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 Defendant John Doe Hinds (Doc. 67)
I. INTRODUCTION
A high-speed police chase ended in a crash. The driver ran away. The fleeing driver (Stains) alleges that one of the pursing officers (Hinds) used unnecessary force following the foot chase. Before the Court is a Motion for Summary Judgment (Doc. 67) by Defendant Patrick Hinds (“Defendant Hinds”). In a separate Report and Recommendation, I address the Motion for Summary Judgment (Doc. 74) by Defendants Charles Christopher, Nathan Conway, Bejamin Frantz, Dylan Gelvin, Lucas Hull, and Eric S. McCleaf. For the reasons below, I recommend that Defendant Hinds' Motion for Summary Judgment (Doc. 67) be GRANTED in part and DENIED in part as follows.
Plaintiff identifies Defendant Patrick Hinds as “John Doe Hinds.” (Doc. 9).
II. BACKGROUND
On November 19, 2018, Plaintiff Loren R. Stains (“Plaintiff”), an inmate at the Franklin County Jail, commenced this action by filing a pro se civil complaint. (Doc. 1). Plaintiff proceeded on an Amended Complaint (Doc. 9), filed February 14, 2019. Plaintiff brings claims against all defendants under 42 U.S.C. § 1983 for excessive force in violation of his Fourth Amendment rights 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, ¶¶ 20-23). 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 his ribs, 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, Defendants Christopher, Conway, Frantz, Gelvin, Hull, and McCleaf (“PSP Defendants”) filed their 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). Plaintiff did not file a Brief in Opposition to Franklin County's Motion to Dismiss, despite two Court orders. (Docs. 35, 38). On December 16, 2019, I issued a Report and Recommendation (Doc. 47) on Franklin County's Motion to Dismiss. On January 8, 2020, Judge Jones adopted my Report and Recommendation and dismissed Plaintiff's claims against Defendant Franklin County due to Plaintiff's failure to prosecute, under Fed.R.Civ.P. 41. (Doc. 49).
During that time, Plaintiff filed a second Motion for Appointment of Counsel (Doc. 39) and a Brief in Support (Doc. 40), 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 the present Motion for Summary Judgment (Doc. 67), Statement of Facts (Doc. 67-2), and Brief in Support (Doc. 68). On September 18, 2020, I issued the first Briefing Order (Doc. 73) on this Motion, directing Plaintiff to file a brief in opposition to Defendant Hinds' Motion for Summary Judgment (Doc. 67) on or before October 28, 2020, or the Motion may be deemed unopposed under Local Rule 7.6 or the case dismissed for failure to prosecute under Federal Rule of Civil Procedure 41. On September 30, 2020, PSP
Defendants filed a separate Motion for Summary Judgment (Doc. 74). On October 1, 2020, I issued an Order (Doc. 77) requiring Plaintiff to file a brief in opposition to PSP Defendants' Motion on or before October 21, 2020. On November 12, 2020, I issued a second Briefing Order (Doc. 78) directing Plaintiff to file briefs in opposition to the present Motion for Summary Judgment (Doc. 67) and the Motion by the PSP Defendants (Doc. 74). Plaintiff has not yet filed a brief in opposition to either Motion for Summary Judgment.
I provide the procedural history related to this Motion (Doc. 74) 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. 67-2) filed by Defendant Hinds, the exhibits submitted by the parties, and Plaintiff's Amended Complaint.
The court considers the facts and draws all reasonable inferences in favor of the non-moving party, Plaintiff. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 26667 (3d Cir. 2005).
The Court deems the Statement of Material Facts admitted by Plaintiff due to his failure to file a responsive statement of material facts, see L.R. 56.1. Defendant states that he accepts as true, only for purposes of this Motion, Plaintiff's allegations regarding Defendant's use of force.
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).
Defendant states he “unequivocally denies” Plaintiff's allegations but accepts them as true for purposes of this Motion. Id. at pp. 12-13.
Near midnight on March 7, 2018, Plaintiff lead PSP and Chambersburg Police Department officers on a fifteen (15)-minute high-speed vehicle chase. (Defendant's Statement of Material Facts, Doc. 67-2, ¶¶ 7, 14, 20). The chase began when Defendants Gelvin and McCleaf, PSP troopers, activated their siren and lights to stop Plaintiff due to observing him fail to stop at a stop sign when pulling out of a parking lot, following other suspicious behavior. Id. at ¶¶ 6-7. The vehicle chase ended when Plaintiff crashed his vehicle “head on” into Defendant Conway's police vehicle, then into a parked car. Id. at ¶¶ 14, 20. Plaintiff exited his car by climbing over a passenger in the passenger seat and began to flee on foot, with Defendant Hinds in pursuit. Id. at ¶¶ 16-17. Plaintiff went down a steep embankment on a dark residential property, and Defendant Hinds caught up to him. Id. at ¶ 18. Defendant Hinds arrested Plaintiff and placed him in PSP custody. Id. at ¶ 19.
Based on the allegations in the Amended Complaint, when Defendant Hinds apprehended Plaintiff, he placed him in handcuffs and held him face down in the grass. Id. at ¶ 16. Plaintiff did not resist. Id. at ¶ 17. Defendant Hinds punched Plaintiff three (3) times in the eye and kicked him in the ribs. Id. Defendant Hinds then yanked Plaintiff up by the handcuffs into a standing position, causing Plaintiff's handcuffed wrists to bleed. Id. The PSP Defendants either stood by and watched or failed to report it after arriving at the scene. Id. at ¶ 18. 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 then replied, “Okay wait to get away from this area we might get him again for taking us on this chase.” Id.
Plaintiff later pleaded guilty to driving under the influence of a drug, to negligently causing his passenger serious bodily injury, and to aggravated assault on Defendant Conway for attempting to cause him serious bodily harm with his vehicle. (Doc. 67-2, ¶¶ 21, 23) (Doc. 67-6, Ex. D, p. 4).
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
I first address Plaintiff's Fourth Amendment excessive force claim, including the issue of qualified immunity, then turn to Plaintiff's request for declaratory judgment, his state law assault and battery claims, his request for punitive damages, and his claim of intentional infliction of emotional distress.
A. PLAINTIFF'S FOURTH AMENDMENT EXCESSIVE FORCE CLAIM
Defendant Hinds argues that his alleged use of force was reasonable, and, even if he violated Plaintiff's constitutional rights, he is entitled to qualified immunity.
1. Reasonableness of Defendant's Use of Force
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 United States 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, rather than with the 20/20 vision of hindsight.” Id. (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chamber, violates the Fourth Amendment.” (quotation and citation omitted)). Because the question is one of objective reasonableness, an officer's subjective motivation is not relevant, and even “evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force.” Id at 397.
To determine reasonableness, the Court of Appeals for the Third Circuit employs a totality of the circumstances test, looking to the factors in Graham. See 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 relevant 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).
a. Operative facts
It is first useful to clarify the undisputed facts relevant to the reasonableness of Defendant Hinds' use of force. Defendant Hinds argues that “even accepting Plaintiff's allegations as true” and considering the undisputed material facts, his “alleged use of force was objectively reasonable.” (Doc. 68, pp. 12-14).
The Amended Complaint alleges the following:
After evacuating the vehicle Plaintiff was apprehended by Defendant Hinds placed in handcuffs and was held face down on grass surface ....Without resisting . . . while Plaintiff['s] right side of his face was on the ground Defendant Hinds punched Plaintiff Three (3) times in the face ....Defendant Hinds then got off Plaintiff. [W]hile standing over Plaintiff Defendant Hinds kicked Plaintiff in the right side of his ribs .... Defendant Hinds then yanked Plaintiff up by his wrist by gripping the handcuffs.(Doc. 9, ¶¶ 16-17). Plaintiff testified similarly at his deposition. (See Doc. 67-5).
In arguing that he used reasonable force, Defendant Hinds describes events only before his apprehension of Plaintiff, while stating generally, “Additionally, the record establishes that [Plaintiff] continued his non-compliance and attempted to evade arrest after this multiple car collision by fleeing on foot.” (Doc. 68, p. 12).
He argues, “[T]he undisputed material facts in the record establish that Plaintiff knowingly and unlawfully engaged in a reckless high-speed vehicle flight, including through residential communities, to evade capture by seven police vehicles with their lights and sirens blaring for a total of twelve miles. He put the officers involved, including Hinds, in grave danger. The record establishes that Plaintiff's reckless vehicle flight ended only when he intentionally collided with a PSP unit, demonstrating a threat to officer safety, and a parked car in a residential community, demonstrating a threat to the safety of the public. He also seriously injured the passenger in his car. Additionally, the record establishes that he continued his noncompliance and attempted to evade arrest after this multiple car collision by fleeing on foot.” (Doc. 68, pp. 11-12).
First, I note that, despite Plaintiff's Amended Complaint challenging Defendant Hinds's actions once Plaintiff was lying on the ground, handcuffed, and no longer fleeing (see Doc. 9), Defendant Hinds describes only Plaintiff's acts while fleeing by vehicle and his initial flight on foot. Defendant Hinds does not describe any acts by Plaintiff once Defendant Hinds reached him and handcuffed him.
Second, and similarly, Defendant Hinds does not support his reference to “ongoing non-compliance” by Plaintiff with cites to facts in the record, beyond Plaintiff's flight, or describe the duration of this non-compliance. While Plaintiff was certainly non-compliant during his flight, first by vehicle and then by foot, Plaintiff's allegations suggest he began complying before Defendant Hinds handcuffed him and before Defendant Hinds began using force.
Defendant Hinds's accounts of the incident in the record could further support a finding that he encountered Plaintiff while Plaintiff was already lying on the ground. Defendant Hinds' Use of Force Report, which he completed due to unholstering his weapon, states the following:
. . . I chased [Plaintiff] on foot into the back yard of a residence on Highland Ave. Before entering the back yard I unholstered my service pistol since the area was completely dark and I had lost visual of the suspect as he ran into the yard. Upon entering the yard I found the suspect laying prone with his head facing Wayne Ave. The suspect did not comply with my commands to show me his hands and he remained at gunpoint. During the encounter the man violently rolled to his side and pointed his finger like a gun at an area he thought I was [at]. After this action he compiled with all commands. I holstered my Pistol and cuffed the suspect.(Doc. 68, pp. 12-13; Doc. 67-7, p. 2).
Defendant Hinds' narrative report about the incident states the following:
As I came around the corner I noticed a large drop off with a set of very steep steps. I approached with caution and illuminating the ground I could see a man laying prone with his arms underneath him with his head facing Wayne Ave.
I approached him from the side while keeping my pistol at the low ready telling him to show me his arms. As I drew closer the man violently rolled over and using his hand in the shape of a gun pointed in the direction of the steps up the drop off where If I had used the steps I would have been. Thanks to my weapon light and my positioning I was able to see that it was not a weapon the man was holding. I kicked his arm out of the way which caused him to roll over again to his stomach.
The man now laid with his arms out to the sides. I holstered my pistol and then cuffed the individual. We waited until other units arrived to move him to a patrol car.(Doc. 67-4, p. 7).
These descriptions indicate Plaintiff began complying “with all commands” before being handcuffed, and neither indicates that Plaintiff resisted Defendant in any manner after being handcuffed. This together with the allegations that Defendant Hinds concedes for this Motion, supported by Plaintiff's deposition testimony, could support a jury determination that Defendant found Plaintiff “laying prone” in a dark yard and that Defendant then ascertained that Plaintiff's finger pointed as a gun was not a weapon. (Doc. 67-7, p. 2). They could further support that Plaintiff then began complying, and that Defendant then holstered his previously drawn weapon and handcuffed Plaintiff. Id. Defendant Hinds cites to no facts in the record to show that Plaintiff continued to be non-compliant or attempted to evade or resist arrest once handcuffed, after which Plaintiff alleges that Defendant Hinds punched him in the face and kicked him in the ribs-acts Defendant concedes for purposes of this Motion. See id. at pp. 12-15. Accordingly, the undisputed facts relevant to this Motion, viewed in the light most favorable to Plaintiff, support that Defendant used force against Plaintiff after Plaintiff was handcuffed and compliant.
b. Analysis
In arguing that his level of force was reasonable, Defendant cites to Garner, 471 U.S. at 11, for the proposition that “[w]here a police officer has probable cause to believe that the suspect poses a threat of physical harm, either to the officer or to others, the use of force is not constitutionally unreasonable.” (Doc. 68, p. 7). He argues that he “had no knowledge as to whether Plaintiff had any weapons, [] it was very dark and difficult to see Plaintiff during the course of the arrest, ” and, “[b]ased on these unknowns, Plaintiff's ongoing non-compliance, and Officer Hinds's legitimate concerns about the safety of himself, other officers, and the general public, Officer Hinds's alleged physical conduct was not unreasonable.” Id. at p. 15.
Defendant overlooks that the Supreme Court in Garner stated the proposition on which he relies specifically in the context of a fleeing person who continued to pose a threat of physical harm:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.Garner, 471 U.S. at 11-12 (emphases added).
As discussed, Plaintiff alleges that Defendant used force against him after he was handcuffed and compliant. (See Doc. 9; Doc. 67-5, p. 24). The record also supports that Defendant determined that Plaintiff was not holding a firearm, that Plaintiff then began complying, that Defendant then holstered his own weapon, and that he then handcuffed Plaintiff. Id. (See Doc. 67-7, p. 2).
Defendant cites to no caselaw involving an analogous situation-one in which a previously fleeing suspect has been apprehended and is handcuffed, complying with officers' commands, and lying prone on the ground, albeit in a dark area. While Plaintiff posed a threat to officers and the public while driving, and in fact caused serious harm, Defendant has not established that the undisputed issues of material fact show that Plaintiff, once lying handcuffed, prone, and without his vehicle, posed an ongoing and immediate threat. Indeed, the use of force against a compliant, nonresisting individual who poses no ongoing threat is generally not legitimate, “even if [the individual] was initially non-compliant.” Anthony v. Seltzer, 696 Fed.Appx. 79, 82 (3d Cir. 2017) (emphasis added).
Under the three factors in Graham, 490 U.S. at 396, Defendant's use of force was unreasonable. First, although Plaintiff's crime of fleeing from police, ending in a collision, is very serious, Plaintiff no longer posed a threat related to that offense. Cf. Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (stating, in analyzing seriousness of drunk driving offense, that “since [the plaintiff] complied with [the officer's] requests and exited the vehicle voluntarily, he no longer posed a threat of driving while intoxicated”). The offense of resisting arrest could pose a risk to an arresting officer, but the undisputed facts do not establish that Plaintiff was engaged in this offense immediately before or during the use of force. Second, as discussed, the undisputed facts for purposes of this Motion show Plaintiff was handcuffed, complying, and no longer posed an “immediate threat to the safety of the officers or others.” See Graham, 490 U.S. at 396. Third, Defendant has not established that Plaintiff was “actively resisting arrest” or continuing to flee. See id.
A reasonable jury could conclude, based on the facts Defendant Hinds concedes for this Motion, that Defendant used force beyond what was reasonably needed. I therefore recommend that Defendant not be entitled to summary judgment on this basis of using only reasonable force.
2. Qualified Immunity
Defendant argues that, even if “the issue of whether there was a Constitutional violation too close to call, ” he is entitled to qualified immunity. (Doc. 68, p. 15).
Qualified immunity shields government officials, such as police officers, 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) (quotation omitted). Qualified immunity ensures that, before being subjected to suit, officers are on notice that their conduct is unlawful. Hope v. Pelzer, 536 U.S. 730, 739 (2002). A defendant must prove he is entitled to qualified immunity. See Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989)).
Qualified immunity analysis has two prongs: whether the plaintiff has alleged or shown facts that make out a violation of a constitutional right and whether the right was clearly established. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). To show that a right, even if violated, was not clearly established, a defendant must show that “reasonable officials in [defendant's] position at the relevant time could have believed, in light of clearly established law, that [his] conduct comported with established legal standards.” Stoneking, 882 F.2d at 726 (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987)). “[T]his inquiry is objective and fact specific.” Santini, 795 F.3d at 417.
I have already concluded that the undisputed facts for purposes of summary judgment show that Defendant's conduct violated Plaintiff's Fourth Amendment rights. I now turn to whether those rights were clearly established at the time of the conduct. See Saucier, 533 U.S. at 202.
The Third Circuit has interpreted his inquiry broadly, stating that “there does not have to be ‘precise factual correspondence' between the case at issue and a previous case in order for a right to be ‘clearly established,' and we would not be ‘faithful to the purposes of immunity by permitting . . . officials one liability-free violation of a constitutional or statutory requirement.'” Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004). This means “‘[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances' as long as the law gives the officials ‘fair warning' that their treatment of the inmate is unconstitutional.” Porter v. Pennsylvania Dep't of Corr., 974 F.3d 431, 449 (3d Cir. 2020) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
Defendant argues that his alleged actions, which he describes as “punch[ing] [Plaintiff] three times in his left eye, kick[ing] him in the right side of his ribs, and yank[ing] him up by his wrist by gripping the handcuffs” were “[a]t the worst” a mistaken judgment based on “Plaintiff's ongoing non-compliance with officers' commands, attempts to evade arrest, ” the dark lighting, and resulting unknowns about whether Plaintiff had weapons. (Doc. 68, pp. 15-17). Despite this argument, the facts Defendant concedes for purposes of this Motion do not show “ongoing noncompliance” once Defendant reached Plaintiff lying in the grass.
As described earlier, Plaintiff alleges that Defendant Hinds' use of force came after Plaintiff was handcuffed and while he was not resisting. (Doc. 9, ¶¶ 16-17). Defendant accepts these allegations as true for this Motion and cites to no facts in the record to show Plaintiff continued to be non-compliant or attempted to evade arrest after being put in handcuffs and while Defendant punched and kicked him. (Doc. 68, pp. 16-17). Defendant also cites to no facts in the record to support that a reasonable officer would have thought Plaintiff possessed weapons or, more specifically, that Plaintiff possessed weapons and posed a threat with them while handcuffed and complying with commands.
Defendant Hinds is correct that the Supreme Court has long recognized that “the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at 396; (see Doc. 68, p. 17). However, based on the undisputed material facts, which for purposes of this Motion include Plaintiff's allegations, Defendant has failed to establish that the force he used against Plaintiff occurred while effecting the arrest, rather than after Plaintiff's arrest and handcuffing and after Plaintiff became compliant.
Therefore, under the presently undisputed facts, Defendant appears to argue that it is not clearly established that an unresisting suspect who is in handcuffs has the right to not be roughed up by officers.
Courts have roundly rejected this premise. As the Third Circuit recently stated, “It comes as no surprise that, under long-established Fourth Amendment law, force may not legitimately be used against an individual who is compliant and poses no ongoing threat to himself or others, or who is not resisting arrest, even if he was initially non-compliant.” Anthony, 696 Fed.Appx. at 82 (emphasis added) (listing cases across circuits); see also Giles v. Kearney, 571 F.3d 318, 327-28 (3d Cir. 2009) (rejecting qualified immunity defense at summary judgment, as “[n]o reasonable officer could agree that striking and kicking a subdued, nonresisting inmate in the side, with force enough to cause a broken rib and collapsed lung, was reasonable or necessary under established law”); Skrtich v. Thornton, 280 F.3d 1295, 1303 (11th Cir. 2002) (“By 1998, our precedent clearly established that government officials may not use gratuitous force against a prisoner who has already been subdued ....”).
Defendant also appears to argue that the vehicle chase on which Plaintiff led police, including Plaintiff's potentially intentional crash into a police vehicle, warranted the later use of force. But the Third Circuit again has clearly established that a vehicle chase and the risk a driver poses during it does not justify all uses of force once officers are out of harm's way. See Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999) (“A passing risk to a police officer is not an ongoing license to kill an otherwise unthreatening suspect.”).
In Eberhardinger v. City of York, the Third Circuit was faced with a claim of excessive force when an officer fired into a vehicle near the conclusion of a car chase. 782 Fed.Appx. 180, 182 (3d Cir. 2019). The driver had led police on a car chase, stopped when the road was blocked, reversed into a telephone pole, and then “started driving in the general direction of [the officer], who was on foot.” Id. The parties disputed the speed of the car, whether the officer was “in the car's path, or rather, safely to the side of the car's course, ” and when the officer began shooting. Id. Based on the summary judgment standard, the Court considered the facts to be that the officer, “standing to the left of the slow-moving vehicle and apparently out of harm's way-fired four shots at the driver as the vehicle was passing him or had completely passed him.” Id. at 184. The Court concluded that such force “would reflect a violation of clearly established law.” Id. at 185. The Court further noted that “[w]ith the high-speed pursuit at its terminus and the absence of any danger to bystanders, the only plausible justification for [] force then would be the threat to the safety of the officers, ” but a jury could find such threat had passed. Id. at 186.
Here, the high-speed chase was at its terminus, Plaintiff had exited the vehicle, and, despite having previously posed a threat to officers and the public with his vehicle, that threat had passed. Eberhardinger, while itself an unprecedential decision, makes clear that any justification police may have had to use force against Plaintiff during the chase had ceased. See also Abraham, 183 F.3d at 294; Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (“When an officer faces a situation in which he could justifiably shoot, he does not retain the right to shoot at any time thereafter with impunity.”). The cases discussed above may not involve “precise factual correspondence, ” but such alignment is unnecessary. See Kopec, 361 F.3d at 778 (quotation omitted). The precedent in this circuit and elsewhere are sufficient to give “fair warning” that the alleged conduct is unconstitutional. See Hope, 536 U.S. at 741. Accordingly, Defendant Hinds has not established that a reasonable officer “could have believed, in light of clearly established law, ” that punching and kicking a handcuffed, compliant suspect “comport[s] with established legal standards.” See Stoneking, 882 F.2d at 726.
Finally, Defendant Hinds argue that “[i]nstead of firing his gun and using deadly force, Officer Hinds's alleged non-lethal physical force to arrest Plaintiff was reasonable under the circumstances.” (Doc. 68, p. 17). The Court is fortunate to not need to answer the question of if lethal force would have been reasonable at any point during Plaintiff's version of events or Defendant Hinds' version. But that fortune does not affect the analysis of the present question. The present question involves, based on Plaintiff's allegations, whether Defendant's use of force was reasonable and whether all reasonable officers would have known that Plaintiff had the right to not be punched three times and kicked in the side while handcuffed and complying with orders. I conclude that it was not objectively reasonable, and that Plaintiff had a clearly established right to be free of such force.
I therefore recommend that Defendant not be entitled to summary judgment based on qualified immunity. This would not preclude Defendant from ultimately prevailing on the issue.
B. PLAINTIFF'S REQUEST FOR DECLARATORY JUDGMENT
Plaintiff asks the Court to “[i]ssue a Declaratory Judgment” stating, in part, that Defendant Hinds' use of force violated Plaintiff's Fourth Amendment rights and constituted assault, battery, and intentional infliction of emotional distress. (Doc. 9, pp. 4-5). Defendant argues that Plaintiff's declaratory judgment request must fail because “[i]t is settled law that declaratory judgment in a Section 1983 action is not meant to remedy alleged past unlawful activity.” (Doc. 68, p. 17).
Plaintiffs in Section 1983 actions may seek declaratory relief for ongoing violations, but they are not entitled to declaratory relief for “past exposure to unconstitutional state action.” Lahovski v. Rush Twp., 441 F.Supp.3d 43, 50 (M.D. Pa. 2020) (citing Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987)); see Blakeney v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir. 2009) (“[E]ven if defendants violated [Plaintiff's] rights in the past as he alleges, he is not entitled to a declaration to that effect.”). Plaintiff here has not alleged any continuing violation of his constitutional rights. His request for declaratory judgment therefore fails as a matter of law and should be dismissed with prejudice from his Amended Complaint.
C. PLAINTIFF'S STATE LAW ASSAULT AND BATTERY CLAIMS
Defendant argues that Plaintiff's assault and battery claims fail because police officers are privileged to commit what would otherwise be assault and battery when effectuating an arrest, so long as the force was reasonable. (Doc. 68, pp. 18-19).
Assault occurs when a defendant intends to place a plaintiff in apprehension of imminent harmful or offensive bodily contact and the plaintiff experiences such apprehension. See Dull v. W. Manchester Twp. Police Dep't, 604 F.Supp.2d 739, 754 (M.D. Pa. 2009) (citing D'Errico v. DeFazio, 763 A.2d 424, 431 n.2 (Pa. Super. Ct. 2000)). Battery occurs when a defendant intentionally causes harmful or offensive bodily contact with the plaintiff. Id. (citing Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. Ct. 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); see also Dull, 604 F.Supp.2d at 754. Therefore, when a plaintiff shows that officers used an excessive degree of force in effecting an arrest, the plaintiff “satisfies [the] prima facie burden to demonstrate that defendants committed an assault and battery in an unprivileged manner, ” and summary judgment is inappropriate. See Dull, 604 F.Supp.2d at 754.
Here, Defendant argues only that Plaintiff's assault and battery claims fail because he used reasonable force against Plaintiff. Because I recommend that Defendant not be entitled to summary judgment on Plaintiff's excessive force claim, Defendant likewise should not be entitled to summary judgment on Plaintiff's assault and battery claims.
D. PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES
Defendant argues that punitive damages are inappropriate because no evidence supports that he acted with evil motive or reckless indifference to Plaintiff's rights. (Doc. 68, p. 19).
A plaintiff may be entitled to punitive damages in a Section 1983 action “when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983); see also Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989). Under this standard, “reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law, should be sufficient to trigger a jury's consideration of the appropriateness of punitive damages.” Savarese, 883 F.2d at 1204 (quoting Smith, 461 U.S. at 51).
Not all violations of a right justifying compensatory damages in Section 1983 cases also warrant punitive damages. Cochetti v. Desmond, 572 F.2d 102, 106 (3d Cir. 1978) (“[D]espite its utility as a deterrent, the punitive damage remedy must be reserved, we think, for cases in which the defendant's conduct amounts to something more than a bare violation justifying compensatory damages[.]”); Sallitt v. Stankus, 720 F.Supp.2d 645, 649 (M.D. Pa. 2010). Punitive damages generally “represent a limited remedy, to be reserved for special circumstances.” Keenan v. City of Philadelphia, 983 F.2d 459, 470 (3d Cir. 1992) (quotation omitted). An award of punitive damages “is necessarily a fact-intensive inquiry.” Katona v. Asure, No. 1:11-CV-1817, 2019 WL 636977, at *3 (M.D. Pa. Feb. 14, 2019) (citing In re Bayside Prison Litigation, 331 Fed.Appx. 987, 992-94 (3d Cir. 2009)).
Here, Plaintiff's allegations regarding Defendant's conduct, which Defendant accepts as true for purposes of this Motion, establish that Defendant violated a clearly established right. Plaintiff further alleges that Defendant Frantz asked Defendant Hinds “‘Did you get him', meaning did Defendant Hinds physically work Plaintiff over. Defendant Hinds responded ‘yeah I got him pretty good' Defendant Frantz replyed, [sic] ‘Okay wait to get away from this area we might get him again for taking us on this chase.'” (Doc. 9, ¶ 19). Plaintiff similarly testified at his deposition. (See Doc. 67-5, pp. 26-27). Defendant does not address this allegation or direct the Court to anything in the record that refutes it. Defendant asserts only that “[t]here is no evidence that Officer Hinds was motivated by an evil motive or that he was recklessly indifferent to Plaintiff's constitutional rights.” (Doc. 68, p. 19). Defendant Hinds maintains that his “conduct was motivated by the legitimate concerns to the safety of himself, other officers, and the public.” Id.
Viewed in the light most favorable to Plaintiff, his deposition testimony and the allegations Defendant concedes for purposes of this Motion suggest the possibility that Defendant acted with “reckless or callous disregard for the plaintiff's rights.” See Savarese, 883 F.2d at 1204; see also, e.g., Katona, No. 1:11-CV-1817, 2019 WL 636977, at *3 (finding award of punitive damages appropriate when defendant was one of last offices to arrive at scene and “kicked [plaintiff] in the ribs while he was already on the floor”). Given the fact-intensive nature of awarding punitive damages, Defendant has not established at this stage that Plaintiff's request for punitive damages should be dismissed.
E. PLAINTIFF'S INTENTIONAL INFLICTION OF EMOTION DISTRESS CLAIM
Defendant argues that Plaintiff's claim of intentional infliction of emotional distress (“IIED”) fails for lack of the expert medical support. (Doc. 68, pp. 20-21).
In Pennsylvania, 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.” Bloom v. Hollibaugh, No. 1:16-CV-01075, 2019 WL 4464092, at *18 (M.D. Pa. Sept. 18, 2019), reconsideration denied, No. 1:16-CV-01075, 2020 WL 3172721 (M.D. Pa. June 15, 2020) (quoting Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997)); see also Brown v. Muhlenberg Twp., 269 F.3d 205, 218 (3d Cir. 2001). But “it has not been enough that the defendant has acted with intent which is tortious or even criminal[] . . . or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.” Landau v. Lamas, No. 3:15-CV-1327, 2019 WL 3521421, at *18 (M.D. Pa. Aug. 1, 2019) (quoting Hoy, 720 A.2d at 754 (citing Restatement (Second) of Torts § 46 cmt. d)).
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.”); Landau, No. 3:15-CV-1327, 2019 WL 3521421, at 19 (“[R]ecovery for IIED is impossible ‘without expert medical confirmation that the plaintiff actually suffered the claimed distress'”) (quoting Kazatsky, 527 A.2d at 995); 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.”). “[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 put forth no such “competent medical evidence to support his claim of severe emotional distress.” See id. I therefore recommend that the Court grant Defendant Hinds' summary judgment as to Plaintiff's IIED claim.
[The following page contains the Recommendation]
VI. RECOMMENDATION
For the reasons described herein, I RECOMMEND THAT:
1. Defendant Patrick Hinds' Motion for Summary Judgment (Doc. 67) be GRANTED in part and DENIED in part as follows:
a. Plaintiff's request for declaratory judgment should be DISMISSED;
b. Plaintiff's claim of intentional infliction of emotional distress should be DISMISSED;
c. Defendant's Motion for Summary Judgement should be DENIED as to Plaintiff's Fourth Amendment Excessive Force Claim; his assault and battery claims, and his request for punitive damages.
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.