503 F.3d 247 (3rd Cir. 2007), 06-3670, Jiminez v. All American Rathskeller, Inc.

Docket Nº:06-3670.
Citation:503 F.3d 247
Party Name:Grace JIMINEZ, as Administratrix of the Estate of Salvador Peter Serrano; Brooke E. Morgan v. ALL AMERICAN RATHSKELLER, INC. d/b/a The Rathskeller Bar; Borough of State College d/b/a State College Police Dept.; Phyllis H. Gentzel, d/b/a The Gentzel Corporation; Bluebird Entertainment Enterprise, d/b/a The Dark Horse; Jason Rosengrant; Ryan Rosengra
Case Date:September 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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503 F.3d 247 (3rd Cir. 2007)

Grace JIMINEZ, as Administratrix of the Estate of Salvador Peter Serrano; Brooke E. Morgan


ALL AMERICAN RATHSKELLER, INC. d/b/a The Rathskeller Bar; Borough of State College d/b/a State College Police Dept.; Phyllis H. Gentzel, d/b/a The Gentzel Corporation; Bluebird Entertainment Enterprise, d/b/a The Dark Horse; Jason Rosengrant; Ryan Rosengrant; Curtis Rosengrant; Colin Haughton; Associated Property Management, Inc., d/b/a Associated Realty Property Management

Grace Jiminez, Appellant.

Submitted Pursuant to Third Circuit

No. 06-3670.

United States Court of Appeals, Third Circuit.

September 21, 2007

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 19, 2007


On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No.: 04-cv-1897, District Judge: The Honorable James F. McClure.

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Louis A. Bove, Marc J. Syken, Bodell, Bove, Grace & Van Horn, P.C. Counsel for Appellants.

John Flounlacker, Esq., Michele J. Thorp, Esq., Thomas, Thomas & Hafer, LLP, Harrisburg, PA, Counsel for Appellee Borough of State College d/b/a State College Police Department.

Joseph P. Green, Lee, Green & Reiter, Bellefonte, PA, Counsel for Appellee Phyllis H. Gentzel d/b/a/ Gentzel Corp.

Harvey Pasternack, Pasternack & associates, State College, PA, Counsel for Appellee Bluebird Entertainment Enterprise d/b/a The Dark Horse.

Before: SLOVITER, SMITH, and GARTH, Circuit Judges.


SMITH, Circuit Judge.

Salvador Peter Serrano died in the early hours of October 26, 2003. Serrano was a student at Pennsylvania State University. Serrano was walking down an alleyway in the Borough of State College near a bar known as the Rathskeller at about 1:30 am with plaintiff Brooke Morgan, Timothy Padalino, and Alison Bresnahan. Padalino stopped in a parking lot behind the Rathskeller to urinate.

At this point, accounts of the incident diverge. The Plaintiffs allege that an altercation began when an unidentified Rathskeller employee observed Padalino and violently forced him to the ground. Jason and Chris Rosengrant, security personnel employed at the Rathskeller, testified that they were informed that a fight was under way in the parking lot. They and several other Rathskeller employees confronted a group in the parking lot that included Serrano, Morgan, Padalino, and Bresnahan. The Rathskeller employees sought to restrain members of the group.

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Chris Rosengrant pulled Serrano to the ground.

According to the Plaintiffs, both Rosengrants were involved in throwing Serrano to the ground. They then held Serrano down and restrained him while Jason Rosengrant pressed his knee into Serrano's back. According to the Rosengrants, Jason approached to assist Chris and placed Serrano's hand behind his back.

Officer Winkelbach of the Borough of State College Police Department ("SCPD") arrived on the scene while Jason Rosengrant was on top of Serrano. Officer Winkelbach testified that Rosengrant appeared to need assistance. Winkelbach began to handcuff Serrano before realizing that he was unresponsive.

Serrano was pronounced dead on arrival at the Centre County Community Hospital. The parties do not dispute that Serrano died of asphyxia. However, the cause has been hotly contested. The Plaintiffs' expert, Dr. Michael Baden, stated that the Rosengrants' weight caused Serrano's death by positional asphyxia. The Defendants' expert, Dr. Gordon Carl Handte, performed an autopsy on Serrano and testified at a related criminal trial that he died from asphyxia by aspiration of vomitus. Dr. Handte concluded that the death was accidental and noted that substantial alcohol intoxication was a contributing factor.

The Plaintiffs Grace Jiminez, administratrix of Serrano's estate, and Morgan, Serrano's fiancee at the time of his death, filed complaints in United States District Court for the Middle District of Pennsylvania on August 25, 2004, which they amended twice. Morgan's complaint was based on injuries she allegedly suffered during the encounter. On September 27, 2005,the District Court granted a motion to dismiss by Bluebird Entertainment Enterprise, d/b/a The Dark Horse. On May 2, 2006, the District Court granted the Plaintiffs' unopposed motion for settlement and dismissed all claims against Phyllis H. Gentzel and Associated Property Management.

On June 2, 2006, the District Court granted summary judgment in favor of the Borough of State College ("State College") and the SCPD on all claims against them. On July 21, 2006, the District Court approved the Plaintiffs' unopposed motion for settlement with the remaining defendants and dismissed all claims against them. The Plaintiffs timely appealed.

The District Court had jurisdiction over this case pursuant to federal question jurisdiction, 28 U.S.C. § 1331, as the Plaintiffs advance claims under 42 U.S.C. § 1983. This Court has appellate jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, applying the same standard that the District Court should have applied. P.N. v. Clementon Bd. of Educ., 442 F.3d 848, 852 (3d Cir. 2006).

The Plaintiffs advance claims under theories of municipal liability, pursuant to Monell v. New York City Department of Social. Services., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and of state-created danger liability.


Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees. See id. Rather, "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." Id. There must be a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation" to ground municipal liability.

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City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

We have previously observed that "[t]here are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983:"

The first is where the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. The second occurs where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself. Finally, a policy or custom may also exist where the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.

Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (internal quotation marks and citations omitted).

We have also observed that a government policy or custom can be established in two ways. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). The Plaintiffs may establish a government policy by showing that a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issued an official statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Plaintiffs may establish that a course of conduct constitutes a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" that they operate as law. Monell, 436 U.S. at 690, 98 S.Ct. 2018. In either instance, the Plaintiffs have the burden of showing that a government policymaker is responsible by action or acquiescence for the policy or custom. Andrews, 895 F.2d at 1480. We have also held that, at a minimum, the government must act with deliberate indifference to the purported constitutional deprivation in order to ground liability. San Filippo v. Bongiovanni, 30 F.3d 424, 445 (3d Cir. 1994).

The Plaintiffs' second amended complaint alleges that the "SCPD engaged in a custom, practice, or policy of directing employees of various liquor licensees in the Borough of State College, including the Rathskeller, to detain and/or restrain persons suspected by the liquor licensee to have violated the law until such time as the SCPD could respond to the scene." The Plaintiffs allege a custom of essentially permitting the liquor licensee employees to act as an "auxiliary police-force" by handcuffing any person restrained by a liquor licensee security employee while taking no action against any security employee involved in the altercation. The complaint argues that this conduct was taken in accordance with official SCPD policy or was so well settled as to have the same practical effect. The record documents a series of incidents involving liquor licensee personnel that the Plaintiffs allege demonstrate this custom.

With regard to the Plaintiffs' Monell claim, the District Court found that "[t]here is no competent evidence that indicates the SCPD directed liquor licensee employees to detain or restrain individuals until the police arrived to effect an arrest," and that "no reasonable jury could find from the evidence that there was a custom of delegation [to the private security personnel]."

The owner of the Rathskeller, Duke Gastiger, testified in a July 12, 2005 deposition that his employees restrained individuals

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for defensive purposes only, and specifically denied that they took actions to prevent persons from leaving the area "so that the police...

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