Opinion
Civil 1:18-CV-2226
08-16-2021
LOREN R. STAINS, Plaintiff v. FRANKLIN COUNTY, et al., Defendants
BRANN, C.J.
REPORT & RECOMMENDATION
William I. Arbuckle U.S. Magistrate Judge
Motion for Summary Judgment by Defendants Christopher, Conway, Frantz, Gelvin, Hull, and McCleaf (Doc. 74)
I. INTRODUCTION
Before the Court is a Motion for Summary Judgment (Doc. 74) by State Trooper Defendants Charles Christopher, Nathan Conway, Benjamin Frantz, Dylan Gelvin, Lucas Hull, and Eric S. McCleaf. In a separate Report and Recommendation, I address the Motion for Summary Judgment (Doc. 67) by Defendant John Doe Hinds. For the reasons below, I recommend this Motion (Doc. 74) be GRANTED.
II. BACKGROUND
On November 19, 2018, Loren R. Stains (“Plaintiff”), an inmate at the Franklin County Jail, commenced this pro se civil action. (Doc. 1). Plaintiff proceeded on an Amended Complaint (Doc. 9). Plaintiff brings claims against all defendants, in their official and individual capacities, under 42 U.S.C. § 1983 for excessive force or failure to protect him from such force, as well as state law claims of assault, battery, and intentional infliction of emotional distress. (Doc. 9, ¶¶ 21-23). He brings an additional claim alleging a violation of his Fourteenth Amendment rights by Defendant Conway. Id. at ¶ 23. He seeks declaratory judgment, compensatory damages, and punitive damages. Id. at pp. 4-5.
Plaintiff's claims are based on his interactions with Defendant Hinds, a Chambersburg Police Officer, and troopers of the Pennsylvania State Police (“PSP”) following a vehicle chase that began on March 7, 2018. Id. at ¶¶ 15-19. Plaintiff alleges that Defendant Conway, a PSP Trooper, caused a head-on vehicle collision with him and that Defendant Hinds then apprehended Plaintiff, handcuffed him, held him on the ground and punched his face, stood up and kicked him, and “yanked” him up by his handcuffs, while the other Defendants failed to intervene and attempted to cover up the incident. Id. at ¶¶ 15-19.
On June 13, 2019, PSP troopers Defendants Christopher, Conway, Frantz, Gelvin, Hull, and McCleaf (“PSP Defendants”) filed an Answer (Doc. 27). On July 1, 2019, Defendant Hinds filed an Answer (Doc. 31). Also on July 1, 2019, Defendant Franklin County filed a Motion to Dismiss (Doc. 32). On January 8, 2020, Judge Jones adopted my Report and Recommendation (Doc. 47) and dismissed Plaintiff's claims against Defendant Franklin County due to Plaintiff's failure to prosecute, under Fed.R.Civ.P. 41. (Doc. 49).
Plaintiff failed to file a Brief in Opposition to the Motion to Dismiss, despite two Court orders. (Docs. 35, 38). During that time, Plaintiff filed a Motion to Appoint Counsel (Doc. 39), which I denied. (Doc. 41). The Court had previously denied (Doc. 36) Plaintiff's first Motion for Appointment of Counsel (Doc. 30).
On August 31, 2020, Defendant Hinds filed a Motion for Summary Judgment (Doc. 67). On September 30, 2020, PSP Defendants filed the present Motion for Summary Judgment (Doc. 74), Statement of Facts (Doc. 75), and Brief in Support (Doc. 76). On October 1, 2020, I issued the first Briefing Order (Doc. 77) on the present Motion, requiring Plaintiff to file a brief in opposition on or before October 21, 2020, or the Motion may be deemed unopposed under L.R. 7.6 or the case dismissed for failure to prosecute under Federal Rule of Civil Procedure 41. On November 12, 2020, I issued a second Briefing Order (Doc. 78) directing Plaintiff to file briefs in opposition to the PSP Defendants' Motion for Summary Judgment (Doc. 74) and the Motion by Defendant Hinds (Doc. 67). Plaintiff has not yet filed a brief in opposition to either Motion for Summary Judgment.
I provide the procedural history related to that Motion (Doc. 67) in my separate Report and Recommendation addressing it.
III. MATERIAL FACTS FOR SUMMARY JUDGMENT
Unless otherwise noted, the following facts are based on the Statement of Material Facts (Doc. 75) filed by PSP Defendants, which the Court deems admitted by Plaintiff due to his failure to file a responsive statement of material facts, see L.R. 56.1, and the exhibits submitted by the parties.
Local Rule 56.1 requires the party moving for summary judgment to file a statement of material facts and requires the opposing party to file a responsive statement of material facts. The Rule provides that “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.” L.R. 56.1 (emphasis added).
On March 7, 2018, Plaintiff lead Defendants on a fifteen (15)-minute highspeed vehicle chase. (Defendant's Statement of Material Facts, Doc. 75, ¶¶ 1-2). The chase ended when Plaintiff's vehicle crashed into Defendant Conway's vehicle. Id. at ¶¶ 14, 20. Plaintiff then fled by foot. Id. at ¶ 4. No PSP Defendant physically assaulted Plaintiff at any point. Id. at ¶ 6. Based on this incident, Plaintiff pled guilty in state court to Aggravated Assault, Aggravated Assault by Vehicle While DUI, Fleeing or Attempting to Elude Police, and Driving Under the Influence. Id. at ¶ 8; (see also Doc. 75-3, pp. 15-17). Plaintiff's conviction of those offenses remains valid. (Docs. 75, ¶ 10; 75-3). PSP Defendants do not include in their Statement of Material Facts any facts after Plaintiff's flight on foot.
Based on Plaintiff's Amended Complaint and his deposition testimony, Defendant Hinds apprehended Plaintiff after Plaintiff began to flee by foot. Id. ¶ 16. Plaintiff alleges that Defendant Hinds placed him in handcuffs and held him face down in the grass, Plaintiff did not resist, and Defendant Hinds punched him three (3) times in the eye and kicked him in the ribs. Id. at ¶¶ 16, 17. Defendant Hinds then yanked Plaintiff up by the handcuffs to a standing position, causing Plaintiff's handcuffed wrists to bleed. Id. at ¶ 17.
Plaintiff alleges that he “was screaming and yelling out in pain” while Defendant Hinds was using this force. Id. at ¶ 18. He alleges that “[a]ll other Defendants stood by and observed and/or learned after arrival that the Excessive use of Force and Assault and battery took place and failed to intervene or stop the beating or report it[, ] but instead approved of the beating and thereafter tried to cover it up.” Id. Plaintiff also alleges that Defendant Frantz, a PSP Corporal, asked Defendant Hinds after arriving, “Did you get him?, ” to which Defendant Hinds responded, “yeah I got him pretty good.” Id. at ¶ 19. Plaintiff alleges that Defendant Frantz replied, “Okay wait to get away from this area we might get him again for taking us on this chase.” Id.
IV. SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:
A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012)). For an issue to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S. at 248-49).
The Court must view the evidence presented in the light most favorable to the non-moving party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party, Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). A court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363.
V. DISCUSSION
PSP Defendants argue that Heck v. Humphrey, 512 U.S. 477 (1994), and the Rooker-Feldman doctrine bar Plaintiff's claims from federal court. They further argue that Plaintiff's excessive force claim fails and that, even if he established a constitutional violation, they are entitled to qualified immunity. Next, they argue that Plaintiff's Fourteenth Amendment claim can be properly brought only as a Fourth Amendment claim. Lastly, they argue Plaintiff's state law tort claims fail on the merits and that they are entitled to sovereign immunity on those claims.
Established in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
A. HECK V. HUMPHREY AND THE ROOKER-FELDMAN DOCTRINE
In Heck, the United States Supreme Court ruled that a constitutional cause of action for damages does not accrue “for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, ” until the plaintiff receives a favorable termination in the criminal matter. 512 U.S. at 486-87; see also Tayler v. Sanders, Civ. No. 11-1291, 2012 WL 4104871, at *8 (M.D. Pa. Sept. 18, 2012).
PSP Defendants argue that Plaintiff's claim that “Defendant Trooper Conway intentionally rammed his car into Plaintiff's” “cannot coexist with Plaintiff's guilty pleas, ” during which Plaintiff admitted to attempting to cause Defendant Conway serious bodily injury. (Doc. 76, p. 14). They acknowledge that Heck often does not bar excessive force claims, see Rosembert v. Borough of E.Lansdowne, 14 F.Supp.3d 631, 640 (E.D. Pa. 2014), but nonetheless argue that this case presents a different situation due to Plaintiff's guilty plea.
In his Amended Complaint, Plaintiff alleges that Defendant Conway drove toward his vehicle, causing the collision. (Doc. 9, ¶ 15). Plaintiff alleges this was an excessive use of force, in violation of his Fourth Amendment rights. Id. at ¶ 21.
To prove his excessive force claim, Plaintiff will need to prove that Defendant Conway used an unreasonable level of force in stopping Plaintiff. See Graham v. Connor, 490 U.S. 386, 388 (1989). To determine reasonableness, the Court considers factors from an objective officer's view, including, among others, “whether the suspect poses an immediate threat, ” “whether he is actively resisting arrest or attempting to evade arrest by flight, ” id. at 396, and “the possibility that the persons subject to police action are themselves violent or dangerous, ” Estate of Smith v. Marasco, 430 F.3d 140, 149-50 (3d Cir. 2005).
Plaintiff's guilty plea colloquy included the following admissions:
Q What did you do . . . that causes you to plead guilty to aggravated assault?
A I was under the influence and fled from the state trooper and there was an accident. And a victim in the car was injured.
Q Okay . . . What I'm referring to is the allegation that you intentionally, knowingly, or recklessly caused bodily injury to Trooper Nathan Conway?
[Court clarifies that the charge is for attempt, not actual cause.]
Q Did you intend to cause him serious bodily injury?
A Yes.(Doc. 75-4, p. 4).
Based on this, Plaintiff admitted to intending to cause harm. Whether Plaintiff's acts showed an immediate threat to officers or that he was violent or dangerous before the collision is relevant to an excessive force claim. See Graham, 490 U.S. at 388; Estate of Smith, 430 F.3d at 149-50. But no factor in an excessive force claim requires that the subject of the force lack any subjective intent to cause harm to the officer. It may prove exceedingly difficult for a plaintiff who has admitted such intent to prove an excessive force claim, but success on the claim would not necessarily negate a conviction based on intending to cause harm to an officer. See Wilkinson, 544 U.S. 74, 81-82. Therefore, Heck should not bar Plaintiff's excessive force claim against Officer Conway.
Regarding the Rooker-Feldman doctrine, the Court of Appeals for the Third Circuit recently emphasized that the doctrine defeats federal jurisdiction in only a narrow range of cases in which a plaintiff is essentially attempting to appeal a state court judgment. Vuyanich v. Smithton Borough, No. 20-1813, 2021 WL 3161073, at *3 (3d Cir. July 27, 2021). The Third Circuit described that the Supreme Court in 2005 “unanimously reined in Rooker-Feldman, making clear it does not defeat jurisdiction ‘simply because a party attempts to litigate in federal court a matter previously litigated in state court' or even presents a claim that ‘denies a legal conclusion' a state court has reached.” Id. at *4 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005)).
Two of the four (4) prongs of a Rooker-Feldman inquiry are that “the plaintiff ‘complains of injuries caused by the state-court judgments'” and “those judgments were rendered before the federal suit was filed.” Id. (emphases added) (quotation omitted). Neither is present here. Plaintiff complains of no injury caused by his guilty plea or state proceedings. Moreover, he entered his guilty plea and a sentence was imposed on November 1, 2019, approximately a year after Plaintiff commenced this action. The Rooker-Feldman doctrine does not defeat jurisdiction over Plaintiff's claims against Officer Conway or the order PSP Defendants. The Court should not grant summary judgment for PSP Defendants on this basis.
B. PLAINTIFF'S FOURTH AMENDMENT EXCESSIVE FORCE CLAIM
PSP Defendants argue that neither the actions of Defendant Conway nor PSP Defendants generally constitute excessive force, and that, even if Defendant Conway used excessive force, qualified immunity applies.
1. Defendant Conway
PSP Defendants argue that, even accepting as true Plaintiff's allegation that Defendant Conway accelerated toward Plaintiff in his vehicle, causing the head-on collision (see Doc. 9, ¶ 15), it was not unreasonable for Defendant Conway to take that action to stop Plaintiff's flight. (Doc. 76, p. 18-19).
The Court analyzes claims under 42 U.S.C. § 1983 alleging excessive force by a police officer during an arrest using the Fourth Amendment “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989); Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004). The Supreme Court “has long recognized” the right of police officers “to use some degree of physical coercion or threat thereof to effect” an arrest. Graham, 490 U.S. at 396. Whether a use of force is reasonable “must be judged from the perspective of a reasonable officer on the scene.” Id. A consideration of what level of “force is objectively reasonable ‘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.'” Abraham v. Raso, 183 F.3d 279, 289 (3d Cir. 1999) (quoting Graham, 490 U.S. at 396). An officer's subjective motivation is not relevant. Id at 397.
To assess reasonableness, the Third Circuit considers the totality of the circumstances, looking to the factors in Graham. Santini v. Fuentes, 795 F.3d 410, 419 (3d Cir. 2015). These factors include (1) “the severity of the crime at issue, ” (2) “whether the suspect poses an immediate threat to the safety of the officers or others, ” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396; Other factors are whether “the physical force applied was of such an extent as to lead to injury[, ] the possibility that the persons subject to 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.” Estate of Smith v. Marasco, 430 F.3d 140, 149-50 (3d Cir. 2005) (quotation omitted).
In Scott v. Harris, a police officer pursued a fleeing motorist in a chase that lasted approximately six (6) minutes and covered ten (10) miles, during which the driver reached speeds of eighty-five (85) miles per hour, crossed the double-yellow line multiple times, swerved around cars, and ran a few red lights. 550 U.S. 372, 385-86, 379 (2007). The Supreme Court concluded that, due to the threat the driver posed to innocent bystanders, the defendant police officer used reasonable force when he rammed the car to end the pursuit. Id. The collision caused the driver to lose control of his vehicle, which left the roadway, went down an embankment, overturned, and crashed, rendering the driver a quadriplegic. Id. at 375. In analyzing whether the officer's action to cause the collision was reasonable, the Court described that the force was “not much like a policeman's shooting a gun so as to hit a person, '” nor is “the threat posed by the flight on foot of an unarmed suspect even remotely comparable to the extreme danger to human life posed by [plaintiff] in this case.” Id. at 383 (citation omitted).
The Supreme Court balanced the threat to the public from the fleeing vehicle with that to the driver by the officer's action, and it concluded it proper to consider the culpability of those at risk. Id. at 384. It observed that the fleeing driver “intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight” and, “[b]y contrast, those who might have been harmed had [the officer] not taken the action he did were entirely innocent.” Id. at 384 & n.10. The Court concluded the officer's “attempt to terminate the chase by forcing respondent off the road was reasonable.” Id. at 386.
Here, Plaintiff led police on a chase that lasted fifteen (15) minutes and covered ten (10) miles. Plaintiff stated in his deposition that he exceeded fifty-five (55) miles per hour, that he at times was driving through residential areas, and that he was driving off the road, over curbs, and in between houses. (Doc. 75-2, pp. 35, 42). Plaintiff testified that he “couldn't have been going that fast” as he drove over a curb and returned to the roadway before the collision, because he had four (4) flat ties, caused by spikes police had used earlier to stop Plaintiff. Id. at pp. 35-36, 41. Plaintiff also testified that he “had no control of [his] car. Id. at p. 42. Plaintiff's Amended Complaint states that Defendant Conway “accelerated” toward Plaintiff, but Plaintiff testified at his deposition that he does not remember how hard he was hit, just that Defendant Conway was going at a speed “in between fast and slow.” Id. at pp. 41-42, 56. The collision between Plaintiff and Defendant Conway caused Plaintiff's vehicle to crash into another parked vehicle. Id. at pp. 42-43.
The undisputed facts about the chase, including that Plaintiff drove off the road, between houses, at times without control of his vehicle, support that Plaintiff posed an immediate and serious threat to the public had Defendant Conway not stopped him. Plaintiff's allegation that Defendant Conway drove toward Plaintiff at less than a “high” speed to stop him, and the undisputed facts that less forceful methods of stopping Plaintiff, namely, tire spikes, had been ineffective, suggest that Defendant Conway used a reasonable approach to stopping Plaintiff. The totality of the factors in Graham, 490 U.S. at 396, and the balancing of threats in Scott, 550 U.S. at 384, show that a reasonable jury would find that an objective officer would view Defendant Conway's actions as reasonable. The Court should grant summary judgment to PSP Defendants on Plaintiff's excessive force claim against Defendant Conway.
Plaintiff stated he believes Defendant Conway caused the collision “to stop the highspeed chase.” (Doc. 75-2, p. 41).
2. Qualified Immunity
Qualified immunity provides an alternative basis for dismissing the excessive force claims against Defendant Conway. To be entitled to summary judgment based on qualified immunity, a defendant must show that the undisputed facts do not make out a violation of a constitutional right or that the right was not clearly established at the time. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). In excessive force cases, qualified immunity protects officers operating on the sometimes “sometimes ‘hazy border between excessive and acceptable force.'” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier, 533 U.S. at 206). The Supreme Court has concluded that a use of force similar to that here-and in fact more harmful-to stop a high-speed vehicle chase is reasonable. See Scott, 550 U.S. at 384, 386. Therefore, even if Defendant Conway's conduct of stopping Plaintiff's vehicle with his own vehicle constituted excessive force, the applicable case law at the time did not “clearly establish” that it violated Plaintiff's Fourth Amendment rights.
3. Remaining PSP Defendants
PSP Defendants argue that Plaintiff fails to establish that the remaining PSP Defendants, Christopher, Frantz, Gelvin, Hull, and McCleaf, used excessive force, because it is undisputed that none used physical force against Plaintiff. (Doc. 76, p. 16). Indeed, Plaintiff does not allege any physical contact by any PSP Defendant other than Defendant Conway. (See Doc. 9). Further, the Statement of Material Facts by PSP Defendants, which is deemed admitted by Plaintiff, states that “No PSP Defendants physically assaulted the Plaintiff at any point.” (Doc. 75, p. 2). Plaintiff's deposition testimony clearly supports this. (See Doc. 75-2, pp. 44, 4854). Plaintiff also acknowledges at his deposition that no PSP Defendants could have stopped Defendant Hinds' alleged use of force against him. Id. at p. 53.
Although Plaintiff does not specify it in his Amended Complaint, he stated in his deposition that his claims against Defendant McCleaf are based on Defendant McCleaf initiating the vehicle chase after observing only a summary traffic offense. (Doc. 75-2, pp. 48-50). The act of initiating a vehicle chase does not constitute a seizure. See Brower, 489 U.S. 593, 595-96. Therefore, with no seizure when the chase began, a Fourth Amendment excessive force claim against Defendant McCleaf fails. See generally id.; Graham, 490 U.S. at 395-96. The Court should dismiss Plaintiff's excessive force claims as to all PSP Defendants.
C. FAILURE TO INTERVENE
Plaintiff also appears to be alleging a claim of failure to intervene. (Doc. 9, ¶ 21). PSP Defendants do not address this claim. “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 . . . if there is a realistic and reasonable opportunity to intervene.” Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). It is not clear if Plaintiff is alleging that PSP Defendants failed to intervene in Defendant Hinds' alleged use of force against Plaintiff or in Defendant Conway's alleged use of force in causing the collision. I have recommended in a separate report and recommendations that the excessive force claim against Defendant Hinds survive summary judgment. However, Plaintiff does not allege any facts, and the record does not contain any, that support a finding that any PSP Defendant was present when Defendant Hinds used the alleged force against Plaintiff or that any PSP Defendant otherwise had a “realistic and reasonable opportunity to intervene.” See id. at 650. Therefore, Plaintiff's failure to intervene claim should be dismissed.
The Amended Complaint states that Plaintiff seeks relief based on “[t]he actions of [PSP Defendants and Defendant Hinds] in using physical force against the Plaintiff . . . or in failing to intervene to prevent the misuse of force.” Id.
D. PLAINTIFF'S FOURTEENTH AMENDMENT CLAIM
PSP Defendants argue that Plaintiff's Fourteenth Amendment claim against Defendant Conway must be brought under the Fourth Amendment.
Indeed, the Third Circuit recently reemphasized that, under the Supreme Court's decision in Graham, 490 U.S. at 395, “an independent substantive due process analysis of an excessive force claim is inappropriate where . . . the plaintiff's claim is covered by the Fourth Amendment.” Davenport v. Borough of Homestead, 870 F.3d 273, 278-79 (3d Cir. 2017) (quoting Graham, 490 U.S. at 395, for proposition that “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment”). A court commits reversable error if it independently analyzes a plaintiff's Fourth and Fourteenth Amendment claims. See id. at 279.
Because the Court has addressed Plaintiff's Fourth Amendment excessive force claim against Defendant Conway, his Fourteenth Amendment claim is improper and should be dismissed.
E. PLAINTIFF'S STATE LAW CLAIMS
Plaintiff brings state law claims of assault, battery, and intentional infliction of emotional distress (“IIED”) against PSP Defendants. PSP Defendants argue both that these state law claims fail on the merits and that they are barred by sovereign immunity. (Doc. 76, pp. 22-27). I first address the issue of sovereign immunity.
1. Sovereign Immunity as to State Law Claims
To the extent Plaintiff brings these claims against PSP Defendants in their official capacities, they are barred by the Eleventh Amendment, as are all claims for money damages against PSP Defendants in their official capacities. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, (2000); Melo v. Hafer, 912 F.2d 628, 642 (3d Cir. 1990), aff'd, 502 U.S. 21 (1991). To the extent PSP Defendants are sued in their individual capacities, they may be immune under 42 Pa. Const. Stat. § 2310 from liability for Plaintiff's state law claims. In Pennsylvania, state employees acting within their scope of duty, whether sued in either their official or individual capacity, are immune from state law claims under 42 Pa. Const. Stat. § 2310. See Ickes, 30 F.Supp.3d at 397-98; Larsen v. State Emp.'s Ret. Sys., 553 F.Supp.2d 403, 420 (M.D. Pa. 2008), Shoop v. Dauphin Cty., 766 F.Supp. 1327, 1333 (M.D. Pa. 1991), aff'd, 945 F.2d 396 (3d Cir. 1991).
This statute does not shield state employees from liability under Section 1983 for federal law violations. See Ickes v. Grassmeyer, 30 F.Supp.3d 375, 397 n.22 (W.D. Pa. 2014) (“It is axiomatic that the immunities available to the Defendants under Pennsylvania law do not shield them from liability for federal constitutional and statutory violations actionable under § 1983. Haywood v. Drown, 556 U.S. 729, 736 n. 5, 129 S.Ct. 2108, 173 L.Ed.2d 920 (2009); Howlett v. Rose, 496 U.S. 356, 375-377, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). The Sovereign Immunity Act and the PSTCA are relevant only to the claims arising under Pennsylvania law. Brown v. Tucci, 960 F.Supp.2d 544, 586 n. 19 (W.D. Pa.2013) (remarking that federal constitutional claims brought under § 1983 ‘are not subject to immunity defenses existing under Pennsylvania law').”); see also Machon v. Pennsylvania Dep't of Pub. Welfare, 847 F.Supp.2d 734, 745, 751 (E.D. Pa. 2012) (analyzing merits of Section 1983 claim against state defendants in individual capacity and addressing immunity under 42 Pa. Const. Stat. § 2310 only as to state law claims); Rivers v. Mahally, No. 3:16-CV-2092, 2020 WL 815770, at *6 (M.D. Pa. Feb. 18, 2020) (same).
Immunity under 42 Pa. Const. Stat. § 2310 applies to intentional and unintentional torts, though immunity in certain areas is waived. See Mitchell v. Luckenbill, 680 F.Supp.2d 672, 682 (M.D. Pa. 2010); Story v. Mechling, 412 F.Supp.2d 509, 519 (W.D. Pa. 2006), aff'd, 214 Fed.Appx. 161 (3d Cir. 2007); Yakowicz v. McDermott, 548 A.2d 1330 (Pa. Commw. 1988), appeal denied, 565 A.2d 1168 (Pa. 1989)). Cases involving damages from the following ten (10) causes are waived: (1) vehicle liability; (2) medical-professional liability; (3) care, custody, or control of personal property; (4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard activities; (9) toxoids and vaccines; and (10) sexual abuse. 42 Pa. Const. Stat. § 8522; see also 42 Pa. Const. Stat. § 2310; Mitchell, 680 F.Supp.2d at 682.
Pennsylvania follows the Restatement (Second) of Agency to determine whether employees acted within their scope of employment. Brumfield v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). Under this, “‘conduct is within the scope of employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits [and] (c) it is actuated, at least in part, by a purpose to serve the master.'” Id. (quoting Restatement (Second) of Agency § 228). Officers are generally acting within the scope of their employment when they effect an arrest. See Shoop, 766 F.Supp. at 1334 (citation omitted).
Here, it is not clear on what specific acts Plaintiff bases his tort claims or if he is alleging that PSP Defendants were acting outside their scope of duty. Assuming Plaintiff's tort claims against Defendant Conway are based on his alleged act of causing the vehicle collision, such claims might fall within the waiver area of “vehicle liability.” 42 Pa. Const. Stat. § 8522. For the remaining PSP Defendants, however, their alleged support of Defendant Hind's use of force, through comments or inaction, is not in a waiver area. See 42 Pa. Const. Stat. § 8522. Further, such acts appear to have occurred in the context of an arrest, motivated at least in part to serve PSP, which places them in the scope of duty and immune under 42 Pa. Const. Stat. § 8522 from the state law claims. Nonetheless, to the extent any of Plaintiff's claims of battery, assault, and IIED could be construed as being based on actions by PSP Defendants outside the scope of their employment or in a waiver area, I address the merits of those claims.
2. Battery
Battery occurs when a defendant intentionally causes harmful or offensive bodily contact with the plaintiff. Dull v. W. Manchester Twp. Police Dep't, 604 F.Supp.2d 739, 754 (M.D. Pa. 2009) (citing Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. 1999), aff'd, 798 A.2d 742 (Pa. 2002)). Police officers are privileged to commit assault and battery to effect a lawful arrest, but that privilege “is negated by the use of excessive force.” Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995).
Despite asserting under his assault and battery claims that all defendants used physical force against him, Plaintiff's Amended Complaint contains factual allegations of physical force only by Defendant Hinds and Defendant Conway. Defendant Conway's collision with Plaintiff occurred to effect an arrest, and, as previously explained, it did not involve excessive force. Plaintiff's battery claim against Defendant Conway therefore fails. See id. Plaintiff's battery claim against the remaining PSP Defendants fails for lack of allegations of bodily contact. Plaintiff's battery claims against all PSP Defendants should be dismissed.
3. Assault
Assault occurs when a defendant intends to cause imminent harmful or offensive bodily contact or intends to place a person in apprehension of such contact, and the person experiences apprehension of imminent harmful or offensive bodily contact. See Dull, 604 F.Supp.2d at 754 (citing D'Errico v. DeFazio, 763 A.2d 424, 431 n.2 (Pa. Super. Ct. 2000)). In Pennsylvania, “threatening words alone are insufficient to put a person into reasonable apprehension of physical injury or offensive touching; rather, the actor must be in position to carry out threats immediately and he must take some affirmative action to do so.” Gen. Mach. Corp. v. Feldman, 507 A.2d 831, 833-34 (Pa. Super. 1986) (quoting Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa. 1960)). “[A] cause of action for assault accrues at the time the plaintiff apprehends imminent contact.” Napier v. City of New Castle, No. CIV A 06-1368, 2007 WL 1965296, at *7 (W.D. Pa. July 3, 2007), aff'd, 407 Fed.Appx. 578 (3d Cir. 2010) (citing E.J.M. v. Archdiocese of Philadelphia, 1992 WL 551667 *2 (Pa. Com. Pl. July 16, 1992)).
Plaintiff appears to argue that Defendant Frantz assaulted him by asking Defendant Hinds, while Plaintiff was present, “Did you get him?” and stating that they “might get [Plaintiff] again for taking us on this chase.” (See Doc. 9, ¶ 19; see also Doc. 75-1, pp. 43-44). Plaintiff testified in his deposition that Defendant Frantz was not present while Defendant Hinds allegedly assaulted Plaintiff, but he maintained that Defendant Frantz was aware of it and approved of it through his comments to Defendant Hinds. (Doc. 75-2, pp. 44-46).
In his Amended Complaint, Plaintiff alleges Defendant Frantz's full statement was, “Okay wait to get away from this area we might get him again for taking us on this chase.” Id. at ¶ 19. In his deposition testimony, Plaintiff recounted both that Defendant Frantz said, “wait until we get him to arraignment. There you might get him again for taking us on this chase” (Doc. 75-2, p. 27) and “wait to get him away from this area. We might get him again for taking us on this chase” (Doc. 75-2, ¶ 44). I do not find this difference relevant in my analysis of this issue.
Even if Defendant Frantz's comment to Defendant Hinds that they “might get [Plaintiff] again for taking us on this chase” could reasonably be construed to imply a future use of physical force against Plaintiff, instead of future use of the legal process, as PSP Defendants suggest, Plaintiff does not allege that the comment placed him in apprehension of imminent harm. The comment at most suggests that some future harm “might” occur at some unspecified time, once Defendants and Plaintiff were in a different location. During his deposition, Plaintiff stated, “how would I feel safe around any of them cops, ” given the comment and the silence of the other PSP Defendants, which Plaintiff took to mean they approved of Defendant Hinds' actions. Id. at pp. 53-54. But this generalized worry, not tied to any act by PSP Defendants once they arrived, is insufficient to establish the elements of assault. See Cucinotti, 159 A.2d at 217 (“[T]he actor must be in a position to carry out the threat immediately, and he must take some affirmative action to do so.”).
The evidence in the record does not support that Defendant Frantz or any PSP Defendant intended to place Plaintiff in apprehension of imminent harmful or offensive bodily contact or that Plaintiff experienced such apprehension. See Dull, 604 F.Supp.2d at 754. In addition, Plaintiff's assault claim against Defendant Conway fails for the same reason as does his battery claim. Plaintiff's assault claims should be dismissed as to all PSP Defendants.
4. Intentional Infliction of Emotion Distress
A claim of IIED requires (1) “extreme and outrageous” conduct by the defendant; (2) the conduct must be “intentional or reckless”; (3) the conduct must cause emotional distress; and (4) “that distress must be severe.” Doe v. Liberatore, 478 F.Supp.2d 742, 765 (M.D. Pa. 2007) (quoting Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1997)). The conduct must be “so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Hackney v. Woodring, 622 A.2d 286, 288 (Pa. Super. 1993), rev'd on other grounds, 652 A.2d 291 (Pa. 1994).
A plaintiff must also demonstrate physical injury or harm from the conduct, which must be “supported by competent medical evidence.” Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 995 (Pa. 1987); see also Gray v. Huntzinger, 147 A.3d 924, 929 & n.4 (Pa. Super. 2016) (“[O]ur Supreme Court clearly articulated in Kazatsky that, to the extent the tort of IIED is recognized in this Commonwealth, recovery is limited to those cases in which competent medical evidence of emotional distress is presented by the claimant.”); Shiner v. Moriarty, 706 A.2d 1228, 1239 (Pa. Super. 1998) (“Expert medical testimony is required to establish a claim for intentional infliction of emotional distress.”); Landau v. Lamas, No. 3:15-CV-1327, 2019 WL 3521421, at *19 (M.D. Pa. Aug. 1, 2019). “[C]ompetent medical evidence” may include expert testimony, expert reports, or expert affidavits. See Landau, No. 3:15-CV-1327, 2019 WL 3521421, at *19.
Plaintiff has not put forth any “competent medical evidence” to support the existence of severe emotional distress. See id. I therefore recommend that summary judgment be granted to PSP Defendants on Plaintiff's IIED claim.
VI. RECOMMENDATION
For the reasons described herein, I RECOMMEND:
1. The Motion for Summary Judgment (Doc. 74) by State Police Defendants Christopher, Conway, Frantz, Gelvin, Hull, and McCleaf be GRANTED.
NOTICE OF RIGHT TO OBJECT
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.