had been stopped by Lieutenant Kacsuta. (Docket No. 116-4 at 12). He just knew
they were under investigation and detained for whatever reason Lieutenant Kacsuta had stopped
them. (Docket No. 116-4 at 12). Officer Warnock also did not know why the El Brothers had been
stopped by Lieutenant Kacsuta. (Docket No. 116-5 at 2). Lieutenant Kacsuta did not tell Officer
Warnock to make sure they remained seated. (Id.).
While the El Brothers were seated on the curb, Lieutenant Kacsuta picked up Will El’s
identification from the ground, looked at it, and dropped it on the ground. (Docket No. 124-1 at 6;
Dash Cam Video 13:46:43). When Beyshaud El reached to pick up his brother’s license,
Lieutenant Kacsuta stepped on it. (Dash Cam Video 13:46:43). Throughout this time period, the
El Brothers were complaining that they were being harassed. (Docket Nos. 116-2 at 23, 116-3 at
3).
According to Will El, in response to his complaint of being harassed, Officer Welling
stated, “do you want to know what it feels like to be harassed?” (Docket No. 124-3 at 5). Will El
then stood up, “to make sure the lieutenant [Kacsuta] heard what [Officer Welling] said to [him].”
(Id. at 14). Will El took one or two small steps in the direction of Lieutenant Kacsuta and Officer
Warnock. (Dash-Cam Video at 13:47:05). In response to Will El’s movement, Officer Welling
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grabbed Will El by his wrist and neck and slammed him back into the wall of the vacant storefront
on which stoop the El Brothers had been seated, and on to the pavement.1 (Id. at 13:47:06-07).
Beyshaud El was seated on the storefront stoop immediately next to where Officer Welling
and Will El were located when Officer Welling grabbed Will El by his wrist and neck. (Id. at
13:47:06). Upon seeing Officer Welling grab his brother, Beyshaud El immediately stood up,
turned towards Officer Welling, and attempted to punch Officer Welling and otherwise defend his
brother. (Id. at 13:47:07). In response, Officer Warnock deployed his taser into Beyshaud El’s side
for five seconds, causing Beyshaud El to fall to the ground. (Id. at 13:47:08; Docket No. 109-6 at
8).
Both Will and Beyshaud El on the pavement and not resisting, six officers then handcuffed
and placed the El Brothers under arrest. (Id. at 13:47:19 and 13:47:27). This was the first time
Officer Warnock had deployed a taser in the field. (Docket No. 116-5 at 11).
Beyshaud El was taken to the hospital and then to jail. (Docket No. 109-6 at 9). Will El
was taken directly to jail. (Id.). After his release from jail, on July 7, 2013, Will El went to the
emergency room of a local hospital because of lower back pain. (Docket No. 109-5 at 9). He was
told at the emergency room that he had a hip contusion, which he understood to be a deep bruise
on his bone. (Id. at 9-10).
The El Brothers were initially charged with aggravated assault on a police officer, but
Allegheny County District Attorney Stephen Zappala later amended these charges to summary
charges. (Docket No. 93 at 2). Will El was charged with summary disorderly conduct. See 18
Pa.C.S. § 5503(a)(4) (“A person is guilty of disorderly conduct if, with the intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he … creates a hazardous
1
Defendants describe this conduct as using “physical force with hand controls to force [Will El] to comply
with verbal commands.” (Docket No. 108 at ¶ 17).
8
or physically offensive condition by any act which serves no legitimate purpose of the actor.”).
Beyshaud El was charged with summary harassment. See 18 Pa.C.S. § 2709(a)(1) (A person is
guilty of harassment when, “with intent to harass, annoy, or alarm another,” he “strikes, shoves,
kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the
same.”).
On April 14, 2014, the Honorable Kevin Sasinoski of the Court of Common Pleas of
Allegheny County (“Judge Sasinoski”) presided over Will El and Beyshaud El’s joint bench trial.
(Docket No. 109-7). Prior to the trial, by order only and without issuing an opinion, Judge
Sasinoski denied the Plaintiffs’ “Motion to Suppress and Dismiss Charges.” (Docket No. 109-8).
At the trial, Judge Sasinoski responded to defense counsel’s statement that she did not see a punch
in the video, as follows:
I did. And I’m the factfinder. It is obvious that one of them wound up and took a
swing at the officer. That punch is clear. I have seen it time and time again.
***
I could watch it over and over and over, unless there is more. I’m sure that if there
was another tape, you would have presented it and showed it to me.
(Docket No. 109-7 at 2-3). Then, in response to the other defense counsel’s statement that Will
only stood up once, Judge Sasinoski responded:
Three times perhaps collectively, if I misspoke. There was at least three times that
I saw someone -- one of the two gentlemen get up as they were seated. They were
very animated. It was obvious they were having a very animated discussion,
gesturing, reaching for the sidewalk, throwing things on the sidewalk, picking them
up.
It was obvious that they disregarded the police commands to just remain there until
she had an opportunity to investigate. That’s what is obvious to me in the video.
And accordingly, at CC 2013-09303, at the matter of the Commonwealth versus
Will El, I find you guilty of disorderly conduct.
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And at CC2013-09305, on the harassment count, I found Mr. Beyshaud El guilty
of harassment.
(Id. at 3-4). Neither brother appealed Judge Sasinoski’s findings. Judge Sasinoski’s determination,
therefore, is a valid and final judgment.
Lieutenant Kacsuta has had a number of complaints filed against her over her career. One
of her City of Pittsburgh Police Department supervisors, Rashall Brackney (“Commander
Brackney”), was deposed by Plaintiffs’ counsel about complaints filed against Lieutenant Kacsuta.
(Docket No. 116-6). Commander Brackney provided testimony about four complaints filed against
Lieutenant Kacsuta. The first complaint concerning Lieutenant Kacsuta involved Ms. Nina Patel
and Mr. Navin Bhambhwani and occurred on April 16, 2003. (Id. at 5). Lieutenant Kacsuta, then
a sergeant, had stopped Ms. Nina Patel and Mr. Navin Bhambhwani for being parked in a no
parking zone. (Id. at 7). During the stop, which lasted approximately forty-five minutes, she
refused to allow Ms. Patel to use her cell phone to notify her childcare that she was not going to
be able to pick up her children from child care on-time. (Id. at 8-9). Lieutenant Kacsuta also failed
to complete a required “running sheet” which would have indicated that she had stopped the
couple. (Id. at 7).
The second complaint concerning Lieutenant Kacsuta involved Mr. David Santa. (Id. at
11). Mr. Santa, who owned a club called the G-Spot, complained that on April 15, 2003 and May
10, 2003, he encountered Lieutenant Kacsuta, then a sergeant, yelling at valets at the G-Spot as
well as two off-duty police officers who were working at the bar. (Id. at 12). Mr. Santa also asserted
Lieutenant Kacsuta “allegedly threatened to break her foot off in his ass.” (Id. at 11).
The third complaint concerning Lieutenant Kacsuta involved her treatment of Mr. Adam
Balough in March 2006. (Id. at 36). An individual named Mr. Rager had called 911 and reported
that someone suspicious was checking out vehicles, possibly with the intent to break into them;
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Mr. Rager did not provide 911 or the police who followed up on the call with a description of the
suspicious person. (Id. at 37-38). Lieutenant Kacsuta, then a sergeant, responded to the call and
during the course of the investigation came across Mr. Balough. (Id. at 38). She stopped Mr.
Balough based upon the fact that he was nervous and looking around. (Id.). Upon stopping him,
she put him in a kneeling position on the wet ground, and waited for back up. (Id.). She then, at
some point, requested permission to search him while he was still kneeling and compliant with
her, and when he agreed, had another officer perform the search. (Id.). Lieutenant Kacsuta also
patted down Mr. Balough prior to the full search. (Id. at 41).
Mr. Balough complained about his treatment by Lieutenant Kacsuta and the incident with
Mr. Balough was investigated. (Id. at 37). The police investigator concluded that the complaint
was unfounded, but Commander Brackney disagreed. (Id. at 37, 42-43). In Commander
Brackney’s opinion, at best Lieutenant Kacsuta could have had a mere encounter with Mr.
Balough, and Lieutenant Kacsuta did not have any reason to have him kneel, be patted down, or
to ask him to consent to be searched. (Id. at 39-42).
The fourth complaint concerning Lieutenant Kacsuta involved her asking a police officer
who worked under her, Officer Tripoli, in 2007 to show some profession consideration and pull
the ticket he wrote with respect to the mother of a fellow police officer Siara Lawniczak (this is
the same Officer Lawniczak present during the stop of the El Brothers on July 2, 2013). (Id. at 3031, 34). Officer Tripoli said the request intimidated him. (Id. at 31). Commander Brackney opined
that the request was unethical. (Id. at 32).
Commander Brackney also testified that she had disagreed with Lieutenant O’Connor’s
recommendation in 2006 that Lieutenant Kacsuta, then a sergeant, be promoted to a lieutenant.
(Id. at 17). Commander Brackney opined that at the time Lieutenant Kacsuta had too much of a
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disciplinary history to be promoted. (Id.). Commander Brackney believed that Lieutenant Kacsuta
had poor communication skills. (Id. at 19). Commander Brackney explained that there were times
when the police department would receive an oral complaint or oral story about Lieutenant Kacsuta
searching an individual, and the police paperwork would indicate that the person had not been
searched. (Id. at 20). Also, Commander Brackney explained, there were times when the department
would learn that Lieutenant Kacsuta had conducted a search, then someone would say that he did
not consent to the search, and there would be validation that there was not paperwork or other
evidence of consent to search. (Id. at 20-21). Commander Brackney also noted that Lieutenant
Kacsuta’s stated reasons for why she believed there was reasonable suspicion for believing a
person was currently armed and/or dangerous were not being articulated or were being
inadequately articulated to the point that she could not sign off on the forms or would often send
them to the police department’s legal adviser for review. (Id. at 21). Commander Brackney also
submitted some of the stops Lieutenant Kacsuta was involved with to the legal advisor for review.
(Id.). Nevertheless, despite these problems, Lieutenant Kacsuta was promoted to a lieutenant. (Id.
at 22-23).
IV.
Effect of the El Brothers’ prior criminal proceedings before Judge Sasinoski
upon the instant civil proceedings
Based upon the events that provide the basis for this civil rights action, criminal
proceedings were brought against the El Brothers in the Court of Common Pleas for Allegheny
County which resulted in valid and final judgments being entered against them. The Defendants
contend that their motion for summary judgment with respect to the Plaintiffs’ § 1983 Fourth
Amendment excessive force claims must be granted pursuant to Heck v. Humphrey, 512 U.S. 477
(1994): “[g]iven these convictions [for harassment and disorderly conduct] based on their conduct
that prompted the Defendants’ use of force, it was by definition reasonable for Officer Welling to
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use his hands to force Will El back against the door and assure control of the situation, and for
Officer Warnock to use a Taser followed Beyshaud El’s punch. Any finding of excessive force
under the circumstances would contradict and imply the invalidity of the prior criminal
convictions.” (Docket No. 107 at 15-16). In Heck v. Humphrey, the United States Supreme Court
held:
In order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a Federal Court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.
Heck, 512 U.S. at 486–87.
Success in their § 1983 Fourth Amendment excessive force claims against the Defendants
would not implicitly question the validity of the El Brothers’ underlying criminal convictions for
harassment (Beyshaud El) and disorderly conduct (Will El) in connection with their arrest on July
2, 2013 since the conduct of the individual officer Defendants at issue concerns the officers’ use
of force once the El Brothers’ criminal conduct was complete. See Olick v. Pennsylvania, No. 164190, 2018 WL 3038387, at *2 (3d Cir. June 19, 2018) (concluding that Heck “does not
automatically bar [the plaintiff’s § 1983] claim of excessive force even though [he] has not
demonstrated favorable termination of his harassment conviction. This is because law enforcement
officers can ‘effectuate[ ] a lawful arrest in an unlawful manner’”) (quoting Nelson v. Jashurek,
109 F.3d 142, 145-46 (3d Cir. 1997)) (concluding that a finding that an officer used “substantial
force” would not imply that the underlying arrest was unlawful and therefore, a plaintiff’s § 1983
excessive force claim, wherein he asserted that the officer “effectuated a lawful arrest in an
unlawful manner” through the use of excessive force, was not barred by Heck). Therefore, the
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Defendants’ motion for summary judgment is denied to the extent it is based upon the contention
that the Plaintiffs’ § 1983 Fourth Amendment excessive force claims against the Defendants are
barred by Heck v. Humphrey, 512 U.S. 477 (1994).
That said, while Heck v. Humphrey does not operate as an absolute bar to the El Brothers’
§ 1983 Fourth Amendment excessive force claims, because Judge Sasinoski’s findings of guilt and
the brothers’ convictions have not been impaired,2 the Plaintiffs cannot use this civil lawsuit as a
means to challenge or contradict Judge Sasinoski’s explicit findings/rulings or argue that such facts
are “disputed” for purposes of the present motion and they are foreclosed from making any
arguments that are inconsistent with same. See Nelson, 109 F.3d at 146 (“[I]f this case reaches
trial, the trier of fact must be aware that Jashurek was justified in using ‘substantial force’ in
arresting Nelson. Otherwise there would be a danger that in returning a general verdict against
Jashurek predicated on a finding that he used excessive force, the trier of fact might base its verdict
on findings not consistent with the conclusion the jury reached in the criminal case, i.e., that
Jashurek was justified in using ‘substantial force’ to arrest Nelson”). Thus, unlike the ordinary
summary judgment case where we must view all of the evidence in the light most favorable to the
non-movants, the Court must disregard the El Brothers’ version of the events to the extent they
contradict Judge Sasinoski’s factual findings. Id.
Applying the doctrine of collateral estoppel to the case sub judice leads to the same result.
Collateral estoppel provides that “[w]hen an issue of fact or law is actually litigated and determined
by a valid and final judgment, and the determination is essential to the judgment, the determination
is conclusive in a subsequent action between the parties, whether on the same or a different claim.”
2
Examples of ways to impair a conviction include reversal on direct appeal, expungement by executive
order, a declaration of invalidity in a state proceeding, or the issuance of a writ of habeas corpus under 28
U.S.C. § 2254. Heck, 512 U.S. at 485-87.
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Jean Alexander Cosmetics v. L'Oreal USA, 458 F.3d 244, 249 (3d Cir. 2006) (citing Restatement
(Second) of Judgments § 27 (1982)). Collateral estoppel may be raised by the Court sua sponte.
Roe v. Pa. Game Comm’n, 2018 WL 1296478, at *4 n. 5 (M.D. Pa. 2018). This doctrine “prevents
a party who litigated an issue previously from rearguing that particular issue even if the other
litigants were not party to that earlier proceeding.” James v. Heritage Valley Fed. Credit Union,
197 F. App’x 102, 105 (3d Cir. 2006) (citing Szehinskyj v. Atty. Gen. of the U.S., 432 F.3d 253,
255 (3d Cir. 2005)). As explained by the Court of Appeals in James, supra:
A finding in a prior criminal proceeding may estop an individual from litigating the
same issue in a subsequent civil proceeding. We must give the state court’s
judgment the same preclusive effect as would be given the judgment by a court of
that state. Under Pennsylvania law, the elements of collateral estoppel are:
(1) the issue decided in the prior adjudication was identical to the one presented in
the later action; (2) there was a final judgment on the merits; (3) the party against
whom the plea is asserted was a party or in privity with a party to the prior
adjudication; and (4) the party against whom it is asserted had a full and fair
opportunity to litigate the issue in question in a prior action.
James, 197 F. App’x at 105 (citations omitted). Pennsylvania preclusion law is applicable here
because it is the judgment of the state court that would have preclusive effect. R&J Holding Co. v.
Redevelopment Auth. of Cty. of Montgomery, 670 F.3d 420, 426-27 (3d Cir. 2011) (quotation
omitted). As all four of the elements of collateral estoppel are present in this case, the El Brothers
are precluded from claiming that any of Judge Sasinoski’s above-quoted findings of fact, or other
legal conclusions, which were essential to his determination of Beyshaud El’s conviction for
harassment and Will El’s conviction for disorderly conduct in their criminal cases are “disputed”
for purposes of the present motion or otherwise. See Crawford v. Frimel, 337 F. App’x 211, 214
(3d Cir. 2009) (plaintiff was precluded from relitigating the issue of whether there was probable
cause for his arrest and the search of his apartment in a Bivens claim when he had previously
litigated the issue during the course of prior criminal proceedings, by way of a motion to suppress);
15
S.E.C. v. Graulich, Civ. No. 09-4355, 2013 WL 3146862, at *4 (D.N.J. June 19, 2013) (defendant
was collaterally estopped from challenging facts giving rise to civil liability because he pled guilty
to criminal fraud charges stemming from the same conduct; “[Defendant] is estopped from denying
all of the issues that were necessarily admitted in the plea”).
V.
Discussion
A. Relevancy of the Controlled Substance, Drug, Device and Cosmetic Act –
Schedule I Controlled Substances, Act of Jun. 23, 2011, P.L. 36, No. 7 to
Defendants’ motion for summary judgment
In responding to the Defendants’ motion for summary judgment, the El Brothers challenge
the constitutionality of the Controlled Substance, Drug, Device, and Cosmetic Act – Schedule I
Controlled Substances, Act of Jun. 23, 2011, P.L. 36, No. 7, which the Defendants attached to their
supplemental brief in support of their motion for summary judgment, (Docket No. 130-1), as
applied in the instant case. See Docket No. 132 at 2 (“Plaintiffs assert that this provision is
incomprehensible and offers no fair warning of what is legal or not”); id. at 3 (“[t]he above-quoted
law fails to set forth a crime in a manner that an ordinary person can understand and predict what
conduct is prohibited. As such, it simply violates the due process rights of Plaintiffs to suggest that
it could serve as the predicate for the intrusive, lengthy, and aggressive seizure of which they were
subjected.”); id. at 6 (“Plaintiffs challenge the Commonwealth’s assertion that ‘synthetic
marijuana’ was illegal prior to the day of the subject incident, given that ‘synthetic marijuana’ has
no meaningful definition and the scientific listing of proscribed chemical compounds in the cited
law provided a meaningless admonition to either Plaintiffs or the police, providing no certainty as
to what was or was not illegal.”). This statutory provision amended the Controlled Substance,
Drug, Device, and Cosmetic Act, in relevant part, to include as Schedule I controlled substances
“synthetic cannabinoids or any material, compound, mixture or preparation which contains any
16
quantity of the following substances, including their analogues, congeners, homologues, isomers,
salts, and salts of analogues, congeners, homologues and isomers, as follows: . . . .” Act of June
23, 2011, P.L. 36, No. 7. Possession of “synthetic marijuana” by the El Brothers was the original
basis for Lieutenant Kacsuta stopping the Plaintiffs.
Plaintiffs’ Second Amended Complaint alleges claims against the Defendants based upon
the El Brothers’ rights, under the Fourth Amendment to the United States Constitution, to be free
from excessive force by the individual defendant Officers. Accordingly, the constitutionality of
the Controlled Substance, Drug, Device, and Cosmetic Act, as applied in the instant case, is not,
as a matter of law, a basis for denying the Defendants’ motion for summary judgment.
B. The Defendants’ motion for summary judgment as to the Plaintiffs’ § 1983 Fourth
Amendment excessive force claims against the individual officer Defendants
The Defendants contend that their motion for summary judgment should be granted as to
each of the Plaintiffs’ § 1983 excessive force claims against the individual officer Defendants
because: (1) they did not engage in excessive force with respect to the El Brothers; and (2) if
excessive force was used, they are entitled to qualified immunity.
In Santini v. Fuentes, No. 17-2890, 2018 WL 3408265 (3d Cir. July 12, 2018), the appellate
court recently reiterated the general inquiry for determining whether an official is entitled to
qualified immunity at the summary judgment stage of a case:
“[t]he doctrine of qualified immunity shields government officials who perform
discretionary functions ‘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.” Santini [v. Fuentes], 795 F.3d [410, 417
(3d Cir. 2015)] (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982)). We perform a two-step inquiry to determine a government
official’s entitlement to summary judgment on grounds of qualified immunity: (1)
“whether the facts — taken in the light most favorable to the nonmoving party —
show that a government official violated a constitutional right;” and (2) “whether
that right was clearly established at the time of the official’s actions.” Id. (quoting
Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
17
Santini v. Fuentes, No. 17-2890, 2018 WL 3408265, at *2 (3d Cir. July 12, 2018). More
specifically, with respect to whether a plaintiff has established that a defendant violated his
constitutional right to be free from excessive force, in Kisela v. Hughes, the United States Supreme
Court recently explained:
In Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989),
the Court held that the question whether an officer has used excessive force
“requires careful attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.” “The ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Ibid. And “[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 396–397, 109 S.Ct. 1865.
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). See also Estate of Smith v. Marasco, 430 F.3d
140, 149-50 (3d Cir. 2005) (explaining that in determining whether the use of force is objectively
reasonable, the following factors need to be considered: “‘the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight ... [whether] the physical force
applied was of such an extent as to lead to injury ... the possibility that the persons subject to the
police action are themselves violent or dangerous, the duration of the action, whether the action
takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and
the number of persons with whom the police officers must contend at one time’”) (quoting Sharrar
v. Felsing, 128 F.3d 810, 821-22 (3d Cir. 1997).
With respect to determining whether any right allegedly violated was clearly established at
the time of the defendant’s conduct, the Kisela Court further explained:
18
Qualified immunity attaches when an official's conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” White v. Pauly, 580 U.S. ––––, ––––, 137 S.Ct. 548, 551, 196
L.Ed.2d 463 (2017) (per curiam) (alterations and internal quotation marks omitted).
“Because the focus is on whether the officer had fair notice that her conduct was
unlawful, reasonableness is judged against the backdrop of the law at the time of
the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d
583 (2004) (per curiam ).
Although “this Court's caselaw does not require a case directly on point for a right
to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” White, 580 U.S., at ––––, 137 S.Ct., at 551
(internal quotation marks omitted). “In other words, immunity protects all but the
plainly incompetent or those who knowingly violate the law.” Ibid. (internal
quotation marks omitted). This Court has “‘repeatedly told courts—and the Ninth
Circuit in particular—not to define clearly established law at a high level of
generality.’” City and County of San Francisco v. Sheehan, 575 U.S. ––––, ––––,
135 S.Ct. 1765, 1775–1776, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd,
563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)); see also Brosseau,
supra, at 198–199, 125 S.Ct. 596.
“[S]pecificity is especially important in the Fourth Amendment context, where the
Court has recognized that it is sometimes difficult for an officer to determine how
the relevant legal doctrine, here excessive force, will apply to the factual situation
the officer confronts.” Mullenix v. Luna, 577 U.S. ––––, ––––, 136 S.Ct. 305, 308,
193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted). Use of
excessive force is an area of the law “in which the result depends very much on the
facts of each case,” and thus police officers are entitled to qualified immunity unless
existing precedent “squarely governs” the specific facts at issue. Id., at ––––, 136
S.Ct., at 309 (internal quotation marks omitted and emphasis deleted). Precedent
involving similar facts can help move a case beyond the otherwise “hazy border
between excessive and acceptable force” and thereby provide an officer notice that
a specific use of force is unlawful. Id., at ––––, 136 S.Ct., at 312 (internal quotation
marks omitted).
“Of course, general statements of the law are not inherently incapable of giving fair
and clear warning to officers.” White, 580 U.S., at ––––, 137 S.Ct., at 552 (internal
quotation marks omitted). But the general rules set forth in “Garner and Graham
do not by themselves create clearly established law outside an ‘obvious case.’” Ibid.
Where constitutional guidelines seem inapplicable or too remote, it does not suffice
for a court simply to state that an officer may not use unreasonable and excessive
force, deny qualified immunity, and then remit the case for a trial on the question
of reasonableness. An officer “cannot be said to have violated a clearly established
right unless the right's contours were sufficiently definite that any reasonable
official in the defendant's shoes would have understood that he was violating it.”
Plumhoff v. Rickard, 572 U.S. ––––, ––––, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056
19
(2014). That is a necessary part of the qualified-immunity standard, and it is a part
of the standard that the Court of Appeals here failed to implement in a correct way.
Kisela, 138 S. Ct. at 1152–53.
1. Officer Welling
The Defendants contend that their motion for summary judgment should be granted as to
the Plaintiffs’ § 1983 excessive force claim against Officer Welling because the force used with
respect to Will El was not excessive given that Will El’s actions of disobeying the command to
stay seated, standing, and taking a step towards the officers were threatening and thus, Officer
Welling did not have to take a wait and see approach before gaining Will El’s compliance through
physical force. The Court disagrees. Viewing the facts in the light depicted by the videotape, Will
El’s act of standing up and taking one or two small steps towards Lieutenant Kacsuta, located a
few feet away, undertaken during the course of an investigatory stop first for suspicion of
possession of synthetic marijuana and then for illegal sale/possession of cigarettes, was not
performed in a threatening manner. Accordingly, a reasonable factfinder could conclude that in
light of Will El’s conduct, Officer Welling’s act of grabbing Will El by wrist and neck and
slamming him into the wall of the vacant storefront and on to the pavement was unreasonable and
constituted an excessive use of force that violated Will El’s rights under the Fourth Amendment.
See Thornton v. City of Macon, 132 F.3d 1395, 1400 (11th Cir. 1998) (defendant officers’ motion
for summary judgment on excessive force claims denied where neither plaintiff was suspected of
having committed a serious crime, neither posed an immediate threat to anyone, and neither
actively resisted arrest, and yet, in arresting the plaintiffs, one plaintiff was grabbed and wrestled
to the ground and the other plaintiff was thrown on the hood of the patrol car before being
handcuffed).
20
The Court further finds that it was clearly established on July 2, 2013 that an individual
who during an investigatory stop for a minor offense, stands up and takes one or two small steps
towards a police officer, standing a few feet away, in a non-threatening manner, had the right to
be free from the use of excessive force by police. See Smith v. City of Troy, Ohio, 874 F.3d 938,
945 (6th Cir. 2017) (appellate court denied qualified immunity on an excessive force claim when
defendant officer took plaintiff to the ground with a leg sweep and landed on top of the plaintiff
where there was little in the record to suggest that the plaintiff had committed any crime, even a
minor one, the plaintiff had told officer he was sick and having a seizure, there was no testimony
the officer believed the plaintiff was a safety threat, and the officer never told the plaintiff he was
under arrest, even though the plaintiff had not complied with the officer’s order to return to his car
and had pulled his arm away from the officer; court concluded it was well established at the time
of the incident that a non-violent, non-resisting, or only passively resisting suspect who is not
under arrest has a right to be free from an officer’s use of force) (citing Shreve v. Jessamine Cty.
Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006); Hanks v. Rogers, 853 F.3d 738, 747 (5th Cir.
2017) (qualified immunity was denied to police officer who applied a “half spear” to a plaintiff he
had stopped for a traffic violation who subsequently did not follow instructions, including to “go
to [his] knees,” and took a small step while his hands were behind his back, because “clearly
established law demonstrated that an officer violates the Fourth Amendment if he abruptly resorts
to overwhelming physical force rather than continuing verbal negotiations with an individual who
poses no immediate threat or flight risk, who engages in, at most, passive resistance, and whom
the officer stopped for a minor traffic violation”) (citing Deville v. Marcantel, 567 F.3d 156, 16769 (5th Cir. 2009) (finding qualified immunity inappropriate at summary judgment when officer
making a minor traffic stop had overpowered an individual who displayed, at most, passive
21
resistance, and presented no safety threat or flight risk); Montoya v. City of Flandreau, 669 F.3d
867, 873 (8th Cir. 2012) (appellate court reversed district court’s grant of summary judgment on
qualified immunity grounds, reasoning, “[a]ssuming once again [plaintiff’s] story is true, the
contours of the right at issue were sufficiently clear to inform a reasonable officer in Officer
Hooper’s position it was unlawful for him to perform a ‘leg sweep’ and throw to the ground a
nonviolent, suspected misdemeanant who was not threatening anyone, was not actively resisting
arrest, and was not attempting to flee.”); Weather v. City of Mount Vernon, 474 F. App’x 821, 824
(2d Cir. 2012) (appellate court concluded that defendant officer was not entitled to qualified
immunity on excessive force claim where the plaintiff “was breaking no law, was not resisting
arrest, and was not placing himself or others in danger,” concluding “[n]o reasonable officer would
believe that ‘twisting Mr. Weather’s arm behind his back and pushing or shoving him into the
brick wall outside the school’ was a lawful use of force in this circumstance”); Thornton, 132 F.3d
at 1400 (“[U]nder these circumstances [where neither plaintiff was suspected of having committed
a serious crime, neither posed an immediate threat to anyone, and neither actively resisted arrest,]
the officers were not justified in using any force, and a reasonable officer thus would have
recognized that the forced used was excessive.”). Cf. Santini, 2018 WL 3408265, at *3 (Third
Circuit court concluded that the plaintiff’s right to be free from the use of force, including the use
of pepper spray and strikes from nightsticks, as a non-suspect witness who walked away from an
investigatory discussion, and who admitted he (1) unintentionally did not comply with an officer’s
request to keep his hands visible, and (2) resisted arrest was not clearly established as of February
3, 2009, and therefore, officer was entitled to qualified immunity with respect to plaintiff’s § 1983
excessive force claim). Therefore, Officer Welling is not entitled to qualified immunity with
22
respect to the Plaintiffs’ § 1983 Fourth Amendment excessive force claim against him and the
Defendants’ motion for summary judgment on said claim against Officer Welling shall be denied.
2. Officer Warnock
The Defendants contend that their motion for summary judgment should be granted with
respect to the Plaintiffs’ § 1983 excessive force claim against Officer Warnock because Officer
Warnock’s tasing Beyshaud El, undertaken in response to Officer Warnock observing Beyshaud
El’s attempting to punch Officer Welling, was reasonable, and not excessive, force. The Court
disagrees. Viewing the facts in the light depicted by the videotape, while Beyshaud El clearly
attempted to punch Officer Welling,3 a reasonable factfinder could conclude that Officer
Warnock’s tasing Beyshaud El, without first using lesser force, was unreasonable, excessive force.
Having determined that a reasonable factfinder could conclude that Officer Warnock
engaged in excessive force when he tased Beyshaud El in response to seeing Beyshaud El
attempting to punching Officer Welling, the Court further finds that it was not clearly established
on July 2, 2013 that a police officer could not use a taser to subdue an individual who, while being
stopped for investigatory purposes, was observed attempting to punch another police officer. The
Court also finds that this is not one of “the rare ‘obvious case[s],’ where the unlawfulness of the
officer’s conduct is sufficiently clear even though existing precedent does not address similar
circumstances.” Wesby, 138 S.Ct. at 590 (quotations omitted). Therefore, although a reasonable
factfinder could conclude that Officer Warnock used excessive force against Beyshaud El, Officer
Warnock, nevertheless, is entitled to qualified immunity with respect to the Plaintiffs’ § 1983
Fourth Amendment excessive force claim against him. Accordingly, the Defendants’ motion for
3
See Dash Cam Video at 13:47:07.
23
summary judgment on the Plaintiffs’ § 1983 Fourth Amendment excessive force claim against
Officer Warnock shall be granted.
3. Lieutenant Kacsuta
The Plaintiffs’ § 1983 excessive force claim against Lieutenant Kacsuta is based upon her
failure to intervene to stop Officers Welling and Warnock’s use of excessive force upon the El
Brothers. “[T]he facts are disputed as to whether Officers Warnock and Welling [were] using
excessive force, and whether Lt. Kacsuta has a realistic and reasonable opportunity to prevent the
other two officers from so acting. The events surrounding Will and Beyshaud El’s arrests did not
occur so quickly as to preclude Lt. Kacsuta’s duty to intervene.” (Docket No. 116 at 19) (citing
Stewart v. Moll, 717 F. Supp.2d 454, 463 (E.D. Pa. 2010); Baker v. Monroe Tp., 50 F.3d 1186,
1194 (3d Cir. 1995).
In Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), the appellate court explained:
Courts have held that a police officer has a duty to take reasonable steps to protect
a victim from another officer's use of excessive force, even if the excessive force is
employed by a superior. “If a police officer, whether supervisory or not, fails or
refuses to intervene when a constitutional violation such as an unprovoked beating
takes place in his presence, the officer is directly liable under Section 1983.” Byrd
v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986); accord Putman v. Gerloff, 639 F.2d
415, 423 (8th Cir.1981); Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir.1972). However,
an officer is only liable if there is a realistic and reasonable opportunity to intervene.
See Clark, 783 F.2d at 1007 (instructing the district court upon remand to determine
whether the officer was in a position to intervene); Brishke, 466 F.2d at 11 (liability
for failure to intervene exists only if the beating occurred in the officer's presence
or was otherwise within his knowledge); Putman, 639 F.2d at 423–24 (liability
exists only if the non-intervening officer saw the beating or had time to reach the
offending officer).
Smith, 293 F.3d at 650-51. In determining whether Lieutenant Kacsuta had a reasonable
opportunity to intervene in Officer Welling and Officer Warnock’s excessive use of force, the
Court must consider “factors such as the ‘temporal length of the alleged assault, the proximity of
24
the non-intervening officer to the alleged assault, the ability of the non-intervening officer to
perceive and/or hear the alleged assault,’ among others.” Estep v. Mackey, Civ. No. 3:11-0207,
2013 WL 6533350, at *6 (W.D. Pa. Dec. 13, 2013) (quoting Armbruster v. Marguccio, Civ. No.
3:05–0344, 2006 WL 3488969, at *8 (W.D. Pa. Dec.4, 2006)); Yarnall v. Mendez, 509 F.Supp.2d
421, 433 (D. Del. 2007) (citing Riley v. Newton, 94 F.3d 632, 635 (11th Cir.1996)) (other citation
omitted).
Viewing the facts in the light depicted by the videotape, the Court finds, with respect to
Officer Warnock’s tasing Beyshaud El, that a reasonable factfinder could not conclude that
Lieutenant Kacsuta had a reasonable opportunity to intervene in Officer Warnock’s use of
excessive force towards Beyshaud El and failed to do so. Officer Warnock’s act of tasing Beyshaud
El was quick, five seconds, and without warning. See O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d
Cir. 1988) (summary judgment granted as to claim that defendant was liable for use of excessive
force by failing to intercede where there is insufficient evidence to permit a jury reasonably to
conclude that the defendant’s failure to intercede was a proximate cause of the beating in that the
three blows were struck in such rapid succession that the defendant had no realistic opportunity to
attempt to prevent them); Ewing v. Cumberland Cty, 152 F.Supp.3d 269, 309-310 (D.N.J. 2015)
(granting summary judgment in favor of police officer on failure to intervene in excessive force
claim where defendant witnessed another officer forcefully push the plaintiff’s face into the door
of a processing room “because even assuming a constitutional violation had occurred, no
reasonable jury could find that there was a reasonable opportunity for [defendant] to intervene
before Plaintiff was mistreated by [other officer]. [Defendant] did not know that [other officer]
would push Plaintiff into the door, and nothing in the record suggests that [defendant] knew [other
officer] was about to use excessive force when he took Plaintiff by the arm to escort him out of
25
the room. The evidence of record describes an instantaneous, perhaps impulsive shove by [other
officer], to which [defendant] was only a witness. Even if [defendant] had wanted to intervene, the
evidence is insufficient as a matter of law to show that he had any opportunity to do so”); Buchanan
v. West Whiteland Tp., Civ. No. 08-462, 2009 WL 54949, at *4 (E.D. Pa. Jan. 7, 2009) (court
granted motion to dismiss plaintiff’s duty to intervene claim after viewing the videotape of a traffic
stop because there was no realistic possibility that the defendant officers could have intervened to
prevent the other officer from using a taser on the plaintiff).
With respect to Officer Welling’s physical altercation with Will El, however, viewing the
facts in the light depicted by the videotape, a reasonable factfinder could conclude that Lieutenant
Kacsuta, mere feet away from Officer Welling and Will El as she passively watched Officer
Welling grab Will El by his wrist and neck, slam him into the wall and on to the pavement, could
have intervened in the altercation and elected not to do so (indeed Lieutenant Kacsuta stepped
away from the altercation at one point). Moreover, the Court finds that Lieutenant Kacsuta is not
entitled to qualified immunity with respect to the Plaintiffs’ § 1983 excessive force claim against
her because it was clearly established on July 2, 2013, that when a fellow officer employs excessive
force during an arrest or investigatory stop, failing to intervene violates the suspect’s constitutional
rights. See Smith, 293 F.3d at 650 (“Courts have held that a police officer has a duty to take
reasonable steps to protect a victim from another officer's use of excessive force”); Garbacik v.
Janson, 111 F. App’x. 91, 94 (3d Cir. 2004) (citing courts of appeals’ cases from other jurisdictions
that found officer had a duty to prevent the use of excessive force by another officer).
Accordingly, the Defendants’ motion for summary judgment on the Plaintiffs’ § 1983
excessive force claim against Lieutenant Kacsuta shall be denied.
26
C. The Defendants’ motion for summary judgment as to the Plaintiffs’ § 1983 Monell
municipal liability claim against the City of Pittsburgh
The Defendants argue that summary judgment must be entered on the Plaintiffs’ § 1983
Monell municipal liability claim against the City because: (1) the individual officer Defendants
did not violate the El Brothers’ constitutional rights and (2) the evidence produced by the Plaintiffs
predates the incident in question by years and does not involve conduct that resulted in similar
constitutional violations. The Plaintiffs’ Monell claim against the City is based upon its alleged
failure to train, supervise, and reprimand Lieutenant Kacsuta for numerous problems since 2000.
See Docket No. 116 at 27 (“Plaintiffs allege that the excessive use of force they were subjected to
was the result of a failure of the City of Pittsburgh to intervene into Lt. Kacsuta’s long and
documented history of violating police department policies, violating suspects’ constitutional
rights, and interacting with citizens in a belligerent and abusive manner.”).
Municipalities and other local governmental units “can be sued directly under § 1983 for
monetary, declaratory, or injunctive relief.” Monell v. Dep't of Social Servs., 436 U.S. 658, 690
(1978). “But, under § 1983, local governments are responsible only for ‘their own illegal acts.’”
Connick v. Thompson, 563 U.S. 51, 60 (2011) (citations omitted, emphasis in original). “They are
not vicariously liable under § 1983 for their employees’ actions.” Id. Rather, a plaintiff must
establish the existence of a municipal policy or custom that caused the alleged violation of his
constitutional rights. Monell, 436 U.S. at 694 (1978).
Policy is made when a ‘decisionmaker possess[ing] final authority to establish a municipal
policy with respect to the action’ issues an official proclamation, policy, or edict.” Andrews v. City
of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986)). State law determines whether an individual is a policymaker, i.e., an official who
has final, unreviewable discretion to make a decision or take an action. Id. at 1481 (citing City of
27
St. Louis v. Praprotnik, 485 U.S. 112, 142 (1988)). “A course of conduct is considered to be a
‘custom’ when, though not authorized by law, ‘such practices of state officials [are] so permanent
and well settled’ as to virtually constitute law.” Andrews, 895 F.2d at 1480 (quoting Monell, 436
U.S. at 690). Custom may also be established by evidence of knowledge and acquiescence. Beck
v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); see also Natale v. Camden Cty. Corr. Fac.,
318 F.3d 575, 584 (3d Cir. 2003) (explaining “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”).
“Where the policy [or custom] concerns a failure to train or supervise municipal
employees, liability under section 1983 requires a showing that the failure amounts to deliberate
indifference to the rights of persons with whom the employees will come into contact.” Thomas v.
Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (citations and internal marks omitted). “Once
a § 1983 plaintiff identifies a municipal policy or custom, he must ‘demonstrate that, through its
deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.’” Berg v.
Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000) (quoting Bd. of Cty. Com'rs of Bryan Cty. v.
Brown, 520 U.S. 397, 404 (1997)). In other words, the deficiency in training or supervision must
have actually caused the constitutional violation. Thomas, 749 F.3d at 223. The Supreme Court
has observed that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous
where a claim turns on a failure to train.” Connick, 563 U.S. at 61.
Monell liability is ordinarily established by showing a pattern of constitutional violations,
see Brown, 520 U.S. at 407. The Supreme Court, however, has recognized that where a violation
28
of federal rights is a “highly predictable consequence” of an inadequate municipal policy or custom
in a situation that is likely to recur, municipal liability may attach upon a single application of that
custom. Id. at 409-10. For example, typically, in order to establish that a failure to train constitutes
deliberate indifference, a plaintiff must demonstrate a pattern of similar constitutional violations
by untrained employees that shows the municipality was on notice of a deficiency in its training
programs. Thomas, 749 F.3d at 223 (quotation omitted). A single incident, however, may establish
failure-to-train liability where “the need for training can be said to be so obvious, that failure to do
so could properly be characterized as deliberate indifference to constitutional rights.” Id.
(quotation omitted); see also Connick, 563 U.S. at 64 (a single incident may trigger municipal
liability where unconstitutional consequences for failure to train are “patently obvious”). Further,
to allege a failure to supervise claim under Monell, the Third Circuit has required a plaintiff to
show that the municipality has “contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents and circumstances under which the supervisor's
actions or inaction could be found to have communicated a message of approval to the offending
subordinate.” Montgomery v. De Simone, 159 F.3d 120, 127 (3d Cir. 1998) (citing Bonenberger v.
Plymouth Tp., 132 F.3d 20, 25 (3d Cir. 1997)).
While the City’s failure to adequately train, supervise, and/or reprimand Lieutenant
Kacsuta can be considered a custom or policy if said failure amounted to deliberate indifference
to the rights of the El Brothers, even viewing the evidence of record in the light most favorable to
the Plaintiffs as the non-moving party, the Court finds that the Plaintiffs have failed to submit
sufficient evidence to support a Monell failure to train, supervise, or reprimand claim against the
City because a reasonable factfinder could not conclude that the City’s failure to train, supervise,
and/or reprimand Lieutenant Kacsuta was the moving force behind the El Brothers’ constitutional
29
injuries. The Court so finds because even viewing the evidence of record in the light most favorable
to the Plaintiffs, the complaints submitted to the City concerning Lieutenant Kacsuta that were
made part of the record4 all occurred six to ten years prior to the July 2, 2013 encounter with the
El Brothers and none of these past incidents involved Lieutenant Kacsuta’s use of excessive force,
her failure to intervene in another officer’s use of excessive force, or any other conduct similar in
scope to the conduct that caused the El Brothers’ injuries. Nor does Commander Brackney’s
testimony create a genuine issue of material fact with respect to the proximate cause element of
Plaintiffs’ Monell claim against the City. While Commander Brackney clearly opined in 2003 that
Lieutenant Kacsuta should not have been promoted because she was experiencing serious
problems in numerous areas of her job, none of the areas of concern involved the use of excessive
force, failure to intervene in the use of excessive force, or other conduct similar in scope to the
conduct that caused the El Brothers’ injuries. Accordingly, because a reasonable jury could not
find in favor of the Plaintiffs and against the City on the Plaintiffs’ Monell § 1983 municipal
liability claim against the City, the Defendants’ motion for summary judgment on the Plaintiffs’
Monell § 1983 municipal liability claim against it must be granted.
4
Evidence was submitted concerning complaints filed by: (1) Ms. Patel/Mr. Bhambhwani (for rude and uncivil
behavior in April 2003); (2) Mr. Santa (for rude and uncivil behavior in April and May 2003); (3) Mr. Balough (for
improper seizure and search in March 2006); and (4) Officer Tripoli (for intimidation of subordinate in 2007). (Docket
No. 116-6 at 5, 7-9, 11-12, 32, 34-36, 38, 41-43). While Plaintiffs argue about the relevance of other alleged incidents
involving Lieutenant Kacsuta, they did not submit any evidence of these incidents into the record. Specifically, in
deciding the Defendants’ motion for summary judgment, the Plaintiffs did not submit evidence in support of, and
therefore, the Court cannot take into consideration the Plaintiffs’ arguments with respect to: (1) an August 22, 2000
complaint allegedly filed by Brian White against Lieutenant Kacsuta; (2) a March 7, 2000 complaint allegedly by
Lynn McCormick against Lieutenant Kacsuta; (3) a January 13, 2003 complaint allegedly filed by Jim Middleby
against Lieutenant Kacsuta; (4) a March 2006 complaint allegedly filed by Elizabeth White against Lieutenant
Kacsuta; (5) an incident allegedly involving Lieutenant Kacsuta and Joseph Marsaglia; (6) a February 20, 2005
memorandum allegedly written by Lieutenant O’Connor concerning six cases brought against Lieutenant Kacsuta
between July 2004 and February 2005; (7) a May 26, 2003 Memorandum Commander Brackney allegedly wrote to
Commander Paul Donaldson concerning recent complaints received about Lieutenant Kacsuta, what Brackney had
done so far to correct the problems, what else Brackney thought needed to be done, and additional areas where
Brackney opined Kacsuta was experiencing difficulties; and (8) retraining Lieutenant Kacsuta allegedly was required
to complete. (Docket No. 116 at 22-27).
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D. The Defendants’ motion for summary judgment on the Plaintiffs’ state law assault
and battery claims against the individual officer Defendants
The Defendants move for summary judgment on the Plaintiffs’ state law assault and battery
claims against the individual officer Defendants on the basis that for all of the reasons “why no
excessive force was used in this incident, no assault and battery was committed by any Defendant,
either.” (Docket No. 107 at 20). While the Plaintiffs did not originally respond to this part of the
Defendants’ motion for summary judgment, in their sur-reply brief in opposition to the
Defendants’ motion for summary judgment, the El Brothers contend, “[t]he assault and battery
arise from the same kernel of factual allegations as the excessive force claim. . . . Both parties have
presented significant argument regarding their positions on the officers’ use of force and whether
it was excessive; the same arguments and facts relate to Plaintiffs’ state law claims.” (Docket No.
125 at 6-7).
For the reasons set forth supra, a reasonable factfinder could conclude that the force used
by Officers Welling and Warnock with respect to the El Brothers was excessive. Accordingly, the
Defendants’ motion for summary judgment as to the Plaintiffs’ assault and battery claims against
Officers Welling and Warnock shall be denied. See Minor v. Cumberland Twp., 258 F. Supp.3d
518, 531-32 (W.D. Pa. 2017) (“[a] police officer may be held liable for assault and battery when
the force used in making an arrest is unnecessary or excessive. As the Court has found that genuine
questions of fact and credibility exist as to [the plaintiff’s] excessive force claims, similar questions
of fact and credibility exist as to her assault and battery claims”) (citations omitted). To the
contrary, because the Plaintiffs’ assault and battery claims against Lieutenant Kacsuta are not
based upon her actual use of excessive force upon either one of the El Brothers, the Defendants’
motion for summary judgment on the Plaintiffs’ assault and battery claims against Lieutenant
Kacsuta shall be granted.
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VI.
Conclusion
For the reasons set forth above, the Defendants’ motion for summary judgment is granted
as to the Plaintiffs’ § 1983 Fourth Amendment excessive force claim against Defendant Warnock,
the Plaintiffs’ Monell § 1983 municipal liability claim against the City, and the Plaintiffs’ state
law assault and battery claims against Lieutenant Kacsuta, and is otherwise denied. An appropriate
Order will follow.
August 3, 2018
By the Court:
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
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