Opinion
Civil Action No. 97-CV-5364.
June 19, 2006
MEMORANDUM
Presently before this Court is Defendant City of Philadelphia's Motion for Summary Judgment (Doc. No. 39) and Plaintiff's Response thereto (Doc. No. 40). For the reasons set forth below, Defendant City of Philadelphia's Motion for Summary Judgment is granted.
I. PROCEDURAL HISTORY
On July 30, 1997, Plaintiff Timanjin Ali commenced this action in the Court of Common Pleas of Philadelphia County against Defendants City of Philadelphia, Philadelphia Police Department and Police Officer Andre Pettway, alleging assault and battery, negligence and violation of his civil rights. On August 21, 1997, Defendant City of Philadelphia ("City") removed this matter to the Eastern District of Pennsylvania. On October 1, 1997, a stipulation was entered dismissing Defendant City from Counts I and II and dismissing Defendant Philadelphia Police Department from the action. The sole remaining claim against Defendant City is plaintiff's federal civil rights claim pursuant to 42 U.S.C. § 1983.
Defendant Andre Pettway was not served until January 20, 2006. He has yet to respond to plaintiff's complaint.
This matter was originally before the Honorable Charles R. Weiner. On March 16, 1998, Defendant City filed a motion for summary judgment. Defendant City's motion was denied with leave to renew at the end of plaintiff's case in chief. On September 23, 2005, Defendant City renewed its motion for summary judgment and moved for judgment as a matter of law. At this point, a bench trial was held before Judge Weiner. At the close of trial, Judge Weiner gave plaintiff the opportunity to respond to Defendant City's Rule 50 motion in writing. Plaintiff filed a brief in opposition on October 7, 2005. Sadly, Judge Weiner passed away before he was able to issue a ruling in this case. This matter was reassigned to this Court, and a mistrial was declared in the bench trial. On February 9, 2006, Defendant City filed the instant summary judgment motion.
II. FACTUAL BACKGROUND
On the evening of January 18, 1997, Dionna Pettway, Defendant Pettway's wife and plaintiff's study partner from nursing school, came to Plaintiff Ali's house around 7:00 p.m. Def. City's Mot., Ex. B, Ali Depo. ("Ali Depo.") at 9-10. Plaintiff let her stay at his house while he went to a car show with some friends. Id. at 7. When he returned to his house around 10:30 p.m., Ms. Pettway was still there. Id. at 7, 12. Plaintiff told Ms. Pettway that he was going to take a shower. Id. at 8. A few minutes later, he heard a loud noise and Ms. Pettway informed him that someone was trying to kick down his door. Id. at 8, 12. Plaintiff got out of the shower, put on a towel, and went to the door. Id.; Pl's Mot., Ex. A, Ali Direct ("Ali Direct") at 33.
At this point, plaintiff claims that he asked the person at the door, "what's your problem kicking down my door like that?" and the person responded, "it's the police." Ali Direct at 33; Ali Depo. at 12-13. As a result, plaintiff opened the door. Ali Depo. at 13-14, 31-32. As soon as the door was open, Defendant Pettway, who was dressed in all black, put a gun to plaintiff's face, and asked him where his wife was. Id. at 8; Ali Direct at 34, 36. Defendant Pettway and Johnny Cain, who had accompanied Defendant Pettway, pushed open the door and dragged plaintiff upstairs. Id. at 34; Ali Depo. at 8. Defendant Pettway and Ms. Pettway argued and then Defendant Pettway hit plaintiff. Id. at 15-16. Mr. Cain and Defendant Pettway repeatedly punched and kicked plaintiff until he was unconscious. Id. at 9, 13; Ali Direct at 36-38. As a result of the beating, plaintiff suffered bruised ribs and head, neck and back injuries. Id. at 38. When the beating occurred, Defendant Pettway was employed as a police officer by the City of Philadelphia.
Plaintiff figured out that Defendant Pettway was Ms. Pettway's husband when the two of them argued. Ali Depo. at 33.
II. LEGAL STANDARD
In considering a motion for summary judgment, the court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir. 1986). All reasonable inferences from the record are drawn in favor of the non-movant. See id. at 255; J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990),cert. denied, 499 U.S. 921 (1991). In a motion for summary judgment, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex v. Catrett, 477 U.S. 317, 325 (1986). After a defendant properly supports its motion for summary judgment, the "plaintiff must produce affirmative evidence," which "must amount to more than a mere scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Williams v. West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989) (citations omitted); see also Anderson, 477 U.S. at 248 (finding that a plaintiff must present competent evidence from which a jury could reasonably find in his favor).
III. DISCUSSION
Plaintiff claims that Defendant City is liable for the injuries he sustained at the hands of one of its police officers, Defendant Pettway. Section 1983 provides a remedy against any person who, under color of state law, deprives another of rights protected by the Constitution. Plaintiff alleges that Defendant City is liable under § 1983 because "the City's custom and practice of conducting lax internal investigations allowed Defendant Officer Pettway, despite his violent history, to attack Plaintiff, causing Plaintiff severe injuries." Pl's Memo. at 9.
Defendant Pettway was a police officer for the City of Philadelphia when the beating occurred; however, he was terminated as a result of the beating.
The section states, in pertinent part, that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. . . ." 42 U.S.C. § 1983.
Plaintiff brings his claim against Defendant City of Philadelphia under a municipal liability theory. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690-95 (1978); Pl.'s Memo. at 3, 5-9. A municipality may be held liable under § 1983 if a constitutional violation was caused by action taken pursuant to a municipal policy or custom. Brown v. Pennsylvania Dep't of Health Emergency Services Training Institute, 318 F.3d 473, 482 (3d Cir. 2003) (citing Monell, 436 U.S. at 691)). But, a municipality cannot be liable solely as an employer because there is no respondeat superior theory of municipal liability in § 1983 actions. Id. "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.
A course of conduct is considered to be a custom when, though not authorized by law, the "practices of state officials are so permanent and well-settled as to virtually constitute law." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (quotingAndrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). Custom may be established by proof of knowledge and acquiescence. Id. at 971 (citing Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989)). Plaintiff must establish that there is a "direct causal link" between the custom and the resulting deprivation of rights. Board of the County Commissioners v. Brown, 520 U.S. 397, 404 (1997).
Plaintiff argues that Defendant Pettway had a history of violent and unpredictable behavior, as evidenced by the fact that his wife had a protective order issued against him and the fact that internal affairs investigated an altercation at his wife's place of employment in which he was involved. Pl.'s Memo. at 6;see also Pl.'s Mot., Ex. C, Dionna Pettway Depo. ("Ms. Pettway Depo.") at 15-16, 20-22 (testifying about the protective order and the internal affairs investigation). Plaintiff claims that Defendant City "knew or should have known that Defendant Pettway was a danger, and should have taken his service weapon from him" and that Defendant City's lack of investigative response leaves the City open to a finding of liability. Id. at 8-9; see Beck, 89 F.3d at 974 (requiring that an investigative process have "teeth).
The evidence does not support plaintiff's contention that Defendant City "knew or should have known that Defendant Pettway was a danger." Ms. Pettway dropped the protection order after a week. Pl's Memo. at 7. With regard to the altercation at her place of employment, Ms. Pettway testified that a woman's boyfriend "was threatening" her husband and that she never saw her husband hit the woman. Ms. Pettway Depo. at 20. She testified that the investigator asked her about his temper, but that she did not consider his temper to be a problem at that time. Id. In addition, Defendant City correctly pointed out that plaintiff has not provided any evidence that Defendant City has a custom of conducting lax internal investigations. See Def. City's Memo. at 6-7; see also Celotex, 477 U.S. at 325 (holding that a defendant can support its burden on summary judgment by pointing out the absence of evidence). Since Defendant City properly supported its motion for summary judgment, the burden shifted to plaintiff to produce affirmative evidence amounting to "more than a mere scintilla." See Williams, 891 at 460-61. Plaintiff has failed to do so.
Based on the evidence presented by plaintiff, i.e., the internal affairs investigation and the protective order, no reasonable jury could find that Defendant City had a custom of "conducting lax internal investigations" or that Defendant City "knew or should have known" Defendant Pettway was a danger. As a result, there is no municipal liability under § 1983.
IV. CONCLUSION
Accordingly, defendant's motion for summary judgment is granted. An appropriate order follows.