Opinion
1:22-cv-350
08-01-2024
HEZEKIAH TATUM, Plaintiff v. ERIE PA POLICE DEPARTMENT, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT ECF NO. 38
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1).
It is respectfully recommended that the motion to dismiss or, in the alternative, for summary judgment [ECF No. 38] filed by Defendants Joshua T. Olszewski, Daniel W. Post, and the Erie PA Police Department be converted into a motion for summary judgment. It is further recommended that Defendants' motion, treated as such, be granted.
II. Report
A. Introduction
Plaintiff Hezekiah Tatum, an inmate incarcerated at the State Correctional Institution at Albion (SCI-Albion), initiated this pro se civil rights action on November 21, 2022. See ECF No. 1. In his Complaint, Tatum alleges that Olszewski and Post, police officers employed by the City of Erie, utilized excessive force and subjected him to sexual abuse while executing an arrest warrant. Id. He also names the “Erie PA Police Department” as a Defendant, albeit without directing any factual allegations towards that entity. Id. Invoking 42 U.S.C. § 1983, Tatum seeks monetary damages and miscellaneous relief. Id.
Specifically, Tatum wants “the cops to be charged for what was done to me.” ECF No. 1.
On December 6, 2023, Defendants filed a motion to dismiss and a supporting brief. ECF Nos. 38-39. In further support of their motion, Defendants submitted multiple exhibits including video footage of the incident captured by the body cameras worn by Post, Olszewski, and another officer on the scene, Arthur Rhoades. ECF No. 41. Recognizing that the Court would need to exercise its discretion to convert the motion to dismiss into a motion for summary judgment before it could rely on the submitted exhibits, Defendants also included a concise statement of material facts. ECF No. 40.
In directing Tatum to respond to the pending motion, the Court cautioned him that it “may be treated, either in whole or in part, as a motion for summary judgment under Federal Rule of Civil Procedure 56.” ECF No. 42 (citing Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010)). The Court advised Tatum that “in treating the motion to dismiss as a motion for summary judgment, the motion will be evaluated under the standard set forth in Rule 56 of the Federal Rules of Civil Procedure” and that Tatum's response, accordingly, could include exhibits, counter-affidavits, or other relevant evidence. Id. The Court also provided Tatum with a copy of Rule 56. Id.
In lieu of a response, Tatum filed a “Motion to Deny Summary Judgment.” ECF No. 47. The Court denied Tatum's motion as unnecessary but informed him that it would consider the arguments raised therein “as a brief in opposition to Defendants' motion to dismiss or, in the alternative, for summary judgment.” ECF No. 51. Although Tatum did not file a responsive concise statement of material facts, he argued in his response brief that “the footage from the chest cam and dash cam” of the incident “is enough evidence for Plaintiff to overcome Defendant's summary judgment motion.” ECF No. 47. Accordingly, this matter is ripe for adjudication.
B. Factual background
1. Local Rule 56.C.l
Before summarizing the pertinent facts, the Court notes that Plaintiff failed to properly respond to Defendants' concise statement of material facts, as required by Local Rule 56.C.1. This rule requires non-moving parties to a motion for summary judgment to file a responsive concise statement in which they must: respond to each numbered paragraph in the movant's concise statement; admit or deny the facts contained in the movant's concise statement; set forth the basis for denial if any fact within the movant's concise statement is not entirely admitted by the non-moving party, with appropriate citation to the record; and set forth, in separately numbered paragraphs, any other material facts at issue. See LCvR 56.C.1. Courts located in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), adopted by 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny County Airport Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party “faces severe consequences for not properly responding to a moving party's concise statement.” Hughes, 2017 WL 2880875, at *1. Any alleged material facts “set forth in the moving party's Concise Statement of Material Facts . . . which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.” LCvR 56.E. While courts provide some leniency to pro se litigants when applying procedural rules, the Court ‘“is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that “we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel”).
Accordingly, to the extent that Plaintiff has failed to respond to any concise statement of material fact, that concise statement of material fact will be deemed admitted. LCvR 56.E. However, the Court will consider any facts properly alleged in Plaintiffs pro se responses that specifically contradict Defendants' statement of facts, to the extent that they are supported by the record. Boyd v. Citizens Bankof Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that “[t]o the extent Plaintiffs statement of‘fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted”). This includes Plaintiffs reliance on the body camera footage submitted by Defendants to establish the veracity of his claims.
2. Facts
In his Complaint, Tatum avers that Olszewski and Post pulled him over at 3:03 a.m. on August 16, 2022, to execute an arrest warrant. ECF No. 6 at 12. During the ensuing search, Olszewski allegedly grabbed Tatum's “private part” and then threw him to the ground. Id. Olszewski then called ten more officers to the scene. Id. Once Tatum was handcuffed, Olszewski grabbed his hair, pulled his head back, and discharged pepper spray directly into his eyes. Id. He then pulled Tatum's pants down “and proceeded to smack [Tatum's] penis around and played with [it].” Id. At some point thereafter, Post “twisted and almost broke [Tatum's] ankles” and Olszewski “tried hitting [his] head on the car door.” Id.
Contradicting Tatum's version of events, Post declares in an affidavit that Tatum was attempting to flee and physically resisting arrest during the incident, even after being handcuffed. ECF No. 38-3 ¶ 15. Due to Tatum's “ongoing and increasing resistance,” Post acknowledges that several officers were required to get him into the patrol vehicle. Id. ¶ 13. However, aside from conducting an initial pat-down, he avers that he never made physical contact with Tatum at any point during the arrest. Id. ¶ 12-15.
For his part, Olszewski acknowledges that he assisted two other officers in taking Tatum to the ground during the altercation because of Tatum's attempt to flee and physically resist being taken into custody. ECF No. 38-5 ¶¶ 11-12. Olszewski also admits that he ordered Tatum to stop resisting or that he was going to spray him with pepper spray, but states that another officer informed him that Tatum had already been sprayed. Id. ¶ 15. Asa result, Olszewski avers that he never had to deploy his pepper spray. Id. ¶ 18. Aside from holding onto Tatum's legs and ankles “throughout his period of resistance,” Olszewski denies any other physical contact with Tatum. Id. ¶¶ 12-20.
In addition to Tatum's account of the incident, the record contains video footage from body cameras worn by Post, Olszewski, and Rhoades. ECF No. 41. Taken together, a careful review of that footage supports the following version of events. Near the beginning of the footage, Tatum can be seen emerging from the back seat of a passenger vehicle surrounded by police. ECF No. 38-4 at 3:12:45. Post then frisks Tatum while other officers look on. ECF No. 38-4 at 3:12:53; ECF No. 38-6 at 3:12:53; ECF No. 38-7 at 3:12:53. Rhoades and several officers place Tatum in handcuffs. Id. at 3:13:20. To this point, no officer has used any force to restrain Tatum.
Approximately 60 seconds after being cuffed, Tatum abruptly attempts to break free from the surrounding officers and escape. ECF No. 38-7 at 3:14:20. Olszewski and Rhoades join several other officers in grabbing Tatum and taking him to the ground on a grassy strip between the sidewalk and the street. ECF No. 38-6 at 3:14:25; ECF No. 38-7 at 3:14:25. For the next several minutes, Tatum continues to resist instructions from the officers, screaming constantly at them to “Get the fuck off of me.” ECF No. 38-7 at 3:14:25 - 3:16:00. During this time, Rhoades deploys two short bursts of pepper spray into Tatum's face. ECF No. 38-7 at 3:15:00. The bursts of pepper spray do not appear to curtail Tatum's resistance, as officers continue to have to hold Tatum to the ground. Id. Olszewski can be seem holding Tatum's feet and ankles while Post remains by his vehicle, uninvolved in the incident. ECF No. 38-4 at 3:14:25. At one point, Rhoades pulls Tatum's head back by the hair and appears to consider another burst of pepper spray, although it is unclear whether he deploys the spray. ECF No. 38-7 at 3:16:18.
For the next few minutes, several officers search Tatum's clothing while he is still on the ground. ECF No. 38-7 at 3:17:00 - 3:20:00. Their search includes the contents of his pockets and hands and underneath his shirt and jeans. ECF No. 38-6 at 3:19:42; ECF No. 38-? at 3:19:00. After concluding their search, officers inform Tutum that they are going to put him in the back of a patrol car. ECF No. 38-7 at 3:20:34. Tatum continues to loudly object and physically resist. Id.
At around the 3:20:35 mark on Rhoades' camera, officers lift Tatum to his feet and escort him in the direction of a police cruiser. ECF No. 38-7 at 3:20:30. Post joins the other officers but does not physically contact Tatum. ECF No. 38-4 at 3:21:09. For the next two minutes, several officers, including Olszewski, attempt to manipulate Tatum into the vehicle feet-first. ECF No. 38-6 at 3:21:20; ECF No. 38-7 at 3:20:59. Due to Tatum's physical resistance, their attempt is initially unsuccessful. At around the 3:23:20 mark, Olszewski loses contact with Tatum's legs and watches the remainder of the struggle from nearby. ECF No. 38-6 at 3:23:20. Shortly thereafter, officers rotate Tatum so that he is entering the vehicle head-first and finally succeed in securing him in the cruiser. ECF No. 38-7 at 3:23:36. The video footage concludes shortly thereafter.
C. Standard of Review
Federal Rule of Civil Procedure 56(a) requires the court to enter 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.” Fed.R.Civ.P. 56(a). Under this standard “the 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, ATI U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
D. Analysis
Although Tatum asserts that Post and Olszewski violated his Eighth and Fourteenth Amendment rights by utilizing excessive force during his arrest, an excessive force claim that
Tatum also includes the “Erie PA Police Department” as a Defendant. It is axiomatic, however, that a municipal police department is not a proper defendant in a § 1983 action. See, e.g., Hernandez v. Borough of Palisades Park Police Dep't, 58 Fed.Appx. 909, 912 (3d Cir. 2003). This is because “a police department is merely an administrative arm of the municipality itself.” Id. In any event, even if the Court were to construe Tatum's claim against the Erie Police Department as a claim against the City of Erie, his pleading lacks any of the necessary factual allegations to state a plausible claim for relief against that entity. See Monell v. Dep't of Soc. Sen'., 436 U.S. 658 (1978) (holding that, to establish municipal liability, a plaintiff must establish that the municipality had a policy or custom that contributed to the deprivation of a constitutional right”). Accordingly, the Erie PA Police Department should be dismissed from this action, with prejudice.
arises from the use of force during a stop or arrest is governed by the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 393-94 (1989); United States v. Johnstone, 107 F.3d 200, 204 (3d Cir. 1997). The core judicial inquiry in such cases is whether the officer's actions were objectively reasonable considering the facts and circumstances surrounding them, without regard to the officer's underlying intent or motivation. Johnstone, 107 F.3d at 204. As our Court of Appeals has explained:
In contrast, the Eighth Amendment's prohibition against cruel and unusual punishment governs excessive force claims brought by a convicted prisoner serving a sentence of incarceration, Whitley v. Albers, 475 U.S. 312, 318 (1986), while the Fourteenth Amendment's Due Process Clause governs excessive force claims brought by a pretrial detainee. Anton v. Guarini, 2010 WL 5258219, at *5 (E.D. Pa. Dec. 22, 2010). Neither of these circumstances applies to the incident in Tatum's complaint. Consequently, the Court will analyze his excessive force claim under the rubric of the Fourth Amendment's prohibition against unlawful searches and seizures.
A claim for excessive force under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was unreasonable . . . The inquiry turns on objective reasonableness, meaning that the standard is whether the police officer's actions [were] objectively reasonable in light of the facts and circumstances facing the officer, regardless of the officer's intent or motivation.ivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004). Factors to consider in evaluating the objective reasonableness of an officer's actions include: '‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others[,] whether [they are] actively resisting arrest or attempting to evade arrest by flight[,] ... 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.” El v. City of Pittsburgh, 975 F.3d 327 (3d Cir. 2020) (quoting sources omitted).
Where the events at issue have been captured on videotape, the court must consider the videotaped evidence in determining whether there is any genuine dispute as to material facts. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). The court must view the facts in the light depicted by the videotape. See id. (relying on a videotape in assessing summary judgment evidence and admonishing that the lower court “should have viewed the facts in the light depicted by the videotape.”). If a review of the videotape “refutes [plaintiffs] claims that excessive force was used against him . . . [then] summary judgment is entirely appropriate.” Smalls v. Sassaman, 2019 WL 4194211, at *8 (M.D. Pa. Sep. 4, 2019) (citing Tindell v Beard, 351 Fed.Appx. 591 (3d Cir. 2009)).
Here, the entire incident was clearly captured on the body cameras worn by three officers at the scene, including each of the Defendants. Nothing in the footage reveals any use of unreasonable force. While officers did take Tatum to the ground, spray him with pepper spray, restrain him while he was searched, and physically lift and carry him to a patrol vehicle for transport, these actions were performed in a calm and professional manner and were necessitated by Tatum's attempt to flee and his continuing verbal and physical resistance to all instructions. See Jones v. Wetzel, 2017 WL 4284416, at *10 (M.D. Pa. Sept. 27, 2017) (granting nummary judgment where videotape evidence “clearly undermine[d] any potential determination that [there] was a malicious or sadistic use of force.”). Nothing in the movements or body language of any of the officers supports an inference of aggressive or malicious misconduct. To the contrary, the video demonstrates that any force applied by officers amounted to the minimum necessary to safely secure Tatum and effectuate his lawful arrest. No reasonable jury viewing the video footage could conclude that it was excessive.
In addition to establishing the overall lack of excessive force used by officers throughout the entire incident, the video footage also demonstrates that neither Post nor Olszewski engaged in misconduct. Post's only physical contact with Tatum occurred when he conducted a brief, consensual pat-down search shortly after Tatum emerged from his vehicle. Tatum's allegation that Post “twisted and almost broke” his ankles is plainly belied by the body camera footage showing that Post had no physical contact with Tatum following that initial frisk. As such, summary judgment should be entered in Post's favor.
The same is true of Tatum's allegations that Olszewski maliciously deployed pepper spray, grabbed and manipulated his genitals, and tried to slam his head into a car door. A review of the video footage from the body cameras worn by Rhoades and Olszewski conclusively demonstrates that Rhoades, a non-Defendant, was the officer who sprayed Tatum with pepper spray. While it does appear that officers searched inside Tatum's pants and boxer shorts to look for weapons, Olszewski was holding onto Tatum's ankles at the time, rather than performing the search, and no officer “grabbed” or “smacked around” his penis. Finally, there is nothing in the video footage to indicate that Tatum's head struck the door of a patrol vehicle. During this portion of the incident, several officers, including Olszewski, were attempting to manipulate Tatum into the vehicle feet-first. Because they could not overcome Tatum's physical resistance at that angle, they backed him out and rotated him so that he could be placed into the vehicle head-first. By the time this took place, Olszewski was no longer in physical contact with Tatum. Even if Tatum's head did strike (or almost strike) the doorframe at some point, no reasonable jury viewing the video footage could conclude that it happened due to malicious or sadistic misconduct - or, more critically, that Olszewski was involved. Summary judgment is warranted.
To the extent that Tatum may also have intended to bring failure to protect and failure to intervene claims - a proposition that does not appear to be supported by his pleadings - such claims must also be dismissed. As several courts have noted, “[i]f there is no excessive force, there is no corresponding duty to intervene.” Grubbs v. Marconi, 237 F.Supp.3d 181, 189 (D. Del. 2017). See also Nifas v. Coleman, 528 Fed.Appx. 132, 135-36 (3d Cir. 2013) (“Because we find that no constitutional violation occurred with respect to excessive force, Nifas also cannot succeed on his failure to intervene claims.”)
III. Conclusion
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss or, in the alternative, for summary judgment [ECF No. 38] be GRANTED. Judgment should be entered in favor of Defendants and against Plaintiff.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).