Opinion
CIVIL ACTION No. 01-3908
August 2, 2002
MEMORANDUM AND ORDER
This 42 U.S.C. § 1983 action for money damages arises out of events that allegedly occurred on August 3 and 4, 1999, when Defendant Corporal John Quigg and another Pennsylvania State Police Trooper entered Plaintiffs' residence in order to serve an arrest warrant on James Donnelly, then the boyfriend of Plaintiff Dana Buss. Plaintiffs are Maria Buss, suing on her own behalf and on behalf of the estate of her late husband, Cyril Buss, Sr., and their daughter, Dana Buss. Plaintiffs allege that Corporal Quigg unlawfully entered their house and used excessive force against them, in violation of their Fourth and Fourteenth Amendment rights. Before the Court is Defendant's Motion for Summary Judgment.
On April 29, 2002, Maria Buss was substituted as administratrix of the estate of Cyril Buss, Sr., who died on November 9, 2001, over two years after this litigation began.
Plaintiffs' Amended Complaint is dismissed to the extent that it alleges deprivations of rights secured by Pennsylvania law; since these are not federal rights, they are not enforceable under § 1983.
In Count II of the Amended Complaint, Plaintiffs sued three John Doe defendants, as officials of the Pennsylvania State Police, for supervisory liability, presumably pursuant to § 1983. As of this date, Plaintiffs have not identified these defendants. Currently, Corporal Quigg is the only named Defendant.
I. STANDARD ON SUMMARY JUDGMENT AND FACTUAL BACKGROUND
The Court should enter summary judgment for the Defendant if there is no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).According to the facts either undisputed or according to Plaintiffs, Corporal Quigg and another trooper entered the Buss house on August 3 without an invitation or a search warrant for the purpose of arresting James Donnelly. Only Dana Buss was at home, and Corporal Quigg was unable to effect the arrest. Dana Buss testified that she told Corporal Quigg where James Donnelly lived and worked. (Def.'s Mot. Summ. J., Ex. 2, Dana Buss's Dep. at 8.)
Corporal Quigg reentered the Buss house early on the morning of August 4 with another trooper, both with drawn weapons, again without an invitation or a search warrant. At this time, Cyril Buss, Sr., Maria Buss, and Dana Buss were in the house, as was James Donnelly. Cyril Buss, Sr. verbally challenged Corporal Quigg's authority. After Corporal Quigg had escorted James Donnelly from the house, Cyril Buss, Sr. threatened to smash the patrol car window. Corporal Quigg threatened him with arrest, and Cyril Buss, Sr. retreated into the house. Corporal Quigg pursued with a can of pepper spray, and after reentering the house, Corporal Quigg and another trooper forcibly restrained Cyril Buss, Sr. and took him from the house. During the altercation inside the house, Maria Buss alleges she was kicked in the mid-section, and Dana Buss alleges she was pushed to the side and stepped upon. (Def.'s Mot. Summ. J., Ex. 3, Maria Buss's Dep. at 14, 86; Ex 2, Dana Buss's Dep. at 37, 39-41.)
Later on, when Cyril Buss, Sr. had been handcuffed and was near a patrol car, he became involved in another altercation with Corporal Quigg and three other troopers. Corporal Quigg claims they were attempting to restrain Cyril Buss, Sr. as he resisted arrest. Other witnesses claim he was repeatedly beaten and kicked after he pleaded with them to stop. (Def.'s Mot. Summ. J., Ex. 6, Alice Donnelly's Dep. at 50-57.)
II. DISCUSSION
The Amended Complaint does not make clear whether Defendant is being sued in his official capacity as a state official or in his individual capacity or both. In any case, Defendant is immune from suit in his official capacity under the Eleventh Amendment. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). Therefore, only Plaintiffs' claim against Corporal Quigg in his individual capacity remains. Defendant is entitled to summary judgment as to any § 1983 claims against him in his individual capacity if an officer in his position could reasonably have believed that his actions were lawful in light of clearly established law. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
A. Fourth Amendment Claim for Unlawful Entry
A seizure or search of property without a warrant ordinarily requires a showing of both probable cause and exigent circumstances. United States v. Burton, 288 F.3d 91, 100 (3d Cir. 2002). Defendant is entitled to summary judgment on this claim based on qualified immunity if an officer in his position could reasonably have believed that probable cause and exigent circumstances justified his entry into and search of the Busses' house.
The evidence in the record contains a dispute as to whether there were such a probable cause and exigent circumstances as could compel a reasonable officer to search for James Donnelly at the Busses' house, rather than attempting to arrest him at another time and place. It is particularly unlikely that such conditions existed on August 4, if, as Plaintiffs allege, Dana Buss informed Corporal Quigg on August 3 of James Donnelly's actual addresses. Because the record contains a dispute as to material facts, the Court must deny summary judgment as to Plaintiffs' § 1983 claims based on unlawful entry.
B. Fourth Amendment Claim for Excessive Force
The estate of Cyril Buss, Sr. has also claimed that Defendant violated his Fourth Amendment right to be free from the use of excessive force while being arrested. Saucier v. Katz, 533 U.S. 194, 203 (2001). Defendant is entitled to summary judgment based on qualified immunity on this claim only if an officer in his position could have reasonably believed the amount of force he used in arresting Cyril Buss, Sr. was necessary under the circumstances, even taking into account the possibility that Cyril Buss, Sr. would fight back. Graham v. Connor, 490 U.S. 386, 395 (1989). Again, the witnesses' accounts diverge sufficiently to permit a jury to conclude that a reasonable officer in Corporal Quigg's position could have believed this amount of force was excessive under the circumstances. Therefore the Court will deny Defendant's Motion for Summary Judgment as to the excessive force claim by the estate of Cyril Buss, Sr.
Inasmuch as Plaintiffs Maria Buss and Dana Buss individually are attempting to bring Fourth Amendment excessive force claims, their claims are dismissed since they have not produced evidence or even alleged that they were the subjects of an arrest or "seized" within the meaning of the Fourth Amendment. See Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir.) ("[a] person is seized for Fourth Amendment purposes only if he is detained by means intentionally applied to terminate his freedom of movement"); Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1988) (holding that woman accidentally shot dead by officers attempting to arrest her husband was not "seized" within meaning of Fourth Amendment). They do, however, have standing to challenge Corporal Quigg's conduct under the Fourteenth Amendment. See Schaefer, 153 F.3d at 797 (finding that Fourteenth Amendment, not Fourth Amendment, provided substantive violation grounding plaintiff's § 1983 claim).
C. Fourteenth Amendment Substantive Due Process Claim
An executive abuse of power rises to the level of a Fourteenth Amendment violation only if it "shocks the conscience." County of Sacramento v. Lewis, 533 U.S. 833, 846 (1998). Defendant is entitled to summary judgment on Plaintiffs' Fourteenth Amendment claims on qualified immunity grounds unless Corporal Quigg's actions could have shocked the conscience of a reasonable person under those circumstances.
Maria Buss and Dana Buss allege that they were injured during the altercation between Cyril Buss, Sr., Corporal Quigg, and another trooper in the confined space of their house, as the troopers attempted to restrain and arrest a resisting Cyril Buss, Sr. Specifically, Maria alleges that Corporal Quigg's kick to her mid-section aggravated an existing kidney problem, and Dana Buss alleges that during the altercation, she was pushed to the side, hit her head, and was stepped on, injuring her hip and aggravating existing back problems. The parties dispute the extent to which Plaintiffs attempted to interfere with the troopers. Even assuming, however, that Maria and Dana Buss did not attempt to interfere, they have not alleged that degree of intentionality, recklessness, or even gross negligence under the circumstances that could rise above the threshold of constitutional due process. Lewis, 533 U.S. at 849.
Since the Fourth Amendment provides explicit constitutional protection against the use of excessive force in the course of an arrest, the estate of Cyril Buss, Sr. may not bring an additional Fourteenth Amendment substantive due process claim for the same conduct. See Graham, 490 U.S. at 396. Similarly, none of the Plaintiffs may bring a Fourteenth Amendment substantive due process claim for Defendant's allegedly unlawful entry and search, since such actions are explicitly protected against by the Fourth Amendment.
For these reasons, the Court will grant Defendant's motion with respect to all Plaintiffs' § 1983 claims based on Fourteenth Amendment violations.
III. CONCLUSION
For the reasons stated above, I will grant Defendant's Motion for Summary Judgment as to Plaintiffs' § 1983 claims based on the Fourteenth Amendment or Pennsylvania law, or insomuch as they are against Defendant Corporal John Quigg in his official capacity. In all other respects, Defendant's Motion for Summary Judgment is denied. An appropriate Order follows.
ORDER
AND NOW, this day of August, 2002, upon consideration of Defendant's Motion for Summary Judgment and all responses thereto, and for the foregoing reasons, it is hereby ORDERED that:
1. Defendant's Motion for Summary Judgment (document no. 16) is GRANTED IN PART and DENIED IN PART.
2. Plaintiffs' claims under 42 U.S.C. § 1983 in Count I of the Amended Complaint, insomuch as they are based on violations of the Fourteenth Amendment or Pennsylvania law, are DISMISSED.
3. Plaintiffs' claims against Defendant Corporal John Quigg in his official capacity under 42 U.S.C. § 1983 in Count I of the Amended Complaint are DISMISSED.
4. In all other respects, Defendant's Motion for Summary Judgment is DENIED.