Broadwater v. Fow

• Decision Date: 14 May 2013
• Docket Number: Civil Action No. 1:12–CV–1937.
• Citation: 945 F.Supp.2d 574
• Parties: Christopher G. BROADWATER, Plaintiff, v. Christian D. FOW, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

945 F.Supp.2d 574

Christopher G. BROADWATER, Plaintiff,

v.Christian D. FOW, et al., Defendants.

Civil Action No. 1:12–CV–1937.

United States District Court, M.D. Pennsylvania.

May 14, 2013.

Devon M. Jacob, Travis S. Weber, Boyle Litigation, Camp Hill, PA, for Plaintiff.

Geoffrey S. McInroy, Matthew Lee Owens, Owens Barcavage & McInroy, LLC, Harrisburg, PA, Christopher P. Boyle, Sr., Joseph J. Santarone, Jr., Marshall Dennehey Warner Coleman & Goggin, King of Prussia, PA, A. Bryan Campbell, The Law Office of Bryan Campbell, Esquire, Eric C. Stoltenberg, Lightman Welby & Stoltenberg, Pittsburgh, PA, for Defendants.

MEMORANDUM

CHRISTOPHER C. CONNER, District Judge.

Presently before the court are three motions to dismiss, filed by defendants Clifford Jobe, Jr. (Doc. 5), Christian Fow (Doc. 30), and the remaining defendants, Commonwealth of Pennsylvania, Pennsylvania State Police, Nathan Swink, Ralph Hockenberry, and David Rush (Doc. 12). For the reasons that follow, the court will deny the motions (Docs. 12, 30) to dismiss Count I of the complaint, except the court will dismiss any potential claim based on allegations of an unlawful arrest. The court will grant Clifford Jobe's motion (Doc. 5) to dismiss Count II. The court will deny the Commonwealth of Pennsylvania and the Pennsylvania State Police's motion (Doc. 12) to dismiss Count III of the complaint. Additionally, the court will order plaintiff to show cause why the action against defendants “John Does 1–5” should not be dismissed for failure to serve the summons and complaint within 120 days pursuant to Federal Rule of Civil Procedure 4(m).

I. Background¹

This case arises out of an incident that occurred between plaintiff Christopher Broadwater (“Broadwater”) and members of the Pennsylvania State Police (“PSP”). On the evening of September 29, 2010, a nurse from Humana Insurance Company contacted the PSP and explained that she worked for a service that called people monthly to check on their welfare. (Doc. 1 ¶ 14). The nurse stated that while speaking with Broadwater, he threatened violence against another individual. ( Id. ¶ 15). She advised that Broadwater suffered from manic depression and was potentially dangerous. ( Id. ¶ 16). The nurse opined that the threats were sufficient for the PSP to bring Broadwater to a hospital for an involuntary evaluation, pursuant to 50 P.S. § 7302, but that a warrant had not yet been issued in compliance with the statute. ( Id. ¶ 20).

Christian Fow (“Fow”), a corporal with the PSP, directed troopers to respond to Broadwater's residence and check on his welfare. ( Id. ¶¶ 18, 19). Fow directed troopers that “Mr. Broadwater was to come voluntarily or involuntarily.” ( Id. ¶ 21). Troopers Nathan Swink (“Swink”), Ralph Hockenberry (“Hockenberry”), and Nathan Drayer reported to Broadwater's residence. ( Id. ¶¶ 23, 25).

Broadwater spoke with the troopers on his porch and, after some discussion, Broadwater agreed to go with the troopers to the hospital after he put his dogs inside the home. ( Id. ¶¶ 24–28). Broadwater coaxed his dogs back in his residence and closed his front door. ( Id. ¶ 29). When Broadwater turned to leave with the troopers, Swink allegedly deployed the prongs of his taser into Broadwater's chest. ( Id. ¶ 30). According to the complaint, the shock from the taser caused Broadwater to crash into his front door, and fall in the threshold of his home. ( Id. ¶ 31). Broadwater purportedly removed the prongs from his chest, reentered his home, and closed the door. ( Id. ¶ 32). Hockenberry kicked Broadwater's front door open and, together with Swink, pulled Broadwater back onto the porch. ( Id. ¶ 39). Hockenberry and Swink handcuffed Broadwater's hands together behind his back and placed him in the rear of Swink's patrol vehicle. ( Id. ¶¶ 40, 42). Broadwater alleges that the troopers were fully aware that Broadwater had prior shoulder and wrist surgeries, and that he suffered residual infirmities. ( Id. ¶ 40). Broadwater remained handcuffed in the back seat for approximately 30 minutes. ( Id. ¶ 47). During this time, Fow and David Rush (“Rush”), a PSP criminal investigator, separately responded to the scene. ( Id. ¶¶ 45, 47, 55). While enroute, Fow referred to Broadwater as a “retard” on the police radio. ( Id. ¶ 46). When Rush arrived, Fow directed Swink, Hockenberry, and Rush to enter Broadwater's residence so Swink and Hockenberry could show Rush the location of the events in question. ( Id. ¶ 55).

Meanwhile, Broadwater moved around in the back of the patrol car and complained repeatedly about the pain caused by the handcuffs. ( Id. ¶ 49). The handcuffs were not properly affixed, and gradually tightened as the result of Broadwater's movements. ( Id. ¶ 48). Fow allegedly advised Broadwater that the troopers would “hogtie” him if he continued to try to escape from the handcuffs. ( Id. ¶ 51). Broadwater explained to Fow that he was moving around because he was in pain, not because he wished to remove the handcuffs. ( Id. ¶ 52). According to the complaint, Fow never checked the handcuffs to ensure that Broadwater was properly restrained. ( Id. ¶ 53). Broadwater also never displayed any actions evincing an attempt to escape the patrol car. ( Id. ¶ 50).

As a result of Broadwater's complaints, Fow purportedly opened the patrol vehicle door and pepper sprayed the already restrained Broadwater. ( Id. ¶ 61). Fow then allegedly struck Broadwater multiple times in the face, stating, “Stop fucking with the fucking handcuffs. I am not going to ask you again. You understand?” ( Id. ¶ 62). Broadwater immediately experienced severe pain, fear, a difficulty in breathing, temporary blindness, and deep lacerations to his face. ( Id. ¶ 63). Blood poured from his face. ( Id. ¶ 65). Less than a minute later, Broadwater released his seatbelt and rolled out of the open door headfirst onto the grass next to the patrol vehicle. ( Id. ¶ 66).

While Broadwater was lying on the grass facedown, Fow allegedly put his knees on top of him, grabbed his hair, and repeatedly punched him in the face. ( Id. ¶ 55). Fow then instructed Swink to taser Broadwater. ( Id. ¶ 77). Hockenberry and Rush observed the beating, which lasted for approximately two minutes. ( Id. ¶¶ 78, 79). Thereafter, Swink transported Broadwater to the hospital, where he received numerous stitches to repair his facial wounds. ( Id. ¶¶ 80, 82). Swink then transported him to jail. ( Id. ¶ 84).

Rush charged Broadwater with the following crimes: aggravated assault, simple assault, criminal attempt to escape, and resisting arrest. ( Id. ¶ 100). The criminal attempt to escape and aggravated assault charges were withdrawn. ( Id. ¶ 101). Broadwater entered a nolo contendere plea on the simple assault and resisting arrest charges and was sentenced to probation. ( Id. ¶ 102).

As a supervisor, Fow is obligated to prepare a Significant Action Report (“SAR”), which is a summary of the shift's events sent to the station command staff. ( Id. ¶ 89). In the SAR for the evening in question, Fow referred to Broadwater as “Mr. Crazy.” ( Id. ¶ 90). He further wrote, “Cpl. Julock just delivered the criminal complaint to H–1 for this guy. Julock reports they are currently inserting a catheter into our crazy dude because he can't pee. You can hear the yelling in the lobby. (Karma).” ( Id. ¶ 91).

As a result of the incident, the Office of the Attorney General for the Commonwealth of Pennsylvania filed criminal charges against Fow. ( Id. at 1). Clifford Jobe (“Jobe”), a retired Commander of the PSP, testified at Fow's jury trial as an expert witness. ( Id. ¶ 107) He testified that Fow's actions were consistent with the PSP's policies and the law. ( Id. ¶¶ 107, 108, 109). Fow was acquitted. ( Id. at 2).

Broadwater filed the instant complaint on September 27, 2012. In Count I, Broadwater alleges that Fow, Swink, Hockenberry, and Rush are liable pursuant to 42 U.S.C. § 1983 because they violated his Fourth Amendment rights against unlawful search and excessive force. (Doc. 1 ¶¶ 115–125). In Count II, Broadwater asserts a claim of supervisory liability pursuant to § 1983 against Jobe and “John Does 1–5.” ² (Doc. 1 ¶¶ 126–134). In Count III, Broadwater alleges that the Commonwealth of Pennsylvania (“the Commonwealth”) and the PSP violated Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (“ADA”), and § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“ § 504”). (Doc. 1 ¶¶ 135–148).

On December 11, 2012, Jobe filed a motion to dismiss Count II of the complaint.³ (Doc. 5). On December 12, 2012, the Commonwealth, PSP, Swink, Hockenberry, and Rush filed a motion to dismiss Counts I and III. (Doc. 12). On February 18, 2013, Fow filed a motion to dismiss Count I of the complaint. (Doc. 30). The motions are fully briefed and ripe for disposition.

II. Legal Standard

When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine, whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). In addition to reviewing the facts contained in the complaint, the court may also consider exhibits attached to the complaint and matters of public record. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).

To test the sufficiency of the complaint, the court must conduct a three-step inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130–31 (3d Cir.2010). In the first step, “the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Next, the factual and legal elements of a claim should be separated; well-pleaded facts...